Woman's Conviction For Trying To Poison Boss Overturned

[Brutuskend]

POSTED: 7:42 am EDT May 20, 2004
UPDATED: 1:42 pm EDT May 20, 2004

FORT LAUDERDALE, Fla. -- A state appeals court says a Miami woman cannot be convicted of attempting to poison her boss simply because there is no such crime.

Femesha Foster used to work as a technician for optometrist Mark Caruso at the Pembroke Pines Wal-Mart. She was caught on a surveillance video tape putting the poison in her boss's can of Dr. Pepper in January 2000. Caruso decided the soda didn't taste right, and drove himself to the hospital, where he was treated for poisoning and released.

Foster was sentenced to 20 years in prison. It came out to 15 years for attempting to poison and five for grand theft, after she admitted to writing checks to herself from Caruso's account.

But the 4th District Court of Appeal in West Palm Beach has overturned Foster's conviction for attempted poisoning. The panel says that's a "nonexistent crime."

Prosecutors can retry Foster on the charge of poisoning.

 

[imported_yovonbishop]

hmm, so you can try to poison someone and not get punished for it as long as they don't die?.. what?

 

[Jzero]

"Attempting to Poison?"
Whatever happened to "Attempted Murder?"

I wonder if this woman had recently watched "9 to 5" while smoking a roach with the other secretaries in the office....

 

[PlatinumGold]

Originally posted by: Brutuskend
POSTED: 7:42 am EDT May 20, 2004
UPDATED: 1:42 pm EDT May 20, 2004

FORT LAUDERDALE, Fla. -- A state appeals court says a Miami woman cannot be convicted of attempting to poison her boss simply because there is no such crime.

Femesha Foster used to work as a technician for optometrist Mark Caruso at the Pembroke Pines Wal-Mart. She was caught on a surveillance video tape putting the poison in her boss's can of Dr. Pepper in January 2000. Caruso decided the soda didn't taste right, and drove himself to the hospital, where he was treated for poisoning and released.

Foster was sentenced to 20 years in prison. It came out to 15 years for attempting to poison and five for grand theft, after she admitted to writing checks to herself from Caruso's account.

But the 4th District Court of Appeal in West Palm Beach has overturned Foster's conviction for attempted poisoning. The panel says that's a "nonexistent crime."

Prosecutors can retry Foster on the charge of poisoning.

this is a brutuskend joke right?

 

[GasX]

ummmm, attempted murder? aggravated assault?

Do they have the worst DA ever down there or something?

 

[EagleKeeper]

Remember that this is the same state that a rape of a 12 years old by a 20 yr old male is 10 days probation.

 

[loup garou]

I'm no lawyer, but I'm pretty sure "attempted murder" and "assault" are valid charges. Why not prosecute under either (more applicable) charge? "Attempted poisoning." :roll:

 

[Ilmater]

Originally posted by: PlatinumGold

Originally posted by: Brutuskend
POSTED: 7:42 am EDT May 20, 2004
UPDATED: 1:42 pm EDT May 20, 2004

FORT LAUDERDALE, Fla. -- A state appeals court says a Miami woman cannot be convicted of attempting to poison her boss simply because there is no such crime.

Femesha Foster used to work as a technician for optometrist Mark Caruso at the Pembroke Pines Wal-Mart. She was caught on a surveillance video tape putting the poison in her boss's can of Dr. Pepper in January 2000. Caruso decided the soda didn't taste right, and drove himself to the hospital, where he was treated for poisoning and released.

Foster was sentenced to 20 years in prison. It came out to 15 years for attempting to poison and five for grand theft, after she admitted to writing checks to herself from Caruso's account.

But the 4th District Court of Appeal in West Palm Beach has overturned Foster's conviction for attempted poisoning. The panel says that's a "nonexistent crime."

Prosecutors can retry Foster on the charge of poisoning.

this is a brutuskend joke right?

Brutus, they're REALLY getting bad, buddy.

 

[Ilmater]

Originally posted by: werk
I'm no lawyer, but I'm pretty sure "attempted murder" and "assault" are valid charges. Why not prosecute under either (more applicable) charge? "Attempted poisoning." :roll:

Assault is not a valid charge in this instance. This is a common misconception. Assault is when you threaten someone with violence. All you really have to do is prove that the person felt threatened. However, in this instance, that's obviously not the case. If I hurt you, that's battery.

