Florida Criminal Law Opinions

LUIS J. DIAZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D09-543.

District Court of Appeal of Florida, Fourth District.

May 19, 2010.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Andrew L. Siegel, Judge, L.T. Case No. 08-13581 CF10A.

Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

The defendant entered a plea of no contest to trafficking in heroin and possession of drug paraphernalia, reserving the right to appeal the denial of his motion to suppress evidence. He argues that the police officers’ warrantless entry into his home after the arrest of an individual outside his home was unlawful. We agree. Because the trial court erred in denying the defendant’s motion to suppress, we reverse.

At the motion to suppress hearing, Detective Vincent Campos of the Broward Sheriff’s Office testified that in July 2008 he was engaged in an ongoing narcotics investigation of the defendant, based on complaints that the defendant was selling narcotics. While conducting undercover surveillance, Campos observed a white female, later identified as Alexis Russell, leave the defendant’s residence and make contact with an unknown white male, later identified as Steadham. The officer saw Russell reach into Steadham’s pocket and deposit something, which he believed to be narcotics. After Russell and Steadham parted ways, Campos made contact with Steadham. Steadham admitted that Russell delivered narcotics to him and agreed to fully cooperate with the police. He told the officer that he had contacted the defendant to buy the narcotics and explained that they had a code for drug transactions. Once Steadham learned that he would not be released for a felony charge, however, he refused to cooperate any further.

After Steadam was placed in custody, Campos informed his supervisors about the hand-to-hand drug transaction he witnessed. He told them that Steadham said there were probably more drugs inside the defendant’s home and that the defendant was there with his girlfriend. Campos also told the sergeant about his prior interaction with the defendant in January 2008, when

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the defendant was arrested for possession of heroin after dropping narcotics to the ground when approached by police at his residence.

Members of Detective Campos’s selective enforcement team continued surveillance on the defendant’s home from unmarked police vehicles. Campos stayed in contact with them by radio. At that time, he did not believe he had probable cause to apply for a search warrant.

Detective Gregory Eglund arrived on the scene to assist the take-down team with the arrest of Alexis Russell, who was believed to be inside the defendant’s home. Eglund was informed about her delivery of heroin and the officers’ plan to wait for her to come out. Russell eventually came out and was arrested outside the defendant’s home, about five feet from the front door. The front door remained open. Eglund said he could tell that there were other people inside because from the front door he could see some movement in the back bedroom. Five officers entered the home with guns drawn and performed a protective sweep. Eglund explained that the protective sweep was “for our well being, making sure nobody was armed,” and that they “went inside and detained the other people that were inside the house.”

Eglund went to the back bedroom, where he found the defendant and the defendant’s girlfriend, Stephanie Scott, sitting on the bed. Containers of what appeared to be heroin were lying next to them. The defendant and Scott were detained and brought outside the house. Eglund did not see the defendant or Scott try to destroy any evidence. They did not resist; they were handcuffed and brought outside, where they remained calm and cooperative.

Sergeant Edward Grant testified that both the defendant and Scott were detained and that they were not free to leave. They were read their Miranda rights, given BSO consent forms, and advised of their right to refuse consent. After determining that both the defendant and Scott lived in the house, the officers obtained their signed consents to search the home. The defendant’s handcuffs were removed to allow him to sign the consent from. This occurred within ten to fifteen minutes after the protective sweep. The police did not threaten or coerce the defendant and Scott into signing the consent forms. Neither the defendant nor Scott yelled or resisted; the defendant appeared to sign under his own free will. When Scott signed the consent form, however, she gave a false name.

Scott testified that she did not know the police were in the house until they came into the bedroom. She admitted giving a false name on the consent form, because she “didn’t want to have any responsibility to sign anything, you know, because I didn’t want any part of it.” She testified the officers told her if she did not sign the consent to search form, she would face the same charges as the defendant. She said that she signed it because she was a little scared.

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After consent was given, the officers re-entered the home to conduct a search. Heroin was found in the bedroom on the bed, on the floor, at the foot of the bed, and around the room. Eglund stated that the heroin that they recovered was only what they had seen during the protective sweep, in addition to heroin out in the open on the floor.

Campos, who described the entry into the defendant’s home as a protective sweep, explained that there are safety concerns with narcotics investigations, and that “[t]ypically, with narcotics investigations, there’s an unknown. You don’t know if there’s going to be weapons inside, if there’s going to be booby traps inside. You are walking into, you know, some type of ambush, maybe, you know, and we have to take precautions for ourselves and for the public. . .. [I]t’s dangerous business. Typically, there’s guns and drugs.” On cross-examination, however, Campos acknowledged that, although he knew there were occupants inside the residence, he did not know whether or not they were armed. He recalled that the defendant did not resist arrest or pose any threat during his arrest in January 2008. Further, he did not remember any weapons being recovered from the defendant’s home at that time. Campos acknowledged that in January 2008 the officers performed a protective sweep of the defendant’s home after his arrest outside the home and afterwards obtained his consent to search in the same way as they did in July 2008.

At the end of the suppression hearing, the defendant argued that the officers had no right to enter his home to conduct a protective sweep since Russell’s arrest occurred outside the home and the officers had no reasonable belief, based on specific and articulable facts, that the home harbored individuals that posed a danger to them. As such, he argued, any consents given after the illegal entry were invalid.

The court denied the motion. It reasoned that because the officers could see from the front door that there were other individuals inside the home, they were authorized to conduct a protective sweep for their safety and to protect them “from the possibility of any type of harm coming to them.” The court further found that the consent given by the defendant’s girlfriend was valid and that the defendant did not have standing to attack her consent.

The defendant ultimately pled no contest to the charges and reserved the right to appeal the trial court’s ruling on the motion to suppress. He was sentenced concurrently to three years for trafficking in heroin, and 364 days for possession of drug paraphernalia.

The state first argues that the defendant’s motion to suppress was not properly preserved for appeal because, although the defendant indicated at his plea hearing that he intended to appeal the denial of the motion to suppress, the court did not rule, nor did the parties stipulate, that the ruling was dispositive.

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Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) permits a defendant to appeal from a guilty or nolo contendere plea when the defendant “expressly reserve[s] the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.” “An issue is dispositive only when it is clear that regardless of the outcome of the appeal, there will be no trial.” Fuller v. State, 748 So. 2d 292, 294 (Fla. 4th DCA 1999) (citing Vaughn v. State, 711 So. 2d 64, 65 (Fla. 1st DCA), rev. denied, 722 So. 2d 195 (Fla. 1998)). It is the trial court’s duty “to determine the dispositive nature of the reserved question.” Everett v. State, 535 So. 2d 667, 669 (Fla. 2d DCA 1988). The court errs if it “simply acknowledges that the defendant has reserved an issue for appellate review.” Id.

However, “where a motion tests the suppression of contraband which the defendant is charged with possessing, the motion is usually considered dispositive in the case.” J.J.V. v. State, 17 So. 3d 881, 883 (Fla. 4th DCA 2009) (citing Brown v. State, 376 So. 2d 382, 385 (Fla. 1979); Howard v. State, 515 So. 2d 346 (Fla. 1st DCA 1987)). “Thus, the lack of an express finding that the issue is dispositive is not fatal.” Id. (citing Hawk v. State, 848 So. 2d 475, 478 (Fla. 5th DCA 2003)).

Here, the defendant was charged with trafficking in heroin. The information alleged that the defendant “did then and there unlawfully and knowingly have in his actual or constructive possession a controlled substance” contrary to sections 893.135(1)(c)1a and 893.03(1)(b)(11), Florida Statutes. Because the defendant was charged with trafficking through possession, the possession cases that hold that the lack of a dispositiveness finding is not fatal apply in this case. We thus find that the issue was properly preserved.

On the merits, the state argues that the trial court correctly denied the motion to suppress because the officers clearly articulated facts, based on the circumstances of this case, which justified a protective sweep of the defendant’s home.

A protective sweep is “`a quick and limited search of the premises, incident to an arrest and conducted to protect the safety of police officers or others.’” Vasquez v. State, 870 So. 2d 26, 30 (Fla. 2d DCA 2003) (quoting Maryland v. Buie, 494 U.S. 325, 327 (1990)). It may only extend to those places where a person may be hiding. Runge v. State, 701 So. 2d 1182, 1183 (Fla. 2d DCA 1997) (citing Buie, 494 U.S. at 335).

Without extraordinary circumstances, “government agents have no right to search a dwelling when an arrest is effectuated outside it.” Klosieski v. State, 482 So. 2d 448, 450 (Fla. 5th DCA 1986) (citing Vale v. Louisiana, 399 U.S. 30 (1970)). The threshold to the entrance of a house “may not reasonably be

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crossed without a warrant” absent exigent circumstances. Id. (citing Payton v. New York, 445 U.S. 573 (1980)).

Regardless of whether the initial arrest is made inside or outside the home, “‘police officers have a right to conduct a quick and cursory check of a residence when they have reasonable grounds to believe that there are other persons present inside the residence who might present a security risk.’” Newton v. State, 378 So. 2d 297, 299 (Fla. 4th DCA 1979) (quoting U.S. v. Bowdach, 561 F.2d 1160 (5th Cir. 1977)). The officers must have a reasonable, articulable suspicion that the protective sweep is necessary due to a safety threat or the destruction of evidence. United States v. Thompson, No. 08-60264-CR-COHN, 2009 WL 302037, at *1 (S.D. Fla. Feb. 6, 2009). Further, “a protective sweep of the inside of a residence incident to an arrest made outside the residence is not per se unlawful, and is proper if the arresting officer has (1) a reasonable belief that third persons are inside, and (2) a reasonable belief that the third persons were aware of the arrest outside the premises so that they might destroy evidence, escape or jeopardize the safety of the officers or the public.” United States v. Flores, No. 2:08-cr-108-FtM-29SPC, 2009 WL 55022, at *2 (M.D. Fla. Jan. 7, 2009) (citing United States v. Oguns, 921 F.2d 442, 446 (2d Cir. 1990)).

In Klosieski v. State, 482 So. 2d 448, 449 (Fla. 5th DCA 1986), the police conducted a protective sweep of the house after the two defendants were arrested and secured outside the home. The fifth district reversed the denial of the motion to suppress, holding that “the police had no reason to believe that other individuals, dangerous to their safety, were inside the house. . . . The fact that the police did not know, as an absolute certainty, whether more people were in the house . . . cannot justify entry into the house.” Id. at 450 (emphasis supplied).

Here, the officers had a reasonable belief that third persons were inside. Not only did Steadham tell Campos that the defendant and Scott were in the house, but Eglund testified he saw some movement in the back bedroom. However, no evidence was adduced at the hearing to establish the required “reasonable, articulable suspicion” that these individuals posed a danger and might jeopardize the officers’ safety or destroy evidence. The officers testified only about their general safety concerns with narcotics investigations. Their testimony suggests that they entered the residence as part of a routine practice, rather than on the basis of any articulable facts which would warrant a reasonable belief that the occupants posed a threat to officer safety. See Mestral v. State, 16 So. 3d 1015, 1018 (Fla. 3d DCA 2009) (holding that a protective sweep of the defendant’s home was impermissible where no exigent circumstances existed).

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Moreover, exigent circumstances did not exist to support a warrantless entry to search the defendant’s house. Warrantless searches are considered, under the Fourth Amendment, per se unreasonable, subject to certain exceptions. Hornblower v. State, 351 So. 2d 716, 717 (Fla. 1977) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). The state bears the burden to demonstrate that “procurement of a warrant was not feasible because `the exigencies of the situation made that course imperative.’” Id. (citing McDonald v. United States, 335 U.S. 451, 456 (1948)). Even if they have probable cause, “police officers may not enter a dwelling without a warrant, absent consent or exigent circumstances.” Levine v. State, 684 So. 2d 903, 904 (Fla. 4th DCA 1996) (citing Payton v. New York, 445 U.S. 573 (1980)). The measure of reasonableness is totality of the circumstances. Wright v. State, 1 So. 3d 409, 412 (Fla. 2d DCA 2009) (citing Lee v. State, 856 So. 2d 1133, 1136 (Fla. 1st DCA 2003)).

