Florida Criminal Law Opinions

K. J. C., A CHILD, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-648.

District Court of Appeal of Florida, First District.

Opinion filed January 29, 2010.

An appeal from the Circuit Court for Escambia County, Ross Goodman, Judge.

Nancy A. Daniels, Public Defender and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General; Giselle Denise Lylen and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.

PER CURIAM.

Appellant raises two issues on appeal: first, whether the trial court erred by exceeding its statutory authority when it increased the commitment level upon a motion of a party other than the Department; and second, whether this court should

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remand with instructions to enter an amended disposition order which deletes the attachments suggesting Appellant is subject to post-commitment probation. We AFFIRM the first issue on the merits, but REMAND as to the second issue, with instructions for the trial court to enter an amended disposition order without the attachments, which indicate Appellant is subject to post-commitment probation. The State concedes there was no post-commitment probation ordered and does not oppose correction of the scrivener’s error. See Smith v. State, 614 So. 2d 602 (Fla. 1st DCA 1993).

VAN NORTWICK, PADOVANO and ROWE, JJ., CONCUR.

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LAKEISHA SHAYOLANDA LEGGS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-3324.

District Court of Appeal of Florida, First District.

Opinion filed January 29, 2010.

An appeal from the Circuit Court for Escambia County, Linda L. Nobles, Judge.

Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

In this Anders appeal, we affirm the appellant’s judgment and sentence, but remand for the trial court to enter a written order specifying the conditions of probation the appellant violated. See Baldwin v. State, 855 So. 2d 1180 (Fla. 1st

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DCA 2003) (remanding for entry of a written order revoking probation that conforms to the oral pronouncement in an Anders appeal); see also Petrie v. State, 980 So. 2d 1209 (Fla. 4th DCA 2008) (“In this Anders appeal, we affirm the order revoking appellant’s probation and imposing sentence, but we remand for entry of a written order of revocation of probation specifying the conditions the appellant was found to have violated”). The appellant need not be present. Baldwin, 855 So. 2d at 1180.

AFFIRMED in part and REMANDED in part for entry of a conformed order.

ROBERTS and CLARK, JJ., CONCUR; HAWKES, C.J., CONCURS IN RESULT ONLY.

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REUBEN SENIOR, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-144.

District Court of Appeal of Florida, Fifth District.

Decision filed January 29, 2010.

Appeal from the Circuit Court for Seminole County, Debra S. Nelson, Judge.

Allan Campbell, Lake Mary, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED.

TORPY and EVANDER, JJ., concur.

COHEN, J., concurs specially, with opinion.

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COHEN, J., concurring specially.

This court, albeit another panel, has reversed the conviction of one of Appellant’s codefendants, Brian Harvey. Harvey also questioned the trial court’s denial of a requested independent act jury instruction. These opinions are not inconsistent because the evidence established that Appellant, unlike Harvey, was aware of the third codefendant’s plan to steal the victim’s money under the guise of a drug deal and was also aware that his codefendant was in possession of a firearm.

As in Roberts v. State, 4 So. 3d 1261 (Fla. 5th DCA 2009), there was uncontroverted evidence that Appellant knew of the planned robbery, participated in it, and was aware that one of his cofelons was armed. The trial court did not err in failing to instruct on independent act.

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JASON P. TAYLOR, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-765.

District Court of Appeal of Florida, Second District.

Opinion filed January 29, 2010.

Appeal from the Circuit Court for Hillsborough County, Daniel H. Sleet, Judge.

James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Jason Taylor challenges a restitution order following his guilty plea to burglary of a conveyance and grand theft. He contends that the circuit court abused its discretion by basing the restitution order on the replacement values of the stolen items rather than their fair market values. We disagree and conclude that the court’s election

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to employ replacement values was well within its discretion. See C.M.S. v. State, 997 So. 2d 520, 521 (Fla. 2d DCA 2008.

Taylor also argues, correctly, that the restitution amount was based on faulty math. The victim testified to the following amounts: $106.49 for a radar detector, which included tax; $170.00 for a GPS; $129.99 for a camera; and $9.99 for the camera case. When added together, the total is $416.47. Taylor was ordered to pay $555.15 in restitution. That sum was not supported by the evidence. Accordingly, we reverse the restitution order and remand for the court to award restitution in the amount of $416.47.

Reversed and remanded with directions.

ALTENBERND, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

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STATE OF FLORIDA, Appellant,
v.
OMAR ROBINSON, Appellee.

Case No. 5D09-734.

District Court of Appeal of Florida, Fifth District.

Opinion filed January 29, 2010.

Appeal from the Circuit Court for Seminole County, Marlene M. Alva, Judge.

Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellee.

GRIFFIN, J.

The State of Florida appeals an order granting Omar Robinson’s ["Robinson"] motion to suppress. Because we conclude that the police had probable cause to arrest Robinson, we reverse.

Deputy Patrick Flanagan, with the Seminole County Sheriff’s Office, testified at the hearing on the motion to suppress that he and then deputy-in-training Jeffrey

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Johnson, initiated a traffic stop on a vehicle whose tag did not match the vehicle.¹ Robinson was a passenger in that vehicle. After stopping the vehicle, Deputy Flanagan learned that the driver did not have a valid driver’s license. When the driver admitted that he was aware his driver’s license was suspended, the driver was arrested.

At that point, Deputy Flanagan requested that the other two passengers in the vehicle, including Robinson, exit the vehicle in order to allow for a search of the vehicle incident to the driver’s arrest. Deputy Flanagan stated that he had the two passengers sit outside on the curb while he conducted the search. He immediately observed, in plain view, a plastic bag on the rear floorboard on the passenger side, which appeared to be crack cocaine. This was where Robinson had been sitting before being asked to exit the vehicle. After finding the crack cocaine, Deputy Flanagan secured the two passengers in the vehicle and advised Robinson of his Miranda² warnings. Robinson then admitted that the drugs belonged to him and also informed Deputy Flanagan that he had drugs in his right shoe.

Former Deputy Johnson confirmed that they initiated the stop of the vehicle after they ran the tag and it came back belonging to another vehicle. He additionally confirmed that the driver was arrested because his license had been suspended. They then removed the two remaining occupants from the vehicle and performed a search. Robinson and the other occupant were placed in handcuffs, for officer safety. Although he was not positive, he believed that the two occupants were placed in handcuffs at the

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same time the driver was arrested or shortly thereafter. He confirmed that Robinson was placed under arrest after the deputies found the cocaine.

The trial court granted Robinson’s motion to suppress, making the following findings of fact and conclusions of law:

The Defendant is charged with possession of cocaine. He was the rear right seat passenger in a car stopped for driving with an improper tag. The driver was arrested for driving while his license was suspended or revoked. The arresting deputy then requested that the Defendant and the other passenger exit the vehicle so that it could be searched incident to the driver’s arrest. On the right rear floorboard, the deputy discovered a baggie of crack cocaine in the area the Defendant had been seated. The Defendant and the other passenger were secured in handcuffs for further investigation. Post-Miranda, the Defendant admitted that the cocaine belonged to him. According to Deputy Flanagan, the Defendant was only then arrested. Subsequent to his arrest, the Defendant admitted additional contraband was in his shoe.

The Defendant claims that he was arrested without probable cause. Based upon the testimony, he is correct. The traffic stop, arrest of the driver, and search of the vehicle were all valid. However, upon discovery of the cocaine in the vehicle, the Defendant was placed in handcuffs. There is no dispute that Deputy Flanagan could have detained [him] to conduct a criminal investigation based upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, there was no basis for Deputy Flanagan to handcuff the Defendant in order to proceed with his investigation. There was no testimony that Deputy Flanagan had probable cause to believe that the Defendant was armed, nor was a pat down search conducted to dispel such a belief. There was also no indication that the Defendant appeared as if he was about to flee. As such, the use of handcuffs turned the Terry stop into an arrest. See Reynolds v. State, 592 So. 2d 1082 (Fla. 1992); Baggett v. State, 849 So. 2d 1154 (Fla. 2d DCA 2003). The Defendant’s mere proximity to the drugs did not give probable cause for this arrest. See Zandate v. State, 779 So. 2d 476 (Fla. 2d DCA 2000); Rennard v. State, 675 So. 2d 1006 (Fla. 2d DCA 1996). Therefore, the arrest was unlawful. The unlawful arrest tainted all statements made

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subsequently while the Defendant was in custody. Therefore, these statements and all contraband seized from the person of the defendant as a result of the unlawful arrest should be suppressed.

This is a constructive possession case in which drugs were found during a search incident to a lawful arrest. Once the deputy found the drugs, he had probable cause to believe that a crime had been committed. The question here is whether he had probable cause to believe Robinson committed that crime.

Below, the trial court found that Robinson was placed in handcuffs after the deputies found the drugs in the back of the car. However, the court concluded that Robinson’s mere proximity to the drugs did not give probable cause for his arrest. In reaching its decision, the trial court relied on Zandate v. State, 779 So. 2d 476 (Fla. 2d DCA 2000) and Rennard v. State, 675 So. 2d 1006 (Fla. 2d DCA 1996). The State contends those cases are not controlling.

In Zandate, the defendant, a passenger in a car, was arrested after drugs were seized during a traffic stop. There, the driver of the car consented to a search of his vehicle. The deputy found a residual amount of marijuana in the closed ashtray. The driver indicated that it was not his and consented to a pat-down search. Not finding any drugs on the driver, the deputy then searched the defendant and found a small baggie of marijuana and cocaine in his pants pocket. The defendant successfully argued that the deputy did not have probable cause to search his pockets or to arrest him because there was no evidence that the defendant knew of the presence of the substance in the closed ashtray. The Second District in Rennard similarly concluded that, although the initial stop and detention of the vehicle were valid, there was no probable cause to arrest the passenger after drugs were found in the car because the deputies did not

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have reason to believe that the passenger knew of the presence of contraband under the driver’s seat and not visible to a person in the passenger’s location.

