Articles Posted in Violent Crimes

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If you’ve previously read our blog, you’ll know that it is an effort to provide an interesting read on funny or hot button topics from the perspective of a Tampa criminal lawyer. Our hope is that we can bring some knowledge on the law while also giving a perspective of how a case is viewed from our side of the fence. Today I’ll break from that trend as there is nothing funny about the acts of Dzhokhar Tsarnaev and his older brother. These individuals robbed our Country and one of our finest cities of a sense of security while taking with that the lives and quality of life of innocent bystanders supporting something so pure as the challenge of the Boston Marathon. Those of us that practice Federal criminal law stand before our Judges every month in an effort to introduce them to an individual as opposed to a case number. We squeeze every bit of good in a person onto a sentencing memorandum in the hope that we can shave off a fraction of the person’s sentence. As a general rule, within each of our clients there is some good and it can be argued that though the individual may be before a particular judge on a particular day, the act for which they are there is not the sum total of who the person is. With the freshness of this massacre as it currently stands, it would be tough to make that argument here. Some will demand Tsarnaev’s head on a stake, some will beg for mercy due to his age. Both are entitled to their opinion. This great country and its resolve is to thank for the ability to own your opinion.

As it stands on the date of this blog, Tsarnaev has been charged by criminal complaint in Federal Court. Rest assured a Grand Jury will be empaneled on this case and they will provide an indictment and this case will move forward based on that. As for now, Tsarnaev is charged via complaint with “Use of a Weapon of Mass Destruction” under 18 USC 2332(a) and “Malicious Destruction of Property Resulting in Death” under 18 USC 844(i). Someone died as a result of the deeds of these brothers. As with any Federal Case one of the first steps in sentence calculation is to take a look at the Federal Guidelines to get a rough idea as to where the potential sentence may stand. Going in order, the charge of “Use of a Weapon of Mass Destruction” is most likely to be guided under Federal Guideline 2M6.1. Immediately because a little boy died, this guideline could call for a cross reference with Guideline 2A1.1 for first degree murder as the death was most definitely caused intentionally or knowingly. The base offense level for that, regardless of criminal history is 43, which equates to life. However, under 2M6.1(c)(1) because a higher offense level could be built using 2M6.1 by taking the base offense level of 42 and adding 4 levels for death, the first degree murder cross reference doesn’t happen. Generically, for Tsarnaev’s use of a weapon of mass destruction, he’s looking at a potential total offense level of 46 which would equate to life. As for the “Malicious Destruction of Property Resulting in Death” the applicable guideline is 2K1.4. Again there calls for a first degree murder cross reference under 2A1.1, this time applicable as that guideline is higher at 43.
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Hillsborough County woman, Laquavia Sharelle Wallace, 28, was arrested on April 16, 2013 in Manatee County for domestic battery after allegedly travelling to her ex-boyfriend’s house to pick up their child and demanding to reinstate their relationship. Upon her arrival and levying of demands, Antonio Williams informed Ms. Wallace that he was uninterested in reigniting their love light, clearly to his detriment. In what can only be imagined to be the scenario of “if I can’t have you, no one can,” Wallace proceeded to grab the penis of Mr. Williams, yanking it violently thereby causing him extreme pain. Luckily for Mr. Williams he was able to overcome the assault by grabbing Ms. Wallace’s arms and fending her off. Ultimately Ms. Wallace was arrested in Manatee County and charged with misdemeanor domestic battery. Not necessarily surprisingly for a domestic violence type of case, Mr. Williams has asked the State Attorney’s Office not to prosecute the case.