The state must prove that the police lacked sufficient time to obtain a warrant; “if time to get a warrant exists, [then] the enforcement agency must use that time to obtain the warrant.” Hornblower, 351 So. 2d at 718. The Florida Supreme Court explained that “[l]aw enforcement officers may not sit and wait . . . (when they could be seeking a warrant), then utilize their self-imposed delay to create exigent circumstances.” Id. at 719. In this case, the state failed to present evidence of any exigent circumstances that would have made procurement of a warrant not feasible. Campos had sufficient probable cause to apply for a search warrant, based on his observations of the hand-to-hand transaction, Steadham’s statements and admissions, and the defendant’s arrest for heroin possession six months earlier. Yet, rather than obtain a warrant, the police continued surveillance, waited for Russell to re-emerge from the house, and then arrested her just a few feet from the front door. The state failed to establish that sufficient time did not exist during this interim to procure a search warrant. In Hornblower, the court held that forty-five minutes was an unreasonable length of time and that the warrantless search was unjustified. State v. Moyer, 394 So. 2d 433, 435 (Fla. 2d DCA 1980) (citing Hornblower, 351 So. 2d at 717, and Wilson v. State, 363 So. 2d 1146 (Fla. 2d DCA 1978)) (stating “[t]he courts held that 45 minutes in Hornblower and six hours in Wilson were unreasonable lengths of time and thus the warrantless searches were unjustified”).

Further, the state presented no evidence that the defendant or Scott knew of the police presence outside their home or that the officers perceived them doing anything to indicate that they were attempting to destroy evidence or to escape. See Gilbert v. State, 789 So. 2d 426, 428 (Fla. 4th DCA 2001) (explaining an exigent circumstance includes “where the possessor of contraband is aware that the police are on his or her trail”). In Lee v. State, 856 So. 2d 1133, 1138 (Fla. 1st DCA 2003), the court explained that “in order to justify a warrantless entry into a residence to prevent the imminent destruction of evidence, the

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police must have an objectively reasonable fear that the evidence will be destroyed before a warrant can be obtained.” The Florida Supreme Court in Benefield v. State, 160 So. 2d 706 (Fla. 1964), also held that “exigent circumstances exist where the occupants of the house are aware of the presence of someone outside, and are engaged in activities that justify the officers in the belief that the occupants are actually trying to escape or destroy evidence” Lee, 856 So. 2d at 1138 (citing Benefield, 160 So. 2d 706). Fears based on generalizations about drugs and guns are not enough to create an exigent circumstance. Id. at 1139-40.

In Rebello v. State, 773 So. 2d 579, 579-80 (Fla. 4th DCA 2000), the defendant was supplying cocaine from his motel room. When an officer knocked on his door and announced he was a police officer, the defendant ran to the bathroom. The officer could hear the toilet flushing and the shower running, so he kicked in the door. Id. at 580. We reversed the trial court’s denial of the defendant’s motion to suppress, concluding that the officer’s actions triggered the excitement that led to insufficient time to obtain a warrant. Id. at 581. The police “may not create exigent circumstances by their own conduct.” Id. at 580 (citing Levine, 684 So. 2d at 904).

Because the police were not justified in entering the defendant’s house without a warrant and conducting a protective sweep, the consents to search given by the defendant and Scott were invalid. It is well-settled law that “where. . . a `consent [to search] is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search.’” Gonzalez v. State, 578 So. 2d 729, 734 (Fla. 3d DCA 1991) (quoting Norman v. State, 379 So. 2d 643, 646-47 (Fla. 1980)). We explained that “`[c]onsent given after police conduct determined to be illegal is presumptively tainted and deemed involuntary, unless the state proves by clear and convincing evidence that there was a clear break in the chain of events sufficient to dissolve the taint.’” Navamuel v. State, 12 So. 3d 1283, 1286 (Fla. 4th DCA 2009) (quoting Delorenzo v. State, 921 So. 2d 873, 879 (Fla. 4th DCA 2006)). Here, the state failed to prove that the taint of illegal entry was dissipated by subsequent events. See State v. Sakezeles, 778 So. 2d 432, 434 (Fla. 3d DCA 2001) (the state bears the burden to show that the taint of illegal entry was dissipated by subsequent events).

Accordingly, we reverse the denial of the defendant’s motion to suppress and reverse and remand for further proceedings.

CIKLIN, J. and BLANC, PETER D., Associate Judge, concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

KENNETH ALLEN STEWART, Appellant,
v.
STATE OF FLORIDA, Appellee.
KENNETH ALLEN STEWART, Petitioner,
v.
WALTER A. MCNEIL, etc., Respondent.

No. SC08-2075.

No. SC09-814.

Supreme Court of Florida.

May 27, 2010.

An Appeal from the Circuit Court in and for Hillsborough County, Barbara Fleischer, Judge — Case No. 85-CF-5667.

And an Original Proceeding — Habeas Corpus.

Robert A. Norgard and Andrea M. Norgard of Norgard and Norgard, Bartow, Florida, for Appellant/Petitioner.

Bill McCollum, Attorney General, Carol M. Dittmar, and Meredith Charbula, Assistant Attorneys General, Tallahassee, Florida, for Appellee/Respondent.

PER CURIAM.

Kenneth Allen Stewart appeals an order of the circuit court denying his motion to vacate his sentence of death filed under Florida Rule of Criminal Procedure 3.851. Stewart also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the postconviction court’s order and deny Stewart’s petition.

I. BACKGROUND

In 1986, Stewart was convicted of second-degree arson and first-degree murder for the shooting of Ruben Diaz. On direct appeal, this Court set out the facts of the crimes:

Daniel Clark heard two gunshots on December 6, 1984, at about 12:15 a.m., “just a split second or two” apart. He got out of bed, walked outside, looked down the road in both directions, but saw nothing. At approximately 1:00 that same morning, Linda Drayne spotted a body lying alongside the road and reported it to the police. Investigation revealed that the body was that of Ruben Diaz, who had been shot twice from a distance of a foot or less, once in the front of the head, and once behind the right ear. Sometime after midnight, police also discovered Diaz’s car, which had been set on fire in a mall parking lot. Several months later, Stewart was arrested in connection with another crime and while in custody was charged with first-degree murder and second-degree arson for the instant offenses. During the guilt phase of the trial, Randall Bilbrey, who shared a trailer with Stewart from December 9 to December 19, 1984, testified that Stewart told him that he and another man were looking for someone to rob when they spotted a big, expensive-looking car outside a bar. They went in and engaged the car’s owner, Diaz, in conversation, convincing him to give them a ride. Once in the car, Stewart, who sat in the back seat, pulled a gun and ordered Diaz to drive to a wooded area where he ordered Diaz to get out of the car, lie on the ground, and place his hands on his head. He took Diaz’s wallet, which contained fifty dollars, and a small vial of cocaine, and then, at the urging of the second man, shot Diaz twice in the head. Stewart and the second man later burned the car to destroy fingerprints.

The state’s second key witness was Terry Smith, a friend with whom Stewart shared an apartment. Smith testified that Stewart told him that a man picked him up hitchhiking and that he pulled a gun, ordered the man to drive to a certain location where Stewart ordered the man out of the car, made him lie on the ground, robbed him, and shot him twice.

Stewart v. State (Stewart I), 558 So. 2d 416, 418 (Fla. 1990). Stewart was sentenced to fifteen years in prison on the arson count and sentenced to death on the murder count.

On direct appeal, Stewart raised two guilt-phase claims and several penalty-phase claims. This Court affirmed Stewart’s convictions, but because the sentencing court improperly refused to give a requested instruction on the statutory mitigating circumstance of substantially impaired capacity, this Court reversed the death sentence and remanded for a new penalty phase. Id. at 421. After a second penalty phase, the jury unanimously recommended a death sentence, and the sentencing court sentenced Stewart to death. The sentencing court found two aggravating and no mitigating circumstances. This Court affirmed the death sentence. Stewart v. State (Stewart II ), 620 So. 2d 177 (Fla. 1993).

Stewart then filed a motion for postconviction relief. Stewart’s trial counsel asserted that he had been ineffective when he represented Stewart during the second penalty phase. Stewart agreed to waive any potential guilt-phase claims, and the State agreed to a new penalty phase. Stewart v. State (Stewart III ), 872 So. 2d 226, 227 (Fla. 2003).

A third penalty phase was conducted in March 2001. The jury recommended a death sentence by a vote of seven to five. After conducting a hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla. 1993), the sentencing court imposed the death sentence. The sentencing court found three aggravating circumstances, two statutory mitigating circumstances, and numerous nonstatutory mitigating circumstances applicable to the murder. The sentencing court explained that in its view, the circumstances underlying the prior violent felony aggravating factor were “so egregious” and “so horrific” that that factor alone far outweighed all of the mitigation. Stewart raised five issues on appeal. This Court affirmed the death sentence. Stewart III, , 872 So. 2d at 229.

In February 2006, Stewart filed an amended motion to vacate judgment of conviction and sentence pursuant to rule 3.851, Florida Rules of Criminal Procedure. The postconviction court granted an evidentiary hearing on all but one of Stewart’s claims of ineffective assistance of counsel and on his claims that his right to confrontation had been violated. In October 2008, the postconviction court issued an order denying relief. Stewart now appeals the postconviction court’s order. He argues that the postconviction court erred in denying his claims of ineffective assistance of counsel.¹ Stewart also petitions this Court for a writ of habeas corpus, raising four claims.

II. MOTION FOR POSTCONVICTION RELIEF

On appeal, Stewart contends that the postconviction court should have found that trial counsel provided ineffective assistance by failing to (A) discover and present evidence of organic brain damage; (B) investigate and present mitigating evidence concerning Stewart’s childhood and family; and (C) object to the cross-examination of defense penalty-phase witness Marjorie Sawyer.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that trial counsel’s performance was deficient and that the deficient performance prejudiced the defendant so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984). As to the first prong, the defendant must establish that “counsel made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687; see also Cherry v. State, 659 So. 2d 1069, 1072 (Fla. 1995). For the second prong, “Strickland places the burden on the defendant, not the State, to show a `reasonable probability’ that the result would have been different.” Wong v. Belmontes, 130 S. Ct. 383, 390-91 (2009) (quoting Strickland, , 466 U.S. at 694). Strickland does not “require a defendant to show `that counsel’s deficient conduct more likely than not altered the outcome’ of his penalty proceeding, but rather that he establish `a probability sufficient to undermine confidence in [that] outcome.’” Porter v. McCollum, 130 S. Ct. 447, 455-56 (2009) (quoting Strickland, , 466 U.S. at 693-94). This Court employs a mixed standard of review, deferring to the postconviction court’s factual findings that are supported by competent, substantial evidence, but reviewing legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004).

A. Organic Brain Damage

Stewart contends that the postconviction court erred in denying his claim that trial counsel was ineffective in failing to obtain a complete neuropsychological examination and a PET scan. He asserts that the testing and scan would have established that he had left-hemisphere, organic brain damage. Stewart also asserts that Dr. Michael Scott Maher, Dr. Fay E. Sultan, and Dr. Ervin B. Weiner, who evaluated him in preparation for resentencing, failed to provide competent mental health services to him. To evaluate the merits of these claims, we first review the relevant evidence presented during the penalty phase in 2001 and then summarize the evidence presented at the postconviction evidentiary hearing.

During the 2001 penalty phase, Dr. Maher testified as an expert in forensic psychiatry. Dr. Maher diagnosed Stewart as suffering from posttraumatic stress disorder (PTSD) at the time of the crime. He explained that the PTSD was related to extreme childhood trauma and abuse and described Stewart’s stepfather, Bruce Scarpo, as “abusive to the point of inflicting torture on his family.” Dr. Maher also testified that Stewart was intoxicated at the time of the offense. Dr. Maher opined that “it [was] because of these aspects of [Stewart's] background, that he was compelled in an unthinking reactive way to commit these horrible events—this horrible event.” Dr. Maher further opined that “as a result of [Stewart's] mental illnesses, he had a very, um, substantial impairment in his capacity to conform his behavior to the requirements of law; that his ability to choose and do the right thing, was very severely impaired.”

