_             On July 1, 2010, a Polk County jury convicted Joseph Nobles of Leaving the Scene of an Accident Involving Death following an automobile accident on an unlit portion of State Road 60.  The Defense team, led by veteran trial attorney, Gil Colón, Jr., successfully petitioned the Court to overturn the jury verdict and acquit Mr. Nobles. 
            The judge found that the State failed to present sufficient evidence to permit a guilty verdict.  Specifically, the trial court noted that the prosecution failed to present evidence inconsistent with the Defense’s reasonable hypothesis of innocence.  “Even though the circumstantial evidence is to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence,” Davis v. State, 90 So.2d 629 (Fla. 1956).   
            The State appealed the Judge’s ruling to the Second District Court of Appeal.  The essence of the State’s argument was that the defense Motion for Judgment of Acquittal should not have been granted because the judge failed to consider facts that were never actually presented at trial and that never existed in reality.    
            The Defense appellate team led by attorney, Keith A. Peterson, argued that the judge’s decision must be predicated upon facts that were actually presented at trial, not those that populated the prosecutor’s fantasies.  The defense argued that pursuant to Florida Rule of Criminal Procedure 3.380, the trial court properly considered the sufficiency of the evidence by considering the absence of state evidence inconsistent with the reasonable defense theory of innocence.   Furthermore, the defense argued that in considering the sufficiency of the evidence subject to Rule 3.380, a finding in support of the defense Motion obviates the need for further analysis under Florida Rule of Criminal Procedure 3.600(a)(2).
            The Second District Court of Appeal affirmed, per curiam, the trial court’s decision to overturn the jury verdict.  The conviction was vacated and justice was served. 

            The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, Appellate, and Probate matters.  Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.

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_             In Hardy v. Cross, 565 U.S. ____ (2011), the United States Supreme Court reversed the Seventh Circuit for second-guessing the Illinois State Supreme Court’s ruling on a witness unavailability issue.  At trial, the alleged victim in a sexual assault and kidnapping case testified reluctantly and only after substantial prodding by the prosecution.  After an acquittal on the kidnapping and a mistrial by hung jury on the sexual assault charges, the State decided to retry the defendant on the latter charges. 

            At the time of the second trial, that reluctant witness went missing.  The prosecutor moved the trial court to admit the testimony of the witness from the prior trial due to her unavailability.  The prosecutor argued as to the litany of efforts the State had made in keeping in touch with the witness and maintaining contact with her as well as their frantic, last-minute, unsuccessful scramble to determine her whereabouts. 

            The trial court granted the State’s motion to admit the prior testimony.  The Illinois Supreme Court upheld the decision only to be reversed by the Seventh Circuit Federal Court arguing that they (the judges sitting on the Seventh Circuit bench) felt that the State’s efforts were not “reasonable.”  The Seventh Circuit judges felt that three leads out of the dozens and dozens the State explored were not adequately investigated.  Those included investigating a cosmetology school where the witness hadn’t attended for months and contacting several old friends that had little if any connection to the witness or the family of the witness.  Finally, the Seventh Circuit held that the State failed to subpoena the witness immediately after the first trial even though she promised to testify, albeit reluctantly, at the retrial.

            The USSC held that the Seventh Circuit stepped in it by overstepping.  “[T]he deferential standard of review set out in 28 U. S. C. §2254(d) does not permit a federal court to overturn a state court’s decision on the question of unavailability merely because the federal court identifies additional steps that might have been taken.”  In short, the “reasonableness” standard must be considered from a reasonable perspective—not as an exercise of creative judicial second-guessing. 

            The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters.  Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.