This case is more similar to the First District Court’s decision in R.D.D. v. State, 15 So. 3d 857, 857 (Fla. 1st DCA 2009). There, law enforcement officers stopped a vehicle and found drugs in a clear plastic bag in plain view on the left side of the rear seat. R.D.D. was in the right hand rear seat. The court found that the evidence of exclusive possession of the area of the car where the drugs were in plain view is sufficient to prove constructive possession. Id.

In Jiles v. State, 984 So. 2d 622 (Fla. 2d DCA 2008), police found drugs located in the opening of the driver’s side door. Jiles was the driver but he had a passenger. The Jiles court said that mere proximity to drugs is not enough to infer constructive possession but the proximate location coupled with plain view of the drugs is sufficient to meet the elements of a constructive possession offense. Id. at 623.³ In the present case, the drugs were in plain view on the floorboard of the right rear passenger seat where Robinson was seated. The drugs were at Robinson’s feet and were within his reach before he stepped out of the vehicle. This evidence is sufficient to establish probable cause to believe that Robinson was in possession of the drugs and to arrest him for it. As a result, the trial court erred in granting the motion to suppress based on lack of probable cause.

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

—————

Notes:

1. The tag belonged to a red Ford, but was attached to a green Pontiac.

2. Miranda v. Arizona, 384 U.S. 436 (1966).

3. See also Maryland v. Pringle, 540 U.S. 366 (2003).

—————

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DENNIS COX, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2287.

District Court of Appeal of Florida, Fourth District.

January 27, 2010.

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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 05-17017 CF10B.

Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

The appellant, Dennis Cox, appeals his convictions for robbery with a firearm and attempted second degree murder with a firearm. He asserts the State violated his Sixth Amendment right to counsel by strategically and surreptitiously inducing incriminating statements from him after his right to counsel had attached. Because the State affirmatively engaged in conduct that was the functional equivalent of an interrogation during which time the appellant’s attorney was not present, we must reverse his conviction and order a new trial.

During a four hour interrogation session, three detectives used a multitude of techniques designed to elicit incriminating statements from Cox. In fact, the trial court suppressed all post-invocation statements made by Cox save for a highly prejudicial seven minute interrogation room conversation with one of his co-defendants. In excluding the seven minute conversation from his order of suppression, the trial judge reasoned that in-custody conversations are generally not protected because they are made in a setting in which a criminal suspect does not have a reasonable expectation of privacy.

For the reasons we explain, the trial court erred. Not only did law enforcement officials purposefully create a false illusion of privacy within the interrogation room but, working in concert, designedly utilized a codefendant to whom they made promises of leniency in exchange for baiting Cox to utter incriminating statements. The seven minute conversation between Cox and his co-defendant should have been encompassed within the trial court’s overall interrogation room

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suppression order. Because the published seven minute video recording constituted the very heart of the State’s evidence against Cox, this cannot be considered harmless error.

Facts The Crime

On October 10, 2005, three men, one of whom was armed, arrived at The Dollar Store in Pompano Beach, Florida. A video surveillance camera showed that at approximately 7:30 p.m., the first man entered the store and approached the cash register clerk. While the first man was getting change from a dollar bill, another man approached carrying a small dark colored revolver and shot the clerk. The third man ran over and took cash from the register. All three then fled the scene.

A person unrelated to the crime identified Christopher McCall as the first man to enter the store. McCall was brought in for questioning and identified Cox as the shooter. On October 12, 2005, Cox was taken into custody by law enforcement officials from the Broward County Sheriff’s Office. At 12:06 p.m., Cox was brought into the interrogation room.¹

The Invocation of Rights

At 1:47 p.m., Detectives Matthew Marks and Frank Ballante entered the interrogation room and read Cox his Miranda² rights. After giving Cox the opportunity to read each of his constitutional rights, Detective Ballante memorialized the review by procuring Cox’s signature on a preprinted form. Both verbally and in writing, Cox invoked his Sixth Amendment right to counsel.

The Questioning Continues

At 1:56 p.m. Detective Ballante exited the interrogation room but Detective Marks remained to fill out paperwork.³ Cox briefly “reinitiated”

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questioning by asking to see various crime scene photos in the detective’s investigative file.

[1:57 p.m.]

Cox: I can look at that? (Indicating the investigative file with photos)

Det. Marks: You will be seeing all this soon enough.

Cox: Why can’t I look at it now?

Det. Marks: All of this pertains to the investigation that is being conducted on you. You know why you are here.

Cox: You all still ain’t tell me.

Det. Marks: You are here about the robbery over at the

Dollar Store.

At this time, Detective Ballante re-entered the interrogation room and informed Detective Marks that he could not ask Cox any questions because of Cox’s previous invocation of the right to counsel but could show him the photos in the file. After both detectives left the room for a brief period, Detective Marks re-entered:

[2:00 p.m.]

Det. Marks: I just got to make something clear. You had signed this form saying that you didn’t want to speak to me without an attorney present. But while I was filling out this paperwork here you started speaking to me, okay …. You did what is known as re-initiating the conversation. Which means you are talking to me now. If you are wishing to continue to speak to me, that’s fine. I have no problems talking to you and you talking to me. But, has your position changed? Are you willing to speak with me now?

Cox: By me looking at that … (unintelligible) … Where the [pre-printed Miranda rights form] at so I can sign?

Thereafter, Detective Marks returned the Miranda rights form to Cox and, to the question asking whether he wished to speak to law enforcement officials without his attorney present, changed his written answer from “No” to “Yes.” Detective Marks then once again began questioning Cox about his whereabouts on the night of the robbery when Detective Ballante re-entered the interrogation room.

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[2:03 p.m.]

Det. Ballante: Where are we at? What? He wanted to see the stuff? You’re saying you want to talk about this a little bit now?

Cox: He told me (indicating Detective Marks) I can’t be asking to look at this (indicating the photos in the file) without —

***

[2:03 p.m.]

Det. Marks: No, no, no. You’re misunderstanding. What I am saying is I’m sitting here, doing paperwork, you’re talking to me. By you talking to me you’re reinitiating conversation with me after you told us you did not want to speak to us, okay?

***

[2:06 p.m.]

Cox: You are saying something I did not say. I wanted to look at the photo. I didn’t want you to ask me nothing…

Det. Ballante: Okay. Here is what we are going to do. Listen to me to what I’m telling you. We are done now. Please understand that. We should have been done before.

At this time it was clear Cox did not want to speak with law enforcement officials without an attorney present. In fact, all testimonial evidence from this point forward was suppressed by the trial court except for an ensuing seven minute conversation with Cox’s co-defendant.

Detective Ballante then exited leaving Detective Marks to inform Cox that another detective would soon be entering the interrogation room for purposes of performing a gunshot residue test on Cox’s hands. Detective Marks then left the room, leaving Cox alone. After Marks exited, Cox began wiping his hands under his armpits, biting and licking his fingernails, and coughing into his hands. (This non-testimonial evidence was permissibly published to the jury).

The “Family Friend” Interrogator Enters the Room

Law enforcement officials then sent a third detective into the interrogation room seemingly for the purpose of performing the gunshot

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residue test. Although Cox had already invoked his Sixth Amendment right to counsel, Detective Lacy Crew continued the interrogation. He removed Cox’s handcuffs and began the conversation with an apparent attempt to gain his trust.

[2:41 p.m.]

Det. Crew: I dealt with your dad a few times when he got jammed up. You know what the one thing about him that was good? He always told the truth.

***

[2:55 p.m.]

Det. Crew: I came here, made a special trip all the way from Pompano because I know your dad, (unintelligible) … to give you an opportunity to help yourself.

Detective Crew also asked Cox about his brother and cousin, both of whom Detective Crew said he had dealt with in the past. When Cox denied involvement in the robbery by stating he was with family at the time of the crime, Detective Crew said he knew his “Aunt Sylvia.” Although subtle, Detective Crew’s attempts to befriend Cox would ultimately prove successful.

Deliberate Versus Accidental Shooting

Throughout Detective Crew’s conversation and interrogation of Cox (all of which was suppressed by the trial court), Crew made efforts to convince Cox that confessing to an accidental shooting would assist Cox in lightening his sentence.

[2:42 p.m.]

Det. Crew: This is the time right here. You never gonna have another opportunity to say, “Hey look, I made a mistake. This was an accident.”

***

[2:43 p.m.]

Det. Crew: Minimize your loss by coming up with the truth …. The bottom line is when we go to court, do you want the judge and jury to say, “This is a hardened criminal, a cold blooded killer”? Or, do you want them to say, “This was a mistake”?

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***

[2:54 p.m.]

Det. Crew: What if we catch the other guy and he give a complete statement against you. First one talk, first one that get help. State attorney’s office may say, “Hey you know what, this guy here he sat there and lie to you, give him the max. This guy, who showed some remorse, said he was sorry for what he did. Told the truth right off the bat. Let’s try to help him out.”

***

[3:03 p.m]

Det. Crew: Did you deliberately shoot somebody? That’s a big difference. I’m giving you the ball, you want to run with it or not?

***

[3:05 p.m.]

Det. Crew: If you tell me “I went in there with that gun. I shot that guy. I tried to kill him. I robbed him” … then the worst thing is going to happen to you. But, if you tell me “I went in there with the gun, it was a mistake, I didn’t try to shoot him”. that’s a whole different story. But as it stand right now with you not saying nothing and that guy saying, “He went in there with me and he shot this guy, deliberately, and I know he did” . he is going to come into court and he is going to look like the good guy.

Detective Crew also told Cox his sentence for robbery could range from a youthful offender program to a life sentence. He said the sentence would depend on the information that Cox provided in the interrogation room. Detective Crew reiterated that a remorseful defendant who just accidentally discharged the weapon involved in the incident would receive a lighter sentence.

It was at this point that Cox changed his adamant denial of any involvement in the crime. Instead of denying participation, Cox told Detective Crew that he was willing to answer questions and make admissions.

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The Family Friend’s Assurance of Privacy in the Interrogation Room

Before answering questions and providing details of the robbery, Cox indicated a strong hesitancy to talk in the interrogation room out of fear that the conversation was being recorded. Detective Crew assured Cox that no recording was being made and the conversation was being conducted in private.

[2:59 p.m.]

Det. Crew: Are you going to be able to answer my questions?

