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Articles Posted in Battery

hospital.jpgRude behavior is everywhere these days. I wish things were different, and such changes start with me, but I’ll save you my broadway renditions of ‘the man in the mirror’ and ‘I’d like to teach the world to sing’.

Before we delve into the legal analysis of the day, let me mention one of my many brushes with rudeness. Years ago, I had a police officer yelling at me while his face was only three inches from mine. Kind of a Full Metal Jacket marine drill instructor moment. Yes, he was invading my personal space. But the worst part about it is the fact that–basically–he was spitting in my face. I scrubbed my face for hours (it seemed) then found a black light to make sure there was no DNA in hard to reach places. Anyway, I know you could care less about my problems, so let’s move on to the case of the day, involving the same type of battery for which I was not permitted to file charges.

In Spurgeon v. State, 114 So. 3d 1042 (5th DCA 2013), Spurgeon was convicted of battery on an emergency medical care provider for spitting in the face of a hospital security officer (essentially, an aggravated battery of sorts). Spurgeon had to be restrained by South Seminole Hospital’s security several times due to his aggressive behavior (may have been intoxicated). In some odd way, he agreed to be restrained the first couple of times, and then calmed down. But after calming down, he decided to leave the hospital (who wants to pay those high ER bills, anyway?). This time, the hospital threw four security guards in his way, and Spurgeon spat in one of their faces.
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fight kick.jpgEvery criminal defense attorney runs into this issue at one time or another–an alleged victim to a domestic violence battery that decides to “not” press charges. Now, we all know that it’s not really the alleged victim’s decision to press charges–the State of Florida that decides whether or not to file a criminal law suit against a defendant. However, some prosecutors, in their zeal to bolster conviction stats, may attempt to prosecute a battery case without a victim. What, you say? Am I speaking of prosecutors in China, or the good old U.S. of A? Sorry to say, I’m talking about Orlando, Sanford, Kissimmee, all over the State of Florida prosecutors are attempting to convict citizens without a victim in the courtroom. Can it be done? Let’s see.

The case is Holborough v. State of Florida, 103 So.3d 221 (Fla. 4th DCA 2012). Holborough was convicted at trial of felony battery. Felony battery in this case was simply a misdemeanor battery with one prior conviction for misdemeanor battery. In Orlando, we call this “Battery – Prior Conviction”, but it’s the same idea statewide. Anyway, Holborough was seen by a police officer “straddling a woman who was face down and covering her face…repeatedly hitting the woman.” Id. at 222. Holborough was initially arrested for domestic violence battery, but it was later upgraded to a felony charge once the prosecutors found a prior misdemeanor battery conviction.

News flash: some prosecutors just love when they have an “independent witness” to a battery charge. Why? Because typically, their alleged victims fail to appear for trial on domestic violence cases, so having an independent witness gives the prosecution a false sense of security that, maybe, they’ll be able to prove the case without a victim. Not so fast. Watch how this plays out.
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mathematics.jpgEver been under a lot of pressure and emotion, so much so that you said something you shouldn’t have said? It happens.

What happens when a couple’s night of drinking turns ugly? Ever known an ugly, mean drunk? They exist, believe me. To see what happens when we bring two such people together, take a look at the equations below:

[alcohol] + [arguing] + [anger] = [arrest]

Or, how about this equally valid equation:

[early morning hours] + [yelling and screaming] = [neighbors calling police] = [arrest]

As our community caretakers, the police are in an awful position, as they can’t leave the drunk couple together, for fear of escalating troubles. Most police departments have a policy of taking someone–anyone–to jail just to separate and cool off the situation. Thus, the police find a reason to arrest either the man, or the woman, and make a domestic violence battery case out of the situation.

However, once the tempers calm down, and the alcohol metabolizes, some folks regret their drunken sworn statements to police.

In the midst of an often emotional, alcohol soaked domestic dispute, cops fight hard to get a “sworn” statement from an alleged victim of domestic violence battery. Once clearheaded, can the sober witness now tell the truth of the evening’s events without fear of perjury or an arrest for filing a false police report? If they do, this is what we call “recantation”.

