Improper Credibility Bolstering Testimony, Video Clip Evidence Wipe Out Sexual Misconduct Conviction

A sexual misconduct conviction was thrown out by the 2d District Court of Appeal recently because the accused man did not receive a fair trial. The man’s appellate counsel argued successfully that the trial court should not have allowed a police officer and the alleged victim’s teacher to testify about the girl’s credibility, and it should not have allowed the prosecution to play a movie clip that would tend to create improper prejudice in the minds of the jurors.

Henry Keith Cavaliere was on trial for sexual misconduct with an underage girl. The alleged crime came to light when the girl disclosed the molestation to a friend after the two watched a movie about an online sexual predator. The girl subsequently told her teacher about the contact, and later a police officer interviewed her about the incident.

At trial, the state called both the teacher and the officer to testify about their interactions with the girl. The police detective testified that he was trained in kinesics, which is the interpretation of body movements, facial gestures, and other nonverbal behavior. The detective testified that, based upon his dealings with the girl and his training in kinesics, the girl was being truthful when she told her story regarding the sexual misconduct. The girl’s teacher’s testimony about the girl’s behavior also tended to bolster the girl’s credibility.

At trial, the state also showed a clip lasting several minutes in length of the movie the girl had watched with her friend. In the segment that the jury viewed, a girl encountered an older man via the internet. The man made sexual advances toward the girl and, although not shown in the clip, the clip’s context clearly appeared to portray that the man had non-consensual sexual contact with the girl.

Cavaliere was convicted, but the 2d District Court of Appeal ruled in his favor on appeal. Cavaliere’s trial suffered from several fatal flaws. First, the trial court allowed the state to bolster the alleged victim’s testimony improperly. In cases such as Cavaliere’s, when the outcome turns largely upon the jury’s assessment of whether or not the alleged victim was telling the truth, the sort of bolstering that the teacher’s and detective’s testimony constituted was improperly admitted and that error was sufficiently harmful to require that Cavaliere receive a new trial. The court explained that part of the jury’s task was deciding the credibility of witnesses. When the teacher and police officer vouched for the girl’s truthfulness, that task was taken away from the jury.

Although the admission of the improper bolstering testimony alone would have been enough to throw out the conviction and order a new trial, the appeals court also discussed the movie clip evidence. While the movie clip was relevant, since the movie was the spark for the girl’s coming forward, introducing the clip was unnecessary, since the state could have simply obtained testimony from the girl that she watched the film and that it inspired her to speak up. Since the clip depicted a “dissimilar predatory sexual battery” of a young girl, in order to prove a non-central aspect of the case, its probative value was very low and the chances of improperly prejudicing the jury were very high, and the trial court should not have allowed it into evidence.

Jurors are human, and sometimes their emotions can be stoked by the evidence presented to them. That’s why the law bars evidence more likely to prejudice the jury than to establish something of probative value in the case. The difference between conviction and acquittal can often be whether or not your trial consists only of proper evidence against you.

Supreme Court Rejects Police’s Mining Suspected Drug Dealer’s Cell Phone Location Information Without a Warrant

On the heels of this summer’s landmark privacy ruling in Riley v. California, the Florida Supreme Court issued an important ruling last month that strikes a blow not just for the accused but for the privacy of all Floridians. The court’s decision threw out certain cell-phone evidence against an accused drug dealer because the law enforcement officers did not have a warrant when they seized the information. Many legal authorities have hailed the ruling as an important step in the right direction regarding digital privacy.

Shawn Alvin Tracey was suspected of trafficking drugs after a confidential informant stated that Tracey had obtained a large quantity of cocaine in Broward County that he intended to sell in southwest Florida. Officers secured an order that permitted them to obtain a record of Tracey’s incoming and outgoing calls from his cell service provider. Without obtaining an additional warrant, the officers used the real-time site location information, which was also disclosed by the cell service provider, to track Tracey. Using this information, officers were able to modify their target search location and eventually arrested Tracey in an SUV in Broward County.

At trial, Tracey moved to suppress the evidence that the officers had found in the SUV, including a kilogram of cocaine and $23,000 in cash, arguing that it was the result of the illegal seizure of his cell phone location information. The trial court rejected that request, and Tracey was convicted. The 4th District Court of Appeal upheld that decision and Tracey’s conviction.

The Florida Supreme Court, however, came down differently. The majority of the court expressly rejected the argument, made in some cases, that a cell phone user implicitly consents to law enforcement’s seizing his or her wireless location information solely because users know or should be aware that cell phones give off location signals that the provider uses to route calls and that certain phone apps use in order to function. Just because the user permits an app to use his or her location does not mean that he or she is consenting to the use of his or her location information for any and all purposes.

The court also rejected the argument that users can choose to maintain their privacy by powering off their phones. “Requiring a cell phone user to turn off the cell phone just to assure privacy from governmental intrusion … places an unreasonable burden on the user,” given how necessary the devices have become for the lives of many. In fact, it was the ubiquitousness of modern cell phones that led the court to point out another problem with allowing such warrantless searches and seizures to stand. Since “cell phones are indispensable to so many people and are normally carried on one’s person, cell phone tracking can easily invade the right to privacy in one’s home or other private areas, a matter that … is clearly a Fourth Amendment violation,” the court pointed out.