Dr. Sultan, who testified as an expert in forensic psychology, opined that at the time of the offense Stewart was under the influence of extreme mental or emotional disturbance and that his capacity to conform his conduct to the requirements of the law was substantially impaired. Her diagnosis was based on three factors. First, she explained that he had “a lifelong history of mental illness,” including severe depression, and came from a family of individuals with serious mental problems, including bipolar disorder, manic depressive illness, and major depression. Dr. Sultan noted that Stewart had made three “serious suicide attempts” and that “the clarity of his thinking and his judgment [had] been deeply affected by his mental illness.” Second, Dr. Sultan discussed Stewart’s “terrible substance abuse problem,” which would affect his ability to control his impulses. Third, Dr. Sultan testified that Stewart was “very highly traumatized” by his childhood and manifested “many of the symptoms of post traumatic stress disorder.” She explained that Stewart was not able to think situations through, was not able to control inappropriate or violent impulses, and did not have a clear rational mind. She stated that around the time of the murders, Stewart “had reached a real despairing point in his life, a crisis point in his life” and had “deteriorated very rapidly.”

The State called Dr. Sidney Merin, who specialized in clinical psychology and neuropsychology. Dr. Merin testified that as a result of Stewart’s “background and his depression,” Stewart had attempted suicide on several occasions since age twelve. Dr. Merin concluded that Stewart had a history of alcohol dependence and perhaps abused other substances. Dr. Merin stated that emotion from past events “probably is what prompted [Stewart] to start drinking and [using] drugs, um, early in life,” but he did not think that the emotional distress affected Stewart’s thinking in terms of moral or legal issues. Dr. Merin concluded that although Stewart’s behavior “was an end product of extreme emotional distress,” he did not think that Stewart was under extreme mental or emotional distress at the time of the murder. Dr. Merin also opined that he did not believe that Stewart’s capacity to conform his conduct to the requirements of law was substantially impaired at the time of the offense.

During the postconviction evidentiary hearing, Stewart called Dr. Hyman Eisenstein and Dr. Frank Balch Wood to testify about his mental health. In response, the State called Dr. Maher and Dr. Larry Habelson Wilf.

Dr. Eisenstein, a psychologist certified in neuropsychology, explained that when he tested Stewart in preparation for the evidentiary hearing, Stewart had a full scale IQ of ninety-eight, with a discrepancy between verbal and perceptual tests of thirteen points. Dr. Eisenstein stated that this discrepancy was statistically significant and consistent with impaired left-brain functioning. Stewart’s performance on other tests also consistently showed impairment in the left hemisphere. Dr. Eisenstein diagnosed Stewart as suffering from dementia due to head trauma, the DSM-IV-TR diagnosis that most closely matched Stewart’s brain damage, and attention deficit/hyperactivity combined disorder (ADHD). Dr. Eisenstein opined that Stewart had a learning disorder and probably suffered from PTSD at the time of the offense.

Dr. Eisenstein testified that left-hemisphere brain damage results in trouble with decision-making and impulse control, irritability, inflexible thinking, and constriction of affect. He further testified that alcohol would have affected Stewart in a negative manner and that ADHD and brain damage would have exacerbated each other. Dr. Eisenstein explained that the diagnoses of ADHD, PTSD, and alcohol abuse are “symptoms of behavior manifestations” of the “underlying problem” of organic brain damage and that the combination of those disorders led to the murder. He described Stewart’s brain impairment as the “driving force” behind his behavior and concluded that Stewart committed the crimes in “an unthinking and reactive way.” Dr. Eisenstein stated that Stewart was under severe emotional stress most of his life because of his upbringing and opined that both statutory mental health mitigating factors were applicable to the Diaz murder.

In addition to giving opinions about Stewart’s mental and emotional health, Dr. Eisenstein critiqued the work of other experts who previously evaluated Stewart. While on the stand, Dr. Eisenstein read a report prepared by Dr. Weiner in 2001. Dr. Weiner’s report indicated that he performed some neuropsychological testing on Stewart and found no indications of neuropsychological impairment that might indicate organic brain damage or dysfunction. Dr. Eisenstein explained that he did not credit Dr. Weiner’s conclusions because he felt that Dr. Weiner should have done more testing. Dr. Eisenstein explained that it is not unusual for someone with brain damage to perform normally on some tests because brain damage may be “specific to certain areas of the brain.” He testified that Dr. Weiner administered tests designed to measure academic performance but did not administer a full memory examination or tests designed specifically for brain impairment. Dr. Eisenstein testified that he did not review the findings of Dr. Maher and Dr. Sultan, but he opined that unless those doctors had the benefit of a full neuropsychological battery of tests and expertise in interpreting those tests, they could not fully assess whether Stewart had brain damage.

The defense also called Dr. Wood, a neuropsychologist. Dr. Wood testified that the PET scan, CT scan, and MRI of Stewart’s brain all showed “an enlarged left lateral ventricle” that was not symmetrical to the right lateral ventricle. The PET scan showed a “thinning and weakening of the activity of the left hemisphere in roughly the central posterior region.” Dr. Wood opined that if a neuropsychologist had concluded that Stewart suffered from left-hemisphere brain damage, the findings from the PET scan would be corroborative of that diagnosis. Dr. Wood concluded that the abnormalities in Stewart’s brain were “chronic and not recent and that they [were] probably developmental in origin.”

In response, the State called Dr. Maher. Dr. Maher testified that in preparation for the penalty phase, he and trial counsel discussed competency, sanity, mitigation, and “additional testing that might be useful to do on Mr. Stewart for his case.” Dr. Maher explained that he did not think neuropsychological testing was indicated—that is, “reasonable and necessary”—in this case. Dr. Maher testified that other psychiatrists and psychologists likewise examined Stewart and to his knowledge none of them recommended further or more extensive neuropsychological testing.

Dr. Maher expressly disagreed with several aspects of Dr. Eisenstein’s testimony. Dr. Maher testified that a psychiatrist can diagnose organic brain damage and that he had made such a diagnosis in other cases. Dr. Maher stated that the idea that only a neuropsychologist can identify signs or symptoms of neuropsychological impairment is “faulty” and that in fact “[i]t is a part of a general medical evaluation to evaluate the workings of a person’s brain.” Dr. Maher further testified that he does not think that Dr. Weiner’s battery of tests was inadequate and incomplete. He opined that what testing should be done is necessarily a case-by-case determination. He stated, “[T]he term `full neuropsychological battery’ . . . is not a clear absolute definable term” but instead “calls for a clinical judgment about what is necessary.” Dr. Maher noted that Dr. Merin, who examined Stewart and testified during the penalty phase on behalf of the State, was certified in neuropsychology.

Dr. Maher also disagreed with Dr. Eisenstein’s conclusions about Stewart’s mental health. Dr. Maher testified that the results of Dr. Eisenstein’s testing did not change his diagnosis that Stewart suffered from PTSD, rather than brain impairment or ADHD, at the time of the offense. Dr. Maher concluded that Stewart’s above-average performance on the Wisconsin Card Sorting Test undermined Dr. Eisenstein’s diagnosis of brain damage and opined that “within all reasonable medical possibility [Stewart] does not have brain damage.” Next, Dr. Maher disagreed with Dr. Eisenstein’s diagnosis of ADHD. Dr. Maher explained that the diagnostic manual provided that ADHD “should be excluded when other mental health problems, brain illness, or circumstances better explain the signs and symptoms of the disorder” and in this case a diagnosis of PTSD better explained the “total picture” of Stewart’s life. Overall, Dr. Maher opined that “the horrible abuse that [Stewart] suffered in childhood and the resulting traumatic stress disorder” was the driving force behind Stewart’s criminal acts.

The State also called Dr. Wilf, a nuclear medicine physician, who opined that Stewart’s PET scan was “normal.” He stated that the apparent differences in the hemispheres of Stewart’s brain may be explained in part by Stewart’s head position in the scanner.

1. Claim of Ineffective Assistance of Counsel

Stewart contends that the postconviction court erred in denying his claim that trial counsel was ineffective in failing to obtain a complete neuropsychological examination and a PET scan. He asserts that had counsel performed a more thorough investigation, evidence like that presented at the postconviction evidentiary hearing could have been presented at the penalty phase and would have resulted in a life sentence. The postconviction court denied this claim because it found that trial counsel’s investigation of Stewart’s mental health—which consisted of asking one expert to evaluate Stewart for any signs of neuropsychological impairment indicating brain damage or dysfunction and consulting two other qualified mental health experts—was reasonable. The postconviction court explained that Stewart “failed to show that counsel performed ineffectively regarding brain damage mitigation when he specifically requested an evaluation for potential brain damage or dysfunction and his own mental health experts did not diagnose brain damage or otherwise advise counsel to pursue that avenue.” The postconviction court further found that even if trial counsel was deficient, Stewart did not prove prejudice. We agree. Stewart did not demonstrate that counsel was deficient or that he was prejudiced.

As noted by the postconviction court, in Darling v. State, 966 So. 2d 366 (Fla. 2007), this Court rejected a similar claim that counsel was deficient for failing to order a neuropsychological assessment and develop evidence of brain damage for the penalty phase. In that case, trial counsel presented penalty-phase expert testimony that Darling was abused by his father, had a low IQ, and had difficulties in school. The sentencing court found many nonstatutory mitigating factors related to Darling’s background and childhood. Id. at 372. During a postconviction evidentiary hearing, Darling presented a psychologist and a neuropsychologist who testified that Darling suffered from frontal lobe damage, which would cause him to behave in socially unacceptable ways. Id. at 374. This Court determined that counsel’s representation was reasonable, explaining:

[I]n preparing for the penalty phase, trial counsel relied on the evaluation of psychiatric expert Dr. Michael Hercov. Darling’s trial counsel confirmed that he relied on the evaluation performed by his expert, Dr. Hercov, and would not have ordered a neuropsychological evaluation absent a recommendation by Dr. Hercov. Also, Dr. David Frank established during the evidentiary hearing that Darling’s irritability and changed behavior was the result of being abused rather than organic brain damage. Dr. Frank added that stuttering after being abused is a normal response produced by fear and anxiety. Dr. Frank also added that Darling’s impulsivity, frequent fights, and poor planning were all indicative of the diagnosis that Darling had antisocial personality disorder.

This Court has established that defense counsel is entitled to rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire. See State v. Sireci, 502 So. 2d 1221, 1223 (Fla. 1987). Even if the evaluation by Dr. Hercov, which found no indication of brain damage to warrant a neuropsychological workup, was somehow incomplete or deficient in the opinion of others, trial counsel would not be rendered ineffective for relying on Dr. Hercov’s qualified expert evaluation. See id. Therefore, trial counsel was not ineffective for failing to order a neuropsychological evaluation.

Id. at 377. Similarly, in Reese v. State, 14 So. 3d 913, 918 (Fla. 2009), this Court determined that trial counsel could not be deemed ineffective for failing to request a neuropsychological evaluation where at the time of the penalty phase neither a well-known “death penalty mitigation expert” nor experienced trial counsel had reason to believe further testing was warranted.

As in Darling, there is competent, substantial evidence that Stewart’s defense counsel consulted with numerous mental health experts. The defense presented two mental health experts, Dr. Maher and Dr. Sultan, at the penalty phase. The record shows that these penalty-phase experts testified about diagnoses other than brain damage that accounted for Stewart’s behavior. Specifically, Dr. Maher opined that Stewart suffered from PTSD and substance abuse problems, and Dr. Sultan opined that Stewart suffered from a history of mental illness, substance abuse problems, and trauma from his abusive upbringing. Both experts opined that Stewart’s childhood trauma and his substance abuse resulted in Stewart having a substantially impaired capacity to conform his behavior to the requirements of the law at the time of the offense. Additionally, while the record is not entirely clear as to whether they were retained by the defense, the record shows that prior to the conclusion of his trial Stewart was evaluated by four other mental health experts—Drs. Mussenden, Afield, Gonzalez, and Gamache. And finally, the postconviction hearing evidence established that the defense also consulted Dr. Weiner in preparation for the penalty phase. Stewart did not, however, establish that any mental health expert had recommended to trial counsel that Stewart undergo neuropsychological testing. Defense expert Dr. Eisenstein conceded that he was not aware of any of the above experts recommending neuropsychological testing.

