Articles Posted in Firearms and Weapons Offenses

By now, the whole country has heard about the Trayvon Martin shooting. As of this writing, the facts are still being sorted out and the accused shooter, George Zimmerman, has yet to be arrested. However, there has been much outrage and blame directed towards Florida’s “Stand Your Ground” law. The real question remains…does this law even apply to the facts as we know them?

F.S. §776.013(3) – Florida’s “Stand Your Ground” Law
“A person who is not engaged in an unlawful activity, and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony”.

As I am a criminal defense lawyer, I have been recently asked to explain Florida’s so-called “Stand Your Ground” law. To explain how we got here, we first need to know where we have been. That takes us to Florida “BSYGL” or “Before Stand Your Ground Law…Before the 2005 passing of Florida’s “Stand Your Ground”, a person could only use non-deadly force to defend against the imminent use of unlawful non-deadly force. The only time deadly force was authorized was to defend you or another against immediate deadly force/ great bodily harm. The use of deadly force was also allowed to stop the commission of a forcible felony.

A previous law, the so-called “Castle Doctrine” provided that a person had no duty to retreat prior to using deadly force against an intruder only if you were in one’s home or workplace. You would still need a reasonable belief that deadly force was necessary to defend against great bodily harm, deadly force, or the commission of a forcible felony (such as a robbery or sexual assault). Unlike the later “Stand Your Ground” law, you had a “duty to retreat” prior to using deadly force.

Florida ” ASYGL” or “After Stand Your Ground Law”

This “Stand Your Ground” Law introduced two (2) presumptions that would favor a criminal defendant who is making a self-defense claim:

1.The presumption that the defendant had a reasonable fear that deadly force was necessary; and 2.The presumption that the intruder intended to commit an unlawful act involving force or violence.

These two presumptions protect the defendant from both civil and criminal prosecution for any unlawful use of deadly or non-deadly force in self-defense. Additionally, the defendant/gun owner has no duty to retreat, regardless of where he is attacked, as long as he is in a location he is lawfully entitled to be when the danger occurs.

Florida’s “Stand Your Ground” Law acts as a “presumption of innocence” from prosecution, as opposed to an affirmative defense that you would need to assert in Trial (after being arrested and charged by the State of Florida).

So the question remains…Is this “Stand Your Ground” law in any way responsible or encouraged the killing of Trayvon Martin? Part Two of this blog will talk about both the potential crimes that the shooter may be charged with as well as if this law applies…
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A jury in Hernando County Florida finds son Guilty of First Degree Murder for killing his father, in cold blood, over the popular (and deadly) drug Oxycodone.

In a Brooksville courtroom, Assistant State Attorney Pete Magrino gripped the Revelation 12-gauge, sawed-off shotgun and pointed it at the courtroom wall, just feet from the jury.He pumped the slide on the shotgun, then pulled the trigger. Pump. Click. Pump. Click. Pump. Click.

“Ivan Horne was shot four (4) times. I don’t know how fast or slow the defendant cycled this shotgun when he murdered his father,” Magrino told jurors Thursday, pointing at the 20-year-old man sitting at the defense table. “We’re not talking one shot.”

As reported by BayNews9, Polk County Sheriff Grady Judd is at it again.

In another “cost-cutting” measure, the Polk County Jail will no longer provide free underwear to its inmates.Normally, when an inmate is booked in the jail, they are given an orange shirt, orange pants and underwear.

In order to save money, Polk County Sheriff Grady Judd has proposed making males inmates pay if they want their “tighty whities.”

The cost-saving measure was part of the sheriff’s 2011-2012 budget he presented to county commissioners Thursday afternoon. Judd said it will save the county $45,000.

Although women behind bars will still be provided underwear, the men will have to pay.

“For those who don’t want to pay, they can let the breeze blow up one leg and out the other,” Judd said (in classic Grady Judd fashion).

The idea drew smiles from several county commissioners and laughter from the crowd.

“You and I buy it at the store. So, if they want it, they can buy it,” he said. Judd said they are also cutting eleven (11) positions, including six (6) supervisors.

