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November 15, 2012

Husband Suspected of Murder, Questioned and Released

Detectives questioned a local man regarding the murders of his wife and two young daughters. The estranged husband was questioned in the Kendall district station by homicide detectives. After several hours of questioning, Alberto Sierra was released from the police station, but remains a person of interest for the murder of Gladys Machado and her daughters. Police investigators have vowed to continue the investigation until the guilty party is apprehended. While Sierra voluntarily spoke to the police about the pending investigation, experienced Miami criminal attorneys will always dissuade their clients from giving statements to law enforcement. Any statements provided to the police, while seemingly harmless in the event the suspect denies the allegations, can be used to implicate an unknowing suspect. For example, although a suspect denies committing the actual crime, his statement might place him at the scene the at the time the offense was committed. Bottom line, never provide statements to the police as a suspect may be inadvertently building a case against himself.

Besides speaking with suspects, investigators are anxiously awaiting the results of forensic testing conducted on physical evidence impounded at the murder scene. It sometimes takes several weeks for the forensic lab testing to be completed at the Miami-Dade Police Department crime lab. The crimes lab performs a variety of forensic testing including, DNA, ballistics, fingerprinting and gun shot residue (GSR). The medical examiner's office will also perform autopsies on the victims to ultimately determine the cause of death. Both the crime lab results and the medical examiner's findings will eventually be used to prosecute the person formally charged with the offenses.

Machado and her daughters were last seen alive leaving her grandmother's house located in Homestead, Florida. The bodies were later found in North Miami at a home where Macahdo used to live with Sierra. The home was vacant at the time and investigators have no idea how the bodies arrived at that location. The location of the bodies and Sierra's significant criminal history most likely lead him to be a person of interest. Sierra has a history of gun and drug charges, as well as, a history of domestic violence. While living with Machado at the house where the bodies were discovered, Sierra pled guilty to the offense of possession of a firearm by a convicted felon and was sentenced to 364 days in the Miami-Dade County jail.

Prior to her marriage with Sierra, Machado had been previously married to Michael Padrino and resided in Miami Beach. After the marriage ended, she moved to Homestead to live with her grandmother who helped care for the children. Soon after the divorce, Machado married Sierra despite warnings from friends and family. Sierra was released certainly because the homicide investigators did not have probable cause to make an arrest. However, once the forensic experts and medical examiner complete their investigations, an arrest may be made if the results either link Sierra to the murder scene or the murder weapon.

Miami-Dade Police Question, Release Estranged Husband of Woman Slain with Daughters, Miami Herald.com, November 15, 2012.

July 22, 2011

Murder Trial Begins for Coral Gables Student

A former Coral Gables student is standing trial for his alleged role in the stabbing death of a fellow student. The murder trial stems from an incident that occurred at Coral Gables High School. In opening statements, the prosecution portrayed the defendant as a jealous and angry young man, while the Miami criminal defense lawyer representing the defendant portrayed his client as a young man acting in self-defense and was simply protecting himself. On September 15, 2009, the defendant purportedly stabbed the victim during a fight over a girl. Although the confrontation lasted only a minute, the defendant stabbed the victim five times, one of thrusts struck the heart and killed the victim.

The defendant is charged with second degree murder with a deadly weapon and could face life in prison if convicted by the jury. Based on the opening statements, the defense seems to intend to rely on self-defense in the case. The defense claims that defendant was on the ground being choked by the victim when the defendant struck back with the knife. The defense went further to say that the choking was so violent that the defendant could not breathe and lashed out to save himself. Apparently, the defendant had marks on his neck, thereby corroborating the defense's theory of the case. The defense lawyers should introduce photos of the injuries during the case to solidify their case.

At the close of the evidence and after each side has completed their closing statements, the jurors will deliberate and have to decide whether the defendants was justified in using deadly force. There is a standard jury instruction that the judge will read to the jurors regarding this defense. The law allows for a defendant to use deadly force if a defendant reasonable believes that the force is necessary to prevent death or great bodily harm. The jurors will have to determine whether the circumstances in which the defendant found himself surrounded by justified the use of deadly force. The appearance of danger must have been so real that any reasonably cautious and prudent person under the same circumstances would have believed deadly force was necessary to avoid the danger.

The jurors will have to consider all of the evidence provided at trial to determine if the defendant's claim of self-defense will entitle him to a not guilty verdict. The jurors must consider physical, as well as testimonial evidence prior to coming to their decision. The testimonial evidence will come from people who were around when the incident occurred. The physical evidence that will be compelling in the case will be the video recording from the school surveillance system. The strength of video either for the defense or the prosecution will depend on the clarity of video and what it depicts. The jurors will review the video several times and then discuss what each one thinks about its contents before determining the guilt or innocence of the defendant. If the jurors cannot come to a unanimous decision, it could result in a hung jury, eventually requiring a new trial down the road. The trial is supposed to last approximately two weeks.