Domestic Violence in Florida is governed by Florida Statute 741.28 and defines “domestic violence” for purposes of this particular set of facts as any battery resulting in physical injury to a family member. “Family Member” as applicable to this pair of combatants would apply because they have a common child together. Lastly, Florida Statute 784.03 describes a battery as an actual or intentional touching or striking of another person against their will; or intentionally causing bodily harm to another person. According to the facts of this incident, should the State Attorney decide to move forward on the charges they could potentially prove the case. If the State has adequate testimony from the victim, preferably an independent witness, or pictures of injury they would have a shot at proving this domestic battery beyond a reasonable doubt. As with any battery case, without injury or independent witnesses, a savvy Tampa criminal lawyer could assert a he said/she said defense and cite the fact that the State can’t meet their burden of proving that there is no other reasonable explanation for the allegations but for the notion that a battery has occurred. That’s not easy to do.
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A Louisiana man and woman recently stripped of their parental rights are thought to have kidnapped their own children from the children’s maternal Grandmother early Wednesday. Joshua Michael Hakken and his wife, Sharyn Patricia Hakken are alleged to have broken into the Tampa residence of Patricia Hauser, tied her up, and kidnapped their biological children. Within the past few months the children were sent to live with Hauser after the Hakkens lost their parental rights over the children. Hillsborough County Sheriff’s investigators say Joshua Michael Hakken entered Hauser’s home at 6:30AM Wednesday, proceeded to tie up the children’s’ Grandmother and then fled in Grandma’s 2009 Toyota Camry.

The Tampa criminal attorney that gets this case might as well open up the criminal statute book and proceed to dump it out on his desk. There really doesn’t seem to be much Pops hasn’t done wrong in his kid caper. Burglary? Check. Kidnapping? Check. Grand Theft? Yes sir, we have that too! False Imprisonment shouldn’t be left out and really neither should battery. Again, lets dump this statute book out right here on the desk of Hakken’s selected Tampa criminal lawyer. So how does it all work and fit together? Grab a seat, this may take a while.
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George Zimmerman, the man who stands accused of Second Degree Murder for the death of teenager Trayvon Martin will not be going forward on a Motion for Immunity previously scheduled for April 2013. A Motion for Immunity, otherwise known to the world outside the legal community as a “Stand Your Ground” motion is a pretrial motion asserting that an individual is immune from prosecution for an allegation of violence levied against an individual. In essence a Stand Your Ground motion asserts that an individual had a right to use such force so as to protect themselves against the unlawful force of another. On February 5th of this year George Zimmerman’s criminal attorney requested that Zimmerman’s trial be continued beyond the June date citing the need for more time and money to lay the groundwork for the trial. This request was denied, ultimately to be the catalyst for Zimmerman’s lawyer’s decision to forego the Motion for Immunity and focus on the trial.

Florida Statute 776.012 justifies the use of deadly force against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or another against the other’s imminent use of unlawful force and he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony. Florida Statute 776.012 is cited in Florida Statute 776.032 where it says that a person who uses force as permitted in 776.012 is justified in doing so and is immune from criminal prosecution and civil action for the use of such force unless the person against whom the force is used is law enforcement acting in the performance of their duties and the officer identifies themselves.
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Attorneys for the State of Florida and alleged Tampa Police Officer shooter Dontae Morris continue to quest to pick a jury for Morris’ upcoming murder trial for the death of Rodney Jones outside of a Tampa nightclub. Morris’ name may sound familiar as he is the suspect accused of killing Tampa Police officers Jeffrey Kocab and David Curtis on June 29, 2010 after a routine stop of his girlfriend’s vehicle. Because of the media coverage of the death of the two officers, Morris’ jury selection has been moved to Orlando in an effort to find a jury pool less familiar with the allegations in the hope of finding a jury of individuals unbiased and unfamiliar with this case. Though this practice has been used for years, the Tampa criminal lawyers at The Mayberry Law Firm have doubts as to its effectiveness in our day of modern technology.

In any high profile criminal trial, be it Casey Anthony and the accusation of murder for the death of her little girl, Jodi Arias and the accusation of murder for the death of her boyfriend or anything involving the death of a local police officer there gives the rise of doubt that a jury free from bias can be seated in the county holding jurisdiction over the allegations. Tampa criminal lawyer Jason Mayberry blogged in May 2011 about this very issue as it concerned the jury selection for Casey Anthony held in Pinellas County. Within that blog our firm expressed doubt that the change of venue protection still legitimately exists.

