Lake Legal News #23

Lake Legal News A Quarterly Magazine

Issue No. 23

Lake County's Most ‘Hypnotic’ Trial...

p. 30 Also: Secrets Of The Gaylord Manor...

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Meet A Prosecutor:

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The farms of Minnesota never held the same allure as the courtrooms of Florida for A.S.A. Jonathan Olson.

10.

Fe at ure: The firm of Gaylord & Rogers in

18.

Quick-Read:

22.

Special Reprint: Sadly, we mark the

26.

Humor's Last Stand: Some hand-

Eustis, Florida, occupies Frank Gaylord's historic childhood home (and father's old law off ice).

Can an ordinary trailer hitch ‘unlawfully obscure’ your Florida license tag? Sound bananas? Read this and weep! death of Assistant Fire Chief Jack Fillman by reprinting our LLN profile from November, 2011. picked humor from the finest batch of cartoons available. (Licensed, by the way, not stolen!)

PHOTO: Bonnie Whicher

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La ke 30.

Legal News Issue No. 23

Preston Crum Jr.'s murder conviction in Lake County, Florida, sent him to prison for life—where he died. It was ‘hypnotically enhanced testimony’ that set his jury trial apart.

40.

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42.

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Teen Court Report: Get

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54.

Community Cork Boa rd: A

56.

Last Rol l Of Fi lm: ‘Around town’

Attorney Zachary McCormick, of Tavares, Florida, helps clients set up firearms trusts, so we ask him about them...

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Ma i n Fe at u re:

42

updates and an insider's perspective on local Teen Court events from teenage-reporter Connor Jenkins.

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Author, radio talk show host and syndicated book reviewer Gary S. Roen shares his book reviews with Lake Legal News.

Newsworthy happenings from the civil and criminal arena, with a local emphasis.

48

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Lake

Legal News

Publisher / Executive Editor James Hope, J.D. Website:

www.AttorneyJamesHope.com

Associate Editor Marilyn M. Aciego Contact:

LakeLegalMarilyn@Gmail.com

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Contributing Authors Zachary J. McCormick, J.D. Gary S. Roen Connor Jenkins

All contents 漏 2015 by James Hope D/B/A Lake Legal News. All rights reserved. Printed in the United States of America. Nothing may be reproduced in whole or in part without written permission from the publisher. Lake Legal News is not responsible for the contents, products, or services represented in any advertisements.

Statements and opinions expressed in this publication are those of the authors and are not necessarily those of Lake Legal News or its staff.

Any advice contained within this publication is general in nature, and is not intended to be relied upon in lieu of an actual consultation with a licensed attorney concerning the specific facts of your own situation and the most current state of the law.

Unless pursuant to prior written arrangements with Lake Legal News, all submitted materials, whether written, photographic, or in other form will become the permanent property of Lake Legal News and shall be treated as unconditionally licensed and assigned to Lake Legal News for publication in print, via the internet, or through other medium, however logos and other legal marks as well as original copyrights remain the property of their respective owners. All submissions grant a right to Lake Legal News to edit said materials for accuracy, brevity, legality, or other concerns, and to title, caption, or make editorial comment upon such materials. Persons submitting materials agree to hold the publisher and staff of Lake Legal News harmless against claims of defamation, copyright infringement, invasion of privacy and unauthorized use of any person's name, photograph or personal information.

For advertising information and all other inquiries about this publication, contact the Publisher / Executive Editor: Write: Lake Legal News 路 Post Office Box 790 路 Tavares, FL 32778 E-mail: LakeLegalNews@Gmail.com 路 Visit: www.LakeLegalNews.com Phone: 352-408-6338

6

Lake Legal News Aug. 2015

Photo: Bonnie Whicher

James Hope, J.D. Publisher Executive Editor

prognostications pontifications platitudes prattle f r^om the Publisher AUGUST, 2015

Looking back on nearly six years' worth of cover-articles and other main features, it struck me how some ideas go immediately from mind-to-paper, while other ideas need to ‘percolate’ for a while... occasionally for a long time. (The coverarticle from our last Issue—“The Day We All Got Sued”—reverberated around the walls of my mind for about four years before making it to print, as did the cover-article about legendary attorney James Durden.) Likewise, it's been that same way with the current Issue regarding ‘hypnotically enhanced testimony.’

The genesis of the current cover-story traces all the way back to law school and a paper I wrote for an upper-level Law & Psychiatry class. The trouble was, I needed a Lake County, Florida, connection to make the story relevant to Lake Legal News. A bit of further research, however, and “Bingo!” So I now invite you to enter a Lake County time-capsule back to a trial courtroom where you will find Judge John Booth, prosecutors G. Richard Singeltary and Mark Hill, together with defense attorneys Bill Stone and Comedy-Watch has joined the Bob Williams. (The younger version Lake Legal News family of of all of these men!) And of course, quarterly magazines... don't forget to throw in a Stateprovided hypnotist, just to make an already extraordinary murder trial that much more interesting; the story begins on page 30...

Lake Legal News Aug. 2015

7

meet A

P R o s e cu T O r Atty. Jonathan Olson State Attorney's Office

Writer: Marilyn M. Aciego Photo: Bonnie Whicher

It wasn't long before Assistant State Attorney Jonathan Olson knew that milking cows was not for him. “I grew up on a dairy farm on the northwest side of Minnesota. I grew up milking cows… and I was not a farmer. I knew that very early,” Olson reveals to Lake Legal News with a chuckle.

“Farming was great, but it wasn't for me.”

ily had vacationed since he was a young child. “My sisters moved down here right out of college,” Olson recalls. “My grandmother had a house down here and my family kind of fell in love with Florida.” It was a big step to move across the county and to have to take the Bar exam again.

“We were the last holdouts,” Olson notes.

As early as the 8th grade, Olson explained his love of the law in a school assignment. “I've always wanted to be a lawyer,” Olson says, eyes shining. “I enjoy the argument.” “So I knew very early I wasn't going to be a farmer,” he explains.

Furthering his education first at St. Olaf College, where he would meet his wife, SaraJane, he later graduated law school from Valparaiso University School of Law and began his legal career as a judicial law clerk in Minnesota; then it was on to becoming an assistant county attorney where he was living at the time.

The couple chose Lake County for several reasons, the small-town feel, for starters.

Community theater was the other draw.

Olson and SaraJane have been active with Eustis' Bay Street Players, Leesburg's Melon Patch Players and Mount Dora's Ice House Theatre since moving here in 2004. Olson accepted a position with State Attorney Brad King's office and has prosecuted numerous felony cases including rapes, stabbings and vehicular manslaughter. “I love prosecuting, you really don't know what you are going to get. I think I've seen it all and I realize I haven't seen anything.” (He now serves as a felony docket supervisor, overseeing as many as 50 active cases at any given time.)

What does the future hold for Olson? He wistfully responds to LLN by saying, “I'm always looking for other opportunities.” 

Olson married SaraJane—who is also currently a Lake County prosecutor—and they had a son, PaulJon (known as P.J.) and a daughter, Elizabeth. They chose to move to Florida where Olson's fam-

Moving from Minnesota to Florida meant taking a second Bar exam.