***

[3:00 p.m.]

Cox: I ain’t fixin’ to talk to you right here right now in this place knowing I am being recorded.

Det. Crew: Who is recording you?

Cox: Man…I ain’t talking nowhere in no enclosed place. No buildings. I will talk to you outside.

Det. Crew: Do you see any camera around anywhere?

Cox: Am I supposed to see it?

Det. Crew: If we was recording you, yeah. We got a room where we take you in and the camera is sitting right there and we talking.

***

[3:08 p.m.]

Cox: I will talk to you and let you know what I know about the robbery but we cannot be in this building right now bro.

***

[3:10 p.m.]

Det. Crew: Nobody in here but me and you. Again, whose idea was this?

After this ten minute exchange filled with false assurances of privacy, Cox began to confess. He stated the robbery was not his idea; he was merely on the way to his grandmother’s house when he was approached by a co-defendant. However, Cox again expressed a continuing concern that his conversation with and confession to Detective Crew was being recorded.

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[3:12 p.m.]

Det. Crew: Now don’t you feel better talking about this?

Cox: But I swear we are being recorded right now man.

Det. Crew: Listen to me man. Do you see anybody in this room?

Cox: No.

Det. Crew: Go ahead. Stop going backwards. Let’s continue going forward.

Cox finally relented. He told Detective Crew that he followed another man into the Dollar Store. He stated that he raised his gun at the clerk behind the register as he approached the counter, but it discharged by accident. Detective Crew again asked if the shooting was deliberate, to which Cox answered in the negative.⁴

Law Enforcement’s Orchestration with a Co-Defendant

The most incriminating evidence introduced at trial derives from a seven minute conversation with a co-defendant, Christopher McCall, which the trial court specifically excluded from its suppression order. Prior to entering the interrogation room, McCall was told by law enforcement officials that he could expect leniency from the State Attorney’s office if he was able to elicit incriminating statements from Cox.⁵ Accompanied by Detective Crew, McCall was placed in the interrogation room with Cox and the three began a conversation:

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[3:34 p.m.]

Det. Crew: Now Chris. He (indicating to Cox) already told me what happened. What happened?

McCall: I was at the place (Unintelligible), at the Dollar Store… (Unintelligible).

***

[3:35 p.m.]

Det. Crew: Did you know you guys was gonna rob the place?

McCall: When he told me … (Unintelligible). When we was on the outside.

***

[3:35 p.m.]

Det. Crew: Did he shoot him deliberately or was it an accident?

McCall: He shot the guy deliberately.

Immediately after McCall made the statement that Cox “deliberately” shot the store clerk, Detective Crew purposefully exited the interrogation room so that both defendants were left alone. Cox, still unaware that the interrogation room was wired to record, confronted McCall by making highly charged inculpatory statements which would become the hallmark of the State’s prosecution against him.

[3:35 p.m.]

Cox: How you saying to them I meant to shoot the damn man?

McCall: (Unintelligible)

Cox: You telling them I meant to do that bro. You know how much time I can get for meaning to do something bro.

McCall: I ain’t gonna do nothing.

Cox: Okay. That ain’t the point bro. So I meant to shoot him, that what you tellin him? So I meant to shoot him?

McCall: I don’t know I aint’ doin nothing.

***

[3:36 p.m.]

Cox: Shit was a motha fuckin accident; you talking about deliberate. I ain’t gonna sweat it bro. I’m gonna leave

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that shit alone. All that lying gonna catch up with you man. I’m locked up. I can’t do nothing. There are plenty of people on the outside. Talking about I meant to do that shit man. Best thing for you to do bro is say that was an accident. It’s like six witnesses against you.

***

[3:37 p.m.]

Cox: I’m telling this man it was an accident. Everybody fixin’ to get a low sentence because it was an accident. You sitting here with all that deliberate shit. You know how much time that shit gonna get your dumb ass with that one word, “deliberate”?

McCall: (Unintelligible)

Cox: An accident, we ain’t getting shit . eight months, twelve months, year and a half the most.

***

[3:39 p.m.]

Cox: I ain’t pull that trigger … that gun went off by itself.

At this point, Detective Crew opened the door to the interrogation room and re-entered it. McCall was dismissed and removed from the room.

After a three day trial and three hours of deliberation, the jury returned guilty verdicts for (count I) robbery with a firearm and (count II) attempted second degree murder with a firearm. Cox was sentenced to life in prison on count I and 30 years on count II that included minimum mandatory sentences because of special findings by the jury that a firearm was possessed and discharged and that great bodily harm was inflicted.

Cox’s primary contention on appeal is that the State violated his Sixth Amendment right to counsel by covertly and tactically inducing incriminating statements from him after his right to counsel had attached. Cox argues that law enforcement officers created a reasonable expectation of privacy in his interrogation room by making repeated assurances that the interrogation was not being recorded. Cox also asserts that law enforcement’s use of a co-defendant, as a medium to induce incriminating statements from him, violated his right to counsel

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as the co-defendant was acting as an agent of the state.

The State argues that the publication of Cox’s confrontation with his co-defendant was not inconsistent with his Sixth Amendment right to counsel because criminal defendants do not enjoy a reasonable expectation of privacy in an interrogation room.

Analysis Standard of Review

When reviewing a trial court’s order on a motion to suppress, an appellate court affords a presumption of correctness with respect to the determination of historical facts, but “independently review[s] mixed questions of law and fact that ultimately determine constitutional issues.” See Welch v. State, 992 So. 2d 206, 214 (Fla. 2008).

Constitutional Protections

Both the Federal and Florida Constitutions provide as fundamental the right against self-incrimination.⁶ As a means of protection, criminal defendants are entitled to the warnings announced in Miranda before any custodial interrogation. See Miranda, 384 U.S. at 444-45. “[T]he requirement of giving Miranda warnings before custodial interrogation is a prophylactic rule intended to ensure that the uninformed or uneducated in our society know they are guaranteed the rights encompassed in the warnings.” Cuervo v. State, 967 So. 2d 155, 165 (Fla. 2007) (quoting Davis v. State, 698 So. 2d 1182, 1189 (Fla. 1997) (emphasis omitted)).

Pursuant to Miranda, the term “interrogation” refers not only to express questioning, but “any words or actions on the part of the police. that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). (footnote omitted). The Court explained:

This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a

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suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Innis, 446 U.S. at 301-02 (footnote omitted) (emphasis in original).

A criminal defendant can waive his or her Miranda rights and proceed with questioning provided the waiver is made voluntarily, knowingly and intelligently. See Miranda, 384 U.S. at 444-45. However, a suspect’s request to cut off questioning until counsel can be obtained must be “scrupulously honored” by the police. See Michigan v. Mosley, 423 U.S. 96, 104 (1975).

Turning to the facts of this case, there can be no debate that Cox initially invoked his right to counsel. However, by asking to view the photos in the law enforcement investigative file, we find (as did the trial court) that Cox re-initiated discussion allowing for the resumption of his interrogation. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also Pirzadeh v. State, 854 So. 2d 740, 743 (Fla. 5th DCA 2003)(“[W]hen an accused has invoked his right to counsel, all interrogation must cease immediately until counsel is made available, unless the accused reinitiates further communication with law enforcement.”).

Nevertheless, Cox explained that he merely wanted to see the photos, not engage in further discussion. Recognizing that Cox again invoked his right to counsel, the trial court appropriately suppressed all police questioning from this point forward—except for the seven minute conversation between Cox and a co-defendant.

Reasonable Expectation of Privacy

Cox argues that his seven minute “jailhouse conversation” with a codefendant should have been included in the trial court’s suppression order because law enforcement officials misrepresented the truth as to the privacy of his interrogation. The State contends no error occurred because incarcerated inmates have no reasonable expectation of privacy while in law enforcement custody.

“A citizen’s right to privacy. is determined by a two prong test: 1) whether the citizen had a subjective expectation of privacy; and 2) whether that expectation was one that society recognizes as reasonable.”

Page 14

Williams v. State, 982 So. 2d 1190, 1194 (Fla. 4th DCA 2008) (citing State v. Smith, 641 So. 2d 849, 851 (Fla. 1994)).

It has long been held that inmates do not have a reasonable expectation of privacy in jail. See Lanza v. New York, 370 U.S. 139, 143 (1962); see also Allen v. State, 636 So. 2d 494, 496-97 (Fla. 1994). Therefore, most conversations and confessions in a police interrogation room are admissible as evidence. See Pestano v. State, 980 So. 2d 1200, 1202 (Fla. 3d DCA 2008) (citing Larzelere v. State, 676 So. 2d 394 (Fla. 1996)). However, when law enforcement deliberately fosters an expectation of privacy, especially for the purpose of circumventing a defendant’s right to counsel, subsequent jailhouse conversations and confessions are inadmissible. Allen, 636 So. 2d at 497.

In State v. Calhoun, 479 So. 2d 241 (Fla. 4th DCA 1985), this court suppressed a videotaped jailhouse conversation between the incarcerated inmate and his brother because the statements therein were made while the defendant had a reasonable expectation of privacy. In Calhoun, the defendant was placed in an interview room equipped with a concealed video camera. Before speaking with law enforcement officials, the defendant asked to talk to his brother (also in custody on unrelated charges) in private. The two brothers spoke for about five minutes without being recorded. Thereafter, law enforcement terminated the conversation and the defendant invoked his Miranda rights. Nevertheless, law enforcement officers (admittedly for strategic “investigative purposes”) placed the defendant’s brother back in the interview room, and recorded a fifteen minute conversation between the two men. Id. at 242-43 (emphasis in original).

This court held that suppression of the fifteen minute videotaped conversation between the defendant and his brother was appropriate because the defendant had a “clear expectation of privacy. deliberately fostered by the police officers.” Id. at 243. This court stated:

[A]fter the first conversation the defendant specifically exercised his right to remain silent and his right to counsel. Not only were these rights totally ignored by the police but the officers circumvented them by bringing the brother back into the room and then taping the conversation which is the subject of the motion to suppress. To rule that under these circumstances the defendant’s statements to his brother are admissible is to make a mockery of the Miranda rights.