Moreover, unlike in Darling, Stewart’s defense counsel consulted a neuropsychologist as part of his penalty-phase investigation. A March 2001 report by Dr. Weiner, a licensed psychologist, stated that counsel “asked me to examine [Stewart] for any indications of neuropsychological impairment that might indicate organic brain damage or dysfunction.” The report indicated that Dr. Weiner performed the testing that he deemed appropriate and concluded that Stewart did not have brain damage:

[T]he test findings do not demonstrate neuropsychological impairments consistent with the presence of brain damage or dysfunction. Mr. Stewart is functioning in the average range of intelligence, with a measured IQ of 100, and his abilities to attend, remember, reason, form concepts, organize his visual impressions, coordinate his perceptual-motor functions, and alter his mental set are within normal limits.

As explained in Darling and Reese, trial counsel’s reliance on his retained experts is not proven unreasonable simply because another expert, in this case Dr. Eisenstein, questions the thoroughness of the prior evaluations. See also State v. Sireci, 502 So. 2d 1221, 1223 (Fla. 1987) (“Counsel cannot be deemed ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), simply because he relied on what may have been less than complete pretrial psychiatric evaluations.”). In this case, Stewart did not prove that a reasonable trial attorney should have known to not rely on the conclusions offered by the mental health experts who evaluated him. Thus, he did not prove that his counsel was deficient.

Stewart also failed to demonstrate that he was prejudiced by trial counsel’s investigation and presentation of mental health evidence. Stewart heavily relies on the fact that the jury recommended death by a vote of seven to five. Stewart’s case, however, is not one in which the defendant nearly received a life recommendation despite defense counsel doing little investigation and wholly failing to present mental health mitigation evidence during the penalty phase. See, e.g., Rose v. State, 675 So. 2d 567, 572-74 (Fla. 1996) (vacating death sentence and remanding for new sentencing proceeding due to counsel’s failure to meaningfully investigate mitigation); Phillips v. State, 608 So. 2d 778, 782-83 (Fla. 1992) (similar). Rather, Stewart’s trial counsel consulted with several mental health experts and presented expert testimony during the penalty phase. Given this record, Stewart’s speculation about the effect that additional evidence would have had on the jury is insufficient to undermine confidence in his sentence. See Derrick v. State, 983 So. 2d 443, 462 (Fla. 2008) (explaining that “speculation” about whether additional evidence about defendant’s upbringing and mental health could have altered the sentencing proceeding where the jury recommended death by a vote of seven to five was insufficient to prove prejudice).

Stewart has also failed to show prejudice such that the Court’s confidence in his sentence is undermined because he cannot demonstrate that the postconviction evidence would have changed the sentencing court’s conclusion that the aggravating factors greatly outweighed the mitigating factors. See Hurst v. State, 18 So. 3d 975, 1013 (Fla. 2009) (“Penalty phase prejudice under the Strickland standard is measured by whether the error of trial counsel undermines this Court’s confidence in the sentence of death when viewed in the context of the penalty phase evidence and the mitigators and aggravators found by the trial court.”).

The sentencing court found three aggravating circumstances applicable to the murder: (1) Stewart previously had been convicted of violent felonies (first-degree murder, two attempted murders, armed robbery, aggravated assault, and attempted armed robbery); (2) he was under a sentence of imprisonment at the time of the murder; and (3) he committed the murder for pecuniary gain. The sentencing court gave aggravating circumstances one and three “great weight” and gave circumstance two “modest weight.”

The sentencing court found and gave “some weight” to two statutory mitigating factors—extreme mental disturbance and substantially impaired capacity to conform conduct to the requirements of the law—despite concluding that Stewart’s mental disturbance did not rise to the level of extreme and his impairment was not substantial. Finally, the sentencing court found and weighed twenty-three nonstatutory mitigating circumstances: Stewart suffered physical brutality during childhood, witnessed physical violence against others, suffered gross emotional stress during childhood, demonstrated an inability to adapt to his surroundings, suffered abuse by an aunt while in her care, lacked role models, lacked a father during his tender years, learned at age twelve that the man he believed to be his father was his stepfather, suffered abandonment by his mother, lacked a mother during his tender years, suffered a lifelong obsession with his mother, abused alcohol as a child, was intoxicated at the time of the offenses, engaged in long-term alcohol abuse, had low-normal intelligence, had an eighth-grade education, endured homelessness, experienced mental illness and a family history of mental illness, was remorseful for the killing, demonstrated compassion for others while incarcerated, took an interest in spiritual development during incarceration, received a sentence of 130 years in prison on unrelated charges, and had a good prison record. Most of these nonstatutory mitigating factors were given “some” or “modest” weight, although a few were given “little” or no additional weight because they were cumulative to other mitigating factors.

During the evidentiary hearing, Dr. Eisenstein testified that Stewart suffered from ADHD and left-hemisphere brain damage, which was the “driving force” behind his behavior, and opined that Stewart was under severe emotional stress most of his life because of his upbringing. Dr. Wood testified that the PET scan indicated chronic abnormalities in the left hemisphere of Stewart’s brain and that the scan results would be corroborative of a diagnosis of brain damage. Dr. Wood stated generally that left-hemisphere brain damage can impede higher level cognitive processing, but he did not offer any opinion about how the brain abnormalities may have affected Stewart’s behavior at the time of the offense.

The sentencing court gave “some weight” to the statutory mitigating factor of extreme mental or emotional disturbance at the time of the offense because it was not convinced that Stewart’s distress was extreme. The sentencing court credited the testimony of State expert Dr. Merin over that offered by Dr. Maher and Dr. Sultan. Dr. Merin had concluded that rather than mental illness or emotional disturbance, Stewart had a character or behavior disorder and suffered from general distress for most of his life. Dr. Eisenstein’s postconviction testimony would have contradicted Dr. Merin’s appraisal that Stewart had a character disorder but would not have dispelled the impression that Stewart’s emotional stress was a life-long state, rather than an acute episode at the time of the murder. Thus, it seems unlikely that the evidence presented at the evidentiary hearing would cause the sentencing court to place significantly more weight on this mitigating factor.

As to the impaired capacity statutory mitigating factor, the sentencing court concluded that Stewart’s capacity “was impaired due to the combination of factors presented to this Court regarding his background.” However, based on Stewart’s ability to methodically select his victim, lure the victim to an isolated location, shoot the victim twice from close range, and then burn the victim’s car, the sentencing court found that Stewart had the capacity to choose his actions, and accordingly, the impairment was not substantial. Like Dr. Maher and Dr. Sultan, Dr. Eisenstein testified that Stewart’s “thinking processes [were] disorganized and scattered” and that Stewart committed the crimes in “an unthinking and reactive way.” But also like the prior defense experts, Dr. Eisenstein did not explain how Stewart’s allegedly substantially impaired capacity was consistent with Stewart’s ability to devise and execute a plan to lure the owner of an expensive-looking car to an isolated location in order to rob him. As a result, it again seems unlikely that the evidence presented at the evidentiary hearing would have caused the sentencing court to place significantly more weight on this mitigation factor.

Stewart’s case does not seem distinguishable from Derrick, in which this Court concluded that postconviction expert testimony about previously unpresented brain damage was not “particularly compelling” where the expert “never specifically discussed how Derrick’s mental impairment would have affected this particular crime and never linked up any of the conditions of Derrick’s childhood or sexual abuse to the facts of this crime.” 983 So. 2d at 461-62. Notably, the jury recommendation in Derrick was also by a seven-to-five vote. Nor is Stewart’s case materially distinguishable from Owen v. State, 986 So. 2d 534, 552-53 (Fla. 2008), in which this Court determined that additional mental health mitigation did not undermine confidence in the sentence where the murder was “calculated” and “deliberate” and the postconviction expert “did not offer an opinion as to whether Owen’s actions on the night of the offense demonstrated impulsivity.” See also Lynch v. State, 2 So. 3d 47, 73 (Fla. 2008) (“Moreover, Lynch has not connected any cognitive impairment to the events of March 5, 1999, which, in contrast, reveal a carefully crafted murder plot.”).

Finally, Stewart has not established that the jury’s sentencing recommendation and the trial court’s sentence would have changed if the postconviction evidence had been presented to the jury and the sentencing court. The sentencing court explained that in its view, the convictions underlying the prior violent felony aggravating factor—convictions for murder, two attempted murders, armed robbery, attempted armed robbery, and aggravated assault—were “so egregious” and “so horrific” that that factor alone far outweighed all the mitigation presented. Moreover, the sentencing court did find and evaluate mental health mitigation, and Stewart cannot demonstrate that this additional evidence would have undermined this Court’s determination that the death penalty was proportionate. Thus, Stewart’s postconviction presentation regarding evidence of brain damage did not undermine confidence in his death sentence.

2. Claim of Ineffective Assistance of Mental Health Experts

In Ake v. Oklahoma, 470 U.S. 68, 84 (1985), the United States Supreme Court concluded that in a sentencing proceeding, “due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.” While ordinarily a postconviction claim based on Ake is procedurally barred because it could have been raised on direct appeal, a defendant is entitled to litigate during postconviction a claim that a prior mental health expert’s examination was so “grossly insufficient” that the expert “ignore[d] clear indications of either mental retardation or organic brain damage.” Raleigh v. State, 932 So. 2d 1054, 1060 (Fla. 2006) (quoting Sireci, , 502 So. 2d at 1224). We affirm the denial of Stewart’s postconviction claim. Stewart did not demonstrate that his mental health experts ignored clear indications of organic brain damage.

At trial, Dr. Maher testified that he met with Stewart briefly and reviewed “extensive records” from other doctors and documentation such as police reports. Dr. Sultan explained that prior to the 2001 penalty phase, she met with Stewart for about twenty hours. She reviewed school and jail records, reviewed records about Stewart’s suicide attempts, talked to Stewart’s family members and friends, and administered psychological tests—specifically an IQ test and the Minnesota Multiphasic Personality Inventory (MMPI). Dr. Weiner’s report indicated that he met with Stewart in preparation for the penalty phase and administered the following “intellectual and cognitive tests”: Bender Visual Motor Gestalt Test; Boston Naming Test; Stroop Neuropsychological Screening Test; Verbal Fluency Test; Wechsler Adult Intelligence Scale-III (WAIS-III); Wechsler Memory Scale-III; and Wide Range Achievement Test-3.

Stewart asserts that these evaluations were inadequate because Dr. Maher and Dr. Sultan were not qualified to conduct neuropsychological testing and because Dr. Weiner did not conduct a full battery of such tests. Stewart’s claim is not persuasive.

Without being familiar with what testing Dr. Maher and Dr. Sultan may have administered or reviewed, Dr. Eisenstein initially opined that unless those doctors had the benefit of a full neuropsychological battery and expertise in interpreting those tests, they could not fully assess whether Stewart had brain damage. Yet, elsewhere in his testimony, Dr. Eisenstein seemed to equivocate about whether Dr. Maher and Dr. Sultan could have been qualified to screen Stewart for brain damage. When asked if a psychiatric examination is inadequate for determining whether more testing for brain damage is necessary, he testified:

No, that’s not true. A good psychiatrist understands the issues, hopefully through a mental status examination and through a behavioral observation and understanding the pathology of brain impairment and the behavior manifestation. Of course, if there’s history [a good psychiatrist] would understand . . . the need to do continuing evaluation and certainly would request that and would want that.

Dr. Eisenstein further explained that he did not credit Dr. Weiner’s conclusions because he felt that Dr. Weiner should have done more testing. He testified that Dr. Weiner administered tests designed to measure academic performance but did not administer a full memory examination or tests designed specifically to detect brain impairment. In contrast, Dr. Maher testified that a psychologist or a psychiatrist is qualified to determine if neuropsychological testing is warranted and opined that Dr. Weiner’s testing was adequate to diagnose Stewart.

Furthermore, while Dr. Eisenstein testified that the results of his testing indicated that Stewart likely had brain damage—for example, he considered the thirteen-point score discrepancy in Stewart’s verbal and performance IQ scores to be significant—he did not point to any test results available at the time of resentencing that should have alerted the prior experts to the need to perform additional neuropsychological testing. Stewart argues that Dr. Weiner should have known to investigate the thirteen-point discrepancy, but when Dr. Weiner administered the WAIS-III in 2001, Stewart had a verbal score of 98 and a performance score of 102.