8

Lake Legal News Aug. 2015

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SECRETS of the Gaylord Manor T

here's a lot of history in the grand two-story house that sits at 804 North Bay Street in downtown Eustis, Florida. Once the childhood home of probate and estate-planning attorney Frank Gaylord, it now houses the office he shares with fellow attorney Michael Rog10

Lake Legal News Aug. 2015

ers. Nearly a century old, the home was built in 1926 by Charles Z. “Zeb” Osborne, then a prominent Lake County Builder.

Osborne also built several schools in Eustis.

The home was purchased by Gaylord's parents in the 1940s — but the sale

explains to Lake Legal News that his father (who was also an estate attorney) was always referred to as “Mr. Harry,� by both judges and the community alike. Mr. Harry attended Stetson University (Florida's first law school) and graduated with a Bachelor of Law. At the time of his death in 1992, Mr. Harry had been a member of the Florida Bar for more than 50 years. In fact, in 1938 and just 21 years old, Mr. Harry had been sworn in (in Eustis) as the youngest mayor in the United States at that time,

by Circuit Judge James B. Koonce. Gaylord still has the small Bible used to swear his father in. Though fragile and a little

battered, the Bible is in remarkably good condition to be more than 75 years old.

In another recollection, Gaylord tells LLN that his mother, Faustene, was a teacher

Writer: Marilyn M. Aciego Photos: Bonnie Whicher

included a very specific condition. As it tuns out, the home's seller (named Cole) also owned Lake Region News at the time. He informed Gaylord's father that he (Cole) had to leave Florida to go to California to tend to business. Cole didn't want his newspaper to fold, so Gaylord's father was told he would have to run the paper for two years as a condition at Eustis High School and she would invite of the sale! (The paper was later sold.) her female students over to the family Speaking

in

greater

detail,

Gaylord

(Continued on next page) Lake Legal News Aug. 2015

11

the years—and sometimes clients would take something from the table and leave home for high tea in the living room. another thing in its place. “Folks just kind of trade,” Gaylord says with a laugh.

The house also is home to a pump organ from the 1850s and still has much of Keeping with the older charm, its original charm. The brick facade is the house is furnished with many original, along with the awnings over the antiques and cozy chairs. It has the windows. The doors and wood floors are feel of a home and not a law office. also original. Oak was “Other lawyers are amazed at how comused in the common fortable they feel here,” Gaylord remarks. areas downstairs and “It's a comfort zone. It's just a great pine was used upstairs environment to be in.” A large wood in the bedrooms. Pine table standing in Gaylord's office—a gift was cheaper and used from a client—is in view as he speaks. upstairs for that reason, Gaylord notes. Gaylord naturally has fond memories The two-story garage of growing up in the house with his two in the back is also brothers, Harry and John. Bay Street original; the top floor didn't have nearly the commercial growth was used for the house as it does help's living quarters. now and The house also has a the lots basement, quite a rarity in Florida. near the Gaylord In the days before cell phones and interM a n o r coms, a buzzer system was used to sumw e r e mon the help. A buzzer was installed in the wooded. floor of the dining room and one would The trio simply step on it and it would signal the of brothhelp in their living quarters. The dining ers would room has since been converted to a client e n j o y waiting area and a rug covers it, but the watching their neighbor chase snakes buzzer is still there. Also in that waiting with a pitchfork. They also had a fire area is a table with a collection of trinkets pedal car they would “drive” down the hill towards Lake Eustis. Usually the curb would stop them short, Gaylord remembers, and his brothers would go flying. Today the pedal car still sits in the living room where the boys' mother and her students once enjoyed high tea.

(Continued from previous page)

Gaylord continued to live in the house until he was about 16 years old and the city decided to turn the area into commercial property. In terms of its use today as a law office, Gaylord has no plans of retiring and that's been given to the attorneys over said he will likely practice until he dies. 12

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The Prudent Driver

"Can You See My License Tag NOW, Officer?!"

I

18

t surely seems as if it's getting harder and harder to simply drive down the road, minding your own business, and to get from point-A to point-B without getting pulled over. And if you ever wondered what criminal defense attorneys sit around talking about at lunch, it's questions like, “Hey?!... do you think that the

little frame around my license tag will get my wife pulled over?” “How could it?,” someone replies, incredulously. “Don't most new car dealerships hand them out like candy?” “Well I've heard that you can't even have a trailer hitch in Florida,” someone else adds to the mix. “I think that depends where in Florida you live,”

CALVIN EUGENE BAKER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District. Case No. 1D144110. Opinion filed May 15, 2015. An appeal from the Circuit Court for Okaloosa County.

William F. Stone, Judge. Counsel: Nancy Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Matthew

Pavese and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.

Lake Legal News Aug. 2015

(THOMAS, J.) This appeal involves two consolidated circuit court cases... We affirm the trial court's denial of the motion to suppress, as we read the plain language of section 316.605(1), Florida Statutes (2013), to

“No it's not a trailer hitch illegally ‘obscuring’ my tag, officer—it's simply an overripe banana!”

Photo: James Hope, J.D.

(OR )

opines yet another person. “How can that possibly be?," someone responds.

 by James Hope, J.D.

And so it goes: Another case for the Florida Supreme Court to one day weigh in on— in your life as a motorist. Oh, that ‘cursed unless (as the following decision implies)— and evil’ Florida trailer hitch! Read on: you wish to move to Texas or Missouri and have a peaceful measure of certainty [ Ed. Note: Opinion below has been abbreviated in places.]

mean that a license tag's alphanumeric designation may not be obstructed by any matter, including a trailer hitch. We certify conflict with the decision of the Second District Court of Appeal in Harris v. State, 11 So. 3d 462 (Fla. 2d DCA 2009) (Khouzam, J., dissenting). * * *

Section 316.605, Florida Statutes, provides in pertinent part: (1) Every vehicle, at all times while driven, stopped, or parked upon any highways, roads, or streets of this state, shall be li(Continued on next page) Lake Legal News Aug. 2015

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(Continued from previous page)

censed in the name of the owner thereof in accordance with the laws of this state... [and] display the license plate... in such manner... [that] the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front. Except as provided in s. 316.2085(3), vehicle license plates shall be affixed and displayed in such a manner that the letters and numerals shall be read from left to right parallel to the ground. No vehicle license plate may be displayed in an inverted or reversed position or in such a manner that the letters and numbers and their proper sequence are not readily identifiable. Nothing shall be placed upon the face of a Florida plate except as permitted by law or by rule or regulation of a governmental agency. ...A violation of this subsection is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.

(Emphasis added.) As noted above, the Second and the Fifth District Courts currently disagree on how this section is interpreted.

In Harris v. State [11 So. 3d 462 (Fla. 2d DCA 2009)], [t]he Second District found that the relevant portion of the statute was as follows: [A]ll letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

obscuring matter,” and concluded that the doctrine of ejusdem generis caused this language to apply only to matter on the license plate itself: “Pursuant to the ‘ejusdem generis’ canon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated. Black's Law Dictionary 514 (6th ed. 1990).” Id. The court found that “a reading of the language in the statute shows that the license plate must be free from obscuring matter, be it grease, grime, or some other material placed over the plate. However, it would not include a trailer hitch that is properly attached to the truck's bumper.” Id. * * * Judge Khouzam dissented and... asserted that the majority's interpretation was unreasonable, as it resulted in a situation where items that clearly obscured the plate would not be in violation of the statute, if the items were not affixed to the license plate itself.