When an alleged victim of domestic violence decides to “recant”, this can spell trouble for the prosecution. Why? Because the prosecution may be barred from calling the alleged victim as a witness. A recantation may limit the alleged victim to testifying only about the “new story”. Prosecutors are not permitted to call the alleged victim merely to impeach her about what she initially told the police when they know the story has changed. But, the prosecution will attempt to admit the prior statement as a “past recollection recorded”. Such a move is often considered abusive where the state has been put on notice that their victim has recanted (and, that’s why it’s so important for you criminal defense attorneys out there to file a Motion in Limine & Motion to Exclude the victim as a witness, etc. etc.).
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broom.jpgSo, the question for the day is a simple one: can a broomstick be a deadly weapon? Well, of course it can, in the hands of a kung fu master like Bruce Lee. Apparently, Bruce Lee can kill with a feather. But, if Bruce Lee is the standard–everything on earth is a deadly weapon. But in real life, the courts have applied a different standard. Let’s take a look.

In Brevard County, Brandon Brown was convicted of aggravated battery with a deadly weapon. You lawyers out there know that the bad thing about aggravated battery is that it is a level seven (7) offense, scoring 56 points on a score sheet (any score above 44 points translates into a mandatory prison sentence, ouch). Brown appealed his conviction for aggravated battery, in Brown v. State, 86 So.3d 569 (Fla. 5th DCA 2012). Here’s what happened.

Brown is alleged to have used to “hollow, flimsy, plastic broomstick” to batter his former girlfriend. She sustained no injuries, though did testify that the hits were very painful. In the middle of the jury trial, Brown’s defense attorney asked the judge to dismiss the aggravated battery charge because the prosecutor never introduced into evidence the broomsticks–not even photographs, and further argued that the broomsticks did not meet the definition of “deadly weapon”. For some unknown reason, the judge denied the defense lawyer’s motion to dismiss. After the judge denied Brown a dismissal, Brown took the stand and testified to battering the victim with the plastic broomsticks. Brown’s defense attorney again moved for dismissal. Again, denied.
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hand_on_a_bible.jpgWe’re continuing our series on Violations of Probation (VOP). It’s in the air here in Orlando, so why fight it? The focus today is on the money making mandatory counseling sessions that come along with some probation sentences.

“Any recommended treatment or counseling” is a common phrase used by judges, and it translates: “you’re about to pay a boat load of money, and time, to some counseling program that has no real incentive to release you”. Imagine being in a business where you can dictate how long a citizen must continue to make monthly payments to your company–or they go to jail! Sounds like the business model of Big Pharmaceutical companies that would rather have patients on a monthly pill popping program than find a cure.

Don’t get me wrong. Many defendants need counseling. Many human beings need counseling. But, every single DUI conviction comes with alcohol treatment and counseling–even if no alcohol was found in the person’s system! Does that even make sense? No, but it makes money. Yes, we need to help the defendants that truly have an addiction, and find a way to weed out those who don’t.

For example, every person convicted of domestic violence battery must attend and complete a batterers intervention program. No problems there, right? Wrong. This program requires the ‘participant’ to admit to having battered another human being. Participation requires an admission of guilt. That’s when a probationer is faced with the decision to simply lie and complete the treatment–or tell the truth and be terminated from the treatment. Of course, termination from treatment will then violate probation, and a probation violation carries an arrest plus jail or prison time. So, what do you do?

Let’s rewind to see what gets a person into a treatment program in the first place. For many, a crime was committed and they’re paying the price. However, not everyone who enters a plea is guilty. Many folks chose to enter a no contest plea rather than risk losing everything after a trial. For those of you who don’t know, the increase in mandatory minimum sentences (especially for trafficking in oxycodone cases) has made it more common for innocent defendants to enter a plea rather than risk mandatory prison time over $50 worth of pills.