For example, if you chase you with a hammer and you see me coming but I never hit you, you can charge me with assault. If I chase you, you saw me coming, and I hit you, that's assault and battery. If I hit you from behind and you never saw it coming, that's only battery as you never felt threatened.

Attempted murder, poisoning, grand theft... I'm sure those are enough to put her away for quite some time.

 

[loup garou]

Originally posted by: Ilmater

Originally posted by: werk
I'm no lawyer, but I'm pretty sure "attempted murder" and "assault" are valid charges. Why not prosecute under either (more applicable) charge? "Attempted poisoning." :roll:

Assault is not a valid charge in this instance. This is a common misconception. Assault is when you threaten someone with violence. All you really have to do is prove that the person felt threatened. However, in this instance, that's obviously not the case. If I hurt you, that's battery.

For example, if you chase you with a hammer and you see me coming but I never hit you, you can charge me with assault. If I chase you, you saw me coming, and I hit you, that's assault and battery. If I hit you from behind and you never saw it coming, that's only battery as you never felt threatened.

Attempted murder, poisoning, grand theft... I'm sure those are enough to put her away for quite some time.

Thanks for the clarification. Like I said, I'm no lawyer.

 

[dquan97]

Assault is not a valid charge in this instance. This is a common misconception. Assault is when you threaten someone with violence. All you really have to do is prove that the person felt threatened. However, in this instance, that's obviously not the case. If I hurt you, that's battery.

For example, if you chase you with a hammer and you see me coming but I never hit you, you can charge me with assault. If I chase you, you saw me coming, and I hit you, that's assault and battery. If I hit you from behind and you never saw it coming, that's only battery as you never felt threatened.

Attempted murder, poisoning, grand theft... I'm sure those are enough to put her away for quite some time.

I remember this as well in my Business Law class

 

[Don Vito Corleone]

Originally posted by: dquan97

I remember this as well in my Business Law class

Your professor must have had a pretty broad view of what constitutes business law!

As far as I can see, this case met the elements for poisoning, a first-degree felony in Florida. It's also not clear to me why there would be any problem prosecuting this woman for attempt, although it looks to me as though this was an actual (not merely an attempted) poisoning.

 

[Harvey]

Originally posted by: Brutuskend
But the 4th District Court of Appeal in West Palm Beach has overturned Foster's conviction for attempted poisoning. The panel says that's a "nonexistent crime."

Once again demonstrating the quality of judicial thinking in Florida. What highschool did these judges fail?

I'm a lawschool dropout, and if I remember correctly, an attempt to commit any felony is, at a minimum, a misdemeanor, and, as Jzero asked, "Whatever happened to 'Attempted Murder?'" :roll:

 

[PlatinumGold]

Originally posted by: Harvey

Originally posted by: Brutuskend
But the 4th District Court of Appeal in West Palm Beach has overturned Foster's conviction for attempted poisoning. The panel says that's a "nonexistent crime."

Once again demonstrating the quality of judicial thinking in Florida. What highschool did these judges fail?

I'm a lawschool dropout, and if I remember correctly, an attempt to commit any felony is, at a minimum, a misdemeanor, and, as Jzero asked, "Whatever happened to 'Attempted Murder?'" :roll:

why blame the judges? isn't it up to the prosecution to bring a legitimate complaint in the first place?

didn't the DA's office know that it was a non existent crime?

 

[Description]

Is that not assault and battery?

 

[ElFenix]

Originally posted by: Ilmater

Assault is not a valid charge in this instance. This is a common misconception. Assault is when you threaten someone with violence. All you really have to do is prove that the person felt threatened. However, in this instance, that's obviously not the case. If I hurt you, that's battery.

that's tort. MPC simple assault is, in part, 'attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another'

so actually causing bodily harm in MPC jurisdictions is still assault.

 

[DigDug]

hmm, so you can try to poison someone and not get punished for it as long as they don't die?.. what?

It's purely a technical pleading problem, right Don_vito? I would thin kthat they just have to try her on a more accepted cause of action, like attempted murder.

 

[MichaelD]

/makes notes to buy son's mother a ticket to Ft. Lauderdale
/makes notes to have Diet Dr. Pepper..."with something special added" waiting for her in room











How I wish....

 

[Don Vito Corleone]

Originally posted by: DigDug

hmm, so you can try to poison someone and not get punished for it as long as they don't die?.. what?

It's purely a technical pleading problem, right Don_vito? I would thin kthat they just have to try her on a more accepted cause of action, like attempted murder.