Calhoun, 479 So. 2d at 243.

Page 15

The instant case presents similar events. Cox, after invoking his Miranda rights, told Detective Crew that he did not want to talk about the alleged robbery out of fear the conversation was being recorded. Detective Crew then repeatedly and convincingly assured Cox that no such recording was being performed. It was after these assurances that Cox began answering Detective Crew’s questions and subsequently, making incriminatory statements to a co-defendant strategically placed inside the interrogation room by law enforcement officials. These police actions created a reasonable expectation of privacy in the interrogation room and should have led to inclusion of the seven minute jailhouse conversation with the other evidence suppressed at trial.

Use of Co-Defendant as an Agent of the State

Admission of the interrogation room conversation was also in error because the statements made therein were deliberately elicited by the codefendant, Christopher McCall, who was acting as an agent of the state.

In Massiah v. United States, 377 U.S. 201 (1964), the United States Supreme Court held that the Sixth Amendment prohibits law enforcement officials from deliberately eliciting statements from a defendant after the right to counsel has attached. “[S]tatements ‘deliberately elicited’ from a defendant after the right to counsel has attached and in the absence of a valid waiver are rendered inadmissible and cannot be used against the defendant at trial.” Rolling v. State, 695 So. 2d 278, 290 (Fla. 1997) (citing Massiah, 377 U.S. at 206). “For the fruits of postindictment interrogations to be admissible in a prosecution’s case in chief, the State must prove a voluntary, knowing, and intelligent relinquishment of the Sixth Amendment right to counsel.” Michigan v. Harvey, 494 U.S. 344, 348-49 (1990).

The “deliberately elicited issue” often arises when incriminatory statements are obtained by those persons acting as police informants or agents. See Rolling, 695 So. 2d at 290. In Rolling, the court held that “[u]sually, determining whether the `deliberately elicited’ standard has been met becomes an issue in cases, like this one, where incriminatory statements from a defendant were obtained through persons other than the police who allegedly acted as police informants or surrogates.” Id.

The key to the inquiry is whether a confession was “obtained through the active efforts of law enforcement.” Id. at 291; see, e.g., United States v. Henry, 447 U.S. 264 (1980) (use of a paid jailhouse informant to stimulate conversation with defendant rendered incriminating

Page 16

statements inadmissible at trial); Massiah, 377 U.S. at 201 (arranging for co-defendant to meet and discuss pending case in co-defendant’s wiretapped car met the “deliberately elicited” standard). Further, this analysis does not require the alleged agent have knowledge of his or her role in “deliberately eliciting” statements from a defendant in violation of his right to counsel. See, e.g., Calhoun, 479 So. 2d at 245 (placement of defendant’s brother in defendant’s videotaped interrogation room rendered the brother an unwitting agent of law enforcement and allowed the Sheriff’s agents to vicariously initiate and participate in a post Miranda interrogation that law enforcement could not legally accomplish directly).

In the instant case, law enforcement officials actively participated in a plan to elicit incriminating statements from Cox after Cox had invoked his right to counsel. Law enforcement officials planted co-defendant McCall in the interrogation room with the specific intent to evoke an incriminatory response. Moreover, it is clear that police investigators intended to spark a debate between the two suspects as to the deliberateness of the alleged shooting by leaving them to argue in the interrogation room. Accordingly, we conclude that the trial court erred in denying the motion to suppress Cox’s statements made during this seven minute conversation.

The Question of Harmless Error

“The erroneous admission of statements obtained in violation of Miranda rights is subject to harmless error analysis.” Mansfield v. State, 758 So. 2d 636, 644 (Fla. 2000). “The harmless error test … places the burden on the state … to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). While the harmless error test requires an examination of the permissible evidence on which the jury could have relied, an appellate court must make “an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id. at 1135.

In Rigterink v. State, 2 So. 3d 221 (Fla. 2009), the Florida Supreme Court held that the introduction of a defendant’s videotaped statements taken in violation of the Sixth Amendment right to counsel was harmful error. In that case, the State made the videotaped statements a centerpiece of its case against the defendant, presenting the tape during opening statements, its case-in-chief and closing argument. The court held that while the State may have presented admissible evidence

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sufficient to uphold the verdict, “[t]he test is not whether the jury reached what we believe to be the correct result but is, instead, whether a reasonable possibility exists that the constitutional violation contributed to the defendant’s convictions.” Id. at 257 (emphasis added).

In the prosecution of Cox, the admissible evidence introduced by the State included testimony from two co-defendants, one of whom was an admitted crack addict who was high on drugs during the night of the alleged robbery. Both men identified Cox as the shooter but denied any role in planning the robbery. Both co-defendants acknowledged that they had received significant plea bargains for greatly reduced sentences in exchange for their cooperation and testimony in the case against Cox. The State introduced testimony from law enforcement officers who arrived on the scene of the crime and found the victim lying in a pool of blood behind the register. At no time, however, was the State able to introduce the firearm used during the robbery nor was the victim able to positively identify the shooter. There was no physical evidence linking Cox to the crime and a store videotape was of very poor quality and difficult to decipher.

As in Rigterink, the State initially mentioned the existence of the “jailhouse conversation” between Cox and McCall during its opening statement. The State began its case in chief by publishing the first two hours of the interrogation video that showed Cox answer preliminary questions and adamantly deny involvement in the robbery. Next, and after a large portion of the interrogation video suppressed below was skipped, the seven minute “jailhouse conversation” between Cox and McCall was twice published to the jury in whole or in part. Portions of this conversation were played for a third time during the State’s closing argument.

Upon a close examination of this impermissible evidence—which served as a centerpiece of the evidence against Cox—it cannot be said that its admission, beyond a reasonable doubt, did not contribute to the verdict. Therefore, the trial court’s error in admitting the “jailhouse conversation” was not harmless.

Conclusion

Because the trial court erred by failing to suppress the seven minute jailhouse conversation, we must reverse and order a new trial.

Reversed and remanded.

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FARMER and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. The entire interrogation was digitally recorded by a hidden law enforcement camera. Throughout this opinion, references to times reflect the time of day indicated on the clock inside the interrogation room. This is provided for edification and context.

2. Miranda v. Arizona, 384 U.S. 436 (1966).

3. During the hearing on the motion that led to the trial court’s suppression order, Detective Ballante admitted that the decision by Detective Marks to remain in the interrogation room after Cox invoked his right to counsel was part of an overall interrogation technique. Detective Ballante testified, “Quite often, people will start to talk again.”

4. These admissions by Cox were included in the trial court’s suppression order.

5. At Dennis Cox’s trial, co-defendant Christopher McCall testified to the following:

Defense counsel: They told you to go into the room, right?

McCall: Yes, sir.

Defense counsel: Yes, sir. You knew when you walked in there you needed to get information, correct?

McCall: Yes, sir.

Defense counsel: So the more information you can get from Dennis Cox, was it your understanding that that would be more help from the police?

McCall: Yes, sir.

6. U.S. Const. amend. V; Art 1, § 9, Fla. Const.

—————

Courtesy of David Edelstein

ANTHONY SCOTT BAINES, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2496

District Court of Appeal of Florida, Fourth District.

January 27, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County, Robert Pegg, Judge, L.T. Case No. 312005CF1900.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

The defendant committed a shooting and, less than an hour later, caused a high-speed fatal car crash four miles away. The state, alleging that the defendant was escaping from the shooting when he caused the crash, convicted him of felony murder and other charges. The defendant challenges his felony murder convictions, arguing that the state failed to prove an unbroken “chain of circumstances” between the two events. We affirm. Even though the state could not account for the defendant’s every action between the two events, the state introduced sufficient evidence to prove that the defendant was escaping from the shooting when he caused the crash.

The defendant was at a bar around 9:30 p.m. when he got into an argument with another customer. Two bar employees took the defendant outside. When the employees returned, another customer told them that the defendant said he was going to come back with a gun. The employees went to lock the bar’s door. When they reached the door, they saw the defendant leaning over his car, aiming a gun at them. The defendant fired three times, but missed. The defendant got into his car and sped away. The police began looking for the defendant, but they could not find him.

Meanwhile, the defendant went to another bar, arriving at about 10:00 p.m. Around 12:30 a.m., he went outside and got into an argument with another customer. The defendant went to his car and got his gun. He came back and shot the man three times, none fatally. A bartender ran outside and yelled that the police were coming. The

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defendant fired a shot in the air, then got into his car and “punched it,” according to the bartender.

A witness driving past the bar saw the shooting and saw the defendant speed away. She called 911 at 12:53 a.m. She followed the defendant as he turned down a side street, then made a u-turn. As the defendant made the u-turn, the police approached with their overhead lights on. The defendant switched off his car’s headlights and disappeared down another side street. The police continued to look for the defendant.

Forty-six minutes later, at 1:39 a.m., and approximately four miles from the second shooting, the police were staked out at the defendant’s residence along a state road. The police saw the defendant’s car speed past, at what they estimated as 100 miles per hour, heading towards the interstate highway. The defendant ran two red lights before crashing into a car containing a husband and wife and their pregnant daughter. The crash killed the husband and wife, severely injured their daughter, and killed the unborn child. The defendant survived with minor injuries. His car’s speedometer was frozen at 105 miles per hour.

The state charged the defendant with several crimes. For the first shooting, the state charged the defendant with aggravated assault involving the discharge of a firearm, and shooting a deadly missile. For the second shooting, the state charged the defendant with attempted first degree murder. For the crash, the state charged the defendant with two counts of first degree felony murder of the husband and wife, and one count of attempted felony murder of the daughter, based on the allegation that the defendant was escaping from the second shooting when he caused the crash. The state also charged the defendant with three counts of vehicular homicide, one count of killing an unborn child by injury to the mother, and one count of reckless driving causing serious bodily injury.

The jury found the defendant guilty of all charges except attempted first degree murder for the second shooting. On that charge, the jury found the defendant guilty of the lesser included offense of attempted second degree murder. The trial court sentenced the defendant to life in prison without the possibility of parole based on the convictions for felony murder, attempted second degree murder, and killing an unborn child. This appeal followed.