Finally, the record supports the postconviction court’s characterization of Stewart’s brain damage as “possible brain damage” rather than clearly established brain damage. Dr. Eisenstein and Dr. Wood opined that Stewart’s left hemisphere was damaged, but Dr. Maher opined that Stewart’s performance on the Wisconsin Card Sorting Test undermined the diagnosis of brain damage. And although the postconviction court did not find his testimony persuasive because he was unfamiliar with assessing brain scans for neurocognitive issues, Dr. Wilf opined that Stewart’s brain scans indicated a normal brain.

In summary, Stewart has not identified clear signs of brain damage that his penalty-phase mental health experts overlooked. See generally Raleigh, , 932 So. 2d at 1060 (“Dr. Bordini’s testimony did not establish that Dr. Upson missed any clear indications of mental retardation or organic brain damage, thereby rendering Dr. Upson’s evaluation `grossly insufficient’ under Sireci.”). An expert’s evaluation “is not rendered less than competent . . . simply because [the] appellant has been able to provide testimony to conflict with that presented” by the expert. Jones v. State, 732 So. 2d 313, 320 (Fla. 1999). Accordingly, Stewart is not entitled to postconviction relief based on Ake.

B. Stewart’s Childhood and Family

Stewart contends that the postconviction court erred in denying his claim that trial counsel was ineffective for failing to present mitigating evidence about Stewart’s childhood and family. The postconviction court denied this claim because Stewart “failed to show that counsel performed deficiently for failing to present evidence that was essentially cumulative to the evidence presented during the penalty phase.” The postconviction court also denied this claim because it concluded that Stewart failed to prove prejudice. The postconviction court did not err in denying relief.

Stewart’s case is not one in which trial counsel failed to investigate mitigation. During the 2001 penalty phase, the defense called the expert witnesses discussed in the previous section of this opinion and four lay witnesses. Susan Smith-Moore and Linda Arnold, Stewart’s stepsisters, testified about life in the home of Stewart’s stepfather, Bruce Scarpo. Lillian Brown, Stewart’s paternal aunt, testified about Stewart’s biological relatives and her memories of his childhood. Marjorie Sawyer testified about Stewart’s lifestyle around the time of the murder. The parties also stipulated that Stewart drank eight or nine beers before the shooting. More specifically, Stewart’s stepsisters and aunt testified that Stewart was beaten by Scarpo; forced to watch Scarpo’s wife Joanne, who was a mother-figure to Stewart, be beaten; forced to work in a bar as a young child; permitted to drink alcohol as a child; derided by Scarpo for having a lisp and trouble with enuresis; and devastated upon learning of his true parentage and his mother’s death. The mental health experts and Stewart’s aunt established that Stewart attempted suicide and had a family history of mental illness.

During the postconviction evidentiary hearing, Stewart called nine witnesses. As discussed above, Stewart called Dr. Eisenstein and Dr. Wood. In addition, Stewart called Pastor Robert VanHorne, who knew Stewart’s family during his childhood; Sandra Hibbard, who married Stewart’s biological father; Terri Stewart, Stewart’s half-sister; Wanda Vetra, Stewart’s maternal aunt; and Susan Smith Moore, Linda Arnold, and Nicole Scarpo, Stewart’s stepsisters.

Competent, substantial evidence supports the postconviction court’s conclusion that the postconviction evidence was cumulative to that presented in the penalty phase. The testimony presented at the evidentiary hearing was lengthier and somewhat more detailed but cumulative in character and substance. The primary added details were that Scarpo knocked Stewart unconscious, rubbed feces in Stewart’s face as a punishment, and held a gun to his wife’s head in front of the children. There was testimony establishing that Stewart was hyperactive and had trouble in school. There also was testimony that Stewart and his siblings were abusive to one another and that Joanne Scarpo sometimes beat the children. Finally, much of the evidentiary hearing testimony concerned biological relatives with whom Stewart had little or no contact. None of these details changed the previously established impression of Stewart’s childhood and mental health.

Because the evidence that Stewart argues should have been presented is cumulative, Stewart has demonstrated neither deficiency nor prejudice. For example, in Lynch, this Court determined that counsel was not deficient for choosing to present mitigating evidence concerning the defendant’s childhood through a mental health expert and the defendant himself, rather than calling numerous lay witnesses. This Court explained: “The testimony with regard to Lynch’s personal history and background merely corroborated or slightly expanded upon penalty-phase testimony, and this Court has held that `even if alternate witnesses could provide more detailed testimony, trial counsel is not ineffective for failing to present cumulative evidence.’” 2 So. 3d at 71 (quoting Darling, , 966 So. 2d at 377). Likewise, in Darling, this Court rejected a claim that counsel was deficient for failing to present mitigating evidence where the evidentiary-hearing testimony generally was “only a more detailed presentation” of the mitigation previously presented. 966 So. 2d at 377. This Court reasoned:

Although Darling further asserts that trial counsel was also ineffective for failing to present the testimony of Darling’s father, Carlton, during the penalty phase, as noted by the trial court, the substance of Carlton’s testimony was actually presented through other witnesses during the penalty phase. Dr. Hercov and Darling’s mother and sister testified during the penalty phase with regard to the abuse Darling suffered at the hands of Carlton. Although as an afterthought Carlton provided a more detailed account with regard to the abuse, this Court has held that even if alternate witnesses could provide more detailed testimony, trial counsel is not ineffective for failing to present cumulative evidence. See Gudinas v. State, 816 So. 2d 1095, 1106 (Fla. 2002); Sweet v. State, 810 So. 2d 854, 863-64 (Fla. 2002). Therefore, trial counsel was not ineffective for failing to call Carlton as a witness during the penalty phase to present evidence which was generally presented by others.

Id. Similarly, in this case the mental health experts and lay witnesses who testified during the penalty phase conveyed the substance, though perhaps not all of the details, of the proposed mitigating circumstances to the penalty phase jury. Thus, trial counsel was not ineffective.

Stewart contends that even if the postconviction evidence was cumulative in character, it was not merely cumulative in effect because it would have corroborated the penalty-phase witnesses’ testimony, rendering the witnesses more persuasive. Stewart asserts that the additional testimony would have rebutted the State’s argument that Moore and Arnold fabricated their account of childhood abuse and alcohol use.

While the State did argue during closing statements that Stewart’s stepsisters had an incentive to make Stewart’s childhood sound as bad as possible, Stewart overlooks that the sentencing court found all of the mitigating factors proposed by the defense. The sentencing court gave “some” weight to each of the statutory mental health mitigating factors, “some” weight to each of the several mitigating factors pertaining to the abuse Stewart suffered as a child, “modest” weight to each of the factors concerning Stewart’s lack of a father figure, “little” weight to the factors concerning Stewart’s relationship with this mother, “modest” weight to the factors pertaining to Stewart’s alcohol use, and “little” weight to Stewart’s low-normal intelligence and education. The sentencing court explained that it considered Stewart’s family history of mental illness and his suicide attempts in conjunction with other mitigating factors.

Overall, Stewart has not shown that the evidence presented at the evidentiary hearing would have resulted in the finding of less weighty aggravation or more weighty mitigation. Stewart’s case is not like Parker v. State, 3 So. 3d 974, 984 (Fla. 2009), where the sentencing court found “[n]o mitigating circumstances, statutory or otherwise,” based on the “bare bones” penalty-phase presentation. Rather, Stewart’s case is more analogous to Ferrell v. State, 918 So. 2d 163 (Fla. 2005). In that case, we determined that the defendant could not prove that he was prejudiced from counsel’s failure to present certain witnesses “[i]n light of the cumulative nature of [the] mitigation evidence and the fact that the sentencing judge found these same circumstances in mitigation.” Id. at 172; see also Brown v. State, 894 So. 2d 137, 148 (Fla. 2004) (concluding that despite eight-to-four jury recommendation defendant did not prove prejudice because the evidentiary hearing testimony about the defendant’s childhood contributed “virtually no new information” beyond the testimony presented at trial). Accordingly, the evidence presented at the postconviction hearing does not undermine confidence in Stewart’s sentence.

C. Defense Witness Marjorie Sawyer

In his third postconviction appellate issue, Stewart contends that the postconviction court erred in denying his claim that trial counsel was ineffective for failing to object to statements made by defense witness Marjorie Sawyer during cross-examination. Stewart asserts that counsel should have objected to the underlined portions of the following exchange between the prosecutor and Sawyer.

Q Was Mr. Stewart ever violent with you?

A Yes . . . .

Q Um, what did he do to you?

A He hit me quite a few times and he beat me up a couple of times, choked me more than once in his drunken rages. And this would all happen when he kept trying for me to, um—don’t know what happened to his daddy; and I didn’t know.

Q Did you ever have to go to the hospital?

A Yes.

Q Due to these beatings?

A Yes, ma’am.

Q Did Mr. Stewart ever tell you about any of his crimes that he committed in 1984 and 1985?

A His crimes that he had—

Q Yes, ma’am?

A —done? Well, I know he did a few B&E’s or whatever while we were on the streets so, um, we could survive.

Q Did he ever talk to you about the murder of Rueben Diaz or the murder, of, um, Mark Harris or any of the, um, of those violent crimes?

A Um, I believe right after I came back home, he had mentioned to me that he thought he had killed someone; and he broke down.

And—but I don’t know for sure, I don’t know what happened and, um, he mentioned that; but then I don’t quite know for sure, because he was totally mixed up half the time.

Q And you didn’t know what to believe?

A Well, I—I did believe the way that he—believed that he did hurt someone; and then after he was talking to, um, a person named “Terry the street man” that we know, um, they would talk a lot about this.

But all I know is—all I know is he says, Well, at one time he—he killed somebody and he says, “I might do it again, I don’t know.” And I’m trying to get him calmed down about this; so I didn’t really talk about killing anyone.

During penalty-phase closing argument, the State mentioned that Sawyer testified that Stewart abused her, but the State did not refer to the uncharged burglaries or the comment that Stewart had claimed to have killed.

During the evidentiary hearing, the State called Stewart’s trial counsel, Robert Fraser. Attorney Fraser explained that he called Sawyer to testify because he believed she knew more about Stewart’s life right before the murders than anyone else. Sawyer was able to testify about their employment and living situation, Stewart’s use of alcohol, and Stewart’s continuing fixation with and grief over his mother’s death. Attorney Fraser testified that he thought Sawyer’s testimony would help the jury understand “the picture of a man whose childhood virtually destroyed his adulthood” and would fit in well with Dr. Maher’s diagnosis of PTSD. Attorney Fraser explained that he thought Sawyer’s testimony that Stewart had a temper and was violent when drunk was consistent with his defense that Stewart was “a dysfunctional human being” due to his childhood. Similarly, attorney Fraser testified that he did not object to Sawyer’s testimony about Stewart committing burglaries while homeless because the jury was already aware of other more serious collateral crimes and because the evidence fit the theme of the defense. Attorney Fraser testified that he could not remember making a conscious decision about whether to object to the comment that Stewart might kill again.

The postconviction court denied the claim of ineffective assistance of counsel because it concluded that Stewart did not prove prejudice. Because we agree that Stewart did not establish that he was prejudiced by the testimony, we do not decide whether reasonable defense counsel should have objected to the challenged portions of the cross-examination. The testimony elicited from Sawyer does not undermine confidence in Stewart’s sentence.

In the instant case, Stewart’s violent and criminal nature was well known to the jury independently of Sawyer’s testimony. In reference to the prior violent felony aggravating factor, the State informed the jury that besides the Diaz murder, Stewart had been convicted of another murder, two attempted murders, armed robbery, attempted robbery, and aggravated assault. Sawyer did not specify when Stewart commented that he thought he killed someone and might kill again. Thus, as the postconviction court notes in its order, the jury could have assumed that the comment occurred between the murders or attempted murders about which the State presented other evidence. The evidence of the prior convictions also informed the jury that Stewart was violent and willing to steal, regardless of whether Sawyer had testified about the domestic abuse and the burglaries. Given this context, the jury would not necessarily have been influenced by any improper aspects of Sawyer’s testimony.