Id. In support of its interpretation, the dissent pointed to the Third District's opinion in Wright v. State, 471 So. 2d 155 (Fla. 3d DCA 1985), as instructive, noting that Wright involved a license plate obscured by a dirty rag and there the court held that the officer had the authority and even duty to investigate why the license plate was obscured. Id. The dissent found the trailer hitch analogous, noting that it appeared that the rag in Wright was not affixed to the face of the license plate. Id.

In State v. English, 148 So. 3d 529 (Fla. 5th DCA 2014), the Fifth District adopted a similar view as the dissent in Harris. In English, the defendant was stopped by two police officers after they noticed that the plate light and its attached wires were hanging down “in front of” the license plate and obstructing the officers' views of the plate, rendering Id. (quoting § 316.605(1), Fla. Stat.) (emphasis at least one letter unreadable. Id. The plate in original). The majority held that the only lan- only became readable momentarily, when guage that would apply was the phrase “other the vehicle turned, causing the wires to shift, 20

Lake Legal News Aug. 2015

but after the turn became obstructed again.

Id. Based on the fact that the plate was unobstructed during the turn, the trial court concluded that once they were able to read the actual numbers, it was no longer a violation. Id. The Fifth District reversed and held: Based on the plain reading of the statute, the alphanumeric designation on the license plate must be plainly visible at all times. Here, according to the testimony of the officers, which the trial court found reliable, English's tag was not in compliance with the statute. As such, the officers had the authority to conduct a traffic stop in this case. See Wright v. State, 471 So.2d 155, 156–57 (Fla. 3d DCA 1985) (finding that officer charged with enforcing motor vehicle laws had the duty and authority to investigate why a vehicle that was parked in the roadway had its license tag partially obscured with a dirty rag, in violation of the law). But see Harris v. State, 11 So.3d 462, 463–64 (Fla. 2d DCA 2009) (finding that police officers who were unable to read defendant's license plate because of a trailer hitch properly attached to the vehicle lacked authority to perform a traffic stop, because matters external to the tag, such as trailer hitches, bicycle racks, handicap chairs, u-hauls, and the like were not “other obscuring matter”).

Id. at 530. * * * In our view, the Legislature's intent could not be more clear: the tag's alphanumerical designation must be displayed and visible within 100 feet. This is reiterated in the statute's requirement that prohibits the display of tags such that the “letters and numbers... are not readily identifiable.” Id. We further note that the statutory catchall phrase “other obscuring matter” does not distinguish from obscuring matter “on” the

license tag versus external matter obscuring the tag. Had the Legislature wanted to draft a statute that only made it illegal to obscure the license tag's alphanumeric designation by matter that was “on” the tag, it could have easily done so, as other states have provided. Instead, the Legislature's overarching concern is that the alphanumeric designation be visible and legible within 100 feet.

Appellant asserts that the notion that a license tag obscured by a trailer hitch could violate the statute is absurd, as the Legislature could not have intended that every vehicle with a trailer hitch attached to it would be subject to a stop by law enforcement officers. We disagree, and hold that this plain reading is reasonable, as the Legislature has a legitimate public-safety interest in ensuring that license tags remain unobstructed. The Legislature has an interest in ensuring that law enforcement officers can readily identify license tag numbers. In addition, the Legislature could have intended that the general public has the ability to identify license tags, if necessary, to report criminal activity or other important information. As such, we do not think such a plain reading of the statute leads to an absurd conclusion.

Both Missouri and Texas recognize that the language in relation to obscuring in their respective statute or code could clearly be read as including trailer hitches, bicycle racks and similar items; but both states specifically enacted laws that either specifically allow such obstructions or require persons to provide additional license tags on the vehicle.

Here, the deputy had a valid basis for the stop, as the trailer hitch obscured a portion of the alphanumeric designation; thus, we affirm the trial court's denial of Appellant's motion to suppress.  AFFIRMED; CONFLICT CERTIFIED. (LEWIS, C.J., and BENTON, J., CONCUR.)

Lake Legal News Aug. 2015

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meet

A

FI R e F I g h T e r Assist. Chief Jack Fillman Lake County Fire Rescue Of all things, it was a love of golf that brought Lake County Assistant Fire Chief Jack Fillman down the path to where he is today. Beginning with a career as a licensed contractor in Putnam County, Florida, Fillman would often run into the same gentleman while playing on the golf course. He asked the man one day how he was able to play golf so often, to which the man replied, “I only work 10 days a month.” This intrigued Fillman and the man explained that he was a firefighter; he worked 24 hours and then had 48 hours off—a total of 10 days a month. Jack Fillman was hooked.

Writer: Marilyn M. Aciego Photo: Bonnie Whicher

told him he was able to walk because of what Fillman did on the scene the day of the incident. “That was the icing on the cake for me,” he still remembers.

Fillman, married with four children and five grandchildren, spent his first 20 years in Putnam County as a firefighter/ paramedic—the first 15 of those years out in the field. “I miss being out there, getting a chance to interact with the public,” the veteran firefighter states. He came to Lake County in 2000 in order to expand the county’s Advanced Life Support System, and “looking for a change.” In 2000, Lake County had only one station with an Advanced Life Support System (now there are 14). Likewise in 2000 there were less than 10 paramedics (now there are 50). In connection with an Advanced Life Support System, firefighter/paramedics can do a variety of things—including administering medications, providing advanced airway techniques, and monitoring and interpreting cardiac rhythms. Those things can make all the difference when someone is fighting for their life.

Fillman began his firefighting career as a volunteer at the Palatka Fire Department, a small agency in Putnam County. “I absolutely fell in love with it,” he recalls.

“No two responses or calls are ever the same.” One call sticks out in his mind the most. A young man had a pistol in his pocket when it accidently went off and the bullet traveled down the young man's leg. Several months later the same young man hobbled with a cane into the fire station, along with his father to thank Fillman. He told Fillman that doctors In his position as Assistant Fire Chief of

Jack Fillman has supervisory responsibility for training 200 firefighters.

22

Lake Legal News Aug. 2015

Administration, Fillman has a laundry list of duties, including serving as the agency's Public Information Officer, overseeing logistics, communications and training, just to name a few. He has supervisory responsibility for training nearly 200 firefighters at 23 stations across both rural and urban areas of Lake County. Florida requires 32 hours of continued training every two years for EMTs and Paramedics, and there is also a variety of specialized training—including trench rescue and hazardous materials training. “There's always some new toxin,” Fillman notes.