Judd says while his department is doing more with less, his highest priority remains keeping the people of Polk County safe.

Judd said the new policy will not cause the quality of service from the department to go down.

“None of these cuts will keep us from answering the call,” Judd said.

FYI — As for the underwear, it’s about $2.50 for briefs and $4.50 for boxers. The choice is up to the inmates.

“We give our inmates choices at our jail,” he said.

The new underwear rule will breeze into effect Aug. 1st.
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A disturbing story in last week’s Chicago Tribune details a “brotherly love” episode (involving an affair, a dead cat and text messaged photos) gone wrong:

Enraged after his older brother had an affair with his fiancee, an Illinois man killed his brother’s cat, then texted him a photo of it along with the message: “This is what you did to me.”

Sean Mulcahy, 31, of Homer Glen, pleaded guilty to a Felony Animal Cruelty charge Wednesday, telling Judge Edward Burmila he was “sorry” for slitting the throat of his brother’s cat Lucifer in August. Will County sheriff’s police found the cat in a ditch across the street from the Homer Glen home where Mulcahy lived with his brother Ryan, 33. Police also found a pool of blood in the driveway.The Mulcahy brothers had been fighting August 5th when Ryan Mulcahy received a text message with a picture of his bloodied pet around 4:50 a.m., according to court records. Police arrested Sean Mulcahy when he returned to the home about three (3) hours later.That same day, Ryan Mulcahy took out an order of protection against his brother Sean for himself and his 9-year-old son, writing that “based on this degree of Animal Cruelty I am in fear of my life and my family.” The order has since expired.

You may remember the three (3) St. Pete men that were charged in a high-publicity St. Petersburg shooting that killed an adorable young girl — who was caught in the crossfire of a gang/neighborhood dispute back in 2009.On Wednesday, Mario Lewis Walls pleaded Gulity to the Second Degree Murder of Paris Whitehead-Hamilton. As part of his plea deal, he has agreed to testify against his two (2) co-Defendants: Dondre Davis and Stephen Harper..

Back in 2009, Whitehead-Hamilton, who was then 8 years old, was killed when bullets fired by rival gang members flew into her St. Petersburg bedroom. The shooting caused an outrage in the city of St. Pete because of its high-level of violence (as well as the fact that no one would step forward as a witness or provide the St. Pete Police Department (SPPD) or the State Attorney’s Office (SAO) with any information on the suspects.

The investigation into this shooting revealed an often-complained-about informal policy of “no snitching” in the city of St. Pete. It also raised issues of trust between the residents of St. Pete and their own police department.

In total, more than fifty (50) rounds of assault-rifle ammo were fired into Paris’ home at 771 Preston Avenue South. That street now bears her name after the city changed it to Paris Avenue.Investigators say Walls was the getaway driver. He faces life in prison. However, because the State allowed him to plead Guilty to Second Degree Murder instead of First Degree Murder, in exchange for his cooperation and testimony, there is a good possibility that he will receive a lighter sentence.

Davis is next up for Trial in April. If he his found Guilty of First Degree Murder, there are only two (2) possible sentences: LIFE in prison (without the possibility of parole) or the death penalty.
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As we enter another Holiday Season, the Blake & Dorsten, P.A. would like to wish you and yours a Happy and Safe Holiday weekend.With the support of all of our friends, family and clients, 2010 was another excellent year for the Blake & Dorsten, P.A.. And for that, we have much to be thankful for this Holiday Season.

To our family and friends, thank you for your patience and understanding when it was necessary to work late nights and/or weekends.

To our business colleagues and our outstanding network of fellow attorneys, thank you for not only your referrals but for the trust that you have placed in the Blake & Dorsten, P.A. to provide an experienced and aggressive representation to those that you’ve sent our way.

And to both our former and present clients, thank you for the trust that you have placed in the Blake & Dorsten, P.A. to protect your rights and to handle your important criminal and/or traffic-related matters.

As many of you know, 2010 presented some different challenges for the Blake & Dorsten, P.A.. Without your support, we would not have been able to achieve the many successes that came our way.

