State of Florida v. Joseph Amore: Our Stand your Ground Motion for Declaration of Statutory Inmunity and our Wrtten Closing Argument

 

MOTION FOR DECLARATION OF IMMUNITY AND DISMISSAL OF CHARGES AND ACCOMPANYING MEMORANDUM OF LAW

The defendant, Joseph Amore, by and through undersigned counsel, and pursuant to section 776.032, Fla. Stat. (2013), and Florida Rule of Criminal Procedure 3.190(b), respectfully requests that this Honorable Court declare Mr. Amore immune from prosecution and dismiss the charges in the Information.  On or about August 17, 2013, Mr. Amore and victims Joshua Rankin and William Medeiros were involved in an altercation in Ybor City, resulting in the death of Rankin.  Mr. Amore was charged with Murder in the Second Degree with a Weapon and Attempted Murder in the Second Degree with a Weapon.  Mr. Amore’s request for declaration of immunity and dismissal of the charges is based on the following sworn testimony, medical records, and accompanying memorandum of law.

  1. On Saturday, August 16, 2013 around seven or eight o’clock in the evening, a group of five young men, victim William Medeiros, victim Joshua Rankin, Corey Bailey, Nathan Stasio, and Kirk Kelly (the “Port Tampa group”) went to Ybor City. See William Medeiros June 27, 2014 Dep. Tr. (“Medeiros Dep.”) (attached in relevant part as Ex. 1) at 99:22-100:6; 101:13-17; 102:14-15; 103:6-9.
  2. Rankin and Bailey were under the influence of alcohol prior to going to Ybor City. See Medeiros Dep. (Ex. 1) at 103:22–105:10.  See also Cromartie v. State, 1 So. 3d 340, 343 (1st DCA 2009) (evidence of victim alcohol intake is relevant evidence tending to prove that the defendant acted in self-defense against a drunken aggressor).
  3. Moreover, Rankin was under the influence of methylone (commonly known as “bath salts”). See Hillsborough County Med. Examiner Dep’t Toxicology Rpt. of Joshua Rankin dated September 17, 2013 (attached as Ex. 2) at p.1; Toxicologist Dr. Julia M. Pearson June 25, 2014 Dep. Tr. (“Dr. Pearson Dep.”) (attached in relevant part as Ex. 3) at 5:17-6:2.  Methylone, or “bath salts,” is a synthetic stimulant that causes a person to be easily agitated and physically aggressive.  See Pearson Dep. (Ex. 3) at 6:8–7:10.   See also Nobles v. State, 978 So. 2d 849 (1st DCA 2008) (the presence of amphetamines in victim’s urine and testimony from a physician that amphetamines cause a person to be easily agitated and aggressive is relevant and admissible evidence).
  4. Once in Ybor City, the Port Tampa group went to several bars and clubs throughout the night (see Medeiros Dep. (Ex. 1) at 109:25–110:9; 110:17-111:11), staying until the bars and clubs closed (see Medeiros Dep. (Ex. 1) at 120:1-9; 138:22–139:3).
  5. At some point in the night, Medeiros saw Mr. Amore and his companions, Shawn Hogue, Cassandra Bivens, and Tiffany Gries (the “Lakeland group”). See Medeiros Dep. (Ex. 1) at 112:3–113:9.
  6. Medeiros saw Stasio from the Port Tampa group talking to Ms. Bivens of the Lakeland group. See Medeiros Dep. (Ex. 1) at 113:24–114:10.  Neither Mr. Amore nor Hogue said or did anything negative or provoking.  See Medeiros Dep. (Ex. 1) at 116:15-20.
  7. When the bars and clubs began to let out, everyone in the Port Tampa group except for Stasio gathered together. See Medeiros Dep. (Ex. 1) at 120:1–121:4.  They located Stasio talking to Ms. Bivens behind the Buffalo Wild Wings building.  See Medeiros Dep. (Ex. 1) at 121:25–122:2.  Of the Lakeland group, Mr. Amore was standing behind Ms. Bivens on a service platform and Hogue was walking past the Port Tampa group back to 7th Avenue.  See Medeiros Dep. (Ex. 1) at 122:19-123:6; 140:11-16.  Medeiros did not recall seeing Ms. Gries but surveillance footage shows her walking ahead of Hogue toward 7th Avenue.  See Medeiros Dep. (Ex. 1) at 123:7-9; 140:11-16; Surveillance Video of August 17, 2013 (“Surveillance Video”) (attached as Ex. 4) at 2:36:05 AM.
  8. Amore jumped down from the platform behind Ms. Bivens, and the Port Tampa group formed a semicircle around Ms. Bivens and Mr. Amore. See Medeiros Dep. (Ex. 1) at 125:20-25.  Mr. Amore made a “mom joke” to Bailey.  See Medeiros Dep. (Ex. 1) at 141:15–142:20.
  9. Rankin punched Mr. Amore, rendering him unconscious and knocking him to the ground. See Medeiros Dep. (Ex. 1) at 126:10-12; 127:14–16; 150:4-5; 152:23-24; Surveillance Video (Ex. 4) at 2:37:40-2:38:09 AM.
  10. Rankin stood at six feet, three inches, and weighed two hundred pounds. See Hillsborough County Med. Examiner Dep’t Rpt. of Diagnosis and Autopsy on Joshua Rankin (“Autopsy”) (attached as Ex. 5) at p. 3.  Amore stood at five feet, eight-and-one-half inches tall, and weighed considerably less.  See Watson Clinic LLP Patient Rpt. of Joseph Amore dated October 8, 2013 (attached as Ex. 6) at p. 2.
  11. Amore suffered a cerebral concussion grade 3. See Letter from Dr. Robert Martinez, M.D., dated April 10, 2014 (attached as Ex. 7).
  12. Rankin punching Amore came “out of nowhere.” See Medeiros Dep. (Ex. 1) at 133:7-9; 150:1-3.  It was a “cheap shot” and “inappropriate.”  See Medeiros Dep. (Ex. 1) at 151:7-9; 161:5-6; 162:13-15.  It shocked the rest of the Port Tampa group.  See Medeiros Dep. (Ex. 1) at 127:9-13; 150:6-8; 152:2-8; 154:21-25.
  13. Medeiros, who was standing next to Rankin at the time of the punch, described Rankin’s assault as a hook punch that landed on the left side of Mr. Amore’s face. See Medeiros Dep. (Ex. 1) at 146:15–147:12.  It was a hard hit that made a “pow” sound “[l]ike two pieces of wood slapping together…bone to bone.”  See Medeiros Dep. (Ex. 1) at 152:7-16.
  14. After knocking Mr. Amore unconscious, Rankin ran and the Port Tampa group scattered. See Medeiros Dep. (Ex. 1) at 126:19-24; 152:16-17; 154:2-6; 154:17-155:1.
  15. Amore lay unconscious on the ground for approximately 20 to 30 seconds. See Surveillance Video (Ex. 4) at 2:37:40-2:38:09 AM.
  16. Bivens said, “Oh, my God,” and tried to help Mr. Amore. See Medeiros Dep. (Ex. 1) at 126:25-127:1; 153:5-21.  Mr. Amore struggled to regain his consciousness and stand.  See Medeiros Dep. (Ex. 1) at 153:5-21.  He was “real[ly] bobble-headed.”  See Medeiros Dep. (Ex. 1) at 153:9.
  17. The Port Tampa group came back together, and everyone but Rankin wanted to leave and go home. See Medeiros Dep. (Ex. 1) at 127:21-128:1.
  18. The Port Tampa group looked back and noticed that Hogue, Ms. Bivens, and Mr. Amore were less than one hundred yards behind them. See Medeiros Dep. (Ex. 1) at 128:2-16; 158:19-22.
  19. Kelly from the Port Tampa group again urged that they leave and go home. See Medeiros Dep. (Ex. 1) at 128:17-19.
  20. Amore was struggling and semi-conscious, and was being held up by one or both of his friends. See Medeiros Dep. (Ex. 1) at 134:7-18; 159:17-18.  He didn’t appear to “really know what was going on.”  See Medeiros Dep. (Ex. 1) at 160:1-5.
  21. Hogue appeared to be trying to “motivate” Mr. Amore. See Medeiros Dep. (Ex. 1) at 159:14-18; 160:1-5.
  22. Kelly from the Port Tampa group asked Hogue from the Lakeland group whether he really “want[ed] to do this,” whether he “want[ed] to get knocked out,” and said “there’s five of us.” See Medeiros Dep. (Ex. 1) at 128:20-129:10.
  23. Hogue acted belligerently, repeatedly saying, “step up” to the Port Tampa group. See Medeiros Dep. (Ex. 1) at 128:25-129:1.
  24. Rankin wanted to fight Mr. Amore. See Medeiros Dep. (Ex. 1) at 161:4-7; 174:15-17.  Rankin was “hyped up.”  See Medeiros Dep. (Ex. 1) at 162:9-10.  Rankin was ready to “fight [Amore] real quick.”  See Medeiros Dep. (Ex. 1) at 162:7.  Rankin’s desire to hit the semi-conscious Amore again was “over the top.”  See Medeiros Dep. (Ex. 1) at 163:4-9.
  25. Amore was still semi-conscious and “pretty dazed.” See Medeiros Dep. (Ex. 1) at 161:11-12; 161:23-24; 176:23-177:2.
  26. Kelly and Bailey again urged Rankin to “drop it” and go home. See Medeiros Dep. (Ex. 1) at 163:14-18.
  27. Rankin ignored them. See Medeiros Dep. (Ex. 1) at 163:14-15.
  28. With Rankin in the lead, the Port Tampa group walked back toward Hogue, Ms. Bivens, and Mr. Amore. See Medeiros Dep. (Ex. 1) at 164:10-165:5.  Rankin stopped at the railroad tracks and waited for Hogue, Ms. Bivens, and Mr. Amore to get closer.  See Medeiros Dep. (Ex. 1) at 165:14-17.
  29. The Lakeland group stopped a short distance from the Port Tampa group. See Medeiros Dep. (Ex. 1) at 165:19-166:25.
  30. Stasio walked up to Ms. Bivens. See Medeiros Dep. (Ex. 1) at 166:21-25; 168:7-13.
  31. Hogue was still steadying Mr. Amore. See Medeiros Dep. (Ex. 1) at 167:18-168:8; 177:3-5.
  32. Hogue let go of Mr. Amore and took a short swing at Stasio, though he did not make contact. See Medeiros Dep. (Ex. 1) at 168:23-169:3.  The Port Tampa group called Stasio back.  See Medeiros Dep. (Ex. 1) at 169:14-15.
  33. Kelly approached Hogue and repeated, “There’s five of us, man. There’s two of y’all.  Do you really want to do this?  You really want to get knocked out?”  See Medeiros Dep. (Ex. 1) at 169:14-23.  Hogue continued to say “step up” and use expletives.  See Medeiros Dep. (Ex. 1) at 169:24-170:17.
  34. Kelly began to get aggravated with Hogue and said, “This is stupid, you know.” See Medeiros Dep. (Ex. 1) at 170:19-24.  Hogue continued to say “step up,” and Kelly began to “get loud.”  See Medeiros Dep. (Ex. 1) at 170:23-24.
  35. Throughout the exchange, Mr. Amore had not said a word. See Medeiros Dep. (Ex. 1) at 172:10-11; 173:10-12.  He was still “out of it.”  See Medeiros Dep. (Ex. 1) at 173:10-12; 177:6-8.
  36. Though Kelly did not take Hogue’s bait to “step up,” Rankin went after Mr. Amore. See Medeiros Dep. (Ex. 1) at 171:24-172:7; 173:13-19.
  37. Rankin began fighting Mr. Amore. See Medeiros Dep. (Ex. 1) at 173:18-19; 175:3-5.  Rankin was “on” Amore.  See Medeiros Dep. (Ex. 1) at 177:9-10.
  38. Notably, the Medical Examiner found the imprint of teeth on Rankin’s right knuckle. See Hillsborough County Med. Examiner Dr. Elise Arbefeville June 25, 2014 Dep. Tr. (“M.E. Dep.”) (attached in relevant part as Ex. 8) at 17:17-19:24; Autopsy (Ex. 5) at p. 6.  See also Medeiros Dep. (Ex. 1) at 147:10-12 (describing the first time Rankin hit Amore as landing on the side, not the middle, of Mr. Amore’s face).  The Medical Examiner enlisted a dentist to confirm that the laceration was due to contact with teeth.  SeeE. Dep. (Ex. 8) at 17:17-18:13.  Additionally, Rankin had abrasions on his left hand, right knee, and right calf.  See Autopsy (Ex. 5) at p. 6.
  39. Hogue tried to run up to Rankin and Mr. Amore. See Medeiros Dep. (Ex. 1) at 173:21-24.  Medeiros grabbed Hogue and pushed him out of the way.  See Medeiros Dep. (Ex. 1) at 175:14-16; 177:11-24.  Hogue ran away.  See Medeiros Dep. (Ex. 1) at 175:16-17; 178:24-179:6.
  40. When Medeiros looked back after pushing Hogue out of the way, Rankin was no longer in front of him. See Medeiros Dep. (Ex. 1) at 179:10-19.  Amore appeared “kind of right there” in front of Medeiros.  See Medeiros Dep. (Ex. 1) at 179:7.
  41. Medeiros grabbed Mr. Amore by the shirt and threw him against a car. See Medeiros Dep. (Ex. 1) at 178:12-18; 179:24-180:3.
  42. Bailey came up behind Medeiros, and began punching Mr. Amore in the face and hitting his head off of the car hood. See Medeiros Dep. (Ex. 1) at 178:17-18; 180:4-16; 182:6-8; 198:5-7.
  43. Stasio yelled that Rankin had been stabbed. See Medeiros Dep. (Ex. 1) at 178:22-23; 180:20-22.
  44. Rankin had knife wounds in his neck and chest. See Autopsy (Ex. 5) at p. 4-5.
  45. Medeiros realized his arm was bleeding. See Medeiros Dep. (Ex. 1) at 180:24-181:4.  He had knife wounds on his left arm, his left peck, and his right forearm.  See Medeiros Dep. (Ex. 1) at 187:18-23.  Medeiros guessed that Mr. Amore stabbed him either when he threw Mr. Amore on the car, or when Bailey came up behind him and was punching Mr. Amore.  See Medeiros Dep. (Ex. 1) at 181:17-182:13.
  46. Bailey went to assist Rankin. See Medeiros Dep. (Ex. 1) at 183:22-184:10.
  47. Both Mr. Amore and Kelly sought out three police officers standing on a corner down the block, with Mr. Amore arriving first and Kelly a few steps behind him. See Officer Brian Alofs Feb. 21, 2014 Dep. Tr. (“Alofs Dep.”) (attached in relevant part as Ex. 9) at 6:8-13; 9:15-10:15; 17:17-19.
  48. Amore was confused, panicky, and frantic. See Officer Ryan Kuhn Feb. 21, 2014 Dep. Tr. (“Kuhn Dep.”) (attached in relevant part as Ex. 10) at 12:7-10.  He had blood on his chin, knuckles, and chest.  See Kuhn Dep (Ex. 10) at 15:10-16.  Mr. Amore told Officer Ryan Kuhn that he had been jumped in a nearby parking lot.  See Kuhn Dep. (Ex. 10) at 7:1-4; 10:11-14; 18:7-9.  Officer Kuhn heard a description of a stabbing subject on his radio, and asked Mr. Amore if he had a knife.  See Kuhn Dep. (Ex. 10) at 7:14-18; 12:23-13:2.  Mr. Amore said he did.[1]  Officer Kuhn patted down Mr. Amore but could not find the knife.  See Kuhn Dep. (Ex. 10) at 7:18-20; 13:2-3; 16:5-6.  Mr. Amore emptied his pockets looking for it but could not find it.  See Kuhn Dep. (Ex. 10) at 17:2-6.  Mr. Amore was respectful and “very cooperative.”  See Kuhn Dep. (Ex. 10) at 15:19-16:8; 17:6.  Eventually, Mr. Amore found the knife in his pant legs, and it was recovered by officers.  See Detective Kenneth Nightlinger Invest. Rpt. Printed on Oct. 29, 2013 (attached in relevant part as Ex. 12) at p. 64.
  49. Rankin succumbed to his injuries. See Autopsy (Ex. 5) at p. 2.  Medeiros was treated at Tampa General Hospital and released later that morning.  See Medeiros Dep. (Ex. 1) at 188:17-189:5.