To become a firefighter/paramedic, it takes a lot of devotion to pass the 1,100-hour course. Students must also participate in numerous clinicals including working in local hospitals, observing autopsies and 250 hours on an ambulance. “You have to commit a year of your life,” Fillman explains. The firefighters that make this commitment are invaluable to the residents of Lake County; every day and during disasters—such as the hurricanes of 2004 and the Groundhog Day Tornados in 2007. Fillman plans for these disasters as best as one can, and looks forward to the Emergency Operations Center opening, and hopes construction can begin soon. Right now when there is a potential emergency or disaster approaching, representatives from each of the cities and county agencies, such as animal control, Lake County Sheriff’s Office, Lake County School Board and numerous others, crowd into the Rotunda of the Lake County Administration Building (also known as the “Round Courthouse.”) It can get pretty noisy and hectic in there with multiple people talking and countless cell phones ringing. “In my opinion, [the new Emergency Operations Center] is extremely needed,” says Fillman, “I'm looking forward to the day we can get in there.” 

z

z In Memory of...

Jack Clifford Fillman Feb. 1, 1952 – July 30, 2015

REPRINT OF THE LLN ARTICLE APPEARING IN OUR NOVEMBER, 2011 ISSUE (NO. 8) ... Jack and his wife of 31 years, Patricia, got to enjoy there sixth grandchild.

z

z Lake Legal News Aug. 2015

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Lake County's Most 'Hypnotic' Trial  by James Hope, J.D.

A

n equally intriguing title for this article could have been, “The Day The Hypnotist Strolled Into Town.” That—and the chosen title, “Lake County's Most ‘Hypnoic’ Trial”—probably both convey the sense equally well that this is no ordinary tale. Indeed, to shamelessly put the story in the style of legendary lawyer James Durden, ‘Let your mind wander back to a jury trial in a tense courtroom in Lake County, Florida, roughly a quarter of a century ago... ’ The end result of Preston Crum Jr.'s first Lake County trial, held before Circuit Judge John Booth, was being sentenced to die in Florida's electric chair for a cold, heartless murder. Recently, Lake County Circuit Judge G. Richard Singeltary—who at the time co-prosecuted Crum along side pres(Continued on next page) 30

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Lake Legal News Aug. 2015

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Photo: Thinkstock /George Doyle

(Model is unconnected to article)

(Continued from previous page)

ent day Circuit Judge Mark J. Hill—told Lake Legal News, “Preston, while he had a mouthful of a Big Mac sandwich, pulled out his gun and blew the victim away.” Singeltary further recalls how Crum purposely mutilated the victim's body in a gruesome, yet failed effort to make identifying the victim impossible: The victim's eyes were blown out, this teeth were smashed out, and his hands were cut off. (Singeltary tells LLN that it was the fact that Crum overlooked a tattoo on the victim's shoulder that made identification possible.)

Crum is dead now, but not as the result of the death penalty—as there is much more to the story. In fact, Crum's murder conviction was overturned in 1981 on an appeal to the Florida Supreme Court. As it turned out, on the morning of Crum's trial Assistant Public Defender William Stone learned for the first time that Preston Crum Jr.'s co-defendant (and brother, Marvin Crum), was planning to testify against Preston when the trial commenced. Stone immediately moved (post jury-selection) to “sever” the two brothers' cases for trial, however Judge Booth denied severance. Although private trial counsel was appointed for one of the brothers, repeated joint-requests for separate trials were denied, leading the Florida Supreme Court to ultimately rule: “[H]aving concluded that the trial court abused its discretion by denying Preston's severance motion, we reverse and remand for a new trial.”

Crum v. State, 398 So.2d 810 (Fla. 1981).

All of the foregoing merely sets the stage for Crum's second murder trial, where— as a reward to anyone reading this story up to this point—you will find that things became ‘hypnotically’ more interesting.

Specifically, it all centered around the addition of a prosecution witness who 32

Lake Legal News Aug. 2015

testified for the first and only time at Crum's re-trial. (A re-trial that also ended in Crum murder conviction, however this time the result was a life sentence rather than a death sentence. In a somewhat macabre way, Florida's Department of Corrections web site lists “09/17/2008” as the Crum's “Date Out-Of-Custody”— meaning the date he died in prison.)

Some today remember the woman as “Angie,” others remember her as “Angel,” while still others likely have it correct—a woman named Angie who called herself Angel. Angel used to hang around the victim, Gene Thurston. Attorney Robert Williams (Crum's co-appellate attorney in both cases, and co-trial attorney during the second trial), recalls Thurston as being quite the “male biker dude.” In fact, the over arching circumstances leading to Thurston's murder (and the related kidnapping of a man named Robert Fuhr), according to Williams, revolved more or less around a “drug and alcohol bender.”

As for his prosecution re-trial witness, Angel, Singeltary remembers her as “a self-described nurse in a motorcycle gang out of Atlanta.” In preparation for Crum's first trial, Assistant Public Defender Stone had taken Angel's sworn deposition, yet had concluded that the woman had littleto-nothing to offer either side of the case, substantively. It was therefore no surprise to Stone when the prosecution never called Angel to testify during the first trial.

Prior to the second trial, however... and it is a huge “however”... Angel had crossed paths with a hypnotist provided by the Florida Department of Law Enforcement (FDLE). According to Stone, Angel's “hypnotically enhanced testimony” (to use the common legal expression)—and more specifically, her newfound recollections— were “extremely detrimental to Preston.”

Still becoming emphatic after all these years, Stone tells LLN that looking from a

the ‘Angie’ I deposed before the first trial.”

Preston Crum Jr. (a/k/a Preston Junior Crum) was convicted of first degree murder and sentenced to death as the result of his first Lake County trial. Following a successful appeal, and re-trial, he was again convicted, but received a sentence of life in prison. Notably, Crum's second trial included “hypnotically enhanced testimony” on the part of a prosecution witness who— when previously deposed under oath—had been unable to remember any salient facts of the crime. Crum died in prison in 2008, with the Florida Department of Corrections web site now grimly listing “09/17/2008” as Crum's “Date-Out-Of-Custody”—a truism.

Since Crum's conviction was affirmed by the 5th DCA in 1983, the Florida Supreme Court has generally barred testimony that is the product of the type of ‘hypnotic’ process at play in Crum's case; incidentally, the prosecution's witness had become so emotional ‘reliving her memories’ while under hypnosis that she vomited. juror's point of view, “She looked like Cinderella [during the re-trial] compared to

When asked to think back about forensic details associated with Angel's hypnotic session, Singeltary admits that he did not personally attend whatever took place.

However, the former prosecutor vividly remembers that the FDLE-provided hypnotist referred to Angel as a “profound somnambulist,” claiming that the State's witness was “highly susceptible to hypnotism”—one of the most suggestible subjects the hypnotist had ever encountered. Moreover, Singeltary tells LLN that Angel reportedly “was so traumatized by ‘recalling’ the events that she ‘witnessed’ [while hypnotized] that she threw up during the hypnotic session.” Defense attorney Williams describes the net-result of Angel's hypnotically enhanced testimony this way: “It was not so much that she changed her testimony [between her prehypnotic deposition, and the re-trial], as it was that she could now ‘remember.’ ” As one might expect, the State's use of hypnotically enhanced testimony was raised as an issue before Florida's Fifth District Court of Appeal, following Crum's second conviction. In upholding the State's case, the 5th DCA framed the issue as follows: This case involves the admissibility of the testimony of a witness whose recollection had been refreshed by hypnosis.