Article I, Section 16 of Florida’s Constitution guarantees an accused will receive an impartial trial in the county holding jurisdiction over the criminal allegation. In conjunction to that Constitutional guarantee, Florida Rule of Criminal Procedure 3.240 provides that either the State Attorney or the Defendant may move the Court for a change of venue, alleging that a fair and impartial trial cannot possibly be had in the home county of jurisdiction. Florida Statute 910.03 says that in ordering a change of venue for jury selection the Court must “give priority to any county which closely resembles the demographic composition of the county wherein the original venue would lie.” In this instance it appears that Judge Fuente feels that Orange County satisfies the dictate of 910.03.
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Erik Brown, 36, is alleged to have committed a misdemeanor battery upon his brother in law in Port St. Lucie, Florida with, of all things, a Taco Bell burrito. The Burrito Battery occurred after a verbal altercation between the victim and his mother overheated. Brown, feeling the argument was disrespectful to his mother in law and the victim’s mother, launched the victim’s burrito at his face after the victim asked his mother to bring it to him, according to a police report. When interviewed by police Brown explained that the alleged victim was being disrespectful to the mother in law and had cursed at her. It was at that point Brown delivered the burrito to the victim. Upon police electing to arrest Brown, Brown proceeded to inform the victim that he would be promptly knocked out when Brown returned home. Brown was taken into custody and transported to the St. Lucie County Jail without further incident. He will be charged with battery per Florida Statute 784.03.

Regardless of the fact that Brown used his burrito as a weapon in his battery of his brother in law, he could only legitimately be charged with a Florida misdemeanor. Because any Tampa criminal attorney would be able to successfully argue that a burrito is not a deadly weapon, the prospect of a felony charge just isn’t there. For the State to prove that Brown is guilty of a misdemeanor battery they would have to show that Brown actually or intentionally touched or struck his brother in law against his brother in law’s will or that Brown intentionally caused bodily harm to his brother in law. Where things could get rather sticky for Brown is if this is charged as a domestic battery under 741.28. In this case if the State Attorney can show that Brown and his brother in law are related by marriage which clearly they are or that they either live or have lived together, they may elect to charge this battery as domestic in nature.
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A man in Iran has been charged with bank robbery after purchasing a faulty spell from a local sorcerer to make him invisible and then taking money from bank patron’s hands. For the Iranian bank robber, he would have been best served to either look in a mirror prior to testing out his purchase or at the very minimum to have asked for a test run before shelling out the $500 for the invisibility cloak. When questioned by an Iranian Judge about the allegations, the man explained that he purchased a set of spells to tie to his arm that would make him invisible. He further explained that the sorcerer from whom he made his purchase explained to him that he could rob banks to his heart’s content due to the invisibility provided by the spell pack. Unfortunately for our Iranian friend when he entered the bank and began taking money from patrons’ hands, he quickly learned that he was very visible.

Though we’re in Iran for purposes of this blog, if one elected to purchase invisibility and perform a bank robbery in the United States, they would be staring down the barrel of a Bank Robbery charge under 18 USC 2113. The Federal Bank Robbery statute says that whoever by force and violence, or through intimidation, takes, or tries to take from another, or obtains or attempts to obtain something by extortion belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association or whoever enters or attempts to enter any bank, credit union, or any savings and loan association, with intent to commit any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny–
Shall be fined under this title or imprisoned not more than twenty years, or both.
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A threesome didn’t quite go as planned for one unlucky participant when his request to switch sexual positions with another man resulted in him being chased and ultimately stabbed with a butcher knife. This tale of lusty lovers began in prison when Ashley Hunter, 33, and Orlando Dewitt, 37 became friends. Upon their release they were lucky enough to finally party with real women when one misplaced request to move to the back sent Ashley Hunter into a knife wielding rage. According to the news report, Orlando Dewitt and a lady friend got friendly on a couch and soon shucked their pants. One thing led to another with Dewitt and his lady friend ultimately engaging in a sexual encounter only to be interrupted by Hunter. Hunter, who was watching from a nearby bedroom, began kissing the unknown woman’s breasts and ultimately she engaged him in oral sex. When Hunter grew tired of his position, he requested a Chinese fire drill of sorts and things got sticky in a hurry. Words were exchanged between the two jail mates until Hunter produced a large butcher knife from a couch. When the blade was brandished Dewitt and the lucky lady retreated to the bathroom as Hunter waived his swords from the living room. Ultimately Dewitt made a break for the front door but was caught from behind by Hunter and stabbed in the arm.