MEMORANDUM OF LAW

“A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution.”  § 776.032(1), Fla. Stat. (2013).  Section 776.012 provides, “a person is justified in the user of deadly force and does not have a duty to retreat if…[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.”  § 776.012(1), Fla. Stat.  Moreover, section 776.013(3) states:

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.

 

  • 776.013(3), Fla. Stat. (2013) (emphasis added). See also McWhorter v. State, 971 So. 2d 154, 156 (4th DCA 2007) (“Section 776.013 altered the law so that now there is ‘no duty to retreat’ under a broad array of circumstances.”) (citing Smiley v. State, 966 So. 2d 330, 335 (Fla. 2007) (“the broad context of this legislation (i.e. ‘not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be’) establishes that there is no duty to retreat before using deadly force in numerous other situations”)).

The Florida Supreme Court has explained, “the grant of immunity from ‘criminal prosecution’ in section 776.032 must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided by rule.”  Dennis v. State, 51 So. 3d 456, 463 (Fla. 2010).  Thus, “where a criminal defendant files a motion to dismiss pursuant to section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity.”  Id. at 464; see also Peterson v. State, 983 So. 2d 27, 29 (1st DCA 2008) (“[T]he trial court must decide the matter by confronting and weighing only factual disputes [not] deny a motion simply because factual disputes exist.”).

“An objective standard is applied to determine whether the immunity provided by those provisions attaches.”  Mobley v. State, __ So. 3d __, No. 3D13-1566 at p. 9 (3d DCA Jan. 2, 2014) (citing Montanez v. State, 24 So. 3d 799, 803 (2d DCA 2010)).  In Mobley, the defendant was charged with two counts of second-degree murder after he shot and killed two men outside of a restaurant.  Id. at p. 3.  The defendant, his friend, and the two victims were involved in a “petty disagreement” inside of the restaurant.  Id. at p. 5.  The defendant and his friend left the restaurant to smoke a cigarette, and the defendant retrieved his gun from his vehicle.  Id. at p. 6.  The first victim left the restaurant and “delivered a vicious punch” to the defendant’s friend’s face.  Id.  The other victim then rushed to the scene, seemingly to aid in a “renewed attack.”  Id. at p. 7.  The defendant shot and killed both victims.  Id.  The Third DCA noted that while “[i]t may have been more prudent for [defendant and his friend] to skitter to their cars and hightail it out of there when they had the chance,” they were not required to do so.  Id. at 13.  The court determined that it was objectively reasonable for the defendant to believe that force was necessary to prevent great bodily harm, and ordered that the charges against him be dismissed.  Id. at 13.

If the defendant demonstrates by the preponderance of the evidence that he used deadly force in the manner statutorily authorized by section 776.032, he should be declared immune from prosecution.  See State v. Gallo, 76 So. 3d 407, 409 n.2 (2d DCA 2011); see also T.P. v. State, 117 So. 3d 864, 866 (4th DCA 2013) (“The issues for the trial court to determine by a preponderance of the evidence are: (1) whether [victim] was the aggressor, i.e., did [he] first engage in force against [defendant], and (2) whether [defendant] was reasonable in his belief that the force that he used against [victim] was necessary to protect himself from great bodily harm.”).  In Gallo, “[a]t around 2:30 in the morning, [the defendant and victim] confronted each other outside of a busy night club.”  Id. at 408.  Their argument became physical and at least two other men became involved.  Id.  Gun shots were fired and the victim was hit multiple times, resulting in his death.  Id.  The trial court “held an evidentiary hearing, made determinations of credibility, weighed the numerous pieces of conflicting evidence, and set forth extensive factual findings.”  Id. at 409.  The Second DCA affirmed, noting:

The legislature’s enactment of section 776.032 placed the burden of weighing the evidence in “Stand Your Ground” cases squarely upon the trial judge’s shoulders.  In this case, that burden required the trial judge to make order out of the chaos that occurred in Sarasota on one fateful night in 2010.  The trial judge performed that duty without legal error.

 

Id.  The court affirmed the trial court determination that defendant was entitled to immunity from prosecution for second-degree murder.  Id.

CONCLUSION

WHEREFORE, Mr. Amore respectfully requests that this Honorable Court (1) find that he was justified in meeting force with force while being attacked multiple times by multiple attackers; (2) declare him immune from prosecution under section 776.032; and (3) dismiss the charges in the Information.

Respectfully submitted,

/s/  EDDIE SUAREZ

 

[1]  Mr. Amore, a lifelong resident of Lakeland and an avid outdoorsman, “always” carries a knife in his pocket.  See Tiffany Gries Aug. 20, 2014 Taped Interview Tr. (“Gries Interview”) (attached in relevant part as Ex. 11) at75:5-78:8.

MOVANT/DEFENDANT JOSEPH AMORE’S WRITTEN ARGUMENT FOLLOWING EVIDENTIARY HEARING ON MOTION FOR DECLARATION OF IMMUNITY AND DISMISSAL OF CHARGES

Following the two-day evidentiary hearing held on January 16 and February 3, 2015, the defendant Joseph Amore respectfully moves this Honorable Court to declare him immune and dismiss the pending charges against him in accordance with Florida Rule of Criminal Procedure 3.190(b) and section 776.032, Fla. Stat. (2013).

LEGAL STANDARD AND ELEMENTS

Mr. Amore has demonstrated by the preponderance of the evidence that his use of force against Joshua Rankin and William Medeiros was justified.  See Little v. State, 111 So. 3d 214, 218 (2d DCA 2013) (“A defendant must establish entitlement to immunity under the Stand Your Ground law by a preponderance of the evidence.”); Mobley v. State, 132 So. 3d 1160, 1166 (3d DCA 2014) (same) (citing Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010)).