Prior to trial a State's witness was placed under hypnosis in order to refresh her memory. Under hypnosis and afterwards at trial she was able to recall specific details of the factual events involved in appellant's trial that had previously escaped her recollection. Appellant's motion to suppress the witness' testimony and statements made subsequent to the hypnotic session dealing with all matters discussed during the hypnotic Lake Legal News Aug. 2015

33

session was denied and the witness was permitted to testify from her present memory as refreshed by the hypnosis. On appeal it is argued that the trial court erred in denying the motion to suppress. We affirm. * * * We agree with the cases that hold that the dangers attendant to the pre-trial examination of witness under hypnosis go to the weight to be accorded the testimony of the witness by the jury at trial and not to the competency of the witness. We hold that the testimony of a witness is not rendered inadmissible by reason of the fact that the witness has been examined under hypnosis before trial.

hypnotic technique and procedure in that case and to make a competency and admissibility ruling based on the result of his weighing the reliability of the particular hypnotic session and its results [Footnote omitted].

Under current Florida law, statements elicited during and after hypnosis are considered unreliable and generally may not be admitted into evidence at a criminal trial.

See Stokes v. State, 548 So.2d 188, 195-96 (Fla. 1989); Bundy v. State, 471 So.2d 9, 18 (Fla. 1985). That is perhaps one reason why Stone, Crum's now-retired lead defense attorney, sums up his feelings about the case by telling LLN, “That particular case sticks in my craw to this day.” (Note that Stone's prompt recollections don't even require the swing of a pocket watch.) 

Photo: Thinkstock /Hemera Techno.)

Read Online @ LakeLegalNews.com

While we think that the court's suggestions in Brown [v. State, 426 So.2d 76 (Fla. 1st DCA 1983)] are well made, we think the effect of those suggestions being, or not being, followed are only matters to be presented and argued by counsel for the benefit of the jury in weighing the testimony of the witness in a particular case. We do not require the trial judge in each case to hold a pre-admission hearing to consider the facts presented and to weigh the reliability of the 34

Lake Legal News Aug. 2015

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DON'T TRY THIS AT HOME! The “father” of modern day hypnosis is Franz Anton Mesmer (1734 - 1815), who laid claim to hypnosis (“animal magnetism,” in Mesmer's parlance) as a branch of medicine. According to Mesmer's theory, all bodies are pervaded by a universal magnetic fluid which is influenced by the planets. Mesmer believed that planetary influences created magnetic disharmony, in turn, producing maladies in humans.

From the early 1900s until World War II, hypnosis passed through three or four cycles in which intense interest was followed by periods of condemnation as quackery.

Although a great deal of research has continued to be done in an effort to determine what hypnosis actually “is,” there is still today no single generally accepted scientific theory. Indeed, at least one expert resigned himself to the comfort of post-hoc circularity: ‘Whatever hypnosis is, there will be more of it in people who show more effects of hypnotism.’ Shorthand attempts to define hypnosis include phrases such as, “structured form of aroused concentration” or “state of heightened suggestibility induced in one person through another.”

ART: Thinkstock /Stockbyte /Getty

Doubtless, by any definition, the two salient conditions that hallmark the hypnotic state (or “trance”) are hypersuggestibility and hypercompliance. Alarmingly, research has shown that during ‘hypnotic recall,’ imagined events can seem as authentic as reality, images can be extremely vivid, and there is a heightened level of fantasy in which images become so compelling that subjects can no longer discriminate between what they made up and what actually happened.

This, together with numerous other documented problems common to hypnotic sessions, have made trial witnesses all but invulnerable to cross-examination.

Lake Legal News Aug. 2015

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Guest Author: Zachary J. McCormick, J.D.

What is a firearms trust, and how could I benefit from having one?

liminary ‘sign off’ on the application. This is something that can cause significant confusion because some CLEO's choose to exercise the discretion afforded to them and refuse to provide this sign-off. Assuming the applicant does get their CLEO's signature, which itself can take many weeks or even months to obtain, the applicant must then submit fingerprints and a current photo with their application. All of this is required just to get to the point of being able to submit the application packet for review by a Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF) examiner.

The world of firearms trusts is filled with enough acronyms, measurements and legalease give even the heartiest enthusiast a headache. It all started in 1934 when the National Firearms Act (NFA) was passed to regulate the possession of certain types of firearms and accessories. The items governed by the NFA include suppressors /silencers, short barreled rifles and shotguns as well as machine guns that were made before 1986. There are other items that also fall into the NFA governed category but they are much less common in the Bear in mind that the tax stamp application private sector and need not be discussed here. processing times have only recently dropped to approximately six months. What is more, Contrary to popular belief, the NFA did not the individual tax stamp holder is then the only create a licensing requirement, but instead person that may lawfully possess the item. This imposed a $200 tax that required posses- means that even the applicant's spouse is prosion of a tax stamp as proof of payment. Ul- hibited from possessing, actually or constructimately, this a distinction without a differ- tively, the NFA item. Some have noted that ence because whether it is called a tax stamp this can cause a spouse—who has access to or a license, the document still has to ‘ride the safe's combination in which the NFA item shotgun’ with the firearm or device it is reg- is stored—to be in violation of federal law. istered to. The failure to produce the stamp while in possession of the NFA governed With the foregoing considerations as backitem can result in federal criminal penalties. ground, we can now turn to the reasons why a firearms trust can be beneficial: First, the trust Finally, a tax stamp can be acquired via either allows the trust applicant to skip all of the above the individual method or the trust method. preliminary work and jump directly to the fedThe individual method requires a citizen who eral tax stamp application process. (This fact is otherwise allowed to possess firearms to alone can reduce total application times draapply for a tax stamp that must be registered matically.) Second, the trust applicant can also to him or her individually. This approach re- assign any qualified citizen to be a beneficiary quires that the applicant get their Chief Law of the trust—and this helps protect the trust Enforcement Officer (CLEO) to provide a pre- property by ensuring that friends and loved Attorney Zach McCormick's law practice in Tavares, FL, includes Second Amendment and other civil rights issues

40

Lake Legal News Aug. 2015

ones are not inadvertently faced with unlawful possession of an NFA item. Third, the trust provides the added benefit of preserving the trust property in the event that the trust applicant becomes legally incapacitated or passes away.

As a practicing attorney who regularly prepares NFA firearm trusts for clients, I have of course had people say, “I can simply pull a trust document from the internet, right?”

(Right! And I've also heard that there are very helpful web sites dedicated to performing one's own open heart surgery for those ‘do-ityourselfers’ out there.) Kidding aside, an NFA firearms trust is a very important legal device that must be properly crafted. Moreover, your attorney should be familiar with the nuances of both the federal and state law as it applies to NFA items. Bear in mind that the temptation to simply use other general trusts that an applicant may already have should be resisted, because NFA firearms trusts differ in many material respects from the traditional revocable living trust. Not least of all reasons, an improperly drafted NFA firearms trust can lead to federal prison time for the unwary trust applicant.

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Lake Legal Book

News: Briefs

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By: Gary S. Roen

• The Game Master

so many different levels of entertainment.