The defendant argues that the state failed to prove felony murder because it did not prove a causal connection between the second

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shooting and the crash. Specifically, the defendant contends that, although forty-six minutes passed between the defendant’s leaving the second shooting and the crash, the locations of those events were only four miles apart. According to the defendant, had he been fleeing the shooting, it would have taken him only a few minutes to go from the shooting location to the crash scene. However, the defendant claims that, because the state failed to prove an unbroken chain of circumstances, no reasonable jury could have found he was in perpetration of fleeing the second shooting at the time of the crash.

Recognizing that he did not present this argument to the trial court, the defendant contends that his argument is reviewable for the first time on appeal because a conviction upon insufficient evidence constitutes fundamental error. See F.B. v. State, 852 So. 2d 226, 230-31 (Fla. 2003) (“[A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.”); Smith v. Crosby, 872 So. 2d 279, 283 (Fla. 4th DCA 2004) (“Where such fundamental error occurs, an appellate court will forgive the failure of preservation and review the legal sufficiency of the conviction on appeal.”).

The state properly acknowledges that the defendant can raise the sufficiency of evidence for the first time on appeal. On the merits, the state argues that it submitted sufficient evidence to prove the crash occurred during the defendant’s escape from the second shooting. The state contends that the defendant’s evasive maneuvers after the second shooting, combined with his speeding down the state road forty-six minutes later, indicate he knew he was being sought for the shootings, and he was attempting to avoid capture.

The supreme court articulated our standard of review in Pagan v. State, 830 So. 2d 792 (Fla. 2002):

Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (internal citations omitted). Applying that standard, we find that the defendant’s known actions between the second shooting and the

Page 4

crash were sufficient to prove that the defendant was escaping from the shooting when he caused the crash.

According to the standard jury instruction for first degree felony murder, as used in this case, the state had to prove, among other elements, that the husband’s and wife’s deaths occurred as a consequence of the defendant escaping, and while the defendant was escaping, from the immediate scene of the second shooting. See Fla. Std. Jury Instr. (Crim.) 7.3 (“To prove the crime of First Degree Felony Murder, the State must prove . . . [t]he death occurred as a consequence of and while (defendant) . . . was escaping from the immediate scene of (crime alleged).”). The standard jury instruction derives from section 782.04, Florida Statutes (2005), which provides, in pertinent part: “The unlawful killing of a human being . . . [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any . . . [m]urder of another human being . . . is murder in the first degree . . . .” § 782.04(1)(a)2.o., Fla. Stat. (2005) (emphasis added).

We more fully explored the term “in the perpetration of” in Wagner v. State, 921 So. 2d 38 (Fla. 4th DCA 2006):

The term “in the perpetration of” includes the period of time when a [defendant] is attempting to escape from the scene of the crime. Absent some definitive break in the chain of circumstances beginning with the felony and ending with the killing, the felony, although technically complete, is said to continue to the time of the killing. The State must prove that there was no break in the chain of circumstances beginning with the felony and ending with the murder.

Factors such as the relationship between the underlying felony and the homicide in point of time, place and causal relationship are important in determining whether there was a break in the chain of circumstances. In the case of flight, an important consideration is whether the fleeing felon has reached a place of temporary safety. If the killing is a predictable result of the felonious transaction, [n]either the passage of time nor separation in space from the felonious act to the killing precludes a felony murder conviction.

Id. at 40-41 (internal quotations and citations omitted).

Here, the state introduced sufficient evidence to prove that there was no break in the chain of circumstances beginning with the second

Page 5

shooting and ending with the crash. Only forty-six minutes passed between the defendant’s flight from the second shooting and the crash, and only four miles separated the two events. Immediately after the second shooting, the defendant was making evasive maneuvers, indicating that he knew he was being sought, and that he was attempting to avoid capture. Forty-six minutes later, the defendant, driving approximately 100 miles per hour, sped past his residence — a likely “place of temporary safety” — and ran two red lights while en route towards an interstate highway. These facts support an escape theory, and make the crash a predictable result of the escape from the second shooting.

These facts are most similar to the case upon which the state primarily relies, Parker v. State, 570 So. 2d 1048 (Fla. 1st DCA 1990). There, two brothers robbed and kidnapped a man who was stopped along an interstate highway. The robbers drove to a gas station, where the victim escaped. The victim approached one of the robbers inside the gas station, which prompted the robbers to get in their vehicle and flee. A bystander followed the robbers. The robbers traveled up and down several streets. The robbers then stopped at a convenience store to ask for directions to the interstate highway. The robbers got on the highway heading towards a city where they had a hotel room. When sheriff’s deputies began following them, the robbers fled at between 100 and 110 miles per hour. Further down the highway, a deputy set up a roadblock. That deputy was killed when he was struck by a pursuing deputy’s vehicle. Other deputies later captured the robbers. The entire incident, from robbery to capture, took no more than an hour.

The robbers were convicted of second degree felony murder for the deputy’s death. The robbery served as the underlying felony. One of the robbers appealed, arguing that the robbery could not serve as the underlying felony because the robbery was complete before the deputy’s death. The first district, applying the factors which we later adopted in Wagner, held that the robbery was not complete before the deputy’s death. 570 So. 2d at 1052. The court reasoned that the time from the robbery to the death was no more than an hour, the death occurred no more than several miles from the robbery, and the only stops that the robbers made, to get gas and directions, were made to accomplish their goal of fleeing from the robbery to a place of safety, their hotel room. Id. The court concluded that these facts established a causal relationship between the robbery and the deputy’s death which was sufficient to support the felony murder conviction. Id.

Page 6

Only one material distinction exists between Parker and this case. In Parker, the state appears to have accounted for the entire chain of circumstances from the robbery to the crash. Here, as the defendant points out, the state could account for only the first and last few minutes of his actions in the forty-six minutes between the defendant’s flight from the second shooting and the crash. The state presented no evidence of where the defendant was the remainder of that time. And, as the defendant notes, after the first shooting, he did not flee, but simply went to another bar.

However, we hold that the state did not have to account for the defendant’s every action between the second shooting and the crash to prove there was no break in the chain of circumstances between the two events. Rather, the state’s evidence of the defendant’s known actions between the two events was sufficient to prove that the crash was a predictable result of the defendant’s escape from the shooting. See Wagner, 921 So. 2d at 41 (“If the killing is `a predictable result of the felonious transaction,’ `[n]either the passage of time nor separation in space from the felonious act to the killing precludes a felony murder conviction.’”) (internal citations omitted).

To hold otherwise would reward an escaping felon, such as the defendant, who successfully evades pursuit, even for a few minutes. We already have addressed such a factual scenario in the state’s favor. See State v. Hacker, 510 So. 2d 304, 306 (Fla. 4th DCA 1986) (state established prima facie felony murder case even though witness lost sight of fleeing robbers for two minutes before witness reached fatal crash). Conversely, we also have recognized that a temporal break may be too attenuated to support a conviction. See State v. Williams, 776 So. 2d 1066, 1071 (Fla. 4th DCA 2001) (affirming felony murder acquittal where state acknowledged that defendant, after stealing vehicle, had reached several places of temporary safety during next twenty-four hours before causing fatal crash). Because temporal breaks can vary, each situation should be examined on a case-by-case basis.

The defendant, relying on Williams, argues that the statutory “rule of lenity” must be applied when determining whether a killing occurred “in the perpetration of” a felony as that phrase is used in section 782.04, Florida Statutes. The rule of lenity provides:

The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.

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§ 775.021(1), Fla. Stat. (2005). The defendant’s reliance on Williams for application of the rule of lenity is misplaced. In Williams, we applied the rule to section 782.04(4)’s reference to “any felony” to determine whether to measure the chain of circumstances from a carjacking or a grand theft. We did not apply the rule to section 782.04(4)’s reference to “in the perpetration of.” Instead, we interpreted that phrase in Wagner, as stated earlier in this opinion.

Like Williams, the other cases upon which the defendant relies for reversal are distinguishable because, in those cases, the appellate court found a large temporal break in the chain of circumstances between a felony and a crash. See House v. State, 831 So. 2d 1230, 1232 (Fla. 2d DCA 2002) (state presented no evidence of when defendant came into possession of stolen vehicle discovered missing nearly six hours before fatal crash); Lester v. State, 737 So. 2d 1149, 1151-52 (Fla. 2d DCA 1999) (defendant was not fleeing scene of crime when he caused crash while driving car which someone stole the previous evening); Allen v. State, 690 So. 2d 1332, 1334-35 (Fla. 2d DCA 1997) (break in chain of circumstances occurred between early morning hours when someone stole car and later that evening when defendant was involved in crash while driving stolen car).

In this case, however, the temporal break between the felony and the crash was relatively short — approximately forty-six minutes. When combining that short time span with the defendant’s evasive maneuvers, driving approximately 100 miles per hour, speeding past his residence, and running two red lights while en route towards an interstate highway, the state introduced sufficient evidence to prove there was no break in the chain of circumstances between the second shooting and the fatal crash. The crash was a predictable result of the defendant’s escape from the shooting. Therefore, we affirm the defendant’s felony murder convictions.

Affirmed.

POLEN and MAY, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

CHARLENE ROSA, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-2778

District Court of Appeal of Florida, Fourth District.

January 27, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Jeffrey R. Levenson, Judge, L.T. Case No. 2004010827CF10A.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

One little word—polygraph—does not merit a reversal of the defendant’s conviction for first degree premeditated murder and life sentence. Among other issues, the defendant argues the trial court erred in denying a defense motion to cross-examine a state witness concerning the results of a polygraph examination and the court’s denial of a subsequent motion for mistrial. We find no error and affirm.

The State indicted the defendant for first degree premeditated or felony murder for the stabbing death of the victim. The defendant worked as a caretaker for the victim, who was in her 70′s. The victim often required her caretakers to come back to collect their money days after it was due.

The victim was seen alive on July 3, 2002. Although the date of death is uncertain, phone records and an autopsy report indicate that the victim died on July 4, 2002. On that date, the victim’s neighbor saw the defendant outside, then walk into the victim’s apartment, and later leave hurriedly alone in her burgundy Ford F-150 truck.