The problem is, that the “treatment” program that comes along with a guilty plea also requires an admission of guilt. So, if a defendant doesn’t want to risk mandatory jail on a domestic battery charge, a guilty plea will require counseling. But, the batterers intervention counseling program requires an admission that, yes, you have beaten your wife/girlfriend/etc. if you tell the truth–that you are innocent and simply entered a plea so as to not lose your job/home/sanity–they’ll terminate the treatment and that termination will send you to jail on a violation of probation!? A classic Catch 22. It happens more often than you think. Let’s take a look at a few cases in which the defendant’s stood up to the treatment programs, told the truth, and were sent to jail.
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punch3.jpgOrlando sees it’s fair share of battery arrests. It’s sad, really (especially those teenagers videotaping gang beatings–what is this world coming to?). But to make matters worse, prosecutors tend to overcharge fights, erring on the side of charging Aggravated Battery Causing Great Bodily Harm, rather than charging the lower offense of misdemeanor battery. So, where do we draw the line in determining what type of injury constitutes a misdemeanor battery, and what type of injury is “great bodily harm?” Let’s dig right in….

Our focus today is the recent case of Gordon v. State, 2011 WL 6016913 (Fla. 3rd DCA 2011). Gordon was convicted after trial of attempted second-degree murder and aggravated battery, he was accused of hitting his girlfriend with his hand and with a belt, causing bruises on her body. His girlfriend did not seek medical treatment, and the bruises eventually healed. Is this “great bodily harm?”
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punch.jpgSome would say that you haven’t lived until you’ve been punched in the face. Well, then let me continue “not living”….But if you feel the urge to punch “someone” in the face, maybe it shouldn’t be the same person that is defending your life. Just a suggestion.

Our case de jour is Jones v. State, 36 F.L.W. D1980 (Fla. 4th DCA 2011). Jones was sentenced to life in prison for sexual battery against a six year old girl. Naturally, Jones blamed his lawyer for the sentence, and filed a 3.850 ineffective assistance of counsel claim against him. The beauty of a 3.850 claim is that, if granted, the sentence is overturned and the case starts over. Actually, the court hearing Jone’s motion had noted that Jones filed “excessive postconviction motions” and “raised many repetitive, meritless, and frivolous claims.” Id. One such claim was the fact that, if the defendant had testified at trial, “he would have testified regarding a sexually-transmitted disease he had acquired in the past and that the victim would have gotten this disease if he had committed the acts.” Id.

Jones tried to fire his appointed lawyer in the middle of the hearing, but was denied. So, the defendant “summoned his postconviction counsel to his side under the pretense that he wanted to speak with him. Appellant then struck counsel in the face with a closed fist. Appellant was subdued by deputies and removed from the courtroom. The evidentiary hearing proceeded with his court-appointed postconviction counsel and without appellant.” Jones had a smart judge that was not falling for the courtroom antics.
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jail wire.jpgIt seems as though sex offenders should officially be labeled as “the least of our brothers”, for those of you with a Christian viewpoint. Think about it–they’re the lepers of modern society. Sex offenders cannot live in most places due to residential restrictions, even though they’ve finished their sentence entirely! As if the problems of a sex offender conviction are not enough, it now appears as though these folks are not getting a fair trial on the front end. Here’s a case in point.

Recently, Mr. Yosvani Torres was charged with sexual battery in Torres v. State of Florida, 2011 WL 148322 (Fla. 3rd DCA 2011, 1/19/11), and the trial judge allowed the state to present “Williams Rule evidence” of Mr. Torres allegedly touching the breasts and vagina of another person back in 1998 (even though charges were never filed). To add insult to injury, the trial judge also allowed this witness (now age 20) to testify about the emotional impact of this alleged episode of 13+ years prior. Just to give some perspective here, remember that emotional impact testimony is reserved for the sentencing phase of a trial, this type of testimony has no business being introduced to show that an accused is ‘guilty’. Unfortunately, that’s exactly what happen. The appellate court upheld the trial court’s decision to allow the victim impact testimony–but not without some harsh words from dissenting Judge J. Ramirez.
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