By: William Bernhardt Publisher: Babylon Books

• 14th Deadly Sin

By: James Patterson & Maxine Paetro Known for his legal thrillers, Bernhardt Publisher: Little Brown and Company tells an entirely different tale with “The Game Master.” As the novel begins there is a murder of a scientist and a woman is Detective Lindsay Boxer has one of her kidnapped. BB The Game Master finds that toughest cases to solve because the perthe woman is his daughter who has been petrators are dressed as cops in “14th kidnapped by someone who wants to play Deadly Sin,” the newest installment of a new kind of game with him. He and his the Women's Murder Club. Lindsay must ex-wife travel around the world picking up determine if they are impersonators or clues like a scavenger hunt that also plays real cops committing many different out like different games including poker, crimes, as well as figure out why on one monopoly, and several others that are part of the member's birthdays each year of the clues. Also there is a national crisis, there is a murder that remains unsolved. that ties into the search for BB's daugh- She begins to wonder if there is a conter. Like his legal thrillers, Berhardt fills nection. “14th Deadly Sin,” like the other the story with suspenseful situations and novels in the series, is rapidly paced to a story that moves along very quickly to its final conclusion. The plot has many its final revealing ending. “The Game Mas- twists and turns to keep readers turning ter” is a tense nail biting thriller that has pages until the end. “14th Deadly Sin” is

Author, consultant and syndicated book reviewer Gary S. Roen has been writing his appraisals of books for over 35 years; his reviews have appeared in hundreds of daily and weekly newspapers and other periodicals. Over the years Roen has been the Promotion / Sales Representative for several publishing houses. He was a talk show host on the Rollins College radio station, was co-host on a weekly radio talk show on “Desperate and Dateless,” was the roving reporter for “The Tourist Breakfast Travel Show,” frequently appeared on The Michelle Valentine show on cable and was a monthly guest on the Bobbie Thomas show. Find him currently on the “My Home Town” show with Jim Turner (WBZW, Orlando) and the Larry Steele show (WPUL, Daytona Beach). Roen also works for numerous companies in the field of market research in the Central Florida area as an independent contractor.

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Lake Legal News Aug. 2015

a great addition to this popular series. personal and business relationships. She recommends to be alert to what someone is asking, or telling what they like about • Robert B. Parker’s Kickback: you, be careful what you put on social A Spenser Novel media because it could come back to haunt you, tune into what a person tells By: Ace Atkins about themselves, and be more careful in Publisher: Penguin Group, USA who you deal with in life. One of the most interesting things was how Patrick misread a man she was prosecuting when she Atkins took over the series of Parker encountered him on an elevator before Spenser books with “Lullaby”—showing entering the courtroom for the first time. that he was a very good choice to con- There are many different types of warntinue the novels—but “Kickback” is the ings to readers that should be learned and best and closest to Parker that Atkins has used to not get taken by the many vultures done so far. Spenser, Hawk, and Susan are in business and personal relationships. back in a very fast paced story that shows the dangers the internet can cause to a person. A seventeen year old boy posts a • Cane and Abe tweet that lands him in prison. Spenser is hired by the boy's mother to find out why By: James Grippando her son has been punished so severely. Publisher: Harper Spenser finds there is a crooked cop, judge and other public officials in the small town the boy resides in. The story races along with snappy dialogue, interesting char- James Grippando has always told a good acters, and many twists and turns that tale of suspense but “Cane and Abe” is include a road trip for Spenser and Hawk one of his best. Miami prosecutor Abe to Tampa, Florida; it all makes “Kickback” Beckman's life takes a twisted turn where one of the best of the many Spenser titles. he is a suspect in a series of cases. One is the disappearance of his wife. Even his most trusted friends are beginning • Red Flags: How to Spot Frenemies, to wonder about him and are not very Underminers, and Toxic People in helpful. He must put the pieces of the Your Life puzzle together to prove his innocence.

Grippando is a master of the genre and By: Wendy L. Patrick, Ph. D. “Cane and Abe” shows why fans of legal Publisher: St. Martin's Press thrillers will love this roller coaster ride.  Red flags are things many of us overlook in different aspects of our lives. Wendy L. Patrick tackles the issue in her new book, “Red Flags: How to Spot Frenemies, Underminers and Toxic People in Your Life.” As a district attorney she tells stories of the criminal justice system to convey warnings of things for people to look for in their

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Civil Blotter

● In Woodson v. Go, M.D., et al., 40 Fla. L. Weekly, D1499a (Fla. App. 5th Dist., June 26, 2015), an appellate medical malpractice case, it was held that the trial court did not abuse its discretion by disallowing expert testimony on the basis that is was cumulative to other evidence.

[W]e recede from Lake v. Clark, 533 So. 2d 797 (Fla. 5th DCA 1988), to the extent it holds that with only very broad limits, all qualified expert opinion testimony in a medical malpractice case is to be permitted, even if it is cumulative to other evidence.

© iStockphoto.com / James Benet

* * *

Criminal Blotter 44

Lake Legal News Aug. 2015

tice cases, it is almost always improper to limit expert witness testimony based on cumulativeness. In support of this argument, he relies heavily on the following language from Lake: The fact [that the proffered expert witness testimony] was corroborative of other testimony, or even cumulative to it, does not matter.

A medical malpractice case is always necessarily a battle of expert witnesses. Within only very broad limits all qualified opinion testimony should be allowed; that is, not disallowed because it is cumulative to other evidence.

Appellant maintains that because of the unique nature of medical malprac-

533 So. 2d at 799. In Lake, we determined that the trial court erred

● The Florida Supreme Court in Gutierrez v. State, 40 Fla. L. Weekly, S359a (Fla. S. Ct., June 25, 2015), quashed a Fifth District Court of Appeal decision which had allowed, under certain circumstances, a ‘no corroboration required’ jury instruction in sexual battery cases.

clusion of the instruction was reversible error, citing Brown, 11 So. 3d at 430, in which the Second District Court of Appeal broadly held that use of the identical “no corroboration” instruction was error. However, the Fifth District, after refusing to recognize a “hard and fast rule that it is always error to give a special ‘no corroboration' instruction in sexual battery cases,” held that giving such instruction was in the trial court's discretion, but should be given “only in very limited circumstances where the defendant's argument suggests the jury must require corroboration.” Gutierrez, 133 So. 3d at 1131. Concluding that the defendant's opening statement did not open the door to such an instruction, the Fifth District held that the use of the “no corroboration” instruction was indeed error in this case, but was harmless. Id. at 1131.