Furthermore, during closing arguments, the State mentioned that Stewart was violent to Sawyer, but the State did not mention the other uncharged crimes or argue that the jury should consider Stewart’s propensity for dangerousness. As a result, the jury was reminded of little of the now challenged testimony before its deliberations. Instead, the jury was expressly told that it should consider only three aggravating circumstances: whether the crime was committed while Stewart was under a sentence of imprisonment; whether Stewart had been previously convicted of another capital offense or of a felony involving the use or threat of violence; and whether the crime was committed for financial gain. These instructions channeled the jury’s deliberations and mitigated the effect of any improper evidence. Cf. Anderson v. State, 18 So. 3d 501, 517-18 (Fla. 2009) (concluding defendant was not prejudiced by defense counsel’s failure to object to prosecutor’s inaccurate description of weighing process where trial court properly instructed jury on how to weigh aggravating and mitigating factors).

In addition, Stewart does not explain how Sawyer’s comments impacted the jury’s recommendation of death, the sentencing court’s weighing of aggravating and mitigating factors, or this Court’s conclusion that the death penalty was proportionate. In Owen, , 986 So. 2d at 553, a detective testified that the defendant had stated that he took “advantage of [the victim's] shit” because “she wasn’t that bad looking.” On appeal, this Court determined that Owen could not demonstrate that he was prejudiced by the testimony about an uncharged sexual battery because “all four aggravating factors were proven beyond a reasonable doubt, independent of Owen’s statements about the Manley sexual battery, and the trial judge found both statutory mental health mitigating factors and two nonstatutory mental health mitigating factors to be established despite Owen’s account.” Id. at 554. Similarly, in Stewart’s case, the sentencing court’s order does not reference any improper aggravation and found all of the mitigating factors proposed by the defense. And again, the sentencing court found that the circumstances properly underlying the prior violent felony aggravating factor were “so egregious” and “so horrific” that that factor alone far outweighed all of the mitigation presented. Given the sentencing court’s conclusion regarding the aggravating and mitigating factors, trial counsel’s failure to object to the evidence of other criminal acts does not undermine confidence in Stewart’s sentence.

III. PETITION FOR WRIT OF HABEAS CORPUS

Stewart raises four claims in his petition for a writ of habeas corpus. He claims that (A) appellate counsel was ineffective for failing to challenge on appeal the constitutionality of Florida’s method of execution and lethal injection protocol; (B) the penalty-phase jury instructions unconstitutionally shifted the burden of proof to the defendant to establish mitigating factors and appellate counsel was ineffective for failing to challenge the instructions on appeal; (C) the penalty-phase jury instructions unconstitutionally minimized the role of the jury in Florida’s capital sentencing process and appellate counsel was ineffective for failing to challenge the instructions on appeal; and (D) appellate counsel was ineffective during Stewart’s direct appeal.

Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must determine

first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000). Each of Stewart’s habeas claims is without merit.

A. Constitutionality of Florida’s Lethal Injection Protocol

Stewart contends that his appellate counsel was ineffective for failing to challenge on direct appeal Florida’s use of lethal injection and its lethal injection protocol. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, , 466 U.S. at 689. The State is correct that when Stewart’s direct appeal was filed in 2001, reasonable appellate counsel could not be expected to anticipate the litigation and revised protocol that followed the 2006 Angel Diaz execution. This Court rejected a similar habeas claim in Chavez v. State, 12 So. 3d 199 (Fla.), cert. denied, , 130 S. Ct. 501 (2009). We explained that “[a]t the time of the direct appeal in this case, there was simply no basis upon which to present a mode-of-execution challenge to Florida’s original lethal-injection protocol. The protocol was new, unimplemented, and widely regarded as a humane, civilized alternative to death by electrocution.” Id. at 213. Stewart’s claim is also without merit because this Court has repeatedly held that Florida’s current lethal injection protocol is constitutional under Baze v. Rees, 553 U.S. 35 (2008). See, e.g., Ventura v. State, 2 So. 3d 194, 200 (Fla.), cert. denied, , 129 S. Ct. 2839 (2009). “Appellate counsel cannot be deemed ineffective for failing to raise a meritless argument.” Smithers v. State, 18 So. 3d 460, 473 (Fla. 2009) (quoting Evans v. State, 975 So. 2d 1035, 1043 (Fla. 2007)).

B. Penalty-Phase Jury Instructions About Mitigating Factors

Stewart asserts that the penalty-phase jury instructions used in his case unconstitutionally shifted the burden of proof to him to establish mitigating factors and that appellate counsel was ineffective for failing to challenge the instructions on appeal. Stewart’s substantive challenge to the jury instructions is procedurally barred because it could have been raised on direct appeal. See, e.g., Grim v. State, 971 So. 2d 85, 103 (Fla. 2007) (holding that habeas claim regarding constitutionality of standard jury instructions was procedurally barred). In addition, both Stewart’s challenge to the instructions and his claim that appellate counsel was ineffective are without merit.

Stewart concedes that the standard jury instructions regarding aggravating and mitigating factors were used in his case. We have previously rejected the arguments raised by Stewart and upheld the standard instructions as constitutional. See, e.g., Johnson v. State, 969 So. 2d 938, 961-62 (Fla. 2007) (rejecting arguments that standard instructions unconstitutionally place burden of proof on defendant to prove death sentence is inappropriate and improperly restrict evidence that jury may consider in mitigation). Stewart offers no reason why we should depart from precedent. Accordingly, his constitutional challenge is without merit, and thus appellate counsel was not ineffective for failing to raise such an argument on appeal. See Smithers, , 18 So. 3d at 473 (holding that appellate counsel cannot be found ineffective for failing to raise a meritless issue).

C. Penalty-Phase Instructions About Jury’s Role in Sentencing

Next, Stewart asserts that the standard penalty-phase jury instructions used in his case minimized the role of the jury in Florida’s capital sentencing process in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985), and that appellate counsel was ineffective for failing to challenge the instructions on appeal. Again, Stewart’s substantive challenge to the jury instructions is procedurally barred because it could have been raised on direct appeal. See, e.g., Grim, , 971 So. 2d at 103. Moreover, Stewart concedes that we have repeatedly held that Florida’s standard jury instructions do not violate Caldwell. See, e.g., Lebron v. State, 982 So. 2d 649, 666 (Fla. 2008). Stewart offers no reason why we should depart from precedent. Accordingly, his constitutional challenge is without merit, and appellate counsel was not ineffective for failing to raise such an argument on appeal. See Smithers, , 18 So. 3d at 473.

D. Cumulative Ineffectiveness of Appellate Counsel

In his final habeas claim, Stewart reasserts his arguments that appellate counsel was ineffective for failing to challenge the standard jury instructions used in Stewart’s case and for failing to challenge Florida’s method of execution and lethal injection protocol. As discussed above, Stewart’s arguments are without merit, and appellate counsel cannot be deemed ineffective for failing to raise a meritless issue on direct appeal. Therefore, Stewart is not entitled to habeas relief.

IV. CONCLUSION

For the reasons stated above, we affirm the circuit court’s denial of Stewart’s motion for postconviction relief and deny his petition for a writ of habeas corpus.

It is so ordered.

PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

QUINCE, C.J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

—————

Notes:

1. Stewart does not appeal the denial of his claims that his right to confrontation was violated during the examination of Sawyer; his right to confrontation was violated during the examinations of Michele Acosta and James Harville; his death sentence is unconstitutional under Roper v. Simmons, 543 U.S. 551 (2005); cumulative error deprived him of a fundamentally fair trial; trial counsel was ineffective for failing to request an instruction or present evidence about Stewart’s likelihood of parole; trial counsel was ineffective for conceding that the State had established three aggravating factors; the jury’s role was diminished in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985); and execution by lethal injection is cruel or unusual punishment.

—————

Courtesy of David Edelstein

BLAINE ROSS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC07-2368.

Supreme Court of Florida.

May 27, 2010.

An Appeal from the Circuit Court in and for Manatee County, Edward Nicholas, Judge — Case No. 2004-CF-106.

James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

Blaine Ross was convicted of the January 7, 2004, robbery and first-degree murders of his parents, Richard and Kathleen Ross. Ross, who was 21 at the time of the murders and living with his parents, appeals the judgments of conviction of robbery and first-degree murder and sentences of death. We have mandatory jurisdiction. See art. V, § 3(b)(1), Fla. Const.

After carefully reviewing the issues raised on appeal, we reverse the convictions and sentences of death because of the police conduct in interrogating Ross on January 9, 2004. Specifically, the police, over a period of several hours of custodial interrogation, deliberately delayed administration of the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), obtained inculpatory admissions, and when the warnings were finally administered midstream, minimized and downplayed the significance of the warnings and continued the prior interrogation—all of which undermined the effectiveness of Miranda. In accordance with our precedent and the precedent of the United States Supreme Court, we conclude that under the totality of the circumstances, the waiver of the defendant’s rights against self-incrimination was not voluntary, knowing, and intelligent, and the statements were not voluntarily given. Thus, for the reasons addressed below, we conclude that the police interrogation violated both Miranda and the defendant’s constitutional rights under the Fifth Amendment to the United States Constitution and article I, section 9, of the Florida Constitution. Because the admission of the multiple inculpatory statements cannot be considered harmless beyond a reasonable doubt, we are compelled to reverse for a new trial.

FACTS

In reviewing the facts of this case, we focus on both the circumstances surrounding the murder and the police interrogation that produced the inculpatory statements. Richard and Kathleen Ross were murdered on January 7, 2004, in their home in Bradenton, Florida. Their son, Blaine Ross, called 911 after discovering them in their bed covered in blood.

At the time of their deaths, Kathleen Ross was in the process of obtaining a divorce from her husband, Richard, after she discovered that he was having an affair. Although Richard had not vacated the premises, he was spending considerable time away from the house.

Ross was living at his parents’ house, but spent substantial time with his sixteen-year-old girlfriend, Erin. On January 7, 2004, the day of the murder, Ross and his girlfriend, Erin, planned to drive to Cape Coral in order to buy drugs. According to Erin, Ross was not at her house when she went to sleep around 10:30 or 11:00 at night on January 6, but he was there when she woke up the next morning.

The morning of January 7, before leaving for Cape Coral, Ross and Erin first went to the GTE Federal Credit Union where Ross attempted to withdraw money. When his attempt was unsuccessful, he went inside and spoke to an employee, Barbara Curtis. Ross gave Curtis an ATM card, claiming that the account was his and that his mother changed the personal identification number (PIN). When Curtis looked up the account information, however, Kathleen Ross was the only person listed as having access to the account. Ross told her that his mother was out of town, but he could not provide any number for her. Ross continued to ask Curtis to change the PIN, but she refused.

After Ross was unable to obtain any money at the bank, he stopped by Checkers, went by Sam’s Club and filled his car with gas, and stopped at a Circle K where Ross tried again, unsuccessfully, to use the ATM card. Ross returned to his house with Erin and asked her to wait in his room while he talked with his parents. He proceeded to his parents’ bedroom, where the murders had occurred.

After he discovered his parents’ bodies, Ross and Erin went outside while Ross called 911. When the police arrived, Ross was in his front yard with Erin, who was visibly upset. The police found the exterior lights on, and all of the blinds within the house were closed. Ross’s parents appeared to have died while sleeping, with significant injuries to their heads. Blood was splattered across the bedroom, all over the walls, and up to the ceiling. The victims also had ropes around their necks.¹ Although clothing was scattered around the room, it was still folded and partially stacked, which was inconsistent with a typical burglary. After the bodies were moved, police found keys, a checkbook, and a wallet in the pillowcase on which Richard Ross was lying.

Police found no signs of forced entry, but the kitchen sliding glass door was partially open. Ross’s fingerprints were found on the inside sliding glass door. In the garage, police found a bag containing baseball equipment; however, the compartment that would normally hold bats was unzipped and empty. Ross’s fingerprints were found on a cigarette lighter, which was on top of the partially empty baseball bag.

The State also presented evidence that Ross’s black pants had spots of blood on them that was consistent with the blood of Kathleen and Richard Ross. Law enforcement officers found his pants in Erin’s bedroom after Erin’s mother gave the officers permission to search the residence. The pants were not the ones Ross was wearing at the time he discovered his parents’ bodies and called 911.