Mr. Amore is entitled to immunity under either section 776.012(1) or 776.013, Fla. Stat. (2013).  See Little v. State, 111 So. 3d 214, 219 (2d DCA 2013) (“We conclude that the plain language of sections 776.012, 776.013, and 776.032 can be understood as granting immunity to a person who qualifies under either section 776.012(1) or 776.013(3).”).  Mr. Amore qualifies for immunity under section 776.013(3) because the preponderance of the evidence shows that:

  • He was not engaged in an unlawful activity; and
  • He was attacked
  • In a place where he had a right to be; and
  • He met force with force
  • Because he reasonably believed
  • It was necessary to do so to prevent death or great bodily harm.
  • 776.013(3), Fla. Stat. (2013); Little, 111 So. 3d at 221. Mr. Amore also qualifies for immunity under section 776.012(1) because the evidence shows that:
  • He reasonably believed
  • That force was necessary
  • To prevent imminent death or great bodily harm to himself.
  • 776.012(1), Fla. Stat. (2013); Little, 111 So. 3d at 221.

EVIDENCE PRESENTED

The following facts were established by the preponderance of the evidence at the evidentiary hearing.  These facts establish that Mr. Amore’s use of force was justified.

  1. On Friday, August 16, 2013, at around nine-thirty or ten o’clock in the evening, a group of five young men, Nathan Stasio, victim William Medeiros, victim Joshua Rankin, Corey Bailey, and Kirk Kelly (the “Port Tampa group”) drove together to Ybor City. See Testimony of William Medeiros (“Medeiros Test.”) Jan. 16, 2015 Hrg. Tr. (“Tr-1”) 240:8-22; Testimony of Nathan Stasio (“Stasio Test.”) Feb. 3, 2015 Hrg, Tr. (“Tr-2”) 8:1-14; 10:22-24; Testimony of Corey Bailey (“Bailey Test.”) Tr-2 192:3-16.
  2. Rankin and Bailey were under the influence of Xanax, methylone, hard alcohol, and marijuana prior to arriving in Ybor City. Rankin and Bailey took Xanax around six o’clock that evening.  See Bailey Test. Tr-1 234:15-21; 235:8-12; Tr-2 190:20-191:7.  Between eight and nine o’clock, Rankin and Bailey orally ingested a “rock” of methylone (i.e. bath salts).  See Bailey Test. Tr-1 235:21-237:5; Tr-2 191:12-18.  Between nine and nine-thirty, before and during the drive to Ybor City, Rankin and Bailey split a fifth of a gallon of Captain Morgan’s rum.  See Bailey Test. Tr-1 237:6-238:15; Tr-2 192:19-193:1; 217:19-25; Medeiros Test. Tr-1 240:25-241:14.  During the drive, the five occupants of the vehicle also smoked marijuana.[1]  See Stasio Test. Tr-2 9:4-10:3.
  3. Methylone (commonly known as “bath salts”) is a synthetic drug similar to methamphetamines. See Ex. 3 (Toxicologist Dr. Julia M. Pearson June 25, 2014 Dep. Tr. (“Pearson Dep.”)) at 6:1-2.  Toxicologist Dr. Pearson described it as a “kind of crazy type of drug that produces a very strong stimulant effect and really affects people’s behavior.”  Id. at 6:11-13.  Dr. Pearson opined that “people taking bath salts can experience extreme paranoia or hallucinations, sometimes almost delusions, similar to like a cocaine-delirium-type situation.”  Id. at 6:18-20.  Common characteristics of taking the drug include extreme agitation, irritation, violence, and aggressiveness.  Id. at 6:21; 7:6-10.  Dr. Pearson further opined that mixing bath salts with alcohol (and presumably other drugs) would not negate the effect of the bath salts or the alcohol; rather, there may in fact “be an enhanced effect between the two of them.”  Id. at 12:7-12.
  4. Once in Ybor City, the Port Tampa group went to several bars and clubs throughout the night, staying until the establishments closed. See Medeiros Test. Tr-1 243:22-246:13; Bailey Test. Tr-2 193:2:6; Stasio Test. Tr.-2 12:11-16; 15:10-14.
  5. In the mean time, the Defendant Joseph Amore and four friends, Cassandra Bivens, Sean Hogue, Tiffany Gries, and Dalton Best (the “Lakeland group”) drove from a party in Lakeland to Ybor City, arriving around midnight or soon thereafter. See Testimony of Cassandra Bivens (“Bivens Test.”) Tr-1 131:20-132:14.   Best separated from the group as soon they arrived.  See Bivens Test. Tr-1 133:10-13; 134:18-20.  The other four went to the bar Coyote Ugly and then the club Level III until it closed.  See Bivens Test. Tr-1 134:21-135:23; Hogue Test. Tr-1 206:19-21; 210:9-14.
  6. While at the club Level III, Stasio, Bailey, and Kelly (of the Port Tampa group) came into contact with Ms. Bivens, Ms. Gries, Mr. Amore, and Mr. Hogue (of the Lakeland group). See Stasio Test. Tr-2 13:24; 14:25-15:2; 16:20-24.  There was no sign of trouble (i.e. fighting words or mean looks) between the two groups.  See Stasio Test. Tr-2 15:3-9; 17:1-4; Hogue Test. Tr-1 209:3-13; 210:15-20.  Stasio invited Ms. Bivens to a party and exchanged phone numbers with her.  See Stasio Test. Tr-2 15:23-16:14; Bivens Test. Tr-1 137:12-138:1; 139:6-19.
  7. After the clubs let out, Mr. Amore, Mr. Hogue, Ms. Bivens, and Ms. Gries walked down the main strip and onto a side street; Mr. Amore and Mr. Hogue walked together and Ms. Bivens and Ms. Gries followed them. See State Ex. 2 (Surveillance Video) at 2:33:20 a.m.; Stasio Test. Tr-2 17:5-18:23; Bivens Test. Tr-1 139:20-142:4.  Stasio walked quickly and caught up with Ms. Bivens and Ms. Gries.  See Stasio Test. Tr-2 18:4-9.  As Stasio began talking to Ms. Bivens and Mr. Amore, Mr. Hogue and Ms. Gries walked away and back toward the main strip to locate their other companion.  See State Ex. 2 (Surveillance Video) at 2:36:05 a.m.; Bivens Test. Tr-1 139:20-142:4.
  8. The other four of the Port Tampa group located Stasio on the side street talking to Ms. Bivens and Mr. Amore. See Medeiros Test. Tr-1 247:11-248:20; Stasio Test. Tr-2 18:24-19:6; Bivens Test. Tr-1 142:5-11.  They crowded around Stasio.  See Medeiros Test. Tr-1 247:21-22; 248:16-20.
  9. Stasio asked Ms. Bivens again about the party. See Bivens Test. Tr-1 142:14-18; see also Medeiros Test. Tr-1 247:23-25.  Bivens turned around to face Mr. Amore, with her back toward the five members of the Port Tampa group.  See Bivens Test. Tr-1 143:15-17.  Mr. Amore made a “your mama” joke.[2]  See Bivens Test. Tr-1 142:19-143:4; Medeiros Test. Tr-1 248:1-15; Stasio Test. Tr-2 19:7-21.
  10. According to Medeiros, Bailey verbally confronted Mr. Amore about his joke. See Medeiros Test. Tr-1 248:21-25.  Bivens also testified that “one of them” in the Port Tampa group didn’t like Mr. Amore’s remark.  See Bivens Test. Tr-1 142:21-22.  Stasio’s recollection was slightly different; he testified that Rankin, Bailey, and Kelly “had words” with Mr. Amore.  See Stasio Test. Tr-1 20:8-12.  Bailey testified that he only said that they (the Port Tampa group) needed to leave. [3]  See Bailey Test. Tr-2 221:13-17.
  11. All witnesses agree that Rankin violently attacked Mr. Amore, punching him in the face and rendering him unconscious on the ground. See Bivens Test. Tr-1 143:14-145:9; Medeiros Test. Tr-1 248:25-250:6; Stasio Test. Tr-2 20:13-21:14; Bailey Test. Tr-2 199:4-9; 221:19-222:6.    Bivens, who was standing in front of Mr. Amore, was knocked to the ground as well.  See Bivens Test. Tr-1 143:14-19; 144:15-19.
  12. Medeiros, who was standing closest to Rankin, described Rankin’s punch as hooking around Ms. Bivens and landing on the left side of Mr. Amore’s face. See Medeiros Test. Tr-1 249:8-250:1.  It was a hard hit.  See Bivens Test. Tr-1 144:20-23; Medeiros Test. Tr-1 252:4-5; Stasio Test. Tr-2 20:25-21:14; Bailey Test. Tr-2 221:23-24.  The sound of Rankin’s fist hitting Mr. Amore’s face made a loud sound; analogous to two pieces of wood smacking together.  See Medeiros Test. Tr-1 252:6-15; Bailey Test. Tr-2 221:25-222:2.
  13. Rankin’s violent attack on Mr. Amore took his friends by surprise, as well as Ms. Bivens. See Stasio Test. Tr-2 20:13-24 (“It kind of took all of us by surprise.”); Medeiros Test. Tr-1 250:7-18 (“It was very shocking.”); 271:1-6; Bailey Test. Tr-2 222:3-6; Bivens Test. Tr-1 144:4-14.  It was uncalled for.  See Medeiros Test. Tr-1 271:7-8.  It was out of character for Mr. Rankin.  See Medeiros Test. Tr-1 251:23-25.
  14. Notably, Rankin was considerably larger in height and weight than Mr. Amore.[4] See Ex. 6.
  15. The Port Tampa group, aside from Stasio, immediately scattered after Mr. Rankin attacked Mr. Amore. See Bivens Test. Tr-1 145:10-24; Stasio Test. Tr-2 21:16-21; 47:1-7; Medeiros Test. Tr-1 252:16-253:1.  Bivens got up off of the ground, and Stasio apologized to her for Rankin’s actions.[5]  See Bivens Test. Tr-1 143:19-144:3; 145:10-13; Stasio Test. Tr-2 21:19-22:15; 46:16-20.  Stasio testified that he told her, “I’m really sorry about this, this should have never happened, I don’t know what happened.”  See Stasio Test. Tr-2 46:22-24.  Stasio then caught up with the rest of the Port Tampa group.  See Stasio Test. Tr-2 22:16-17.
  16. Amore remained on the ground, unconscious and motionless, for twenty to thirty seconds. See State Ex. 2 (Surveillance Video) at 2:37:40 a.m.; Bivens Test. Tr-1 146:8-11.  The time was 2:37 a.m.  See State Ex. 1 (stipulation); Tr-1 7:5-10.
  17. Robert Martinez, a medical doctor specializing in neurology, testified that Mr. Amore suffered a cerebral concussion, Grade 3, to the brain.[6] See Testimony of Dr. Robert Martinez (“Dr. Martinez Test.”) Tr-1 13:9-19; 15-24.  A Grade 3 concussion is the worst on the scale of one to three.  See Dr. Martinez Test. Tr-1 16:17-18.  Dr. Martinez explained that a Grade 3 concussion prevents the forebrain (responsible for a person’s thinking, judgment, awareness — the things that “separate[] us from the lower animals”) from functioning on a conscious level, resulting in a person operating on a brainstem level; i.e. by reflex.  See Dr. Martinez Test. Tr-1 18:21-19:4.
  18. Martinez testified that a person suffering from such a concussion would have retrograde amnesia (not able to remember what happened before the blow to the head) as well as anterograde amnesia (not able to remember what happened after the blow to the head). See Dr. Martinez Test. Tr-1 17:2-5; 19:21-20:2).  Dr. Martinez explained that the period of confusion that results could last for several hours.  See Dr. Martinez Test. Tr-1 17:13-16.  He further explained that alcohol or drugs would exacerbate the effects of the concussion.  See Dr. Martinez Test. Tr-1 17:13-16.
  19. Michael Gamache, a forensic psychologist specializing in neuropsychology, testified that he spent two days examining Mr. Amore. See Testimony of Dr. Michael Gamache (“Dr.Gamache Test.”) Tr-1 39:20-40:21.  Consistent with Dr. Martinez’s medical testimony, Dr. Gamache opined that, after Rankin punched Mr. Amore and knocked him unconscious, Mr. Amore was in an acute confusional state, a post-concussive symptom typical for those who had suffered such closed-head injuries.  See Dr. Gamache Test. Tr-1 41:19-42:3.  Dr. Gamache explained that an individual in such a state may have trouble physically; such as difficulty walking or with balance.  See Dr. Gamache Test. Tr-1 41:19-42:3.  That individual would have trouble cognitively; they may be confused, disoriented and experiencing amnesia.  See Dr. Gamache Test. Tr-1 42:24-43:4.  Emotionally, they would be irritable, sad, nervous, or anxious.  See Dr. Gamache Test. Tr-1 43:5-7.