In sum, allowing such a warrantless seizure as the police performed in Tracey’s case would open the door to many potential risks and harms with regard to the Constitution’s privacy protections, while on the other hand “it is not an insurmountable task for the government to obtain a warrant based on probable cause when such tracking is truly justified.”

Police use many creative and novel techniques to pursue suspects. Some of these methods are constitutional, but other times they cross the line. If you or a loved one has been accused of a crime, contact the Clearwater criminal defense attorneys. Our experienced and aggressive attorneys will work diligently to make sure that you get a fair trial by facing only the evidence the police secured by legal means.

Florida DUI – Is the Breath Test Accurate

Florida law enforcement agencies use a breath testing device called the Intoxilyzer 8000 to measure an arrested person’s blood alcohol concentration and secure evidence to convict citizens of DUI. Does this small machine accurately measure how drunk you are? Why is it supposed to be more accurate than the machine previously used, the Intoxilyzer 5000? Was that machine accurate if it was replaced?

The science behind breath testing offers insight into the shortcomings of the breath testing machine.  Issues such as the following:

Did my partition ratio differ from the 2100:1 standard used in the Intoxilyzer 8000’s software?

Was there another chemical in my breath which the machine misread as alcohol? (the Intoxilyzer does not measure the ethyl alcohol but molecules in the methyl group)

Was my body temperature elevated? (a 1% elevation could cause a 8% increase in the breath result).

The following video clip is interesting. Defense attorneys have known of this defect in the Intoxilyzer machine for years (positive alcohol reading after eating bread), and manufacturers of the device certainly have a scientific reply for why this result doesn’t prove that the machine is inaccurate.  However, the fact that bread is causing the instrument to show an alcohol reading makes you wonder how accurately the software inside this machine is reading alcohol results that lead to convictions.

St. Petersburg Florida, mayoral candidate has clean driving record

In an article yesterday from the St. Petersburg Times, it seems that St. Petersburg mayoral candidate Deveron Gibbon’s does have a clean driving record. The paper printed it wrong in an article from Sunday’s paper.

I personally have my own issues with the Times and their lack of fact checking as well as their one sided approach to journalism. But the July 8, 2009 article brings up a good point: Driving records received from either the Clerk of Court, or the Florida Department of Highway Safety and Motor Vehicles are often incorrect or misleading. Which causes problems for people when they apply for jobs, get background checks, or ultimately have their licenses suspended based on incorrect information. Click here for correct information.

What should you do about it? Check your driver’s license regularly at the DHSMV website and if you think the information is wrong, call us. We can’t guarantee we can fix it, but our motto is: “the fix it firm.”

DUI and Administrative Review Hearings – Florida DMV

When someone gets a DUI, after they get over the initial shock of being arrested and going to jail, the next real problem is their driver’s license. The ticket you get when you get arrested for DUI is only good for 10 days of driving. (They take your driver’s license when you get arrested, at least they’re supposed to.)

In order to keep your driver’s license, at least for the next 30 or so days, you must file for a formal or informal review with the Bureau of Administrative Review. Any good attorney will do this automatically if you hire them within the first few days after you are arrested.

Note that the administrative hearing, and the loss of your DL through DMV is entirely separate from the criminal process of a DUI. You can beat the DUI in criminal court, but still lose your DL through DMV. But if you win the administrative hearing, it’s often easier to get the criminal part of the DUI reduced. What this accomplishes is you keep your DL and your insurance doesn’t skyrocket like it would with a DUI conviction. Keep in mind that DUI’s are not seal-able or expunge-able so the arrest and conviction will always be on your record.

Daniel Pawuk, has a ton of experience with administrative hearings, and has recently been incredibly successful in winning them. Last week he won one on a very narrow area of the law which many experienced lawyers may have missed.

DUI on a Bicycle – Seriously?

An often joked about fact of DUI law is that you can get a DUI on a bicycle. Although it doesn’t happen very often it can. How one gets stopped on a bicycle, is beyond me. A common way for the police to harass people is to stop them for not having a light on their bicycle at night. Perhaps then the cop smells alcohol, it’s a slow night for him, and he arrests the person for DUI. DUI arrests take a police officer about 3- 4 hours. They have to give field sobriety test, ask a slew of questions, take the person to a breath test facility, wait 20 minutes, then give two tests – after all of that, there’s paperwork, then transport to the jail and then they have to book them into the jail. Seems like alot of work for a drunk on a bike.

What are the criminal sanctions for a Bicycle DUI?  Believe it or not – the same as for a DUI in a car.  Pursuant to the Florida Statutes, a judge MUST revoke a persons driving privilege for six months, when they are found guilty of DUI in ANY VEHICLE. Florida law defines a bicycle as a vehicle.

I suppose this applies to riding a tractor, go cart, scooter, etc. It’s got to be really slow out there for the police.

If you are arrested for any type of DUI, call us. An experienced attorney at www.tabbaalaw.com is often less expensive than the fines and costs and loss of driver’s license that come with a DUI conviction.