Prosecutor: Coral Gables High Teen Let Jealousy, Anger Lead to Murder, Orlando Sentinal.com, July 22, 2011.

May 26, 2011

Jury Selection: A Critical Stage During a Criminal Trial

The outcomes of most jury trials are in large part determined before any evidence is ever presented in open court. Jury selection is considered by most Miami criminal defense attorneys to be the most important part of any jury trial. All defendants charged with felonies and misdemeanors have the right to a trial by jury. The majority of cases are heard by six individuals, except in capital cases where the number of jurors is comprised of twelve people. In addition to the regular jurors, every jury has alternates. Alternate jurors are selected along with the regular panel, but in the event a regular juror has become unable or disqualified to perform his or her duties, the alternate will step in to assist in rendering the verdict. Jurors, whether they number six or twelve are selected from a venire or larger panel. Jurors are examined by the court, the prosecution and the defense lawyer in an effort to select an impartial jury. However, in reality a jury favorable to the defense is what is needed to secure an acquittal.

The 2008 murder of three-year old toddler, Caylee Anthony, in Orlando has garnered considerable media attention, particularly because the prosecution's cross hairs have come to rest on her young mother, Casey Anthony. Casey claimed she left her daughter in the care of a babysitter before she went missing. She, however, aroused suspicion when, among other things, she failed to file a missing person's report with police for weeks, and posted pictures of herself partying and drinking with friends while her daughter was presumed either missing or dead. The circuit court judge presiding over the case has had difficulty finding jurors that can be fair an impartial. Murder cases generally have a lot of publicity. This murder case has garnered so much publicity that the judge had deemed it impossible to find a jury suited to hear the case. As a result the judge had decided to select jurors from Clearwater, Florida in an effort to give the defendant a fair trial.

In most instances, jurors preside over cases involving DUIs, aggravated assault, drug trafficking or other offenses that do not involve the emotions surrounding this murder case. The heightened media attention and severity of the crime has caused difficulty in finding fair and impartial jurors to sit in judgement. The judge has decided to find jurors from a different locale and has determined that they will be locked away in a hotel for two months and barred access to any outside information. A little over two weeks ago, Judge Belvin Perry Jr. was given the daunting task of putting together a group of jurors without strong preconceived notions of Casey Anthony or the facts of the case. The relentless news coverage and Casey Anthony's stoic, seemingly "annoyed" demeanor towards the horrific charges levied against her has forced Judge Perry, who has a solid reputation in Florida to search for potential jurors in the city of Clearwater, almost 100 miles away from Orlando. The hope is that this strategy will produce jurors unfamiliar with the details of the investigation, and without preconceived notions of guilt or innocence.

After dismissing an entire pool of 49 potential jurors for having discussed the case among themselves, and after a grueling 11-day selection process, the judge finally swore in a 12-member jury with five alternates last Friday, May 20. As noted, outgoing calls of the jurors will be relegated to a few, supervised land lines, cell phone use is prohibited, and any TV news channels will be blocked. The decision made by the judge is unusual in that most high publicity cases where impartial jurors cannot be found are transferred to another jurisdiction for trial. It is highly unusual that a high-profile case will kept in the same jurisdiction with jurors from an outside county brought in the decide the defendants fate. One can only hope that the decision made by the judge will allow the defendant a fair trial. The actions of the court will certainly allow for an appeal in the event of a conviction.

Judge Moves Jurors, Not Trial, in Murder Case, New York Times.com, May 9, 2011.

March 22, 2011

UM Football Player Arrested in Coconut Grove

A starting linebacker for the Hurricanes was arrested for a variety of charges which allegedly occurred at a Coconut Grove Bar on St. Patrick's Day. The arrest affidavit accused the star University of Miami player of attempting to head butt a police officer and after being arrested told officers that he was a UM player and that because of his status he would get out of trouble. Ramon Buchanan is scheduled to make his first court appearance at his arraignment on April 18th before a Miami-Dade County circuit court judge. According to court records, Buchanan has not yet retained a Miami criminal defense lawyer to defend the case.

Buchanan was arrested on felony counts of resisting an officer with violence and battery on a law enforcement officer (LEO). He was also arrested on misdemeanor counts of disorderly conduct, resisting a police officer without violence and trespassing. Buchanan is the first UM player to be arrested since now Purdue quarterback was arrested in 2007 for criminal mischief and fleeing and eluding a police officer. Despite being fired last year, former UM coach Randy Shannon was credited with cleaning up a program that was replete with criminal arrests. While there have been no recent arrests, six players have been recently suspended for the 2011 opening game against the University of Maryland.