  20. Gamache testified that the most intensive time of the acute confusional state would be in the thirty minutes following the head injury.[7] See Dr. Gamache Test. Tr-1 51:7-52:4.  Dr. Gamache explained that the brain experiences a “neurophysiological and neurochemical cascade” where the blood to the brain diminishes by as much as fifty percent, and the permeability of the neurons change in response.  See Dr. Gamache Test. Tr-1 51:7-52:4.
  21. When Mr. Amore regained consciousness, Ms. Bivens helped him up. See Bivens Test. Tr-1 146:1-2; Medeiros Test. Tr-1 254:18-23.  Amore was confused, wobbling, “out of it,” and “not really walking too straight.”  See Bivens Test. Tr-1 146:20-21.  Medeiros, who testified that he saw Ms. Bivens help Mr. Amore up, described Mr. Amore as “bobble-headed.”  See Medeiros Test. Tr-1 254:18-255:4.
  22. Bivens and Mr. Amore began walking back toward the main strip, and encountered Hogue. See Bivens Test. Tr-1 146:2-5; 147:2; 149:7-11; Hogue Test. Tr-1 211:9-12.  Mr. Amore was bloody and “all messed up.”  See Bivens Test. Tr-1 147:2-3; Hogue Test. Tr-1 211:16-17.
  23. Hogue asked Mr. Amore what happened. See Bivens Test. Tr-1 147:3-4; Hogue Test. Tr-1 211:17-18.  Amore told Hogue that he did not know what happened.  See Hogue Test. Tr-1 211:18-19; 212:2.
  24. Bivens told Hogue that “these dudes just sucker punched Joseph [Amore].” See Bivens Test. Tr-1 147:5-6; Hogue Test. Tr-1 211:24-212:4.  Hogue became angry and asked where the people who hit Mr. Amore had gone; Bivens pointed him in the direction where the Port Tampa group had scattered.  See Bivens Test. Tr-1 147:6-9; Hogue Test. Tr-1 212:5-16.
  25. Hogue walked in the direction that Ms. Bivens had pointed, followed by Ms. Bivens and then Mr. Amore. See State Ex. 2 (Surveillance Video) at 2:39:36 a.m.; Bivens Test. Tr-1 147:9-14; 149: 21-22; Hogue Test. Tr-1 212:8; 224:9-14.
  26. Amore was “just kind of following along.” See Bivens Test. Tr-1 149:23.  He “wasn’t really there…conscious but not conscious.”  See Hogue Test. Tr-1 212:24-25.
  27. In the mean time, the Port Tampa group regrouped in a parking lot near the location where Rankin had hit Mr. Amore. See Medeiros Test. Tr-1 253:9-10; 253:17-21.  Kirk Kelley said to Rankin, “you knocked him out, you know.”  See Medeiros Test. Tr-1 253:11-16.
  28. The Port Tampa group began walking in the general direction of their vehicle. See Stasio Test. Tr-2 23:4-6.
  29. Stasio was the first of the Port Tampa group to see Hogue, Ms. Bivens, and Mr. Amore of the Lakeland group.[8] See Stasio Test. Tr-2 24:22-23; 60:25-61:2.
  30. Medeiros testified that the Port Tampa group was halfway through the parking lot when he saw Hogue and Mr. Amore. See Medeiros Test. Tr-1 255:5-23.
  31. Bailey testified that he never saw Hogue, Ms. Bivens, and Mr. Amore walking. See Bailey Test. Tr-2 227:12-228:5.
  32. Medeiros described Mr. Amore at that time as “a little unconscious from being punched;” it seemed like Mr. Amore “really didn’t know what was going on.” See Medeiros Test. Tr-1 255:24-256:9.
  33. When the Port Tampa group reached the end of the street, instead of going to their vehicle, they looped around and headed back to where Hogue, Ms. Bivens, and Mr. Amore were walking. See Stasio Test. Tr-2 25:9-27:17; 59:18-22; 60:14-20; Medeiros Test. Tr-1 256:10-18; Bailey Test. Tr-2 209:13-17.
  34. Medeiros testified that Rankin turned to walk toward Hogue, Ms. Bivens, and Mr. Amore. See Medeiros Test. Tr-1 257:15-19.  Stasio testified that he couldn’t remember why the group turned back.  See Stasio Test. Tr-2 59:18-22.  Bailey initially testified that Rankin was leading them, and then stated he didn’t know who was leading them or why they turned toward Hogue, Ms. Bivens, and Mr. Amore.  See Bailey Test. Tr-2 209:11-210:25.
  35. Medeiros testified, “To be honest, I don’t know why we didn’t just go back to the car. I think about it every day.  I don’t know why we just didn’t go that way.”  See Medeiros Test. Tr-1 256:20-22.
  36. Rankin wanted to fight Mr. Amore again. See Medeiros Test. Tr-1 256:23-25.  Amore was still semiconscious.  See Medeiros Test. Tr-1 257:3-5.
  37. Medeiros testified that he had never seen Rankin act that way before. See Medeiros Test. Tr-1 258:13-18.
  38. Rankin said something to the effect of wanting to fight Mr. Amore real quick and get it over with. See Medeiros Test. Tr-1 257:6-11.
  39. Medeiros thought it was “over the top” for Rankin to want to go back and fight the semiconscious Mr. Amore. See Medeiros Test. Tr-1 259:13-18.
  40. Kelly said to Rankin, “oh, man, let’s just go home.” See Medeiros Test. Tr-1 257:12-14.  Rankin ignored him.  See Medeiros Test. Tr-1 259:19-25.
  41. Bailey, Rankin’s best friend, also tried to convince him to just go home. See Medeiros Test. Tr-1 260:1-5.  Rankin ignored Bailey as well.  See Medeiros Test. Tr-1 260:6-7.
  42. It appears clear from the testimony that it is unlikely that the Lakeland group had seen the Port Tampa group. Bailey did not believe Hogue, Mr. Amore, and Ms. Bivens had seen the Port Tampa group.  See Bailey Test. Tr-2 229:20-22.  Stasio didn’t know whether Hogue, Mr. Amore, and Ms. Bivens had seen the Port Tampa group.  See Stasio Test. Tr-2 28:4-7.  Medeiros also wasn’t sure whether Hogue, Mr. Amore, and Ms. Bivens had seen the Port Tampa group.  See Medeiros Test. Tr-1 260:17-19.
  43. Stasio left his group, went toward Hogue, Ms. Bivens and Mr. Amore, and did something to get the attention of Hogue, Ms. Bivens and Mr. Amore. See Bivens Test. Tr-1 150:6-19.  Medeiros did not think that was a good idea.  See Medeiros Test. Tr-1 260:20-23.  Bailey did not think it was a good idea, and said as much to Stasio.  See Bailey Test. Tr-2 228:6-19.  Bailey testified that others also told Stasio that it wasn’t a good idea.  See Bailey Test. Tr-2 228:6-19.
  44. Bivens described Mr. Amore as “definitely out of it. He was just following us, just kind of walking the same direction we are, just following us because he’s not – he’s not really in  it.  Just pretty much following me and Shawn [Hogue] the whole time.”  See Bivens Test. Tr-1 152:9-13.
  45. Stasio testified that Hogue asked Mr. Amore, “Is this the motherfucker who hit you?” See Stasio Test. Tr-2 29:11-16; Tr-2 119:19-22.[9]  Stasio further testified that Ms. Bivens, not Mr. Amore, responded and said that Stasio was not the one who had hit Mr. Amore.  See Stasio Test. Tr-2 29:11-30:2; 121:5-7.  Amore appeared confused and appeared to not know how to answer the question.  See Stasio Test. Tr-2 119:23-121:4.
  46. Stasio described Mr. Amore at that time as “dazed, confused and out of it.” See Stasio Test. Tr-2 29:17-19; 62:17-25.  Stasio said, “It looked like [Mr. Amore] wasn’t even on this planet;” like he was “messed up on something.”  See Stasio Test. Tr-2 31:8-10; 30:3-31:1; 63:1-14.  Medeiros testified that Mr. Amore was still out of it, dazed, and bobble-headed.[10]  See Medeiros Test. Tr-1 261:25-262:6.
  47. Hogue testified that he “stepped to” Stasio. See Hogue Test. Tr-1 213:23.  Medeiros testified that Hogue took a swing at Stasio.  See Medeiros Test. Tr-1 261:17-21.  Stasio testified that he became concerned because Hogue was being so aggressive.  See Stasio Test. Tr-2 31:12-15; 121:17-24.
  48. Stasio turned and signaled for his friends to come to him. See Stasio Test. Tr-2 31:17-22 (he “hollered” for his friends); 32:4-6 (he signaled for his friends to come help him); 121:21-24 (he called his friends over because Hogue was being aggressive); Hogue Test. Tr-1 213:25-214:1 (Stasio whistled for his friends); Bailey Test. Tr-2 231:5-8 (confirming Stasio called them over).
  49. Medeiros testified that Kelly repeatedly asked Hogue, “Do you want to do this? There’s five of us and two of you.”  See Medeiros Test. Tr-1 262:20-22.  Hogue repeatedly responded, “step up” and “step up, motherfucker.”[11]  See Medeiros Test. Tr-1 262:22-263:5.
  50. Bivens testified that Hogue said, “Oh, you don’t want to see about it;” and someone in the Port Tampa group responded, “You have no chance. You don’t want to see about it.  You have no chance.”  See Bivens Test. Tr-1 180:22-181:15.
  51. Medeiros testified that only Hogue and Ms. Bivens, not Mr. Amore, had talked to Stasio.[12] See Medeiros Test. Tr-1 261:2-7.  Amore had not said a wordSee Medeiros Test. Tr-1 262:7-8.  Mr. Amore was still out of it.  See Medeiros Test. Tr-1 263:6-7.
  52. Bivens also testified that Mr. Amore had not said a word to anybody. See Bivens Test. Tr-1 154:7-9.  Hogue was the only one talking.  See Bivens Test. Tr-1 154:10-12
  53. Bailey testified that one person was aggressive and the other one was just standing there.[13] See Bailey Test. Tr-2 204:12-25.  Bailey also testified that one person was saying things and the other person was not, but he did not know whether it was Hogue or Mr. Amore.  See Bailey Test. Tr-2 232:16-233:12.  Bailey said he would not disagree if each of the other eye-witnesses (Medeiros, Stasio, Bivens, and Hogue) said it was Hogue talking.  See Bailey Test. Tr-2 233:14-234:5.
  54. Hogue testified that, at Stasio’s signal, the other four in the Port Tampa group began rushing toward them. See Hogue Test. Tr-1 214:1-3.  Bivens testified that the rest of the group went toward Shawn.  See Bivens Test. Tr-1 153:17-20.
  55. As the Port Tampa group rushed at them, Hogue backed up and looked at Mr. Amore. See Hogue Test. Tr-1 214:2-5.  Hogue testified that, “Joe [Amore] was still out of it, still looking off into space, like he don’t know what’s going on.”  See Hogue Test. Tr-1 214:5-7; see also Hogue Test. Tr-1 218:11-17.  Bivens also testified that Mr. Amore was “still out of it.”  See Bivens Test. Tr-1 156:20-25.[14]
  56. Medeiros testified that, after Hogue said “step up, motherfucker,” Rankin went after Mr. Amore. See Medeiros Test. Tr-1 264:8-12.  Medeiros confirmed that Mr. Amore had not said a word.  See Medeiros Test. Tr-1 264:8-12.  Bivens and Hogue also repeatedly confirmed that Mr. Amore had not said a word to anyone in the Port Tampa group.  See Bivens Test. Tr-1 162:8-20; 192:8-20; Hogue Test. Tr-1 216:19-217:3; 220:23-25.
  57. Medeiros testified that, although he did not see any actual fighting, he assumed Rankin was fighting Mr. Amore because Rankin went toward Mr. Amore. See Medeiros Test. Tr-1 264:13-22.
  58. Stasio was not exactly sure how the fight began. See Stasio Test. Tr-2 33:14-16; 34:21-25; 65:14-20.  He was focused on getting Ms. Bivens out of the way.  See Stasio Test. Tr-2 34:21-35:9; 65:21-25.
  59. Bivens testified that someone (not Stasio) began fighting with Hogue. See Bivens Test. Tr-1 153:17-154:6.  She was talking to Stasio.  See Bivens Test. Tr-1 153:17-154:6.  Mr. Amore was standing behind her.  See Bivens Test. Tr-1 156:7-17.
  60. As Ms. Bivens stood with Stasio, and someone fought Hogue, two people from the Port Tampa group ran past her toward Mr. Amore. See Bivens Test. Tr-1 153:17-154:6.  Bivens later described the two’s gait as a “fast walk.”  See Bivens Test. Tr-1 159:4-8; 161:1-4.
  61. Hogue testified that one guy came after him and they started fighting. See Hogue Test. Tr-1 215:1-9.  Amore was standing a couple of feet behind him.  See Hogue Test. Tr-1 215:17-20.  The other four men from the Port Tampa group went toward Mr. Amore.  See Hogue Test. Tr-1 215:21-216:12.  Hogue described their gait as faster than a walk but not a run.  See Hogue Test. Tr-1 217:4-13.  Hogue heard sounds like multiple people fighting with Mr. Amore.  See Hogue Test. Tr-1 217:14-16.