Dr. Vega, the medical examiner, performed an autopsy and determined that the cause of death for both victims was blunt impact head injuries. He estimated that the time of death was between 3 a.m. and 5 a.m. on January 7. Dr. Vega opined that neither victim moved after the initial injury because there was no blood staining beyond the area already uncovered. He found no defensive injuries and opined that the victims were asleep when initially struck. The injuries were consistent with being struck by a bat. Richard Ross was hit at least twice, but possibly more. Kathleen Ross was struck at least four times, but likely more than four.

The State presented evidence that Ross had a financial motive for the crime. Specifically, shortly before his parents were killed, Ross made several withdrawals from his mother’s account, totaling $1,401.50. On January 6, 2004, Ross and his mother signed a contract which stated, “I, Kathleen Ross, has [sic] loaned Blaine Ross $1400 that will be paid back in full as soon as possible. Blaine will never ask for Sam’s Club card or any other money.”

On January 7, after the police responded to Ross’s 911 call, Detective William J. Waldron talked to Ross at the scene and described Ross as very quiet, calm, and withdrawn. After Detective Waldron interviewed some neighbors, he returned to Ross and found him crouched down near a vehicle to avoid the media. Ross appeared particularly stressed based on the media’s arrival. Ross asked Detective Waldron if they could go somewhere to talk, and Detective Waldron suggested the sheriff’s office, to which Ross agreed. Ross and Erin were then taken to the Criminal Investigation Division (CID) of the Manatee County Sheriff’s Office.

Law enforcement officers interrogated Ross multiple times.² On January 7, after arriving at CID, Detective Waldron interviewed Ross four times throughout the day and into the early morning hours of January 8. Although Ross was at the police station for about twelve hours, the total time that he was interviewed on January 7 and 8 was a little less than four hours. In between the interviews, Ross was given breaks whenever he asked, was permitted to be alone in a common area near the elevator, was not restrained in any manner, and was not supervised. Detective Waldron conducted these interviews at a conference table in a large room.

The interviews were very conversational, but on occasion, the detective confronted Ross with discrepancies between his statement and statements from other witnesses. In the third and fourth interviews, another detective was also present, and the detectives became more direct with portions of Ross’s story that were inconsistent. During the same day, the police also took statements from Erin and her mother, as well as other potential witnesses.

During the interviews on January 7 and 8, Ross was repeatedly assured he was not being arrested. After Ross finished providing the statements, a detective took Ross to Erin’s house. After Ross was interviewed on January 7 and 8, he called Detective Waldron four times and left messages. In the last message, he stated:

Hello Detective Waldron, this is Blaine Ross. I’m calling in regards to what’s going on. I have some questions, um, regarding the case and then some things that have been brought up to me in the recent time. Please give me a call back . . . .

On January 9, Ross and his sister arrived at the sheriff’s office, where the victim advocate’s office was located. Ross came to see the victim advocate so he could buy shoes. At the time of the visit, he was still barefoot because the police had taken his shoes when he was first questioned, and he was not permitted to obtain any of his other shoes from his house as it was considered a crime scene.

When Ross arrived, Detective Waldron asked Ross to come see him when he finished with his meeting because he had received Ross’s messages and had some more questions. Ross met with Detective Waldron as requested.

Detective Waldron believed that the January 9 interrogation was his last chance to talk to Ross without an attorney present, so he decided to change the location to a room where the interrogation could be videotaped. The room was much smaller than the room where Ross was initially interviewed. Inside the room, there was a small desk and three chairs. Detective Waldron sat relatively close to Ross. Ross’s chair was in the corner of the room and he was, in essence, blocked in with a desk at one side and Detective Waldron in front of him. Ross was still barefoot. At least one other law enforcement officer was in the room, and at various times throughout the interview, other officers entered and exited the room, passing notes to Detective Waldron.

Detective Waldron was the primary interrogator throughout the questioning. Initially, he answered many of Ross’s questions concerning the process of an investigation. After they talked about Ross’s concerns, Detective Waldron questioned Ross about his prior statements given on January 7 and 8. The questioning became more accusatory, and at times, Detective Waldron raised his voice. Detective Waldron confronted Ross with evidence that Ross had lied regarding significant aspects of Ross’s prior statements. He then informed Ross that police had found the pants that Ross wore on the night his parents were killed and the pants had blood on them that matched the crime scene. The interrogation continued for about four hours in the same small room with Detective Waldron and other officers before Miranda warnings were finally administered. During the unwarned portion of the interrogation, Detective Waldron constantly referred to the bloody pants and emphasized that this evidence could not be disputed. Ross finally acknowledged that this evidence “[p]uts me at the crime scene.” Shortly after that, Ross admitted that it was a possibility that he killed his parents:

You made me dig inside and think about it, and you’ve also given me hard evidence that puts me at the crime. And I can’t—I can’t—I can’t—I can’t remember if I did this or not. I don’t know. I mean, you—you have solid evidence, blood on my pants and everything, but I don’t remember doing this, if I did it.

From this point on, Ross repeatedly asserted that he may have committed the crime but “blacked out” and had no memory of it. He further provided additional statements that implied he had reason to commit the murders:

I can tell you that I didn’t plan to kill my parents. I can tell you that I do bottle things up, and things that you’ve said does [sic] make sense. They do make sense to me, that I can [sic] have done this. I could have been so angry, done this. But I don’t—I can’t put myself there. I don’t remember if I was there, so I can’t tell you if I did it or not.

At approximately 7 p.m., Detective Waldron left the interrogation room. About fifteen minutes later, he returned and Ross asked, as he had done previously, if he could see his sister “one more time.” Detective Waldron left the room again and returned shortly telling Ross, “I can’t find her.” Although Detective Waldron left the room for the ostensible purpose of checking if Ross’s sister was still in the building, at trial he testified that he did not believe that she was in the building and he personally was not making any efforts to find her. When Detective Waldron returned, he eventually administered Miranda warnings and, under circumstances more fully explained in our analysis, Ross signed a written waiver. After more questioning by Detective Waldron based on the prior interrogation and further equivocation by Ross, Ross finally confessed that he killed his parents but did not remember committing the act.

Ross: You were right about a couple of things. I was angry at my dad. I wasn’t angry with my mom, she was trying to help me, she was giving me money. But when—you were right that I didn’t do this on purpose. I remember dropping Mikey off—[unintelligible]—his neighborhood, I remember being in my house. I didn’t do this on purpose.

Waldron: I know you didn’t.

Ross: It was like I had just woken up, and I was standing there, not next—not next to my parents, but in front of their bed. I had a [unintelligible]—I don’t know why, I don’t know what triggered me to do it. I know I was angry at my dad,³ but I don’t know why I did this . . . .

He stated that he “woke up” after the murders, realized what he had done, and tried to make it look like a robbery. When he discussed what happened after the murders, he also confessed to certain actions that later evidence showed that he did not do. Specifically, when Detective Waldron asked about Kathleen Ross’s missing jewelry, Ross stated that he “[j]ust grabbed it” in order to “cover [his] tracks.” In fact, Ross did not take the jewelry.⁴

Ross was subsequently arrested for the murder of his parents. On January 12, Detective Waldron arrived at the jail to talk to Ross based on a request made by Ross. After an initial discussion, the detective provided new Miranda warnings to Ross. During their discussion, Ross further answered additional questions as to where he disposed of the evidence. However, none of this evidence was ever discovered.

At trial, Ross presented a defense, including the testimony of several neighbors who reported that, a few days before the murders, somebody had jiggled their doors or made noises outside their windows. Ross also presented an expert in false confessions, Dr. Gregory DeClue, to support the theory that the confession he made was coerced and unreliable.⁵ He testified that there are factors that increase the likelihood of false confessions, many of which were present in this case. These factors include youth, immaturity, inexperience, low intelligence, mental illness, intoxication, and withdrawal from drugs. Police also use isolation to increase anxiety. Further, the police use certain techniques that increase the risk of a false confession, including escalating the pressure exerted on a suspect and the suspect’s anxiety, exaggerating the evidence, providing information about the crime scene, and giving justifications why a person should confess, such as closure. After hearing all the evidence, the jury convicted Ross of two counts of first-degree murder and one count of robbery.

Following a penalty phase in which Ross put on mental mitigation from two experts as to his substantially impaired mental state at the time of the crime, the jury recommended a sentence of death by a vote of eight to four for each murder. The trial court imposed sentences of death after finding two aggravators: a prior violent felony conviction (based on the contemporary murder convictions) and that the murders were committed during the course of a robbery (merged with pecuniary gain). The court found three statutory mitigating factors: Ross had no significant criminal history (given little weight); he acted under the influence of extreme mental or emotional disturbance (proven only as to drug use and given moderate weight); and his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired (proven only as to drug use and given moderate weight). The trial court rejected age as a statutory mitigator and found and weighed nonstatutory mitigation, including giving moderate weight to his history of substance abuse.

ANALYSIS

On appeal, Ross raises five issues: (1) whether the trial court erred in denying the motion to suppress Ross’s statements on January 8 and January 9; (2) whether the trial court erred in allowing the State to introduce Ross’s January 12 statement; (3) whether the State failed to demonstrate that the FDLE serologist was qualified to testify to the statistical significance of the DNA evidence; (4) whether the circumstantial evidence is insufficient to prove robbery and premeditation; and (5) whether the death penalty is disproportionate. In connection with the proportionality argument, Ross claims that he has a severe mental illness and that the trial court ignored “uncontroverted evidence” regarding his mental state. Because we conclude that multiple statements made by Ross during the January 9 interrogation should have been suppressed and that the admission of those statements was not harmless beyond a reasonable doubt, we address only that issue in depth.⁶

Prior to trial, Ross filed a motion to suppress.⁷ Following an evidentiary hearing, which included the admission of the recorded interrogation of Ross by the police, the trial court denied the motion to suppress. The trial court’s findings included the following: (1) Ross was not in custody prior to the reading of the Miranda warnings on January 9; (2) Ross voluntarily waived his Miranda rights; and (3) Ross’s statements were made voluntarily. The trial court further found that (1) Ross did not confess before being read his Miranda rights; and (2) no evidence was submitted to show that the detectives deliberately withheld Miranda warnings until Ross confessed.

On appeal, Ross claims that the “trial court erred in allowing the state to introduce the videotaped in-custody confession obtained by Detective Waldron by means of multiple violations of appellant’s rights protected by the United States and Florida Constitution.” Both the United States and Florida Constitutions provide that persons shall not be “compelled” to be witnesses against themselves in any criminal matter. U.S. Const. amend. V; art. I, § 9, Fla. Const; see also Traylor v. State, 596 So. 2d 957, 964 (Fla. 1992) (stressing that under the basic contours of Florida’s constitutional privilege against self-incrimination, “a main focus of Florida confession law has always been on guarding against one thing—coercion”). Based on these federal and state constitutional guarantees, if a defendant confesses during a custodial interrogation, in order for the confession “to be admissible in a criminal trial, the State must prove that the confession was not compelled, but was voluntarily made.” Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999).

Prior to Miranda, “the admissibility of an accused’s in-custody statements was judged solely by whether they were `voluntary’ within the meaning of the Due Process Clause.” Oregon v. Elstad, 470 U.S. 298, 304 (1985). In Miranda, “the United States Supreme Court enunciated a bright-line rule to guard against compulsion and the coercive nature and atmosphere of custodial interrogation and `assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.’” Ramirez, , 739 So. 2d at 573 (quoting Miranda, , 384 U.S. at 469). To protect the right against self-incrimination, the Supreme Court required that any individual held for interrogation must be clearly informed as to his or her rights, including the “right to remain silent, that any statement he does make may be used as evidence against him, and . . . [the] right to the presence of an attorney, either retained or appointed.” Miranda, , 384 U.S. at 444. “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” Id.

The Supreme Court in Miranda concluded that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id. at 467. Therefore, “unless and until [the Miranda] warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against [the defendant].” Id. at 479.