As long one can remember, Coconut Grove has been an area known for its bars and partying crowd. Along with the fun comes overzealous City of Miami Police officers that have made countless arrests of truly innocent defendants. Many of the those arrested in the "Grove" are tourists and first time offenders. The first step in defending these types of cases is to gather the names of the officers involved in the arrest. The internal affairs (IA) records for all of the officers involved should be ordered through a public records request. It is a safe bet that many of the officers have been reprimanded for using excessive violence against individuals. Anyone arrested in the Grove should provide a list of witnesses who were also present at the scene of the arrest to their criminal defense attorney in order to refute the testimony of the officers. To prepare the case, depositions of all the police officer witnesses should be taken to establish contradictions in their testimony.

While most battery on a law enforcement officer and resisting an officer with violence cases can be broken down, a well-prepared defense should at a minimum result in a referral to the pre-trial intervention program (PTI). PTI is a program offered by the state attorney's office to first-time offenders where a defendant can enroll and complete certain conditions required by the prosecutor. Once the conditions have been successfully completed, the state will nolle pros or dismiss the charges against the defendant. Once the case has been dismissed, a defendant will be able to expunge of clear his or her record. Of course, just because PTI has been offered, there is no requirement to enroll in the program and case can be taken to trial to secure an acquittal. Prior to taking the case to trial, the strengths and weaknesses in the case must be properly evaluated to determine the likelihood of success in front of a jury.

Arrested Miami Hurricanes LB Ramon Buchanan Tells Cops: "I'm a UM Football Player...I'll Get Out of It.", Palm Beach Post.com, March 22, 2011.

February 4, 2011

Jury Recommends Death Sentence for Coconut Grove Man

After lengthy deliberation, 8 out of 10 jurors recommended that local man convicted of first degree murder and armed robbery receive the death penalty. Brandon Rolle and his Miami criminal attorney were present in court when the recommendation was handed down by the jury. The same jury convicted the defendant in October for killing and robbing a tourist visiting his son in Miami. While in town to celebrate his son's birthday, the victim apparently got lost in the Coconut Grove area and was shot and killed when he stopped to ask for directions. The murder/robbery occurred back in 2006.

The defendant was charged with first degree felony murder, as premeditation would have been difficult to prove as there were no eyewitnesses to the event. In general, all homicides that result for violent crimes are charged as felony murder as it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill. To prove first degree felony murder, the State has to prove that (1) the victim is dead, (2) the defendant was the person who actually killed the victim, and (3) the death occurred as a result of and while engaged in the commission of an enumerated offense. The enumerated offenses for first degree felony murder are: drug trafficking, arson, sexual battery, robbery, burglary, kidnapping, escape, aggravated child abuse, carjacking, home-invasion robbery, aggravated stalking, and resisting an officer with violence. First degree felony is a capital crime punishable as set forth in Florida Statute 775.082.

A person who has been convicted of a capital crime can be sentenced to death of life in prison. That determination is made by a circuit court judge with recommendations provided by a jury. The procedure for sentencing in capital cases can be found in Florida Statute 921.141. A sentencing hearing will occur after a conviction with preferably the same jury who rendered the verdict. If convening the same jury is impractical, a judge may summon a special jury to determine the issue of the death penalty. At the sentencing hearing, the State will present aggravating factors while the defense lawyer will present mitigating factors to the jury. The jury has to decide whether there are sufficient aggravating factors which are set forth in the statute such as prior crimes and how the enumerated crime was committed. The jury then has to determine whether the mitigating circumstances outweigh the aggravating factors. Mitigating circumstances are also set forth in the statute and include lack of prior criminal history or the defendant's mental state at the time of the offense.

After hearing all of the evidence, the jury will deliberate and render an advisory sentence to the judge presiding over the hearing. The advisory sentence is no way binding on the judge, but judges give these type of recommendations alot of weight. If a judge imposes a death sentence, he must do so in writing and on the record. These written finding of fact must include the aggravating and mitigating factors discussed earlier. Any death sentence imposed will be reviewed as a matter of law by the Florida Supreme Court within two years after a notice of appeal is filed.

Jurors Recommend Death Penalty for Coconut Grove Man Convicted of Tourist Murder, Miami Herald.com, February 3, 2011.

January 3, 2011

Self-Defense Stand Your Ground Law Under the Microscope

The defense of justifiable use of force has been on the books in the State of Florida for many years. The law was created to allow individuals to defend themselves in certain circumstances. Miami criminal lawyers have used the statute to defend clients charged with offenses including aggravated battery, manslaughter and in some instances, even murder. One of the original laws, referred to as the "Castle Doctrine", allows for individuals located in a residence, dwelling or occupied vehicle where they had lawful right to be, to use force if they had a reasonable fear of imminent death or great bodily harm. In other words, the law provided that a person had no duty to retreat if found in those circumstances.