  62. Bivens did not see the men attacking Mr. Amore but she heard noises consistent with a fight. See Bivens Test. Tr-1 160:23-161:13.  She said she heard, “Just like wrestling.  Like, you know, when your feet are hitting the gravel, you kind of hear that sound…Just like tousling noises.”  See Bivens Test. Tr-1 161:9-13.  Her perception was that multiple people were fighting Mr. Amore.  See Bivens Test. Tr-1 194:2-195:4.
  63. Bivens was concerned. See Bivens Test. Tr-1 161:14-15.  She testified that she said to Stasio, “you know, this isn’t fair.  Like why is everyone jumping on – especially Joe because Joe just got knocked out.”  See Bivens Test. Tr-1 162:4-6.  Despite her pleas, “it just kept continuing.”  See Bivens Test. Tr-1 162:6-7.
  64. Bailey testified that he saw the fight start. See Bailey Test. Tr-2 203:20-21.  Bailey testified that Rankin swung first at Mr. Amore.  See Bailey Test. Tr-2 203:20-204:1; 234:7-10.  He said he saw Rankin fighting Mr. Amore.  See Bailey Test. Tr-2 205:1-4; 234:20-21.
  65. Medeiros testified that he saw Hogue run toward Mr. Rankin after Mr. Rankin went after Mr. Amore. See Medeiros Test. Tr-1 264:13-25.  Medeiros ran up to Hogue and pushed him away.  See Medeiros Test. Tr-1 267:4-18.
  66. Bailey testified that Mr. Amore’s friend jumped in, and he and Medeiros jumped in. See Bailey Test. Tr-2 204:4-5.
  67. When Medeiros turned back from pushing Hogue away, Mr. Amore was standing there. See Medeiros Test. Tr-1 268:11-269:3.  Amore was not coming at Mr. Medeiros.  See Medeiros Test. Tr-1 268:11-269:3.
  68. Medeiros grabbed Mr. Amore and threw him onto the hood of a car. See Medeiros Test. Tr-1 268:11-269:3; Bailey Test. Tr-2 205:14-16; 235:12-25.
  69. Bailey came from behind Medeiros and began punching Mr. Amore in the face, with Mr. Amore’s head hitting the hood of the car. See Medeiros Test. Tr-1 269:4-15; 279:23-16.  Bailey punched Mr. Amore two or three times.  See Medeiros Test. Tr-1 281:8-15; Bailey Test. Tr-2 205:18-23.
  70. Notably, neurologist Dr. Martinez explained that one concussion followed by another concussion (from one’s head being punched off of the hood of a car) would exacerbate the original concussion. See Martinez Test. Tr-1 21:16-20.  Neuropsychologist Dr. Gamache agreed, testifying that, “Multiple concussions tend to be cumulative in terms of their impact on cognitive functioning.”  See Dr. Gamache Test. Tr-1 46:6-8.
  71. Stasio testified that, after he got Ms. Bivens out of the way, the next thing he saw was Medeiros and Bailey hitting Mr. Amore on the hood of a car. See Stasio Test. Tr-2 36:4-9; 65:21-25; see also Bailey Test. Tr-2 204:5-7 (“me and William [Medeiros] were hitting that person.”).
  72. The next thing Stasio saw was Rankin come away from the group (Medeiros, Bailey, and Mr. Amore) holding his neck and yelling something. See Stasio Test. Tr-2 36:11-22; 66:1-3; see also Bailey Test. Tr-2 205:24-206:2 (while Bailey was punching Mr. Amore’s head off the hood of the car, Rankin was to Bailey’s right).
  73. Medeiros presumably let go of Mr. Amore when he saw that Rankin was injured. See Medeiros Test. Tr-1 270:6-15.
  74. Amore ran away. See Medeiros Test. Tr-1 270:16-19.
  75. Medeiros realized that he was bleeding when he walked toward Rankin. See Medeiros Test. Tr-1 282:9-15.  He assumed that he was injured when he had Mr. Amore on the hood of the car and Bailey was punching Mr. Amore’s head into the hood.  See Medeiros Test. Tr-1 283:23-284:12.
  76. Medeiros testified that, throughout the entire ordeal, Mr. Amore had not said anything to anyone in the Port Tampa group. See Medeiros Test. Tr-1 269:23-270:1.  Amore looked dazed, confused, and out of it.  See Medeiros Test. Tr-1 270:2-4.
  77. Medeiros confirmed that the only punches he saw thrown were when Mr. Rankin punched Mr. Amore and knocked him unconscious, and when Bailey punched Mr. Amore’s head into the hood of the car. See Medeiros Test. Tr-1 271:1-14.  Other than that, the only other act of violence that Medeiros saw was when Hogue took a short swing at Stasio.  See Medeiros Test. Tr-1 271:15-18.
  78. 911 was called at 2:45 a.m., eight minutes after surveillance footage showed Rankin punching Mr. Amore and rendering him unconscious. See State Ex. 1 (stipulation); Tr-1 7:5-15.
  79. Rankin succumbed to his injuries, three stab wounds. See Testimony of Medical Examiner Dr. Elise Arbefeville (“M.E. Test.”) Tr-2 90:5-6.  Medeiros testified that he was stabbed three times, on his right arm, left arm, and chest.  See Medeiros Test. Tr-2 154:25-155:3.  He has no lasting injuries.  See Medeiros Test. Tr-2 156:5-8.
  80. The Medical Examiner who performed Rankin’s autopsy identified a laceration on Rankin’s right hand consistent with coming into contact with someone’s tooth, as if he punched someone in the mouth area.[15] SeeE. Test. Tr-2 92:2-24.  Notably, Medeiros, who was standing next to Rankin when he first punched Mr. Amore and knocked Mr. Amore unconscious, testified that Rankin hit Mr. Amore on the left side of the face (not Mr. Amore’s mouth).  See Medeiros Test. Tr-1 249:8-250:1.  The Medical Examiner also identified blunt impact wounds on Rankin’s feet and back.  See M.E. Test. Tr-2 90:7-19.
  81. Tampa Police Department Detective Nightlinger testified that, after the second incident, Mr. Amore ran looking for the police and came into contact with Tampa Police Department Officer Kuhn. See Testimony of Detective Kenneth Nightlinger (“Det. Nightlinger Test.”) Tr-2 177:6-16.  Officer Kuhn walked with Mr. Amore to the scene, where they encountered Tampa Police Department Officer Barton.  See Testimony of Tampa Officer David Barton (“Ofc. Barton Test.”) Tr-2 98:22-23.  Amore had a laceration to his chin that was oozing blood, a long abrasion on his back, bleeding abrasions on his right knuckles, blood on his chest, and sand and dirt between his shoulder and elbows.  See Ofc. Barton Test. Tr-2 99:24-100:17.
  82. Officer Barton testified that Mr. Amore told him that he was jumped by six people, knocked to the ground, and that he may have cut the people with his pocket knife when he was on the ground. See Barton Test. Tr-2 101:4-23.  When pressed, Mr. Amore stated that he may have cut someone, he did not know if he cut anyone, and he could not remember if he had cut anyone.  See Ofc. Barton Test. Tr-2 102:17-21.
  83. Amore told Officer Barton that he believed he still had his pocket knife. See Ofc. Barton Test. 101:24-1-2:4.  Officer Barton told him that Officer Kuhn had patted him down and not located the knife.  See Ofc. Barton Test. Tr-2 102:4-6.
  84. Officer Barton testified that he spoke with Mr. Amore for fifteen or twenty minutes about mundane details. See Barton Test. Tr-2 105:19-11.  Mr. Amore told Officer Barton that he grew up in Lakeland, enjoyed hunting,[16] and graduated with honors from Lakeland High School.  See Ofc. Barton Test. Tr-2 111:12-17.  Officer Barton described a story Mr. Amore told about hunting with his stepfather.  See Ofc. Barton Test. Tr-2 106:2-3.  Officer Barton stated, however, that he would not be surprised to learn that Mr. Amore does not have a stepfather.  See Ofc. Barton Test. Tr-2 112:1-12.
  85. Detective Nightlinger testified that he was in the vicinity when Mr. Amore’s pocketknife fell out of his pants leg. See Nightlinger Test. Tr-2 180:7-16.  Mr. Amore had been searching for it, and said something to the effect of, “I knew I still had it on me.”  See Det. Nightlinger Test. Tr-2 180:20-24; see also Ofc. Barton Test. Tr-2 114:13-14.  Mr. Amore was unable to pick up the knife from the ground though; twice, he fumbled with it and dropped it.  See Det. Nightlinger Test. Tr-2 180:25-181:13.
  86. Detective Nightlinger testified that, at the scene of the second altercation, his team found a hood of a vehicle that appeared as though it had been part of the scuffle. See Nightlinger Test. Tr-2 183:10-13.  The vehicle had been backed in with its hood facing out.  See Det. Nightlinger Test. Tr-2 184:1-3.  The vehicle had smears on it and below it, and was quoted for damage.  See Det. Nightlinger Test. Tr-2 184:18-23.  It appeared that “something happened on the hood of that car.”  See Det. Nightlinger Test. Tr-2 184:22-23.
  87. Detective Nightlinger testified that, throughout his interactions with Mr. Amore, it was clear to him that Mr. Amore was trying to be cooperative with law enforcement. See Nightlinger Test. Tr-2 181:19-22.  When asked if Mr. Amore was respectful, Officer Barton said, “Very much so.”  See Ofc. Barton Test. Tr-2 114:15-16.  Officer Barton testified that they never handcuffed Mr. Amore.  See Ofc. Barton Test. Tr-2 104:11-15; 114:17-19.
  88. Detective Nightlinger interrogated Mr. Amore around 4:30 or 5:00 a.m. See Nightlinger Test. Tr-2 165:2.  Mr. Amore told Detective Nightlinger, “I [in all] likelihood, yeah, I could have defended myself with my blade.  I mean, I was outnumbered.  I felt, I mean, I was in danger for my life.  I had no clue where I am [sic].”  See Det. Nightlinger Test. Tr-2 182:25-183:3.
  89. Detective Nightlinger testified that Mr. Amore had “a difficult time recounting the events [of the night] in detail.” See Nightlinger Test. Tr-2 166:10-11.  Mr. Amore initially thought he was robbed as he walked alone to his car.  See Det. Nightlinger Test. Tr-2 166:11-13.  Mr. Amore thought he had made it to the parking lot where his car was located.  See Det. Nightlinger Test. Tr-2 166:22-24.  Mr. Amore thought he was jumped by individuals of mixed races.  See Det. Nightlinger Test. Tr-2 166:14-17.  Mr. Amore believed he was only attacked one time.  See Det. Nightlinger Test. Tr-2 166:18-21.
  90. Detective Nightlinger testified that Mr. Amore’s speech was slurred[17] (see Nightlinger Test. Tr-2 179:1-3); he had to repeat things to Mr. Amore[18] (see Det. Nightlinger Test. Tr-2 179:4-5); Mr. Amore seemed preoccupied with his injuries (see Det. Nightlinger Test. Tr-2 179:6-8); Mr. Amore complained of feeling dazed or woozy[19] (see Det. Nightlinger Test. Tr-2 166:10-11); Mr. Amore complained of his head hurting[20] (see State Ex. 5 (Interrogation Video) (Amore stated, “my head still hurts right now”)).
  91. Detective Nightlinger testified that none of the witnesses he interviewed told him that Mr. Amore had been knocked unconscious for twenty to thirty seconds.[21] See Nightlinger Test. Tr-2 177:24-178:2.  Detective Nightlinger testified that that information was a “critical” piece of the story that no one relayed to him.  See Det. Nightlinger Test. Tr-2 178:3-6.  When asked about signs of impairment or head injury, he stated, “I would lean more toward impairment only because I don’t have a lot of experience with head injuries.”  See Det. Nightlinger Test. Tr-2 178:22-24.
  92. Neurologist Dr. Martinez testified that he would expect a person suffering from a Grade 3 concussion to attempt to piece together what had happened. See Martinez Test. Tr-1 36:3-13.
  93. Neuropsychologist Dr. Gamache described Mr. Amore’s behavior as “swiss cheese memory;” i.e. “able to remember bits and pieces, but struggle to put together a complete narrative.” See Gamache Test. Tr-1 47:8-24. Dr. Gamache explained that, in that situation, it is common for a person to confabulate; i.e. the mind uses past experiences to piece together what happened during the “holes” of memory.[22]  See Dr. Gamache Test. Tr-1 50:1-51:6.