During the charge conference, the prosecutor requested a special instruction advising the jury that the testimony of the victim need not be corroborated in a prosecution for sexual battery. Defense counsel objected to the proposed special instruction because it did not appear in the standard jury instructions relating to weighing the evidence and because it singled out the testimony of the victim and could mislead the jury into believing it did not need to weigh or evaluate the credibility of the victim's testimony. Because defense counsel had argued in her opening statement that there was a lack of corroboration of the alleged crime, and because section 794.022(1), Florida Statutes (2012), provided that in a prosecution under section 794.011, the testimony of an alleged sexual battery victim “need not be corroborated,” the trial court gave the instruction as part of the standard instruction on weighing the evidence. * * * On appeal, Gutierrez argued that in-

* * * We agree with the Second District in Brown that the statement of law that the testimony of the victim need not be corroborated is not a proper jury instruction... As the Second District noted in Brown, “[r]eading a statute to the jury as an instruction is not necessarily erroneous.” Brown, 11 So. 3d at 433 (quoting Ruskin v. Travelers Ins. Co., 125 So. 2d 766, 769 (Fla. 2d DCA

in excluding a doctor's expert witness testimony on whether the defendants had breached their standard of care. Id. at 800. However, the opinion does not set forth the number of other experts, if any, that had also testified on this issue. Furthermore, given our conclusion in Lake that the excluded testimony was “critical to the plaintiffs' case,” it is difficult to determine whether or not the above-quoted language the Appellant relies upon was dicta. * * * We conclude that under the facts of this case, the trial court's determination that each party be limited to one expert on the standard

1960)). However, as the Brown court also warned, the instruction based on the statute must not mislead the jurors. Id. Further, such an instruction must not violate other longestablished principles such as the right of a defendant to have a jury trial free from comment or intimation by the trial judge on the weight, character, or credibility of the evidence. In 1896, we cautioned in Lester v. State, 20 So. 232 (Fla. 1896): [G]reat care should always be observed by the judge to avoid the use of any remark in the hearing of the jury that is capable, directly or indirectly, expressly, inferentially, or by innuendo, of conveying any intimation as to what view he takes of the case, or that intimates his opinion as to the weight, character, or credibility of any evidence adduced.

All matters of fact, and all testimony adduced, should be left to the deliberate, independent, voluntary, and unbiased judgment of the jury, wholly uninfluenced by any instruction, remarks, or intimation, either in express terms or by innuendo, from the judge, from which his view of such matters may be discerned.

Any other course deprives the accused of his right to trial by jury, and is erroneous.

of care and one expert on causation did not constitute an abuse of discretion. See Lion Plumbing Supply, Inc., 844 So. 2d at 770 (holding that trial court may limit number of experts per side so as to prevent presentation of cumulative testimony).

Our greater concern is the failure of the trial court to notify the parties of its decision to impose restrictions on expert testimony at an earlier time. Litigants are entitled to fair notice of restrictions on expert witness testimony so that they may prepare their case accordingly. Id. at 770-71. ● Using a Petition for Writ of Prohibition, the petitioners in Forehand v. Walton County, et al., 40 Fla. L. Weekly,

* * * Judge Evander... agreed with the Brown court that the “no corroboration” instruction is improper because it is likely to confuse and mislead the jury. Gutierrez, 133 So. 3d at 1132 (Evander, J., concurring in part, dissenting in part). He also noted that Florida Standard Jury Instruction 3.7 (Criminal) provides that “[a] reasonable doubt as to the guilt of a defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.” [Citations omitted.]

Judge Evander aptly noted: Thus, a juror can properly conclude that an alleged victim's testimony in a particular case is not, in and of itself, sufficient to establish a defendant's guilt beyond a reasonable doubt. As a result, that juror may conclude that without “corroborating evidence,” a reasonable doubt exists because of the lack of evidence. It is readily foreseeable that such a juror may be misled or confused by an ensuing, and arguably inconsistent, instruction that the alleged victim's testimony need not be corroborated. * * * Accordingly, we quash the deci-

D1855d (Fla. App. 1st Dist., August 7, 2015), sought unsuccessfully to disqualify the trial judge based upon his rulings adverse to petitioners, and his comments on his knowledge of rainstorms that had affected areas in the Florida Panhandle.

On appeal, it was noted and decided: A motion for disqualification is legally sufficient “when the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Valdes-Fauli v. Valdes-Fauli, 903 So. 2d 214, 216 (Fla. 3d DCA 2005). The party seeking disqualification bears the burden to show a

(Continued on next page) sion of the Fifth District in Gutierrez, approve the decision of the Second District in Brown, and remand for a new trial at which the jury is properly instructed. ● A recent appellate case sheds some light on the term “original, ongoing investigation”—at least in the context of attempts to extend the statute of limitations in certain cases that have become, by comparison, “inactive.” In Therlonge v. State, 40 Fla. L. Weekly, D1646d (Fla. App. 4th Dist., July 15, 2015): On October 7, 2011—after the statute of limitations period expired as over three years had passed since the crime was reported to law enforcement—Appellant was charged with lewd and lascivious battery of a person under sixteen years of age. Despite the time lapse, the State argued that it was permitted to continue the prosecution under section 775.15(16)(a), which provides an extension to the statute of limitations period in certain circumstances: In addition to the time periods prescribed in this section, a prosecution for [a lewd or lascivious offense] may be commenced at any time after the date on which

(Continued on next page) Lake Legal News Aug. 2015

45

(Continued from previous page) well-founded fear of not receiving a fair trial. See Adkins v. Winkler, 592 So. 2d 357 (Fla. 1st DCA 1992).

“A verified motion for disqualification must contain an actual factual foundation for the alleged fear of prejudice.” Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986). A mere “subjective fear[ ]” of bias will not be legally sufficient; rather, the fear must be objectively reasonable. Id. In this case, our review of the record—including the trial judge's passing reference to knowledge of events in a neighboring county caused by the April 30, 2014,

(Continued from previous page) the identity of the accused is established, or should have been established by the exercise of due diligence, through the analysis of deoxyribonucleic acid (DNA) evidence, if a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available for testing by the accused[.] §775.15(16) (a)4., Fla. Stat. (2007) (emphasis added). [Footnote omitted.]

Appellant moved to dismiss the charge, arguing that section 775.15(16)(a) could not be applied to his case because the child's DNA [from the sixteen year old victim's impregnation] was not obtained during the “original investigation” within the meaning of the statute.

The trial court denied the motion, noting that, between 2008 and 2010, law enforcement was “always exercising due diligence to try and find [Appellant]; therefore, the investigation, the original investigation never ceased and it was ongoing.” * * * We reject the trial court's conclusion that there was an “original, ongoing investigation” (emphasis

46

Lake Legal News Aug. 2015

storm—fails to show a basis for disqualification. Trial judges are permitted to be aware of events in their own communities, such as storms, flooding, construction projects, and so on. General observations acknowledging such awareness are insufficient to establish a basis for disqualification, absent a more particularized demonstration than was shown in this case. As to the claim that the trial judge ruled against petitioners on certain evidentiary matters, it is well-established that a judge's adverse rulings may not serve as a basis for disqualification. See Ault v. State, 53 So. 3d 175, 204 (Fla. 2010); Dep't of Agric. & Consumer Servs. v. Broward Cty., 810

added) sufficient to trigger the extension period of section 775.15(16) (a)4. We acknowledge that this statute was intended to apply where a DNA sample was obtained shortly after the commission of a crime where the identity of the source of the DNA is unknown. Here, Appellant was hardly unknown, as he was named as the child's father on the birth certificate. Nonetheless, our decision is dictated by the plain language of the statute and the fact that no DNA evidence of the crime was collected during the “original investigation” to preserve for comparison against an accused and thus trigger the application of the extension period under section 775.15(16)(a)4.