In 2005, the legislature found that the stand your ground or no duty to retreat law applied outside of dwellings, residences and occupied vehicles. The new law provides that a person can defend himself or herself if that person was not engaged in criminal activity and was attacked in a place where he or she had a right to be and that there was no longer a duty to retreat. Force could be used if a person believed it was necessary to prevent death or serious injury. Since the passing of the new legislature many defendants have availed themselves of the new and improved version of the "stand your ground law."

Recently, a Daytona Beach man avoided prosecution for the charge of aggravated battery. The man facing up to fifteen years in prison was declared immune from prosecution by a state court circuit judge. The man was charged with striking another man in the face with a 2 by 4 in the course of defending himself and his girlfriend. In 2009, Miami-Dade County prosecutors dropped a murder charge against a defendant involved in a shooting with a long-time rival. Recent cases of drug dealers shooting others in self-defense have not been filed due to the new law. Prosecutors are pushing the legislature to amend the law because they feel that individuals involved in drug sales or dealing in controlled substances should not be permitted to avoid criminal prosecution. Criminal defense lawyers want the law to stay as is because it has been successful in defending many criminal prosecutions.

The appellate courts throughout the state have or will address the issue. However, the courts merely interpret the laws and any significant changes to the "stand your ground" law will have to come through the legislature. Defendants seeking the defense under the new law must appear at a hearing with their defense attorney and try to convince the judge that he or she was acting within the self-defense law. After taking testimony, a judge will have the ultimate decision to either grant or deny immunity from prosecution.

"Stand Your Ground" Cases on the Rise, The Daytona News-Journal Online.com, January 3, 2011.

November 29, 2010

Two Men Killed Committing Armed Robbery

Two local men were killed when they attempted to commit a home invasion robbery in Palmetto Bay, Florida. The two men entered into the residence unaware that the homeowner was at home at the time of the burglary. The homeowner opened fire which killed one of the intruders. The other intruder jumped from a balcony on the third floor and later died from his injuries at Jackson Memorial Hospital. The homeowner will not likely need the services of a Miami criminal lawyer as investigators say he acted in self-defense.

Both intruders had a past criminal record in the Miami-Dade County criminal justice system. One of the men had been arrested as recently as two months ago for driving on suspended license (DWLS) as a habitual traffic offender. He also had prior arrests for cocaine possession, home invasion robbery and battery. The other intruder also had a felony criminal record. The incident occurred last Wednesday, the evening before Thanksgiving, when the two defendants broke into the Palmetto Bay home only to be greeted by a hail of gunfire.

The "Stand Your Ground Defense" that became law in 2005 really does not apply in this case. Prior to the enactment of that law, homeowners never had a duty to retreat in their own residence. The new law applied to individuals outside their home and provided that citizens no longer had a duty to retreat from a deadly threat before using deadly force and have the right not to retreat if engaged in a lawful activity and is in a place where he or she has a right to be. This case is distinguishable from the March 9, 2009, when a homeowner pulled a rifle on FPL employees outside his residence. The FPL workers never entered the residence which why the new law applied to that case.

If the criminal investigation reveals the shots were fired at the intruders inside the residence, the police cannot justify an arrest of the homeowner. However, if the investigation reveals that the homeowners fired shots outside of his residence, he may very well find himself in a more precarious situation. If that is the case, the "Stand Your Ground" law will apply and the homeowner may need to hire a criminal lawyer to represent his interests. Florida jury instruction 3.69g) applies to the use of justifiable uses of non-deadly force as it applies to dwellings. Specifically, the instruction provides that if a defendant is in his or her residence, he or she has no duty to retreat if he or she has a reasonable fear of imminent peril of death or bodily injury if the victim has unlawfully and forcibly entered the residence.

Police Identify Armed Robbers Killed in Home Invasion, Miami Herald.com, November 26, 2010.

November 17, 2010

Local Resident Avoids Felony Charges Under "Stand Your Ground" Law

A circuit court judge absolved a property owner of serious felony charges under Florida's controversial "Stand Your Ground" law. The defendant was charged with two counts of aggravated assault with a firearm, one misdemeanor count of improper exhibition of a firearm, and misdemeanor count for unlawful discharge of a firearm. Aggravated assault with a firearm is a third degree felony and carries a three year minimum mandatory prison sentence. Ernesto Che Vino was accused of pointing a rifle at two Florida Power and Light workers who entered his property to shut of his power for failing to pay the bill. The judge granted the defendant immunity for the first three charges, but left the illegal discharge offense in place. The Miami criminal attorney representing the defendant was pleased with the result.