MEMORANDUM OF LAW

“A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution.”  § 776.032(1), Fla. Stat. (2013).  Section 776.012 provides, “a person is justified in the user of deadly force and does not have a duty to retreat if…[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.”  § 776.012(1), Fla. Stat.  Moreover, section 776.013(3) states:

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.

 

  • 776.013(3), Fla. Stat. (2013) (emphasis added). See also McWhorter v. State, 971 So. 2d 154, 156 (4th DCA 2007) (“Section 776.013 altered the law so that now there is ‘no duty to retreat’ under a broad array of circumstances.”) (citing Smiley v. State, 966 So. 2d 330, 335 (Fla. 2007) (“the broad context of this legislation (i.e. ‘not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be’) establishes that there is no duty to retreat before using deadly force in numerous other situations”)).

The Florida Supreme Court has explained, “the grant of immunity from ‘criminal prosecution’ in section 776.032 must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided by rule.”  Dennis v. State, 51 So. 3d 456, 463 (Fla. 2010).  Thus, “where a criminal defendant files a motion to dismiss pursuant to section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity.”  Id. at 464; see also Peterson v. State, 983 So. 2d 27, 29 (1st DCA 2008) (“[T]he trial court must decide the matter by confronting and weighing only factual disputes [not] deny a motion simply because factual disputes exist.”).

“An objective standard is applied to determine whether the immunity provided by those provisions attaches.”  Mobley v. State, 132 So. 3d 1160, 1164 (3d DCA 2014) (citing Montanez v. State, 24 So. 3d 799, 803 (2d DCA 2010)).  In Mobley, the defendant was charged with two counts of second-degree murder after he shot and killed two men outside of a restaurant.  Id. at 1162.  The defendant, his friend, and the two victims were involved in a “petty disagreement” inside of the restaurant.  Id. at 1162-1163.  The defendant and his friend left the restaurant to smoke a cigarette, and the defendant retrieved his gun from his vehicle.  Id. at 1163.  The first victim left the restaurant and “delivered a vicious punch” to the defendant’s friend’s face.  Id.  The other victim then rushed to the scene, seemingly to aid in a “renewed attack.”  Id.  The defendant shot and killed both victims.  Id. at 1164.  The Third DCA noted that while “[i]t may have been more prudent for [defendant and his friend] to skitter to their cars and hightail it out of there when they had the chance,” they were not required to do so.  Id. at 1166.  The court found that the events that occurred during the first altercation were “relevant only insofar as they provide context for [the defendant’s] actions when the attack outside the restaurant occurred.”  Id.  The court held that it was objectively reasonable for the defendant to believe that force was necessary to prevent great bodily harm, and ordered that the charges against him be dismissed.  Id.

If the defendant demonstrates by the preponderance of the evidence that he used deadly force in the manner statutorily authorized by section 776.032, he should be declared immune from prosecution.  See State v. Gallo, 76 So. 3d 407, 409 n.2 (2d DCA 2011); see also T.P. v. State, 117 So. 3d 864, 866 (4th DCA 2013) (“The issues for the trial court to determine by a preponderance of the evidence are: (1) whether [victim] was the aggressor, i.e., did [he] first engage in force against [defendant], and (2) whether [defendant] was reasonable in his belief that the force that he used against [victim] was necessary to protect himself from great bodily harm.”).  In Gallo, “[a]t around 2:30 in the morning, [the defendant and victim] confronted each other outside of a busy night club.”  Id. at 408.  Their argument became physical and at least two other men became involved.  Id.  Gun shots were fired and the victim was hit multiple times, resulting in his death.  Id.  The trial court “held an evidentiary hearing, made determinations of credibility, weighed the numerous pieces of conflicting evidence, and set forth extensive factual findings.”  Id. at 409.  The Second DCA affirmed, noting:

The legislature’s enactment of section 776.032 placed the burden of weighing the evidence in “Stand Your Ground” cases squarely upon the trial judge’s shoulders.  In this case, that burden required the trial judge to make order out of the chaos that occurred in Sarasota on one fateful night in 2010.  The trial judge performed that duty without legal error.

 

Id.  The court affirmed the trial court determination that defendant was entitled to immunity from prosecution for second-degree murder.  Id.

Here, the record demonstrates that Mr. Amore’s use of force was justified.  Mr. Amore was twice attacked by the victim Mr. Rankin.  Rankin and Bailey were high on a plethora of substances, including methylone.  Methylone causes a “cocaine-delirium” effect of aggression, violence, and delusions.  Taking that dangerous substance alone is, at a minimum, a questionable choice.  Mixing it with other substances, including a fifth of a gallon of hard liquor, was a recipe for disaster.  Disaster resulted.

After Mr. Rankin’s initial attack, Mr. Amore was rendered unconscious and suffered a traumatic brain injury.  The attack shocked all eye-witnesses.  Following that attack, Mr. Amore was in a state of acute confusion and operating on a brainstem (or reflex) level.  Mr. Amore merely followed his friends Hogue and Ms. Bivens.  Hogue was clearly aggressive, but not at Mr. Amore’s direction or encouragement.  In fact, the evidence clearly shows that Mr. Amore said little if anything and was not fully aware of what was happening so much so that Mr. Amore could not even respond to Hogue’s questions.  All of this took place within minutes of Mr. Amore being violently attacked and rendered unconscious.

The men in the Port Tampa group were aware that Mr. Amore had been rendered unconscious.  Despite that, victim Rankin wanted to fight him again.  Fighting a nearly unconscious man struck at least one of his friends as “over the top.”  Instead of walking to their car, the Port Tampa group chose to follow Rankin, who was acting uncharacteristically violent and aggressive, and fight the Lakeland group.

The evidence shows that the Lakeland group had not seen the Port Tampa group until Stasio approached Hogue, Ms. Bivens, and Mr. Amore.  Stasio signaled for his friends to help him against the verbally aggressive Hogue, and a fight ensued with multiple attackers converging on the semi-conscious Mr. Amore, who, by nearly all accounts, had not said a word and was quite obviously injured.

Rankin swung at Mr. Amore first.  Along with Rankin (who was presumably still hitting Mr. Amore), Medeiros and Bailey threw Mr. Amore on a car and began beating his head into the hood.  By all accounts, Rankin and Medeiros were injured while attacking Mr. Amore.