Hunter was later arrested and charged with aggravated assault and is currently being held in a North Dakota jail on a $5,000 bond. I believe most Tampa criminal lawyers would agree that this is a relatively low bond for such a crime. Were Hunter’s deeds performed in Florida, he would be facing at minimum an aggravated battery with a deadly weapon under Florida Statute 784.045. In Florida one is guilty of an aggravated battery if it can be proven that a person committed a battery and in doing so causes great bodily harm, permanent injury, permanent disfigurement or uses a deadly weapon in the commission of the battery. In a case similar to Mr. Hunter it seems a Tampa criminal attorney may have some difficulty in forming a defense to this allegation unless other facts are presented that contradict this news story.
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Fanatical Alabama supporter Harvey Updyke had his pretrial release revoked yesterday after Prosecutors moved the Court to take him back into custody. Updyke is infamous for allegedly poisoning the Auburn Oaks at Toomer’s Corner and later appearing on a high traffic Alabama sports radio program to boast about his deeds. At Updyke’s pretrial hearing Prosecutors showed Judge Jacob A. Walker III a video of a recent arrest of Updyke on a terrorizing charge in Louisiana after an altercation with Louisiana home improvement store workers. The video was shown to prove that Updyke violated a pretrial release term of not getting arrested while on bond. Despite Updyke’s lawyers lobbying to keep him out of jail by citing the notion that the Louisiana arrest was without just cause, Updyke’s bond was revoked and he was taken into custody. Updyke awaits trial on criminal mischief charges for the Auburn Oaks incident scheduled for April 8, 2013.

In Florida if one is arrested they will generally at the very least have a bond amount set. If they can post that amount or hire a bondsman to provide a surety bond they can get out of jail during the pendency of their case. With a Judge’s granting of a bond generally comes certain standard conditions pursuant to Florida Statute 903.047. An obvious condition is to refrain from criminal activity of any kind. If there is a victim of a crime, the defendant cannot have contact with them and for all those out on bond, they must comply with other conditions of pretrial release specially imposed. Any Tampa criminal attorney will have the coming to Jesus meeting with his client insisting that they absolutely not put themselves in bad situations in order to avoid criminal activity. As our Tampa criminal lawyers have often said, we can protect our clients against most things but we cannot protect them from themselves. In other words, if someone is hell bent on putting themselves in arrestable situations, there isn’t much the criminal defense attorney can do about it.
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Cortnee Brantley, the girlfriend of Dontae Morris now awaits her fate as Middle District of Florida jurors deliberate in her Misprison of a Felony trial. Brantley was with Dontae Morris on June 29, 2010 during a tragic traffic stop where Tampa Police Department officers Jeffrey Kocab and David Curtis were murdered by Dontae Morris. After Morris is said to have shot Officer Kocab and Officer Curtis, Cortnee Brantley fled the scene via car and Dontae Morris fled the scene on foot. At issue in the trial is whether Cortnee Brantley knew whether or not her boyfriend, Dontae Morris, was a convicted felon carrying a firearm. This case has gone to trial in one previous attempt, resulting in a hung jury when the empaneled jury at the time could not come to a decision after deliberating for nearly eight hours.

Ask any Tampa criminal lawyer with any Federal criminal court experience and you’ll likely be told that a misprison of a felony charge is rarely a crime charged directly. Just as a reckless driving charge is generally a reduction from driving under the influence, misprison of a felony is something we, as Tampa Federal criminal attorneys, use in an effort to convince the United States Attorney’s Office to reduce a more serious crime to. Frankly, misprision of a felony is an odd charge as it is not one typically found at the State court level. Federal in nature, misprision of a felony is an old common law charge held over from old English courts who used this charge to prosecute those for failing to report a crime. Even in England the charge was considered a misdemeanor and carried with it an exception for those who could be incriminated by divulging the subject crime. Like old England, the 5th Amendment to the Constitution prevents Brantley from being forced to report the subject shooting. Rather, the charges against Brantley are based on the United States Attorney’s allegation that she had a duty to report that Dontae Morris was a felon in possession of a firearm, contrary to Florida Statute 790.23. Per Federal Statute 18 USC 4 one who has knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
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