The "Stand Your Ground Defense" was added to the books in 2005 and provided that citizens no longer had a duty to retreat from a deadly threat before using deadly force. On March 9, 2009, Vino, a former navy sniper, pulled the rifle on the FPL employees after he had been awaked by his barking dogs. The FPL workers testified that they identified themselves as employees of the local power company. The defendant testified that he was unaware of what they were doing on the property and he was fearful because he had previously been the victim of a violent burglary with a battery. Vino escorted the men off of the property at gunpoint and then fired a shot in the air. The unlawful discharge offense was left in place because the defendant was no longer facing a deadly threat.

Prosecutors from the Miami-Dade County State Attorney's Office have not yet decided to appeal the ruling. Since the law went into effect, this is the second ruling in a defendant's favor issued by a judge in Miami-Dade County. Prosecutors and Florida Power and Light officials are concerned that employees could be at risk as a result of the ruling. State law allows FPL employees to enter private prior to disconnect power. The Florida Supreme is currently deciding whether judge or juries are better suited to decide a person's fate.

To prove the charge of aggravated assault, the prosecution must show that the defendant intentionally and unlawfully threatened either by word or act to do violence to a victim, the defendant had the apparent ability to carry out the threat, and the victim had a well-founded fear that violence was about to occur. If a firearm was used during the commission of crime the three year sentence will attach. The 'Stand Your Ground" law provides a defense to many violent crimes in addition to aggravated assault, such as, aggravated battery and manslaughter.

Armed Owner is Cleared In FPL Face-Off, The Miami Herald.com, November 17, 2010.

October 27, 2010

Prosecution Gets Manslaughter Conviction

Jurors returned a guilty verdict on manslaughter charges against a man who allegedly fired shots into a sofa on New Year's Eve that resulted in the death of a 11 year-old boy. Prosecutors alleged that the defendant fired shots into an abandoned sofa, not knowing that the victim was hiding behind it at the time the shots were fired. The defendant fired at least 14 shots with 5 of them striking the victim. One of the bullets pierced the victim's aorta causing him to bleed to death. The jury was out for about one hour before they returned the guilty verdict. The Miami criminal lawyers representing Zenon Fernandez expressed disappointment with the jury's conclusion.

To prove the allegation of manslaughter, the prosecution must prove beyond a reasonable doubt that a defendant caused the death of another through culpable negligence. Manslaughter and pre-meditated 1st degree murder or second degree murder vary in one important way. In the latter two offenses, the prosecution must prove that the killing was intentional rather than by negligence. Culpable negligence is defined as more than a failure to use ordinary care, but rather the negligence must be gross and flagrant. The course of conduct must demonstrate a wanton and reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or for the safety and welfare of the general public.

The basic manslaughter charge is a second degree felony punishable up to fifteen years in prison. However, the Florida Statutes provide for the charge of aggravated manslaughter. Aggravated manslaughter is a first degree felony punishable up to 30 years in prison. Manslaughter becomes aggravated manslaughter when a certain type of victim lost his or her life. Victims that will lead to an enhancement include the elderly, disabled adults, persons under the age of 18, or police officers, firefighters, medical technicians or paramedics acting in the course of their duties. The defendant in this case is facing aggravated manslaughter because the victim was 14 years of age.

The sentencing hearing for the defendant will occur in about two months once the department of probation conducts a pre-sentence investigation. The court, the prosecutors and defense counsel will use the pre-sentence investigation report as a tool at the hearing. The court will consider the defendant's prior record before imposing sentence. Conservatively, the judge will sentence the defendant somewhere in the 7 year range. However, the sentence will largely be dictated by the decedent's families input at the defendant's hearing. In cases where death resulted, the victim's family has a lot of influence in determining a sentence either by way of plea or at sentencing.

Man Guilty in Death of Boy Playing Game, Miami Herald.com, October 22, 2010.

September 30, 2010

"Stand Your Ground Law" Helps Defendant, Hurts Prosecutors

The Florida legislature significantly changed the self-defense laws in the State of Florida approximately 5 years ago. State attorneys' offices and law enforcement officers throughout the state complained that the new self-defense rule would cause lawlessness in the streets. While that prediction has not come to fruition, prosecutors have had difficult time filing charges and successfully prosecuting violent crimes because the law that allows individuals to stand their ground. While the defense is not applicable in many cases, Miami criminal defense lawyers have used the defense to win cases or in the alternative, get significantly reduced plea offers for their clients.

Prior to enacting the new law, a person did not have a duty to retreat were in cases where the person using deadly force was in their home, residence or automobile. The jury instruction regarding this defense can be summarized as allowing a defendant to use deadly force when he or she is in his or her dwelling, residence or vehicle, the defendant was in fear of imminent peril of death or bodily injury and the alleged victim unlawfully and forcibly entered or attempted to forcibly remove another person from the defendant's dwelling residence or automobile. The law went further to presume that anyone another person's property was doing so with the intent to commit and act involving force or violence.