A friend of the defendant’s testified that the defendant had been scheduled to travel to Jamaica on July 11, 2002, and had asked her to care for the victim while she was gone. On July 4, 2002 the defendant called her friend from the victim’s phone and told her that the victim was not paying her monies that were due. The defendant also changed her plane reservation from July 11th to July 5th, and again changed the reservation to leave on the evening of July 4th. She told her friend that

Page 2

she needed to leave early because her child was sick.

The police discovered the victim’s body on July 17, 2002. The victim had been stabbed forty-three times. The only signs of criminal activity were in the bedroom and a small amount of blood transfer in the hallway. The defendant left three fingerprints at the scene. None of the prints contained blood.

The police asked the defendant’s friend to tape record her conversations with the defendant. The tape recordings were entered into evidence, without objection, and played for the jury. In one controlled call, the defendant explained that she had sent an acquaintance known as Dutch to collect money, and that Dutch told her the victim had screamed at him and threatened to call the police. Dutch told her that he may have hit the victim with the phone.

Another of the defendant’s friends also made controlled calls. In one unrecorded call, the defendant stated that she had gone to a lady’s house to collect some money. In another controlled call, the defendant stated that she did not know what happened to the lady, but she probably died. On yet another call, the defendant continuously denied knowing anything about the victim.

The homicide investigation took two to three years until the Jamaican authorities arrested the defendant. A member of the Jamaican Fugitive Apprehension Team testified that the defendant was using a passport in the name of “Alicia Lueyen.” The defendant explained that “Alicia” was the name of a relative of her ex-husband and “Lueyen” was her exhusband’s last name that she kept.

After her arrest, the defendant voluntarily told an authority that she worked as an aide for a woman and she confronted her about money that was owed with her friend “Frost.” She claimed the woman stabbed her with a knife, and showed the resulting scar on her hand. This led to the woman being struck in the face by Frost. They took the knife, leaving the woman on the floor bleeding, and drove away in the vehicle that had been described by the neighbor.

The defense contended that Dutch committed the murder. To support this theory, the defense attempted to introduce evidence that Dutch had failed a polygraph test administered by the Office of the State Attorney. The polygraph report revealed that two of Dutch’s answers to polygraph questions showed deception: (1) was he ever at the victim’s apartment; and (2) was he present when she was killed. The defense orally moved to

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cross-examine Dutch about the polygraph results. After some discussion, the court denied the defense motion. The court specifically found that the “potential relevance for impeachment and otherwise is far outweighed by the potential prejudice.”

The State called Dutch as a witness. He testified that he had collected some debts for the defendant, but he did not accompany her to the victim’s house for that purpose. During cross-examination, defense counsel asked Dutch about his trip to the State Attorney’s office.

[Defense Counsel] Did you come down here to the courthouse?

A. Pardon me?

Q. Do you recall coming down here to the courthouse?

A. Yeah, I came to the courthouse.

Q. You came to the State Attorney’s Office?

A. Yeah, I came to do a polygraph.

Q. I don’t have any further questions.

At the conclusion of Dutch’s testimony, defense counsel objected to Dutch’s response concerning the polygraph. He suggested the only way to cure the impression left by the testimony was to allow him to impeach Dutch with the polygraph results. The trial court responded:

Whether he passed or he didn’t, he said he came to take a polygraph, he didn’t say he took the polygraph, and the fact is, I’m going to tell the jury whether he did or didn’t take the polygraph, or whatever occurred, is irrelevant, not to be considered by them. The case law is very clear on this.

When the court inquired about a curative instruction, defense counsel repeated the only way to cure the problem was to allow him to impeach Dutch with the results of the polygraph. The court then asked if defense counsel waived a curative instruction. Defense counsel responded: “Well, you’re going to give the instruction you feel is appropriate.” Defense counsel then suggested that the court instruct the jury that the witness went to take a polygraph and whether he passed or not should not be considered by the jury. The court then gave the following instruction:

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Ladies and gentlemen, there was a reference by the witness that he came to the courthouse to take a polygraph examination. Polygraph examinations are clearly not relevant, not admissible, and not before you. Whether he did or did not ultimately take that examination, or anything that occurred, is completely irrelevant and not something you should consider and not something before you. Okay? It just happened to be blurted out by the witness. So, A, it’s not before you whether he did actually take the polygraph; and, B, if he did take the polygraph it’s not before you what the results are.

What I’m telling you now is you are to completely disregard that answer that was blurted out. Do we understand that? Don’t assume anything. Don’t speculate, oh, he took it, he passed, or he took it, he failed. Don’t assume that he took it, don’t assume whatever any results are. Do we understand that? Can you promise me that? That’s kind of crucial.

Trial for that day ended after the curative instruction.

The next morning, defense counsel moved for a mistrial arguing Dutch’s testimony had left the jury with the impression that he had passed the polygraph, the testimony was prejudicial, and the curative instruction was insufficient to remove the taint. The court asked whether there was anything else it could do to “inoculate the jury.” Defense counsel answered “no.” After a lengthy discussion, the court denied the motion for mistrial. Defense counsel marked the polygraph report as an exhibit for appellate purposes.

The State made the following comment during closing argument.

This is a case that is building. The moment that name Dutch came out, as a good law enforcement officer, as a good investigator, you have to consider all possibilities now, all bets are off. So it’s not that anybody thought he really did it. I mean, everything she is saying, it’s all confusing.

Defense counsel did not object to the statement. After the State’s closing, defense counsel renewed the motion for mistrial and argued that the State’s closing had increased the prejudice of Dutch’s reference to the polygraph examination. The court denied the motion.

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The jury returned a guilty verdict on one count of first degree murder. The court sentenced the defendant to life in prison without the possibility of parole.

The only issues we address concern the trial court’s handling of the polygraph. First, the defendant argues that the court erred in initially denying the defendant’s request to impeach Dutch with the results of the polygraph. Second, the unanticipated polygraph testimony became particularly prejudicial because it left the jury with the impression that Dutch passed the test, which directly contradicted the defendant’s theory that Dutch had committed the murder. And third, the error was compounded when the prosecutor argued in closing that Dutch had never really been a suspect.

The State has several responses. First, the issue was not preserved because the objection was untimely.¹ Second, even if preserved, the trial court did not abuse its discretion when it denied the request to impeach Dutch with the results of the polygraph examination. Third, the trial court cured any error by its instruction. Fourth, the court did not err in denying the motion for mistrial because the jury was neither informed of whether the polygraph was taken nor of the actual results. And fifth, the error, if any, was harmless.

The admissibility of evidence lies in the sound discretion of the trial court; we will not reverse a ruling unless there has been a clear abuse of that discretion. Ray v. State, 755 So. 2d 604, 610 (Fla. 2000). This general rule is tempered by Florida’s “more conservative approach to the admission of [polygraph] evidence.” McFadden v. State, 540 So. 2d 844, 846 (Fla. 3d DCA 1989). Absent an agreement between the state and defense, the results of a polygraph examination are inadmissible because they have not been shown to be sufficiently reliable to warrant their use in judicial proceedings. See United States v. Scheffer, 523 U.S. 303, 309 (1998); Davis v. State, 520 So. 2d 572 (Fla. 1988).

Here, there was no stipulation. Thus, initially the trial court properly denied the defense request to cross-examine Dutch about the polygraph examination. When Dutch indicated that he had gone to the Office of the State Attorney to take a polygraph, the issue arose for a second time.

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While defense counsel did not immediately object, as soon as the questioning concluded, counsel brought the issue to the court’s attention. The court again advised the defense it would not allow cross-examination of Dutch and provided a thorough curative instruction, advising the jury not to consider the testimony. The court went out of its way to fashion an instruction to protect any harm the single word may have caused. The court also noted that there had been no indication that Dutch took the polygraph or what the results of the polygraph were.

A motion for mistrial is left to the sound discretion of the trial court. We review such decisions for an abuse of discretion. Salazar v. State, 991 So. 2d 364, 371 (Fla. 2008). A mistrial should be granted only when the error vitiates the entire trial. Id. at 372. “[N]ot every reference to a polygraph exam is inadmissible, nor does every improper admission of the taking of a polygraph exam require a mistrial.” Olivera v. State, 813 So. 2d 996, 998 (Fla. 4th DCA 2002) (quoting McFadden, 540 So. 2d at 845). We find the mention of the word polygraph in this case significantly distinguishable from the admission of having taken a lie detector test in Olivera.

In Olivera, the state unintentionally elicited that its only key witness had taken a lie detector test. 813 So. 2d at 997. The trial court sustained the objection, gave a short curative instruction, and denied the motion for mistrial. Id. The jury convicted the defendant on all charges. Id. at 998. But we reversed, based on the unique facts of the case. Id. at 999.

In Olivera, there was no physical evidence and no witnesses placing the defendant at the scene. Id. at 997. The entire case was built on one witness alone, who testified that the defendant had made inculpatory statements to him. Id. at 998. That witness had not come forward until two years following the murder, and only after being threatened with deportation by law enforcement and eviction by family members unless he implicated the defendant. Id. at 997. He was the son of the dead perpetrator, was on probation, had admitted to using marijuana, and had made prior inconsistent statements denying any knowledge of the crime. Id. In short, he had been significantly discredited by defense counsel. “Thus, unless the jury believed that he had passed the lie detector test, it is hard to fathom that his testimony would have led to the defendant’s conviction . . . .” Id. at 998.

In Olivera, we cautioned “that the mention of the `three little words’ [lie-detector test] does not, ipso facto, require” a reversal. Id. This is just

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such a case. Here, Dutch’s mere mention that he went to the state attorney’s office to take a polygraph is not the same as indicating that he had in fact taken the exam or the results of the exam. Cf. Walsh v. State, 418 So. 2d 1000, 1002 (Fla. 1982). The comment was not elicited by the State, but came as a result of defense counsel’s cross-examination when it was clear that defense counsel wanted to cross examine Dutch about the polygraph.