On behalf of the entire Blake & Dorsten, P.A. team (Pam, Eryn, Oatie and myself), have a Happy, Healthy and Safe Holiday Season.As always, attorney Nicholas J. Dorsten will be available throughout the Holiday Weekend. In fact, we were very grateful to sign up a new Client today and make a Christmas Eve trip to the Pinellas County Jail.
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Earlier this week, the Sixth Circuit Court of Appeals (a Federal appeals Court) issued a landmark opinion in the criminal case of United States v. Warshak, finding that individuals have “a reasonable expectation of privacy in their email” and that the Fourth Amendment protects email held by an Internet Service Provider (ISP).In other words, “[t]he government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.” United States v. Warshak, et al., No. 08-3997, Slip Op. at 23 (6th Cir. Dec. 14, 2010).

As a criminal defense attorney, I’ve been asked the following question many times: To what extent can the police secretly view/obtain your private email? This core question, namely – what are the limits of police surveillance – was answered this week by the Sixth Circuit Court of Appeals in a lengthy opinion (that is hyperlinked above).

On one side of the issue, privacy advocates are pleased as punch with the opinion which holds that the government/police must obtain a search warrant based on “probable cause” before it can search emails stored by Internet Service Providers (ISP’s).The case involved a Federal Fraud prosecution of Steven Warshak, an Ohio executive, whose company sold an herbal supplement which was touted for its purported ability to increase a man’s, um, physical attributes. Perhaps you’ve seen a commercial or two for this product?As part of its Fraud investigation, the United States government obtained about 27,000 private emails from Warshak’s Internet Service Providers. Warshak moved to suppress/exclude the emails as evidence, contending that the U.S. government obtained them through an unreasonable search and seizure, in violation of the Fourth Amendment.

People have a “reasonable expectation” that emails will remain private, the Sixth Circuit stated, using some colorful language. “Lovers exchange sweet nothings” and “businessmen swap ambitious plans” all with the click of a mouse button, the Court said. By obtaining access to someone’s email, law enforcement agents gain the ability to peer deeply into his activities. . . the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.”

The Sixth Circuit held that Warshak’s constitutional rights were violated when investigators obtained his e-mails without a search warrant.

In a minor side note, the Court upheld his convictions. One of Warshak’s attorneys, Martin Weinberg, told the Associated Press that the Court’s ruling on email-privacy was helpful to his client; however, the Court should have also overturned his convictions.

The Electronic Frontier Foundation hailed the recent Sixth Circuit ruling, saying in a statement that it is the “only federal appellate decision currently on the books that squarely rules on this critically important privacy issue.”

The National Association of Criminal Defense Lawyers also weighed in with praise. “Americans expect and deserve protection from government agents who would snoop into their private communications without probable cause and a court order,” the group said in a statement.Please remember, this opinion only applies to “government agents.” This opinion will not prevent your wife or girlfriend from snooping into your private email account.

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According to a breaking story on, a 28-year-old Tampa man was confronted by two (2) teenagers as he was jogging after midnight in Town ‘n Country and (following a physical altercation) he shot one of them to death, said Larry McKinnon, a Hillsborough County Sheriff’s Office (HCSO) spokesman.

The shooting happened after 1:00 a.m., near Pinehurst Drive and Hickory Circle. The teens were dressed in black and wearing hooded jackets, McKinnon said. No further information was given as to why two (2) teenagers would be out at 1:00 a.m., dressed in all black and wearing hoodies. However, its doubtful that they were also “out for a jog.”

Thomas Baker, of 9015 Hickory Circle, fired multiple rounds with a .45-caliber semiautomatic handgun, McKinnon said. According to the online story, he was cooperative with the Hillsborough County Sheriff’s Office (HCSO) investigation.

It also appears that Mr. Baker will have a solid defense under Florida’s relatively-new “Stand Your Ground” law.Carlos Musteliel, 18, of 8921 Camino Villa Boulevard in Tampa, died from a gunshot to the chest. Deputies found him dead in a roadway at 1:24 a.m.

Five (5) houses away from where the shooting happened, Baker stood outside his home Wednesday morning smoking a cigarette. “I don’t want to talk,” he said. “It was a terrible thing.”