The old law required a person to retreat if the person was able to leave without facing imminent harm. The new legislation allows for a person to remain in any place where they are legally allowed to be and that person has no duty to retreat and can stand his or her ground and use force, even deadly force, if reasonable necessary to prevent death or great bodily harm. The law also allows for a person to defend another person with no duty to retreat under the same circumstances.

The revisions to the stand your ground law allow for an effective defense in manslaughter and aggravated battery charges. The defense has been successfully used to defend cases throughout the State of Florida, but in particular in Miami-Dade and Pinellas Counties. To make the stand your ground defense stronger it is always helpful to have defense witnesses that will corroborate the version events set forth by the defendant. If a person is charged with a violent crime, they should speak an criminal defense law firm that specializes in these types offenses to determine if there is viable self-defense claim exists. In any event, the new legislation causes major problems for law enforcement to deal mutual combatant type cases.

Stand Your Ground" Makes It Tougher to Prosecute Assailants, St. Petersburg Times, September 30, 2010.

September 15, 2010

Hialeah Man Sentenced to 30 Year Prison Term

A circuit court judge sentenced a local man to 30 years in prison for several violent crimes he allegedly committed in Hialeah. The defendant entered guilty pleas in three cases based on the strength of the physical evidence discovered by the police investigating the crimes. The defendant appeared in court with his Miami criminal lawyer from the public defender's office. The sentence handed down by the court was relatively light considering the allegations and charges filed against Jeosvany Salas. The very reasonable plea offer in light of the evidence was offered in an effort to keep the victims from testifying at trial to reduce the trauma. The defendant is alleged to have part of a group that committed numerous home invasion robberies during 2007.

The first case charged the defendant with kidnapping and sexual battery. The defendant broke into a home with two other unidentified men, tied up a woman and her daughter, held them at gunpoint and stole jewelry and electronics. Before leaving the residence, the defendant allegedly licked the woman. The crime scene detectives were able to collect a DNA sample from saliva found on the victim's chest. The collected sample matched the saliva sample extracted from the defendant.

The second case alleged that the defendant committed a robbery against a 73 year-old victim. Apparently, the defendant and his accomplices broke into the wrong house thinking they were going rob a wealthy Cuban man. Despite the fact that the assailants broke into the wrong home, they decided to rob the elderly woman. During the robbery they tied up the woman and taped her mouth shut. Detectives were able to locate a fingerprint on a the piece of scotch tape located at the crime scene that matched the defendant's fingerprints.

The third case against the defendant was a kidnapping charge that allegedly occurred when the defendant held a pawn shop owner hostage in his home for over 9 hours. The defendant and his accomplices beat the victim for hours in an effort to secure the pass codes to get into his store. The defendant was arrested fleeing the scene as the police arrived. According to the police, the defendant provided a full confession to the crime. While this case was initially the strongest for the state, the fist two cases became the strongest through the use of forensic evidence.

While confessions and identifications through show-ups or lineups are pieces of evidence often relies on by prosecutors, any experienced criminal defense lawyer will tell you that the far most compelling evidence that can be presented to jury is forensic evidence such as DNA, fingerprints, gun shot residue, to name a few. Jurors will often admit during the jury selection process that they favor physical forensic evidence over testimonial evidence. The only way to refute forensic evidence is for the defense to hire their own expert witness to re-test the evidence and possibly testify if any discrepancies are found. While hiring experts is an expensive proposition, there may not be alternative.

Hialeah Robber, Sentenced to 30 Years, The Miami Herald.com, September 15, 2010.

September 8, 2010

Local Man Sentenced for 2007 Violent Crimes

A local man finally entered a plea after being arrested in 2007 for various violent crimes that occurred over a 24 hour period. Wayne Proctor was only 19 years-old when he allegedly committed the crimes for which he was charged. He has been held in custody without a bond since his arrest over three years ago. He appeared before a circuit court judge with his Miami criminal defense lawyer and entered a guilty plea into seven counts of armed robbery with a firearm, once count of attempted armed robbery and two counts of aggravated battery. Prior to entering the plea, the defendant and his counsel had negotiated a sentence of 15 years in state prison.

As part of the plea agreement, the assistant state attorney handling the case agreed to nolle pros or dismiss charges including armed sexual battery and armed kidnapping as part of the negotiated plea agreement. On many occasions, prosecutors will nolle pros or dismiss charges as part of a plea agreement. This is an important strategy for a defense attorney to pursue especially because pleas to prior crimes can be used to enhance or increase sentences for future offenses. As such, charge bargaining is an important part of any plea negotiation.