As demonstrated by the consistencies in eyewitness accounts, Mr. Amore justifiably defended himself against great bodily harm and possible death.  The Court should declare him immune from prosecution and dismiss the charges against him.

CONCLUSION

WHEREFORE, Mr. Amore respectfully requests that this Honorable Court find that Mr. Amore’s use of force was justified, declare him immune from prosecution under section 776.032, and dismiss the charges in the Information.

Respectfully submitted,

 

/s/  Eddie Suarez

[1]  Medeiros testified that he did not recall anybody smoking marijuana.  See Medeiros Test., Tr-1 241:21-23.

[2] Bailey, and only Bailey, testified that Mr. Amore said, “I fucked your mom; I’ll do it again.”  See Bailey Test. Tr-2 196:18-24.  None of the other eye-witnesses described Mr. Amore’s comment as such.  Ms. Bivens described the remark that Mr. Amore made as a “‘your mama’ joke;” akin to “your mama don’t want to go that party.”  See Bivens Test. Tr-1 142:19-143-4.  Medeiros confirmed that, describing the comment as, “Something dumb.”  See Medeiros Test. Tr-1 248:1-14.  Stasio described it as “a slick comment,” and agreed that it was something infantile and childish, like “your mama don’t want to go to that party.”  See Stasio Test. Tr-2 19:7-21.  When pressed on cross-examination, Bailey simply stated, “I mean, it wasn’t mama a joke [sic], but he was talking about my mom that he doesn’t know.”  See Bailey Test. Tr-2 220:6-10.  Notably, Rankin and Bailey had ingested Xanax, a rock of methylone, a fifth of a gallon of hard liquor, and marijuana.  Supra p.3 para. 2.

[3] Bailey again provided a wildly different account.  In addition to Bailey’s distinctly different perception of Mr. Amore’s “your mama” joke (see n.3 supra), Bailey did not recall having any words with Mr. Amore.  See Bailey Test. Tr-2 196:25-197:3; 197:20-23.  Moreover, Bailey’s recollection was that, without warning, Mr. Amore “got in [his] face and starting running his mouth.”  See Bailey Test. Tr-2 197:20-21.  No other eye-witnesses confirm Bailey’s version.

[4]  The Medical Examiner’s Autopsy Report demonstrated that Rankin stood at six feet, three inches, and weighed two hundred pounds.  Mr. Amore is significantly smaller, standing at five feet, nine inches.  Although the Autopsy Report and Mr. Amore’s stature were not entered into evidence at the evidentiary hearing, those facts are not in dispute and the relevant pages from the State’s discovery disclosure are attached as supplementary exhibits to the record.  See attached Ex. 1 (Autopsy Report) (N.B. out of respect for Rankin’s privacy, all information not related to height and weight have been redacted); attached Ex. 2 (Aug. 17, 2013 Criminal Report Affidavit)

[5]  Here, again, Bailey’s testimony wildly contradicted that of the other eye-witnesses.  Ms. Bivens and Stasio testified that Stasio, and only Stasio, stayed behind to apologize to Ms. Bivens while the rest of the Port Tampa group scattered. See Bivens Test. Tr-1 145:10-24; Stasio Test. Tr-2 21:16-21.  Bailey, however, testified that he was “positive” that Stasio scattered with the rest of the group.  See Bailey Test. Tr-2 222:7-21.  Bailey testified that he (Bailey) hung back and watched Mr. Amore lay unconscious on the ground while Ms. Bivens, panic-stricken, begged Mr. Amore to wake up.  See Bailey Test. Tr-2 222:23-223:10.  Moreover, Bailey testified, even after seeing video evidence to the contrary, that he was certain that a man helped Mr. Amore off the ground.  See Bailey Test. Tr-2 223:12-224:3.  In addition to the video evidence, Ms. Bivens testified that she helped Mr. Amore off the ground after he regained consciousness.  See Bivens Test. Tr-1 146:1-2.  Medeiros confirmed the same, testifying that he saw Ms. Bivens help up a “bobble-headed” Mr. Amore.  See Medeiros Test. Tr-1 254:18-255:4.  The possible explanation for Bailey’s wildly different account could be the cocktail of drugs and alcohol that Bailey acknowledged taking.  See supra p. 2 para. 3.

[6] The State’s psychiatrist Dr. Taylor agreed that Mr. Amore suffered a Grade 3 concussion to the brain.  See Testimony of Dr. Donald Taylor (“Dr. Taylor Test.”) Tr-2 148:23-149:6.

[7]  The State’s psychiatrist Dr. Taylor also testified that, as a result of a Grade 3 concussion, the most acute level of confusion occurs in the thirty minutes that follow the head injury.  See Dr. Taylor Test. Tr-2 149:24-150:3; 150:16-20.

[8] Although all evidence points to the contrary, Stasio testified that he recalled there being another girl walking with Hogue, Ms. Bivens, and Mr. Amore.  See Stasio Test. Tr-2 23:12-25; 33:7-10.

 

[9] Ms. Bivens and Hogue testified that Hogue asked Stasio if he was the one who hit Mr. Amore.  See Bivens Test. Tr-1 152:25-153:1; Hogue Test. Tr-1 213:13-15.

[10] Bailey testified that Mr. Amore looked drunk and angry, and was walking fine.  See Bailey Test. Tr-2 202:7-18.  However, immediately prior to that statement, Bailey stated that it was too dark for him to see the conversation between Stasio and Hogue.  See Bailey Test. Tr-2 201:16-20; 230:18-231:2.  Bailey also testified that he could not differentiate between Hogue and Mr. Amore.  See Bailey Test. Tr-2 212:8-4; see also infra. p.15 para. 53.

[11] Bailey testified that both Hogue and Mr. Amore said, “step up.” See Bailey Test. Tr-2 203:2-7.  His recollection is contradicted by that of Hogue, Ms. Bivens, and Medeiros.

[12]  When questioned by the State, Stasio testified that “he believed” that Mr. Amore said something during the second altercation, and that it was aggressive, but Stasio could not articulate what Mr. Amore may have said.  See Stasio Test. Tr-2 117:10-19.  When pressed by the Court, Stasio stated that Hogue was doing all the talking; and he could not recall whether Mr. Amore said anything or not.  See Stasio Test. Tr-2 22:16-17.  Stasio then restated his answer “I know he said some things.  He wasn’t just being quiet the whole entire time…But I can’t tell you what he said.  See Stasio Test. Tr-2 22:16-17.  Stasio also testified that he thought Hogue was speaking for Joseph.  See Stasio Test. Tr-2 32:12-14.  Hogue testified that Mr. Amore was semiconscious and did not encourage him in any way.  See Hogue Test. Tr-1 220:4-14.  Stasio confirmed that Hogue was “clearly the aggressor.”  See Stasio Test. Tr-2 29:22; 121:8:24.

[13]  Bailey identified the aggressive person as Mr. Amore and the one just standing there as Hogue.  See Bailey Test. Tr-2 204:12-25.  Given that Bailey’s account contradicts every other eye-witness account, it is presumable that Bailey confused Mr. Amore with Hogue.  Moreover, Bailey later testified that he thought Hogue was the person he and Medeiros threw on the hood of the car and repeatedly punched in the head.  See Bailey Test. Tr-2 205:15-16 (“William [Medeiros] grabbed [Mr. Amore’s] buddy and threw him up against the car.”).  The facts clearly establish that that person was Mr. Amore.  Bailey later admitted that he could not differentiate between Hogue and Mr. Amore.  See Bailey Test. Tr-2 212:8-213:4.

[14]  It should be noted that less than eight minutes had elapsed from the traumatic brain injury inflicted on Mr.Amore.  See State Ex. 1 (stipulation).

[15] The Medical Examiner stated on cross-examination that she could not opine on how Mr. Rankin ended up with a tooth mark on his right knuckle.  See M.E. Test. Tr-2 96:7-13.

[16] Ms. Bivens and Hogue testified that they went to high school with Mr. Amore, and knew him to always carry a pocket knife.  See Bivens Test. Tr-1 126:1-9; Hogue Test. Tr-1 200:13-21.  Ms. Bivens testified that she did not know where on his body Mr. Amore carried it (presumably because he had never taken it out in front of her) but, like other outdoor kids who were involved with Future Farmers of America, it was his habit to carry one.  See Bivens Test. Tr-1 126:12-127:1.  Hogue testified that, growing up in Lakeland, he thought it was common for young men to carry pocket knives.  See Hogue Test. Tr-1 200:22-201:4.

[17]  The State’s psychiatrist Dr. Taylor testified that slurred speech is a characteristic commonly seen in those suffering from the effects of a Grade 3 concussion.  See Dr. Taylor Test. Tr-2 149:14-18.

[18]  The State’s psychiatrist Dr. Taylor testified that confusion is a characteristic commonly seen in those suffering from the effects of a Grade 3 concussion.  See Dr. Taylor Test. Tr-2 149:7-10.

[19]  The State’s psychiatrist Dr. Taylor testified that dizziness and fatigue are characteristics commonly seen in those suffering from the effects of a Grade 3 concussion.  See Dr. Taylor Test. Tr-2 149:14-18.

[20]  The State’s psychiatrist Dr. Taylor testified that a headache is a characteristic commonly seen in those suffering from the effects of a Grade 3 concussion.  See Dr. Taylor Test. Tr-2 149:14-18.

[21]  Detective Nightlinger also testified that he was unaware of the drugs and alcohol ingested by Rankin and Bailey.  See Det. Nightlinger Test. Tr-2 185:20-186:10.

[22]  The State’s psychiatrist Dr. Taylor appeared to concur with Dr. Martinez and Dr. Gamache See Dr. Taylor Test. Tr-2 147:3-6 (“Well, it’s theoretically possible that they do, but they’re – and certainly if – if pressed for details, it’s certainly possible that they could, but not necessarily so.”) (emphasis added).

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Sorry Your Honor, IDK What that Means — LOL.

Perplexed-Smiley-FaceLanguage by its very nature is imperfect and imprecise. On top of its inherent ambiguity, we are constantly using language in new and inventive ways adding to the trail of confusion. A recent Consumer Reports car review described a vehicle as having undergone, “a fast and furious makeover.” To most American readers that reference is likely to conjure up the image of a street-racing car but to someone unfamiliar with the film series that phrase is likely to lead to confusion – wondering why the car designers were rushed or angry. While cultural references may add to the confusion of language, they also give it spice and make it more vibrant and interesting but, as you may have guessed, all of this leads to trouble in court proceedings.

Enter into the mix the new world emojis – those adorable (or annoying) little icons some folks use to add color to their digital messages. While emojis have grown exponentially1432299223 from their simple, smiley-face beginnings, confusion over their meaning has been a real source controversy, leading judges and juries to have to decipher them in order to put a message into context. The American Bar Association Journal has published a number articles highlighting this interesting social phenomenon and the problem it presents for courts – it may seem silly but as pointed out in the article linked below, courts are increasingly having to decide whether those symbols should be “interpreted as literal portrayals of the sender’s thoughts and intentions for purposes of criminal conviction?”