I would assume so. It might also be that they charged poisoning (as I said, it appears the elements for poisoning are met), and that the problem relates to a faulty jury instruction on the lesser-included offense of attempted poisoning.

Poisoning is, in FL, defined as follows:

Poisoning food or water.--Whoever introduces, adds, or mingles any poison, bacterium, radioactive material, virus, or chemical compound with food, drink, medicine, or any product designed to be ingested, consumed, or applied to the body with intent to kill or injure another person, or willfully poisons or introduces, adds, or mingles any bacterium, radioactive material, virus, or chemical compound into any spring, well, or reservoir of water with such intent, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

I'm still unclear on why attempted poisoning isn't a crime, per the appellate court. Attempt is defined as:

A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt, ranked for purposes of sentencing as provided in subsection (4). Criminal attempt includes the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage in an offense prohibited by law.

The problem with the attempted poisoning charge must, I guess, arise out of case law, and I am not licensed in Florida, so I don't pretend to understand what happened here. I would have thought that the DA would charge this case as poisoning, rather than attempted murder, because it wouldn't require proving the intent to kill, so again I have to think this may have resulted from the jury convicting her of attempted poisoning based on a flawed jury instruction, hence their finding that she is guilty of a crime that, per the appellate court, does not exist. Weird situation in any case.

 

[sygyzy]

I saw this on a news brief online. I am not sure if I understand. To poison someone means to make them sick right? So the optomitrist did get sick so the attempt was successful. Shouldn't she go to jail for that?

 

[Don Vito Corleone]

Originally posted by: sygyzy
I saw this on a news brief online. I am not sure if I understand. To poison someone means to make them sick right? So the optomitrist did get sick so the attempt was successful. Shouldn't she go to jail for that?

See my post, above yours. It's not even necessary that anyone drinks the poisoned beverage - the crime is complete once the poison has been introduced, with the intent to injure or kill. I find this outcome baffling.

 

[DigDug]

Its rare for a crime to be complete as an attempt. Intent to sell narcotics is the only one I can think of that is in itself a crime, despite being an inchoate act.

 

[ElFenix]

Originally posted by: DigDug
Its rare for a crime to be complete as an attempt. Intent to sell narcotics is the only one I can think of that is in itself a crime, despite being an inchoate act.

this attempt was complete. heck, the guy drank some of it so the attempt should have merged into the poisoning offense...

 

[Don Vito Corleone]

Originally posted by: DigDug
Its rare for a crime to be complete as an attempt. Intent to sell narcotics is the only one I can think of that is in itself a crime, despite being an inchoate act.

I'm not sure what you're saying (though perhaps I should defer - you are apparently a better law student than I ever was!).

Attempted crimes are charged all the time, and garner convictions, as do other inchoate crimes, like conspiracy, accessory, etc. They all require at least some overt act, though it can be an act that would not otherwise be illegal, so I'm not sure what you mean by intent to sell narcotics being an offense (obviously this specific intent would be an aggravator in a possession case, but it's not a crime in and of itself).

I'm sure this is just a misunderstanding, since I imagine we are on the same page. As I said, I'm not clear why this woman was not just convicted of poisoning, when it certainly appears she is guilty of that offense.

 

[Looney]

Originally posted by: Brutuskend
POSTED: 7:42 am EDT May 20, 2004
UPDATED: 1:42 pm EDT May 20, 2004

FORT LAUDERDALE, Fla. -- A state appeals court says a Miami woman cannot be convicted of attempting to poison her boss simply because there is no such crime.

Femesha Foster used to work as a technician for optometrist Mark Caruso at the Pembroke Pines Wal-Mart. She was caught on a surveillance video tape putting the poison in her boss's can of Dr. Pepper in January 2000. Caruso decided the soda didn't taste right, and drove himself to the hospital, where he was treated for poisoning and released.

Foster was sentenced to 20 years in prison. It came out to 15 years for attempting to poison and five for grand theft, after she admitted to writing checks to herself from Caruso's account.

But the 4th District Court of Appeal in West Palm Beach has overturned Foster's conviction for attempted poisoning. The panel says that's a "nonexistent crime."

Prosecutors can retry Foster on the charge of poisoning.

Well that is true... there isn't a crime that's specific for poisoning... else they would need to specific everything else... attempted strangulation, attempted suffocation, etc. But the DA AND judge should have caught that and changed it to attempted murder, assault, or something other than that.