The defendant was accused of several separate crimes which occurred over several hours. Proctor was alleged to have committed a kidnapping of a Miami Gardens woman and pistol whipping her prior in order to steal her purse and money. The defendant then committed an armed kidnapping and armed robbery against tourists from St. Kitts. Police reports charged the defendant with stealing $60 dollars from the couple, then committing a sexual battery against the woman. The defendant then allegedly robbed three tourists at gunpoint of their jewelry and cell phones. Despite the violent nature of the offense, the defendant only received five years in prison despite the fact that he was facing several life sentences.

There are several factors that led to the 15 year plea offer. The defendant was only 19 at the time of the offense and had limited prior contacts with the criminal justice system. Although not mentioned in any of the police reports, defense counsel probably argued that his clients actions were not based on a violent criminal disposition, but rather he committed the acts to facilitate a raging drug addiction. The criminal lawyer representing Proctor most probably compiled a lengthy mitigation packet and delivered it to the prosecution and the judge for consideration. Mitigation packets are effective tools used to persuade both judges and prosecutors that a defendant's actions can be explained based on childhood shortcomings or substance addictions. What ever strategy was employed by the defense in this case, it was very effective in light of the time the defendant was facing.

Teen Gets 15 Years in Miami Crime Spree, The Miami Herald.com, August 26, 2010.

September 3, 2010

Prosecutors Get Verdict on 17 Year-Old Murder Case

Local prosecutors obtained a guilty verdict in a little more than an hour on a 17 year-old murder case. The unusual thing about his case is that detectives were never able to recover a body. All Miami criminal defense attorneys know how difficult it is to convict a person of murder without a body. It is so difficult to prove a case without a body that this case is only the second no body murder conviction in Miami-Dade County's recent history. The reason it is so difficult to prove a murder case without a body is that the prosecution cannot call the medical examiner to testify as to the cause of death of the victim. In the majority of murder and manslaughter cases, the most compelling evidence that is often presented is that by the medical examiner.

It took a took a jury a little over an hour to convict Christopher Phillips for the second degree murder of his former girlfriend. The lack of a body was overcome by strong witness testimony presented by the prosecutors for the Miami-Dade County State Attorney's Office. Phillips along with other youths traveled to Miami, Florida after Hurricane Andrew looking for work. Phillips, a purported drug dealer and roofer hooked up with the victim who was working as a waitress in a Homestead restaurant. Evidence was produced at trial describing Phillips as a violent and manipulative boyfriend. Workers from the restaurant testified on behalf of the state that the defendant always hung around the restaurant, jealously guarding his girlfriend and often demanding her tip money. Other testimony described the how the victim appeared for work with black eyes and bruises.

The most damning testimony put on by the prosecution was the testimony of a bartender, the defendant's uncle with a long criminal felony record and the defendant's ex-wife. The bartender testified that she had overheard on several occasions from the defendant's own mouth that he caused the disappearance of his ex-girlfriend. In fact, the bartender had at one time confronted the defendant about killing the victim. According to her testimony, upon asking the question, the defendant's eyes welled up and walked way from the witness. The defendant's uncle testified that Phillips's had bragged to him on several occasions that he in fact had murdered his ex-girlfriend, even describing in graphic detain how he choked her to death. The defendant's ex-wife testified regarding the defendant's past violent conduct.

Criminal cases can be proven by two forms of evidence, physical and testimonial. Examples of physical evidence include, ballistics reports, DNA evidence and other types of evidence obtained from the crime scene. The murder weapon, whether it be a gun or knife would also be considered physical evidence. Witness testimony is considered testimonial in nature. The law in the State of Florida requires jurors to not give more weight to either type of evidence. In fact, the judge will provide jury instructions to jurors regarding that law. Be that as it may, most jurors will honestly tell you that they give more credence to physical evidence than testimonial evidence. The jurors in this particular case were able to follow the law and convict Phillips without a shred of physical evidence.

No Body Found, but a Guilty Verdict in Homestead Woman's Death, The Miami Herald.com, September 3, 2010.

September 1, 2010

Gang Related Violent Crimes on the Rise in Kendall

A South Florida neighborhood has seen a rise in violent crimes committed by local gangs. The West Kendall area has been the location of several gang-related drive by shootings this year. The Hammocks District of the Miami-Dade Police Department is responsible for investigating the gang related activities committed in the Kendall area. Eight shootings have been reported over the past eight months. Three 17 year olds have been charged with the offense of attempted first degree felony murder. While the law in the State of Florida considers these defendants juveniles, the same laws allow for the Miami-Dade County State Attorney's Office to bind these defendants over to circuit court to be treated as adults. The defendants will either be appointed a Miami criminal lawyer for the public defender's office or the defendant's family will hire a privately retained Miami criminal defense law firm. Investigators are continuing to look for other gang members involved in the shootings.