Pasco County, FL: Refuse to Prosecute

A fact the average citizen doesn’t know is that ALOT of crime victims do not want to prosecute. This includes all kinds of crimes, not just domestic violence.

A little known fact of most crime victims, is that the State Attorney can prosecute whether or not the victim wants to prosecute. Although the State Attorney considers the victim’s wishes, the State Attorney ultimately makes the final call on what gets prosecuted or not. And if they have enough other evidence without the victim’s statement, they WILL prosecute.

There is an after hours club on US 19 in New Port Richey called Club Inferno where a man was shot last weekend at 4AM. (See Tampa Bay Times article of October 31, 2012) Not surprising to me, the man does not wish to prosecute and is not cooperating with the investigation. Why not? There could be any number of reasons, and not knowing him, I don’t know his exact reasons – however – here are a few of the most common reasons victims don’t want to prosecute:

  1. Never, ever, ever talk to the police – they can’t be trusted.
  2. Never snitch – It’s a code of life for many people which seems to have been forgotten once they get into the Pasco County Jail.
  3. Karma: What comes around goes around. Whoever shot him is bound to end up the victim of a shooting, or worse, later in life.

So what happens to the guy who shot him if the victim refuses to prosecute? Someone else who was there and saw what happened will tell – not because it’s the right thing to do, but because they need a way out of their own crimes. Police cooperation, like becoming an informant, is the easiest way out of a crime. For assisting the police, they will get a lighter sentence. And the Pasco County Sheriff’s Office will find the shooter, arrest him and then waste everyone’s time and tax dollars trying to prosecute him. All this when the victim doesn’t care and anyone in a club like that at 4 AM doesn’t either. Also if you need any advocacy about tax, Morgan Sebastian tax resolution attorney is here to help.

Getting Florida Criminal Charges Dropped: No Information, Nol Pros and Dismissal

Because I couldn’t fit anything else in the file cabinets, I decided to get rid of all of the closed and old files. As I was shredding the files, I realized how many of our clients get their charges dropped, either before they ever go to court, or after formal charges have been filed. When I look back over the past 8 years, I remember the really difficult case and clients. But the majority of our clients, whose names and cases I had forgotten, get their charges dropped. Most of our clients come from referrals, we don’t do any marketing other than this blog and our website. So I would guess, one of the reasons we’re able to limit our advertising is because people get such good results when they hire us, and they tell two friends and they tell two friends, and they tell two friends.

What’s the difference between these terms in a criminal case?

No Information – means formal charges were never filed – the person may have been arrested but the State Attorney decided not to file formal charges.

Nol Pros – or more correctly Nolle Prosequi – means there were formal charges filed, but the State Attorney has decided to drop those charges.

In both a No Info and a Nol Pros, you are probably eligible for expunging the record if this is your first offense.

A dismissal occurs when formal charges have been filed, but you have entered into a modified probation – usually pre-trial intervention, and once completed, the charges are dismissed. If the charges are dismissed, you may be eligible for expunging, but are most likely eligible for sealing.

How do you get your charge dropped or dismissed? Call us – although we won’t guarantee it, it happens to a lot of my clients!

Early Termination of Probation Tampa Florida

Let’s face it, Felony Probation is tough. From the stories I hear, I’m not sure even I could make it. Sex offender probation is even tougher. No contact with children, curfew, limitations on driving, places you can be, computer use, and random checks by probation officers.

Therefore, if you have made it halfway through  you probation, you might be eligible for early termination. Unless, as part of your plea, the State Attorney, judge, and you, agreed to no early termination.

In the infamous case of Debra LaFave, the Tampa school teacher who admitted to having sex with a 14 year old boy, the agreement was no early termination. But a recently retired Tampa Circuit Court Judge, ignored the agreement and let her off probation early. The State appealed his decision and the 2nd DCA agreed. The DCA said the judge’s ruling was an abuse of discretion by the trial judge and overturned his ruling – thus reinstating her probation. Not surprisingly, her attorney has asked for a rehearing, which effectively stays the DCA ruling until the rehearing. So as of today, she’s not on probation but could be again if the DCA continues to rule against her.

If you think you’re eligible for early termination of probation- call us. We will give you our honest opinion as to your chances – for free.

Florida Sealing/Expunging Criminal Records

If I had a dollar for every call I’ve gotten over the years for people who want to cover their criminal tracks, I’d be rich. Unfortunately, it’s not as easy as it seems to seal or expunge your Florida criminal records. First of all, there’s a difference between sealing and expunging.

Sealing merely means that the record becomes confidential and cannot be disclosed to the public. It’s still physically there as are the fingerprints.

Expunging means that the file is physically obliterated and destroyed and can not be disclosed to the public.

In either case, if you apply for admission to the Florida Bar, Department of Children and Families, for a firearm permit, or certain other professions, even if your record has been sealed or expunged, you still must admit to it.

However, in most professions, you do not have to answer the question which asks about your prior criminal record with a yes. Which is what most people want and the reason they hire lawyers to have their records expunged or sealed.

Additionally, if you are ever again prosecuted for a crime, and someone asks you about your prior criminal history you must admit to it.