During the period when police first learned of the potential lewd and lascivious behavior until the time the case was initially declared “inactive,” the onus was on the police to collect evidence to preserve for a later match—in this case, the DNA of the child. DNA evidence was collected only after Appellant was located by the investigating police department upon being arrested for a different charge, well after the original investigation had first been declared “inactive.” * * * We reverse and vacate Appellant's conviction and sentence, includ-

So. 2d 1056 (Fla. 1st DCA 2002). ● In Florida Digestive Health Specialists, LLP et al. v. Ramone E. M.D. et al., 40 Fla. L. Weekly, D1801b (Fla. App. 2nd Dist., July 31, 2015), a medical group moved for a temporary injunction to prevent a physician from practicing medicine with another medical group in violation of a partner professional services agreement. Relying on Fla. Stat. § 542.335, the 2nd DCA held that it was improper for the trial court to consider whether the potential injury to the physician outweighed the threatened injury to the medical group.

(Section 542.335(1)(g) specifically states that a court “[s]hall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.”) 

ing his designation as a sexual offender, as the extension of the statute of limitations period under section 775.15(16)(a) is inapplicable in the instant case. Appellant's prosecution was commenced over three years after the alleged crime was first reported and thus the statute of limitations has run.

Accordingly, we direct Appellant's immediate discharge with respect to the charge at issue in this case. ● In deciding Axelis v. State, 40 Fla. L. Weekly, S423a (Fla. S. Ct., July 9, 2015), the Florida Supreme Court gave clarity to several previous appellate court decisions dealing with actual (versus possible, potential, or theoretical) conflicts of interest: [W]e consider whether a trial court is required to obtain a conflict-of-interest waiver when criminal codefendants are represented by the same lawyer but there is no actual conflict of interest between the codefendants. * * * To the extent that [various appellate decisions] hold that a waiver is required in the absence of a determination that an actual conflict of interest exists, they are inconsistent with our holding and are disapproved to the extent of the inconsistency. [Emphasis added.] 

Fla. Bar Board Certified Criminal Trial Law Expert Qualifications: I have practiced criminal law in Tavares, Florida, for 27 years. I am a former Assistant State Attorney, with supervisory experience at the juvenile, misdemeanor, felony and postconviction relief levels, including a designation as Lake County's first sex battery and first careercriminal prosecutor.

My actual jury trial experience ranges from shoplifting and DUI to capital sexual battery and first degree murder—and I have stood before a felony jury an average of twice-a-year for 27 years. In fact, I have quadruple the number of felony jury trials required for initial Board Certification.

Contact Info:

Available for a free consultation (“Of Counsel”) through the Law Office of Zachary J. McCormick, 210 N. Texas Ave., Tavares, Florida. To reach me:

(352) 742-7474 • www.ZJMlaw.com, or (352) 742-3488 • www.AttorneyJames Hope.com

James Hope, J.D.

u are serious “Call when yo fended.” about being de

Lake Legal Teen Court Image: Jamesbin / iStock

News: Report

By: Connor Jenkins

T

he men and women who make the Teen Court program feasible are exemplified through local judge and attorney volunteers. The aptitude these volunteers have to quake and rumble the courtroom has been transported to the juvenile scale in order to reveal how close teen offenders came to “the edge of the wrong side of the legal system.”

Ensuring all members of the courtroom are maintaining proper protocol, the Teen Court judges' obligation is to ulti- (1) mately steer defendants to the equitable path while embodying courtroom etiquette. By doing so, jurors, attorneys, or any other teen volunteer can learn this proper decorum for future reference.

Teen Court, or any other court situation, in the future,” says Roy Stevenson, who works at the law office of personal injury attorney Brent Miller, in Tavares, Florida.

Judges utilize certain tactics when conversing with defendants through a lecture or providing advice for the future. It is pertinent to speak on a juvenile's level, which may require the judge to drop the legal jargon. Zachary McCormick, a local managing attorney, suggests remaining flexible and listening because being a Teen Court judge is not a free pass to “beat up” on another person. Notifying the defendant of future, felonious consequences can cause the mind's “autopilot” to kick in and alert the defendant to the fact that “something has gone seriously wrong” if caught again in another similar problematic situation.

Though it may not seem so, the main objective of these Teen Court judges is not to demoralize defendants, but to provide a solution.

“I attempt to always leave them with a plan to prevent them from ever being in “I usually emphasize how they have let 48

Lake Legal News Aug. 2015

their parents / guardians down—that seems to hit them in the gut in a way that just lecturing them doesn't,” states Ben Boylston, a local criminal defense attorney.

Prevention from future improprieties derives from defendant's recognition of “the limitations on their own perceived power. Many times, youth can impart a sense of invincibility and sometimes this causes an errant child to forget that there is a price to be paid for bad behavior,” says McCormick. Leaving Teen Court a little rattled by the judges may present an acclamatory outcome for circuitous defendants.

Instilling in defendants the comfort of company in this process will provide hope for the future after abandoning the devious thoughts associated with violating the law. Stevenson hopes the embarrassing actions in his own life, and stories he shares about other's mistakes, display an optimism for an enhanced tomorrow. In agreement, Boylston confirms that “Teen Court presents [an opportunity] to move on and recover from a poor decision.”

Editor's Note: Connor Jenkins is a 2015 Eustis High School graduate, AP Honor's Student, Girl's State delegate, National Honor Society member, and Jefferson Awards member. She has been involved with the Teen Court Program in Lake County, Florida, since 2009.

The Teen Court Program is a diversionary program that holds first time juvenile offenders accountable for their actions while affording them a second chance through the court system.

McCormick believes Teen Court is an early lesson for possible future courtroom activities. Attending the program as a youth, he learned effects of certain cross examination tactics and reading body language of witnesses or jurors. Joining Teen Court was a deciding factor for his career as an attorney.

Recent Teen Court volunteer-judges: (1) Roy Stevenson, (2) Ben Boylston (3) Zach McCormick

In addition to the defendants, the program leaves an imprint on the judges, (2) (3) providing a different perspective on life.

The judge-volunteers reflect on the noble sense of responsibility toward the viewing audience, volunteers, and the teenagers that are tried in a less crucial setting, other than the traditional criminal justice system. Joining Teen Court around 20012003, Stevenson exclaims, “I am proud that I get an opportunity to give back some of McCormick states, “I am always happy what was given to me throughout my life.” to volunteer my evenings to this day, as a small way of 'returning the favor' so to A “worthwhile endeavor” for Boylston speak. That and the chance to wear the is keeping young people interested robe and sit in the 'box seats' of course.” in the criminal justice system, and the Teen Court program, which alters Any judges or practicing attorneys the lives of everyone involved in it. interested in volunteering as a Teen Court judge are encouraged to contact As a “laboratory for the legal system,” Stephanie Glass at (352) 742-6511.  Lake Legal News Aug. 2015

49

ATTORNEY DIRECTORY Mr. Charles D. Fantl, J.D. Criminal Defense ~ Tavares, FL 352 • 343-3349 www.FantlLaw.org Former Lake C’nty Assistant State Attorney

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LAST Roll of Film . . .

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