Hammocks investigators have determined that the shootings are occurring as a result of a gang war that is developing in Kendall. The spree of shootings apparently is the result of retaliation for the shooting death of one local gang member. An 18 and 19 year-old have been arrested and charged with first degree murder and are being held without a bond in the Dade County Jail awaiting trial. Because first degree murder is a capital offense, the defendants are not entitled to a bond. However, the defendants can requested a type of bond hearing called an "Arthur hearing" where their defense lawyers can try to obtain bond. According to police investigations, the ongoing gang war is being conducted between the "Southbound Thugs" and the 137th Avenue Boys".

The Hammocks section of the Miami-Dade Police Department are taking an active approach to quelling the violence in the Kendall neighborhood. Detectives are actively tracking gang members and showing a strong police presence where gang members go and through the use of confidential informants. The Miami-Dade County State Attorney's Office also has a specially designated gangs unit that is used to prosecute gang members throughout the county. While gang members are normally of the age that allow them to be treated as juveniles and youthful offenders, prosecutors tend to deal with these type offenders more seriously than the run-of-the-mill youthful offenders.

The defendants under the age of 18 are normally prosecuted in the juvenile courts system. However, in severe cases and cases involving gang members, the prosecutor's office will often send these defendants to the adult court system to be prosecuted. Once juvenile is arrested, it is important that the defense attorney representing the client meet with the juvenile prosecutors in order to keep him or her within the juvenile system. Many times the result will depend in large part on the offense for which the juvenile is charged. For example, a defendant charged with murder will always be sent to adult court, while a defendant charged with burglary will probably be left to remain in the juvenile system. Of course, the mission becomes more difficult if the defendant is linked to gang related activity. Even if a defendant is direct filed to adult court, hope is not lost, the state still has to prove the case, and in the vent of a strong case, he or she will be eligible for youthful offender sanctions in adult court.

Drive-By Shootings on the Rise in West Kendall, The Miami Herald.com, August 30, 2010.

August 19, 2010

Local Couple Arrested for Child Neglect

A husband and wife were each arrested for one count of child neglect. Both defendants appeared at bond hearing and received a $7,500 bond which is a standard bond for a third degree felony. Yoselin Aguirre was able to post the bond and has since been released from the Miami-Dade County Jail. Roberto Fortin has yet to post the bond and remain incarcerated. Both are charged with failing to care for Fortin's 7 year-old child to the point where he was hospitalized and remains in critical condition. However, if the child expires the defendants could be facing involuntary manslaughter charges. At this point in the case, the defendants are each represented by a Miami criminal defense lawyer from the public defender's office, but at any time can retain private counsel.

Aguirre was able to post the bond with the assistance of a local bondsman. In state court cases, bonds can generally vary from $500 to $500,000. Obviously, the amount of the bond will go up depending on the severity of the charge. For example, a bond in DUI case is $1,500 while a bond on a cocaine trafficking case can and sometimes will exceed $250,000. Most people to do not have the financial resources to post an expensive bond themselves. To post a bond without the assistance of a bondsman, a person must pay the entire amount to secure the release of a defendant. To post a bond with the assistance of a bondsman, the bondsman will require that 10% premium be paid for him or her to post the bond. Generally, the 10% premium will be enough for a bondsman to post the bond. However, if a person does not reside in Miami-Dade County, the bondsman may require collateral in order to write the bond. The reason lies with the fact that if a defendant does not return to face charges, the bondsman is on the hook for entire amount of the bond.

While both defendants are only now charged with third degree felonies, the facts of the case are more serious than in the run-of-the-mill child neglect cases. The defendants are accused of failing to properly care for the child. According to the arrest report, the defendants failed to feed the child and provide medical care on his behalf. Upon arriving to the hospital, the child weighed half of what a child his age should weigh and had lesions all over his body. Aguirre claimed that she knew the boy was sick, but had no responsibility since she was the child's stepmother. Aguirre has a prior record for aggravated battery on an elderly person. Fortin has a record for aggravated manslaughter. Court documents revealed that he was present when his nine month old child drowned in a bath tub.

Despite the allegations, both defendants can not be charged with a more serious offense unless the child expires. To charge a person with aggravated child abuse, the state must be able to prove beyond a reasonable doubt that a defendant committed an aggravated battery, willfully tortured, maliciously punished, willfully or unlawfully caged, a child, or caused great bodily harm to a child as a result of child abuse. Police reports due not describe facts that will allow the couple to be charged with this offense. Either way, the case will become a focus of the state attorney's office due to the media attention the case has received.

Step-mom in Miami Child Neglect Case Bonds Out, Dad Remains Jailed, The Miami Herald.com, August 17, 2010.