Here’s what deputies said happened:

The two (2) teens started talking to Baker. The conversation escalated into an altercation and Musteliel punched him. Baker said he thought one of the teens had a weapon and that a Robbery was about to take place. Baker pulled his gun and shot Musteliel multiple times in the upper torso. The other teen was uninjured, ran away and may have hidden behind a nearby house and discarded his jacket in the yard.The 16-year-old returned when deputies arrived and was being questioned as a witness. He will not be identified by authorities (presumably because he is a Juvenile).

Hillsborough County Sheriff’s detectives were conferring with Tampa prosecutors, who will determine if any criminal charges will be filed (and who they will be filed against).

Neighbor William McVey, 63, said he awoke to the sound of five (5) gunshots. “Somebody getting killed like that is awful,” he said. “What an awful way to start the Thanksgiving weekend.”

He said the neighborhood is pretty quiet with a lot of children.

Baker and the teenagers live in the neighborhood but don’t know each other, sheriff’s detectives said.

Baker has a concealed weapons permit and said he routinely jogs late at night, McKinnon said.
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Two stories on today addressed the fate of Jennifer Mee, otherwise known around the world as the “Hiccup Girl.”

At her “First Appearance” or “Advisory Hearing” in Clearwater this afternoon, bond was been denied for Jennifer Mee and two (2) other men, who are facing First Degree Felony Murder charges in connection with a Robbery that left a 22-year-old St. Pete man dead.Mee first made news after a fight with the hiccups that lasted for six (6) weeks. During that time she was asked to leave school because she was considered a distraction to other students.

Doctors finally got the hiccups to stop.

LOS ANGELES – According to a breaking story published by the Associated Press, Grammy-winning rapper T.I., who has a history of Drug Offenses and is on Federal Probation after spending time behind bars on Gun Charges, was arrested along with his wife after police smelled marijuana coming from their car, authorities said.The rapper was arrested Wednesday night in West Hollywood during a traffic stop, Los Angeles County sheriff’s deputy Mark Pope told The Associated Press. Authorities said they smelled a strong marijuana odor but would not say if any other drugs were found in the car.

The 29-year-old rapper and his wife, Tameka Cottle, were released from jail at about 4 a.m. Thursday after posting $10,000 bail each, sheriff’s Deputy Luis Castro said.

T.I.’s publicist declined to comment.

The arrests follow last week’s detention of socialite Paris Hilton, who is being investigated for Felony Cocaine Possession after a motorcycle officer smelled pot wafting from her car.

The Atlanta-based rapper, whose real name is Clifford Harris Jr., is a multiplatinum hitmaker. Known as the “King of the South,” he has emerged one of music’s most profitable stars.He also has a key role in the current top box office movie “Takers.” The shoot-’em-up about an armored truck Robbery that goes bad was released last week and topped the box-office chart.

T.I. served seven (7) months in an Arkansas Federal prison and three (3) months in a Georgia halfway house on Federal Weapons Charges and was released in March. He was sentenced to serve three (3) years of supervised release after his prison sentence ended.

He was ordered not to commit another Federal, State or local crime while on supervised release, and also ordered not to illegally possess a controlled substance. He was also told to take at least three (3) drug tests after his release and to participate in a drug and alcohol treatment program.

Patrick Crosby, a spokesman for the U.S. Attorney in Atlanta, had no immediate comment Thursday on whether Harris violated the terms of the judge’s order.

Since his release, the rapper, who previously spent time behind bars for Drug Offenses, has vowed to live a better life. He spoke to children about the dangers of drugs and guns, and former United Nations Ambassador Andrew Young was one of his supporters. As he prepared for his most recent sentence, he starred in the MTV reality show “T.I.’s Road to Redemption: 45 Days to Go.”

In a recent interview with The Associated Press, T.I. talked about living a more positive life.

“Right now, it’s all about moving forward and just acknowledging the blessing that are here today. … Just moving past the regrets of yesterday — the things that could’ve been done better,” T.I. said in a July interview.

Unfortunately, at this point in time, it looks like the only forward moving for T.I. is that he is one step closer to going back to Federal prison.
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