Dutch did not suffer the same credibility issues as the witness in Olivera. There were multiple witnesses and substantial evidence inculpating the defendant. A friend of the defendant confirmed a conversation in which the defendant complained about not being paid for services. Other cell phone records confirmed numerous calls from the victim’s location. The defendant left the country abruptly. Recorded conversations suggested the defendant’s involvement leading to the death of the victim. Under the facts of this case, we find no error in the trial court’s denial of the motion for mistrial.

This holding is bolstered by the great lengths taken by the trial court to insure that the one little word was not considered by the jury in its deliberations. The court clearly and forcefully advised the jury that polygraph examinations were irrelevant, that it was neither to consider whether a test was taken nor the possible results. The court instructed the jury to completely disregard Dutch’s answer. At the close of the trial, the trial court instructed the jury that it was only to consider the evidence introduced in the trial, and that if it disregarded his instructions the verdict would be a miscarriage of justice. We further hold that the court’s curative instruction cured any prejudice that may have resulted.

For these reasons, we affirm the defendant’s conviction and sentence. We find no merit in the other issues raised.

Affirmed.

POLEN and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. While defense counsel waited to object until the end of Dutch’s testimony, he later renewed the objection, and moved for mistrial. Defense counsel explained to the court that he did not immediately object so as to not draw attention to the remark. We find the issue sufficiently preserved.

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Courtesy of David Edelstein

JOHN GERMAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4332

District Court of Appeal of Florida, Fourth District.

January 27, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Larry Schack, Judge, L.T. Case No. 562007CF005089B.

Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals his sentence for home invasion robbery with actual possession of a firearm and attempted sexual battery with threat of great bodily force. He argues the trial court erred in considering his refusal to make statements during the preparation of the presentence investigation report [PSI] in denying his request to mitigate his sentence. We disagree and affirm.

The defendant, a co-defendant, and a third unknown man entered the victim’s apartment. As the defendant held the victim on the floor with a gun to her head, the co-defendant attempted a sexual battery. The three men then stole various items from the victim’s apartment. The codefendant encouraged the defendant to kill the victim, which he refused to do. The jury convicted both the defendant and co-defendant.

At the sentencing hearing, defense counsel requested a youthful offender sentence and the defendant’s mother and sister addressed the court. The court and defense counsel then had the following exchange:

THE COURT: I don’t think that . . . [the defendant] is going to fall into the category of youthful offender here. [W]hat do I make of the fact that the PSI is essentially barren because [the defendant] . . . refused to make any comments for the PSI? Should I take that as an individual who has such thorough contempt for the [s]ystem that on top of the facts of the case are something that I should consider in imposing a disposition here?

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MR. GLENN [Defense]: I’m not sure what you’re asking me Judge.

THE COURT: He was given an opportunity to speak to the folks at DOC to provide mitigating information, information about his background —

MR. GLENN: Yes.

THE COURT: And he refused to participate. Should I — you know, I — I’m sentencing the whole person and should I factor into that calculation an individual who has such apparent contempt for the [s]ystem that on top of the facts of the case itself when given the opportunity to participate, . . . [he] declined?

MR. GLENN: My client does not wish to do that. THE COURT: I’m sorry?

MR. GLENN: My client does not wish to do that. He — he feels more comfortable not making comments and part of that is based on attorney advice.

THE COURT: Okay. Well, you know, there’s a — there’s a variety of factors here and I remember the evidence quite well. [S]ir, if you don’t wish to make any comments here, that’s fine. It will impact the disposition here. So you may want to think if you do not wish to make any comments here. Let me call Mr. Battista’s case, so I can get him on the way and you can let me know if your client has changed his mind at all.

After handling another matter, the court resumed the hearing. Defense counsel advised the court that his client had a “couple of brief comments” to make. The defendant then asked for less time so he could go back to his family and change his life.

After asking whether there was anything else from the defense, the court asked the defendant why he did not answer questions in preparation of the PSI. The defendant explained that he was sick that day. The court then remarked: “I’m not sure that that covers it, but The State then indicated it had nothing further.

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The court articulated its findings for mitigation of the sentence: (1) the defendant’s “comments go a little ways to mitigating the sentence;” (2) the defendant’s record was much less than his co-defendant; and (3) the defendant refused to shoot the victim when instructed to do so by the co-defendant. The court indicated these factors warranted a sentence less than the life sentence imposed on the co-defendant, but not a youthful offender sentence. The court then sentenced the defendant to fifty years on count one with a ten-year minimum mandatory and fifteen years on count two to run concurrent. The defense did not object to the trial court’s comments and did not file a motion under Florida Rule of Criminal Procedure 3.800.

Absent fundamental error, a party must make a specific legal argument to the trial court to preserve an issue for review. Jackson v. State, 983 So. 2d 562, 568 (Fla. 2008); Lloyd v. State, 876 So. 2d 1227, 1228 (Fla. 4th DCA 2004). Here, no objection was made.

The defendant argues, however, that the court committed fundamental error by violating his Fifth Amendment right to remain silent when it considered his silence during the preparation of his PSI in sentencing him. He further argues that the court erred in considering his lack of remorse and refusal to admit guilt. We disagree.

As a general rule, trial courts have considerable discretion in sentencing within the minimum and maximum allowed by law. Nusspickel v. State, 966 So. 2d 441, 444 (Fla. 2d DCA 2007). The exception to this rule is where the imposition of sentence violates a defendant’s constitutional rights. Dowling v. State, 829 So. 2d 368, 370 (Fla. 4th DCA 2002).

The Supreme Court of Florida has explained that due process prevents a court from using the fact that a defendant maintains his innocence against him at any stage of the proceedings. Holton v. State, 573 So. 2d 284, 292 (Fla. 1990). “Although remorse and an admission of guilt may be grounds for mitigation of a sentence or a disposition, the opposite is not true.” K.N.M. v. State, 793 So. 2d 1195, 1198 (Fla. 5th DCA 2001). A trial court abuses its discretion and infringes on constitutional rights when it imposes a harsher sentence because a defendant exercises the right to remain silent, protests his innocence, or fails to show remorse. See Donaldson v. State, 16 So. 3d 314 (Fla. 4th DCA 2009).

The question then is whether the trial court relied on the defendant’s

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silence or lack of remorse in fashioning the sentence. And if so, was its reliance on the defendant’s silence during the presentence investigation impermissible. No Florida case appears to have addressed whether a trial court can rely on a defendant’s silence during a presentence investigation. However, cases from outside of Florida have permitted trial courts to consider a defendant’s silence in a PSI when fashioning a sentence. See Kansas v. Spencer, 70 P.3d 1226 (Kan. Ct. App. 2003); Lee v. Wyoming, 36 P.3d 1133 (Wyo. 2001).

In Spencer, the trial court considered the defendant’s invocation of his Fifth Amendment right in refusing to make a statement in the PSI report. 681 P.3d at 685. The Kansas Court of Appeal found no violation when the trial court placed the defendant in “high risk status” because of the defendant’s refusal to make a statement or provide information in the PSI report. Id. at 1229-30. Similarly, in Lee, the Wyoming Supreme Court affirmed the trial court’s consideration of the defendant’s failure to submit to a psychological evaluation in sentencing the defendant. “A defendant’s failure to cooperate in the PSI is certainly a valid factor for a trial court to consider in contemplating the appropriate sentence.” 36 P.3d at 1141.¹

Here, defense counsel requested a youthful offender sentence for the defendant. The defendant was given an opportunity to present facts for the court’s consideration on whether to impose such a sentence. § 958.07, Fla. Stat. (2007). Indeed, the presentence investigation specifically allowed the defendant to present his “educational background, . . . employment background, . . . financial status, . . . social history, . . . residence history, . . . views of the person preparing the report as to the offender’s motivations and ambitions and an assessment of the offender’s explanations for his or her criminal activity, [a]n explanation of the offender’s . . . version and explanation of any previous offenses.” § 921.231(1)(d)-(m), Fla. Stat.; see also Fla. R. Crim. P. 3.710. But, the defendant declined. Not only did the defendant

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decline to comment on the crime, which he is entitled to do, he also failed to provide information for the trial court’s consideration on his request for mitigation of sentence.

In the discussion that preceded the sentencing, the trial court commented on the defendant’s failure to provide information for the PSI report.² But, there is no indication that the trial court relied on the defendant’s silence in sentencing him. The trial court gave the defendant another opportunity to speak. This second opportunity yielded only that the defendant had been sick when the presentence investigation was conducted. When a defendant provides no mitigating information, there is little for the court to consider.

Further, in pronouncing sentence, there is no suggestion that the trial court used the defendant’s silence, lack of remorse, or failure to admit guilt against him; quite the contrary. The court’s comments were directed to the heinous nature of the crime. And despite that fact, the court found the defendant was entitled to a shorter, not harsher, sentence than his co-defendant because he refused to further harm the victim when encouraged to do so by the co-defendant. In actuality, there is no indication that the defendant received any harsher sentence because of his silence.

We acknowledge the defendant’s Fifth Amendment right to remain silent even during the presentence investigation. Holton, 573 So. 2d at 292. We also acknowledge that a trial court is in essence forced to consider the lack of information in a PSI when the defendant chooses to exercise that right as it relates to mitigating information. This is especially true when a court is asked to mitigate a sentence. We find no error in these proceedings.

Affirmed.

POLEN and GERBER, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.

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Notes:

1. See also New Hampshire v. Burgess, 943 A.2d 727, 739 (N.H. 2008) (no error in considering the defendant’s “lack of involvement” or “failure to participate” in preparation of the PSI because his failure “to participate in the PSI is relevant to the defendant’s potential for rehabilitation, which is an appropriate sentencing consideration”); Ohio v. Hoying, No. 04-CA-71, 2005 WL 678989, at *5-6 (Ohio Ct. App. 2d Dist. Mar. 25, 2005) (trial court correctly considered the defendant’s refusal to cooperate with the presentence investigation); Wisconsin v. Arrington, 317 Wis. 2d 730 (Wis. Ct. App. Mar. 24, 2009) (trial court’s remark concerning the defendant’s failure to cooperate with presentence investigator as reflective of his character and conduct was not error).

2. The trial court’s question concerning whether the defendant’s silence should be considered contemptuous appears to suggest the court’s displeasure with the defendant’s refusal to cooperate. However, it could just have easily been an expression of frustration by the court that it had insufficient information to consider for mitigation. Courts should, however, be vigilant to avoid any suggestion of improper considerations when making remarks during sentencing.