Some of you may have heard of Silk Road, the Amazon for criminals in the dark web. During the trial of convicted Silk Road operator, Ross William Ulbricht, the defense objected when the prosecution attempted to publish chats and forums posts without the emojis that accompanied them; the defense successfully argued to the court that removing the emojis altered the meaning of the message.

The problem emojis and their meaning is probably best presented by the case of a 17 year old New Yorker who posted a FaceBook message which could be interpreted as implying violence towards law enforcement. For emphasis the young man added emojis of a policeman and three guns pointed at him. For emphasis the police arrested him for making a terrorist threat —  and while a grand jury refused to indict him, very real reputational and financial damage was incurred by him as a result of his post and the emphasis provided by the emojis.

Like all social trends, the courts will likely catch up and we will develop conventions to deal with the significance of emojis. Until then, keep in mind that just like words are not really “spicy” or have “color,” emojis, just like the use of such language, add to the confusion – but then again, colorful, spicy, fun language is a tasty slice of life – even if a little confusing.

Until next time …

Chrisdesign-Glossy-Smiley-Set-3

For additional reading on this subject:

http://www.abajournal.com/news/article/is_emoji_death_threat_a_criminal_offense_possibly_law_prof_says

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Re-elect Mark Ober, State Attorney

courtroomEvery now and then you hear something that makes you scratch your head. We just had that reaction when we heard that someone has decided to run against Hillsborough County State Attorney, Mark Ober. Like most of us, most of the time, we welcome political change but some political offices are different. Some political offices demand stability and a historical framework for making decisions and Ober’s office has that, and does it exceedingly well. Don’t misunderstand; as lawyers with a busy criminal law practice, we find ourselves in near-constant disagreement with Ober’s office and often those disagreements are irreconcilable and have to be settled by a judge or jury.

So given that, why are we so troubled by the fact that Ober has a political challenger? Our legal system is adversarial; it is our job to champion for the citizen-accused. The prosecutor’s job is a bit more complex because while they too must champion a cause, they also have a greater duty — the pursuit of justice. In our opinion, in order to pursue justice, a prosecutor must be open to scrutinizing his or her case, and be open to the possibility that there are other theories of what happened that may be consistent with innocence. That cannot happen if a prosecutor is unwilling to meet with the defense lawyer and have open, professional, and candid discussions. This is where we think Ober has excelled. While we often disagree with the ultimate decisions, we are always treated courteously and often find that our presentations lead to a different approach to a case. In short, we often find that Ober’s lawyers have listened and have been willing to challenge their own thoughts regarding a case.Scales

Many years ago (28 to be precise), I began my career as an Assistant State Attorney. During my tenure in that office, I practiced with other young lawyers who impressed me, not only with their legal acumen, but more importantly, with their professionalism, integrity, and keen sense of right and wrong. Although those lawyers were my peers in terms of professional vintage, I often consulted with them in challenging matters because their counsel was invaluable in helping me make wise decisions. A number of those lawyers chose to stay with the State and are now career prosecutors. One of the things that has impressed me about Ober’s office is that many of those young prosecutors who earned my respect are now the very folks he has put in top decision-making positions — folks like Chris Moody, Jay Pruner, Douglas Covington and, until recently, Karen Stanley to name a few (the list is, in fact, much longer).

We know very little about Ober’s opponent. We suspect he is an honorable person seeking public office for an honorable purpose. Our problem is not with him. Our problem is that it is easy for an elected prosecutor to gain public support by adopting an “everybody is guilty and throw the book at them” approach. It takes a wiser, more seasoned, and more courageous lawyer to surround himself with men and women of character, seek their counsel and give his adversary in the justice system a fair opportunity to change his mind – we have just that kind of State Attorney in Hillsborough County and we see no reason for change.

We urge all our readers to support the re-election of Mark Ober as State Attorney.

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Outrageous Conduct

Sometimes you have to wonder if some lawyers actually attended law school or did they get their degrees form the back of a matchbook cover. Perhaps the FBI puts something in its water cooler that makes their lawyers think they can do whatever they want. Reporting on a currently pending California case, the ABA Journal reports that FBI lawyers approved the placing of microphones in several public places outside a headphones-680971__180California courthouse and recorded the conversations of private individuals. This “approval” was done without a warrant or other judicial supervision. The government asserted in its initial statements to the court that it had the right to plant stationary listening devices “aimed at the public space in front of the courthouse” without court approval. Apparently FBI lawyers think that their badge and law degree is all they need dispense with the Fourth Amendment – After all that whole prohibition against unreasonable governmental searches and seizures is so 1776.

We have often said that all government, while necessary, is at its core tyrannical and the citizenry must always be vigilant to curb its tyrannical inclinations – this is but the latest example of those tyrannical inclinations. FBI lawyers in their “approval” ignored a long list of Supreme Court precedent forbidding such intrusions – this is not a close call. Nearly 50 years ago, in Katz v. United States, 389 U.S. 347, 351-52 (1967), the Supreme Court affirmed the right of individuals to be free from warrantless government eavesdropping in places accessible to the public. Speaking in a public place does not mean that the individual has no reasonable expectation of privacy. This is not a hard concept to grasp; it is the kind of stuff you learn your first year of law school; which brings me back to the question — did those FBI ‘lawyers” actually attend law school or did they simply decide that it was easier to do their jobs if they gave in to the natural governmental inclination to be tyrants? By the way, to give you sense of how long this has been the law, in 1967, the year Katz was decided, gasoline sold for 24 cents a gallon, the minimum wage was $1.65 and Frank Sinatra won the Grammy for Strangers in the Night.

Every one of us must stand up against this kind of governmental intrusion. Government microphones in planters outside our buildings? Really? How far will this go? Speak out. Be outraged but let your voice be heard. The right to have private conversations is as basic as it gets. If we give up our right to have privacy we have given everything away.

Here is link to the ABA Journal Article:

http://www.abajournal.com/news/article/feds_secretly_bugged_areas_outside_courthouse_to_eavesdrop_on_private_conve/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

For more information on our law firm please visit:

www.SuarezLawFirm.com

 

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We Must Not Tolerate the Use of Secret Software in Our Criminal Courts

blood-20745_640A recent article published in Slate.com by Rebecca Wexler, a fellow at Yale Law School’s Information Society Project and visiting scholar at Berkeley School of Law’s Human Rights Center, highlights a real problem – the inability to test the efficacy of software that makes predictions which are then presented to a jury largely unchallenged.  As pointed out in the article, these inaccessible software codes are used in a variety of criminal prosecutions ranging from blood alcohol level calculations based on the analysis of breath samples to DNA analysis in more serious cases.

As we have seen in the case of Volkswagen, it is far from inconceivable that a company would tamper with its software in order to achieve a desired result. If we are to allow companies to present to juries the result of their software applications, every aspect of those applications should be subject to scrutiny. The notion that corrupting the criminal justice system by limiting an accused citizen’s ability to challenge the veracity of critical evidence in order to the protect profits of a software developer is repugnant — particularly since courts have the authority to allow disclosure with strict boundaries on the use and dissemination of the information.

Given that technology will only become a more frequently used tool in criminal prosecutions, we urge Florida’s courts and legislature to remedy this dangerous trend – all evidence presented to a jury must be allowed to be fully vetted and challenged.

Link to the Slate.com article:

http://www.slate.com/blogs/future_tense/2015/10/06/defendants_should

_be_able_to_inspect_software_code_used_in_forensics.html

For more information about our law firm visit:

http://www.suarezlawfirm.com/Attorney-Bio.aspx

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Posted in Constitution, Courts, Criminal Law, DNA, Drug Laws, DUI Law, investigation, Lawyers, Sexual Abuse, Software codes, Trials | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

A Call to Action – We, the People, Govern not the Spy Agencies

As you can imagine, it is rare for a law firm whose practice focuses on financial crimes and general criminal defense to advocate a criminal investigation and prosecution but this is one of those times.

The New York Times reported today that an investigation by the C.I.A.’s Inspector General concluded that five of its employees worked to penetrate the computer network used by the Senate Intelligence Committee overseeing the agency’s detention and interrogation program. http://www.nytimes.com/2014/08/01/world/senate-intelligence-commitee-cia-interrogation-report.html?ref=us&_r=0

Let’s be clear; the C.I.A. is America’s spy agency. By its very nature it operates in the dark, without the transparency required of other government agencies. In a republic, such a privilege must be scrupulously honored by the agency and jealously guarded by us, the governed. There is no margin of error – no room for deviation.

Given their enormous capability to operate in the shadows, CIA employees must strictly follow the law. The agency cannot be permitted to conduct covert operations and spy on the civilian leaders charged with its oversight; such a transgression must not be tolerated – ever!

For our republic to endure and for our freedoms to be preserved, we cannot allow a secret agency to exercise its powers against those charged with its oversight – to do so will inevitably lead to tyranny. We don’t have to go very far in the historical record to see how easily democracy can turn tyrannical. Russia for example, by allowing a high ranking former member of its secret police to assume unchecked power, went form an emerging republic to a near totalitarianism, where business people, journalists and artists are prosecuted and imprisoned for questioning the government.

PeopleWe must not be silent. We must use all available means to demand action – tweet, post, write, tell your neighbors but do not be silent!

The response from the Department of Justice must be immediate, thorough and visible to all.

Posted in Constitution, Courts, Criminal Law, Ethics, Finanacial crimes, investigation, Lawyers, Trials, Uncategorized, White collar crimes | Tagged , , , , , , , , , , , , , | Leave a comment

Stop and Think Before Hitting the “LIKE” Button

Thumbs upThere are times when companies’ efforts to escape responsibility for their misdeeds borders on the absurd – this is one of those times.
As reported in the New York Times yesterday, General Mills appears to be the first food company to add language to their website indicating that individuals, “give up their right to sue the company if they download coupons, ‘join’ it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways.” Yep – download a Barcodefifty cent coupon and General Mills takes the position that you no longer have the right to sue them in a court of law, no matter how egregious their conduct. As pointed out by Julia Duncan, director of federal programs and an arbitration expert at the American Association for Justice, this move is an effort by General Mills and other companies who adopt similar policies to shield themselves “from all accountability, even when it lies, or say, an employee deliberately adds broken glass to a product.”
(http://www.nytimes.com/2014/04/17/business/when-liking-a-brand-online-voids-the-right-to-sue.html )

General Mills is not alone; according to the article, other companies have adopted similar policies but food companies are different because their negligence can lead particularly dire consequences, even death. As pointed out in the Times, “What if a Peanutschild allergic to peanuts ate a product that contained trace amounts of nuts but mistakenly did not include that information on its packaging? Food recalls for mislabeling, including failures to identify nuts in products, are not uncommon.”

We find it difficult to believe that courts will uphold these waivers unless companies can demonstrate that the individual consumer was actually aware of the policy but every consumer should carefully consider if they really want to download a coupon or click a Facebook “like” button – that simple, seemingly fun and harmless act may be far more harmful to you and your legal rights than you ever imagined.

Posted in Constitution, Courts, Criminal Law, Drug Laws, Ethics, Lawyers, Trials, Uncategorized, Waivers, White collar crimes | Tagged , , , , , , , , , , , , , , , , , , , , | Leave a comment