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Courtesy of David Edelstein

S.W., a juvenile, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4040.

No. 4D08-4047.

No. 4D08-4048.

District Court of Appeal of Florida, Fourth District.

January 27, 2010.

Consolidated appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Moses Baker, Jr., Judge, L.T. Case Nos. 07-3909CJA02, 08-1172CJA02, and 07-1923CJA02.

Lewis K. Hanna, of Boca Raton, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

GERBER, J.

We deny S.W.’s motion for rehearing, and substitute the following for our November 18, 2009 opinion to clarify the propriety of the juvenile court’s disposition.

The juvenile court adjudicated S.W. delinquent for her participation in a petit theft. Without further comment, we affirm the court’s denial of S.W.’s motion for judgment of acquittal. We also affirm the court’s departure from the Department of Juvenile Justice’s recommended disposition. We choose to address the departure issue in greater detail.

At the time of the offense, S.W. was seventeen years old. She was on juvenile probation for having committed misdemeanor battery, and on adult probation for having committed criminal mischief. In the past, she also received pretrial diversion for burglary of a dwelling.

Following the theft adjudication, and after accepting S.W.’s no contest plea for violating her probation on the battery and criminal mischief charges, the court held a disposition hearing. The Department’s predisposition report contained a comprehensive evaluation indicating that S.W. had psychiatric issues, suicidal ideations, and an extensive substance abuse history. The evaluation recommended that the court place S.W. in a highly-structured residential facility capable of handling her substance abuse issues. Based on the court’s review of the evaluation, the court commented that S.W. appeared to be an “out-of-control

Page 2

drug user who is lucky to be alive.” Nevertheless, the Department opined that S.W. was a low risk for re-offending or flight, and recommended that S.W. continue on probation, with the added special condition of residential drug treatment and aftercare. When the court challenged the Department’s representative as to how the Department could justify its recommendation in light of the evaluation’s recommendation, the representative responded, in pertinent part, “I cannot.”

The court rejected the Department’s recommendation. Instead, the court committed S.W. to a Level 8, high-risk program as to each of the three cases, with each disposition running consecutively to the others.¹ A high-risk program is, in pertinent part:

residential and do[es] not allow youth to have access to the community . . . . High-risk residential facilities are hardwaresecure with perimeter fencing and locking doors. . . . Youth assessed and classified for this level of placement require close supervision in a structured residential setting. Placement in programs at this level is prompted by a concern for public safety that outweighs placement in programs at lower commitment levels.

§ 985.03(44)(d), Fla. Stat. (2007).

The court explained its reasoning for the high-risk program in great detail:

Number one, she’s been in a diversion program, that did not work. She’s been on juvenile probation, that did not work. She was the subject of a restraining order[,] she violated that, that did not work. She’s now on adult probation and none of these things have worked.

Her mother obviously loves her to death, but her mother has been unable to properly supervise her in the home[,] and that’s based on the record here before me. Probation is not the answer.

Last, but not least, the recommendation of probation is incredibly inconsistent with the well-documented and wellsupported recommendations of the Comprehensive Evaluation[,]

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which states `that [S.W.] should be placed in a highly structured residential facility capable of handling her substance abuse issues.

The Comprehensive Evaluation more than adequately supports a highly structured residential facility[,] and because of that recommendation, in part, I have chosen a high risk residential program, it is highly structured, it’s a program from which she cannot simply walk away at all.

The second reason why the Court has chosen a high risk as opposed to a Level 6 program, is because this child’s substance abuse problem is the most extensive one this Court has ever encountered . . . .

If I counted accurately, her substance abuse problem includes tobacco, alcohol, marijuana, cocaine, heroin, LSD, Extacy [sic], Roxycontin, Oxycontin, and Xanax, not to mention the fact that she overdosed and had to be hospitalized for her abuse of Xanax. The Level 8 commitment level will allow this child the maximum opportunity to once and for all address her substance abuse problem. Had the Court chosen probation[,] jurisdiction would end at 19.

If the Court had chosen a Level 6[,] jurisdiction would end at 19. A high risk residential program jurisdiction would not end until age 21[,] and the child could continue until age 22 if that is necessary to complete her substance abuse [treatment].

Choosing a high risk residential program[,] the Court has virtually guaranteed that all of the recommendations of the Comprehensive Evaluation this child could benefit from[;] that is the only commitment level that’s available to the Court that would ensure those recommendations the child could benefit from . . . .

Last, but not least, the Level 8 commitment will ensure that the child cannot, cannot leave the program if she chooses to, which the evidence and information contained in the Predisposition Report and the Comprehensive Evaluation seem to indicate [she would]. For those reasons I’ve chosen a high risk residential program.

S.W. filed a motion for rehearing, alleging that the evaluation upon which the court relied for the disposition contained numerous factual

Page 4

mistakes and was incomplete. At the resulting hearing, the court reserved ruling on the motion, but commented, “the decision I made I’m comfortable with because it kept this child alive. . . . I would never [have] agreed to probation under these types of circumstances on these facts as they were presented to me at that time.” The Department then informed the court that placing S.W. into a Level 8 program would not provide the intensive drug treatment which the court felt S.W. needed. Instead, the Level 8 program would provide only “overlay service” for the substance abuse. According to the Department, a Level 6 program would provide a true substance abuse component. After considering this information, the court responded, “she’s not placed in a Level 8 program for punishment. . . . [S]he’s there for treatment. . . . [If] she’s not going to be getting treatment in this program[,] I need to know about that. . . . It will affect my decision.”

Shortly thereafter, the court entered an order denying the motion for rehearing. The record does not indicate whether the Department ever followed through on the court’s direction to notify the court if S.W. would not be getting appropriate treatment in the Level 8 program.

This appeal followed. S.W. argues the juvenile court erred in departing from the Department’s recommendation to continue probation. According to S.W., competent, substantial evidence did not exist to support a Level 8, high-risk residential commitment. S.W. contends the evidence showed the majority of her drug use was two years earlier and she already began voluntary treatment. S.W. also alleges that, even if the court’s concern for intensive drug treatment was accurate, the evidence showed a Level 8 program would not provide such treatment.

Our review of the juvenile court’s departure from the Department’s recommendation is two-pronged: (1) whether the juvenile court employed the proper legal standard in providing its on-the-record departure reasons; and, if so, (2) whether its stated reasons are supported by a preponderance of the competent, substantial evidence contained within the record. E.A.R. v. State, 4 So. 3d 614, 638-39 (Fla. 2009). Regarding the proper legal standard, the juvenile court must satisfy the following criteria:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay’”associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and

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(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.

Id. at 638.

Here, even though the juvenile court rendered its decision before the supreme court issued E.A.R., the juvenile court satisfied E.A.R.’s criteria.

The juvenile court articulated an understanding of the respective characteristics of the opposing restrictiveness levels including the type of child that each restrictiveness level is designed to serve. The court recognized that a high-risk program was justified for a child who had been in a diversion program, on probation, and under parental supervision, of which none “have worked.” The court also acknowledged that a high-risk program, unlike probation, is a “highly structured residential facility . . . from which [a child] cannot simply walk away.” The court also expressed that a high-risk program was justified for a child who, based on her history, would attempt to “leave the program.”

The court also articulated an understanding of the potential “lengths of stay” associated with each level. The court stated, “Had the Court chosen probation[,] jurisdiction would end at 19. If the Court had chosen a Level 6[,] jurisdiction would end at 19. A [Level 8] high risk residential program jurisdiction would not end until age 21[,] and the child could continue until age 22.”²

The court further articulated an understanding of the divergent treatment programs and services available to the juvenile at these levels. At the disposition hearing, the court initially appeared to believe a Level 8 program would provide the intensive substance abuse treatment which the court desired. The Department then informed the court at the rehearing that a Level 8 program would provide only overlay services. Having heard that information, the court instructed the Department, “[if] she’s not going to be getting treatment in this program[,] I need to know about that.” The record does not indicate whether the Department ever followed through on the court’s direction to notify the court if S.W. would not be getting appropriate treatment in the Level 8 program.

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The court logically and persuasively explained why, in light of these differing characteristics, a high-risk program was better suited to serving S.W.’s rehabilitative needs — in the least restrictive setting — while maintaining the state’s ability to protect the public from further delinquent acts. Although the Level 8 program’s overlay services would not provide the most intensive substance abuse treatment which the court desired, jurisdiction for the Level 8 program would not end until S.W. turned twenty-one, and S.W. could continue the program until age twenty-two if necessary to complete any treatment. On the other hand, jurisdiction for probation or a Level 6 program would end when S.W. turned nineteen, and S.W. already had turned eighteen by the time of the commitment. Thus, the court decided it was in S.W.’s best interests to place the length of treatment over the intensity of treatment. S.W.’s psychiatric and substance abuse history, which the court found credible, served as competent, substantial evidence for that decision.

Even if the court erred in reasoning that a Level 8 program was appropriate to address S.W.’s substance abuse problem, the court described that problem as only the “second reason” why the court chose the Level 8 program. The “number one” reason for the court’s choice was its desire to place S.W. in a “highly structured” program from which she “cannot leave the program if she chooses to, which the evidence and information . . . seem to indicate [she would].” Thus, the trial court found that S.W. was a flight risk, and that “[keeping] this child alive” was of highest priority. The fact that neither diversion, probation, nor parental supervision “have worked” to control S.W.’s self-destructive behavior served as competent, substantial evidence for that decision.

In sum, the court employed the proper legal standard in providing its on-the-record departure reasons. The court’s stated reasons also are supported by a preponderance of the competent, substantial evidence contained within the record. Therefore, the trial court satisfied its duty to determine the most appropriate dispositional services in the least restrictive available setting.

Affirmed.

POLEN and STEVENSON, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. As the court recognized, each of the three offenses carried a maximum oneyear term of imprisonment, meaning that the total amount of time which S.W. could spend in a commitment program could not exceed three years.

2. See footnote 1, supra.

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Courtesy of David Edelstein