“The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” Id. at 476. The Supreme Court has also recognized that the prophylactic Miranda warnings are “not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.” Elstad, , 470 U.S. at 305 (quoting New York v. Quarles, 467 U.S. 649, 654 (1984)). As recognized in Elstad, the Miranda exclusionary rule sweeps more broadly than the Fifth Amendment itself: “A Miranda violation does not constitute coercion but rather affords a bright-line, legal presumption of coercion, requiring suppression of all unwarned statements.” Id. at 307 n.1 (emphasis omitted). This presumption is irrebuttable for the purposes of the State’s case in chief. Id. at 307.⁸

These protections are equally applicable under the Florida Constitution. As this Court has recognized, “[t]he protections enunciated in Miranda have been part of this State’s jurisprudence for over a century pursuant to the Florida Constitution.” Ramirez, , 739 So. 2d at 573; see also Traylor, , 596 So. 2d at 964-66. Traylor explains the contours of our state constitutional law:

The basic contours of Florida confession law were defined by this Court long ago under our common law. We recognized the important role that confessions play in the crime-solving process and the great benefit they provide; however, because of the tremendous weight accorded confessions by our courts and the significant potential for compulsion—both psychological and physical—in obtaining such statements, a main focus of Florida confession law has always been on guarding against one thing—coercion. . . . The test thus is one of voluntariness, or free will, which is to be determined by an examination of the totality of the circumstances surrounding the confession. This determination is to be made by the judge, in the absence of the jury, based on a multiplicity of factors, including the nature of the questioning itself.

Id. at 964 (footnote omitted).

In this case, the trial court concluded that Ross was not in custody on January 9 prior to the reading of the Miranda warnings, that Ross voluntarily waived his rights, and that the statements were made voluntarily. As we explained in Connor v. State, 803 So. 2d 598, 605 (Fla. 2001), when reviewing a trial court’s ruling on a motion to suppress, “mixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach.” We defer to a trial court’s findings of fact as long as they are supported by competent, substantial evidence, but we review de novo a trial court’s application of the law to the historical facts. See Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007).

The actual facts of the interrogation in this case are uncontroverted; only the application of the law to the facts is at issue. In reviewing the issues related to the January 9 interrogation and statements, we address: (a) whether and when the interrogation of Blaine Ross became custodial, necessitating the administration of Miranda warnings; (b) whether, under the totality of the circumstances, the waiver of the Miranda rights was voluntary, knowing, and intelligent and whether the statements made after the waiver were voluntary; and (c) whether the error in the admission of the statements was harmless error beyond a reasonable doubt.

A. Pre-Miranda Statements—Custodial Interrogation

The first issue centers on whether the interrogation became custodial on January 9 prior to the time the Miranda warnings were administered, particularly after the detective confronted Ross with evidence that the victims’ blood was found on his pants. Determining whether the defendant was “in custody” so as to require the administration of Miranda warnings involves a mixed question of law and fact subject to independent review. Connor, , 803 So. 2d at 605-06. The United States Supreme Court explained why this determination should be subject to independent review:

Classifying “in custody” as a determination qualifying for independent review should serve legitimate law enforcement interests as effectively as it serves to ensure protection of the right against self-incrimination. As our decisions bear out, the law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law.

Thompson v. Keohane, 516 U.S. 99, 115 (1995). If Ross was subjected to custodial interrogation, then he should have been administered Miranda warnings.

Police are not required to give Miranda warnings to every potential suspect. Miranda warnings apply only to in-custody interrogations. Hunter v. State, 8 So. 3d 1052, 1063 (Fla. 2008), cert. denied, , 129 S. Ct. 2005 (2009); see also Miranda, , 384 U.S. at 441-42. The reason for requiring Miranda warnings at this stage is because “interrogation in certain custodial circumstances is inherently coercive and . . . statements made under those circumstances are inadmissible unless the suspect is specifically warned of his Miranda rights and freely decides to forgo those rights.” Duckworth v. Eagan, 492 U.S. 195, 202 (1989) (quoting Quarles, , 467 U.S. at 654).

For Miranda purposes, custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, , 384 U.S. at 444. The determination of whether a person was in custody for purposes of Miranda depends on “how a reasonable person in the suspect’s situation would perceive his circumstances.” Yarborough v. Alvarado, 541 U.S. 652, 662 (2004). The United States Supreme Court explained this analysis as follows:

Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

Id. at 663 (quoting Thompson, , 516 U.S. at 112).

This Court has adopted the same objective, reasonable-person framework in determining whether a suspect was in custody. See Connor, , 803 So. 2d at 605. “[I]t must be evident that, under the totality of the circumstances, a reasonable person in the suspect’s position would feel a restraint of his or her freedom of movement, fairly characterized, so that the suspect would not feel free to leave or to terminate the encounter with police.” Id. To analyze the case-specific facts that are relevant to determining this issue, the Court considers the following four factors:

(1) the manner in which police summon the suspect for questioning;

(2) the purpose, place, and manner of the interrogation;

(3) the extent to which the suspect is confronted with evidence of his or her guilt; [and] (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Ramirez, , 739 So. 2d at 574.

With this framework in mind, we now proceed to determine at what point in time Ross was in custody. Although the four factors provide the structure of our analysis, the ultimate inquiry is twofold: (1) the “circumstances surrounding the interrogation;” and (2) “given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Yarborough, , 541 U.S. at 663.

The first of the four factors, the manner in which police summon the suspect for questioning, weighs in favor of the State. Ross voluntarily came to the sheriff’s office for a meeting with a victim’s advocate. While he was at the office, Detective Waldron requested that Ross see him before he left, and Ross agreed.

We next turn to the second factor—the purpose, place, and manner of questioning. Initially, Detective Waldron asked Ross to again provide a statement of Ross’s activities regarding the last day he was with his mother and questioned him as to inconsistencies in his story. However, at the point when Detective Waldron informed Ross about the bloody pants, the detective’s focus shifted from merely questioning a witness to attempting to obtain a confession and pressuring Ross to admit his involvement in the crime. The detective repeatedly told Ross that he knew Ross committed the crime and the only question remaining was why. This type of questioning, which was highly confrontational and accusatorial, lasted for hours and took place in a very small room at the station with at least two officers in the room. Moreover, at this point, when Ross asked for a smoke break, the detective told him to smoke in the room, while the questioning continued. This factor clearly supports a conclusion that the defendant was in custody.

The third factor to consider is the extent to which Ross was confronted with evidence of his guilt. This factor also weighs in favor of a finding that Ross was in custody. Ross was confronted with very strong evidence of his guilt during the January 9 interview—most importantly, that pants Ross wore on the night in question had blood on them that matched the crime scene. Detective Waldron referred to the bloody pants throughout the interview and how this evidence could not be disputed. Ross finally acknowledged that this evidence “[p]uts me at the crime scene.”

At various points after this time, when Ross denied having any involvement in his parents’ murders, Detective Waldron stressed, “The evidence says you did.” Detective Waldron constantly referred to the blood on the pants as proof that Ross was at the crime scene that night and, throughout the interview, accused Ross of killing his parents. Questioning by Detective Waldron included:

Waldron: I know how that blood got there, Blaine. When you brutally, cold-blooded beat your parents to death, when you smashed in their heads and beat them to death . . . .

Waldron: And then you put that rope that was in the garage and you put it around your mother’s neck, and you put it around your father’s neck, and you slowly methodically, cold-bloodedly pulled it tighter and tighter and tighter, Blaine. After smashing in their heads. That’s how you got that blood on your pants, those black Dickies that you were wearing Tuesday . . . .

Waldron: You want to see Erin go to prison now? . . . Is that what you want? You want to bring all these people down with you? For what you did? The time is now to be a man. And the evidence doesn’t lie.

Detective Waldron repeated variations of this type of accusatorial questioning over a period of hours before the Miranda warnings were given and after Ross was confronted with the blood on his pants.

The fourth and final factor to consider is that Ross was never informed he was free to leave. At the point when Ross was informed that the police had evidence that blood on his pants matched the crime scene, a reasonable person would not believe he or she was free to leave. Moreover, all of the circumstances after this point conveyed the clear impression that he was not free to leave. After the interview turned accusatory and Ross asked for a cigarette break, Detective Waldron told Ross that he could simply smoke in the room. Ross responded, “I was also going to say you could handcuff me or something to make sure I don’t run.” This situation stands in contrast to how Ross was handled in his prior interviews, where he was permitted to go outside, take a break from the interrogation, and smoke a cigarette.

Later during the January 9 interrogation, Ross asked to speak with his sister who had accompanied him to the station. He was not permitted to talk to her outside the interrogation room—she was brought to Ross. He asked for her again, and he was left in the room while Detective Waldron said that he would try to find her. When Ross asked if he was being charged with the crime, Detective Waldron avoided a direct answer by asking Ross what he thought should happen. Only once did Detective Waldron assure Ross that he was not currently being arrested, but this was moments before Detective Waldron provided Ross with Miranda warnings and after Ross made the admissions that he could have killed his parents. Therefore, the final factor weighs in favor of concluding that the interrogation was custodial.

Ultimately, as we have stated, the factors enunciated provide the basis for the twofold inquiry: (1) the “circumstances surrounding the interrogation”; and (2) “given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Yarborough, , 541 U.S. at 663; see also Connor, , 803 So. 2d at 606. In considering these factors in conjunction with each other, we conclude that the January 9 interview became a custodial interrogation. Although Ross initially went to the sheriff’s office voluntarily, this is the only factor that weighs in favor of finding that the January 9 questioning was not an in-custody interrogation. The January 9 interview was held in a small room with multiple officers, and Ross was placed in a corner with Detective Waldron sitting in front of him. The manner and purpose of the interview was not merely to interview a witness and obtain his story. Detective Waldron was attempting to obtain incriminating statements or a change in Ross’s story by confronting him with significant evidence that allegedly placed him at the crime scene and insisting that the police already knew he committed the crime.

Once the police informed Ross that they had his bloody pants that matched the crime scene, a reasonable person would not have felt at liberty to terminate the interrogation and leave. At this point the officer should have advised Ross as to his Miranda rights.

Our holding here is consistent with our precedent regarding when a defendant is in custody. See Ramirez, , 739 So. 2d 568. In Ramirez, an officer transported the suspect, Ramirez, to the police station, where Ramirez was questioned in a small interrogation room by two detectives. Id. at 572. Ramirez was never told that he was free to leave, and the officers clearly indicated that they considered him a suspect and knew he was involved in the crime. See id. at 574. After reviewing the four relevant factors, this Court concluded that Miranda warnings should have been given because any reasonable person in Ramirez’s position would have believed that he was in custody at the time of the interrogation. Id. We observed that “[s]hort of being handcuffed and being told that he was under arrest, we cannot perceive of circumstances that would be more indicative of a custodial interrogation than the circumstances of the interrogation” in Ramirez. Id.

Likewise, in Mansfield v. State, 758 So. 2d 636, 644 (Fla. 2000), we concluded that the defendant was in custody for purposes of Miranda where consideration of the Ramirez factors “inevitably” led to that conclusion:

Mansfield was interrogated by three detectives at the police station, he was never told he was free to leave, he was confronted with evidence strongly suggesting his guilt, and he was asked questions that made it readily apparent that the detectives considered him the prime, if not the only, suspect.

See also Wolliston v. State, 961 So. 2d 1141, 1142 (Fla. 4th DCA 2007) (holding that defendant was in custody, despite the fact that the interrogation occurred in his own home, because the defendant was confronted with the presence of illegal drugs and was not informed that he was free to leave).

In accordance with the case law governing when Miranda warnings must be given, we conclude that the officers should have provided Miranda warnings during the January 9 interrogation before the interrogation turned accusatorial and the officers confronted Ross with the bloody pants. Accordingly, any prewarning statements made by Ross after this point should have been suppressed.

B. Validity of Statements After Miranda Waiver

We next address the issue of whether, under the totality of the circumstances, the waiver of the Miranda rights was voluntary, knowing, and intelligent and whether the statements made after the waiver were voluntary. The dissent agrees with our determination that Ross was in custody at the time Ross was confronted with evidence of the bloody pants. The dissent objects to our analysis of the validity of the statements given after the Miranda warnings, asserting that this Court did not give proper deference to the trial court’s finding of facts that the delay in administering the Miranda warnings was not deliberate. However, although deference is to be accorded to credibility findings, the issue of the admissibility of the postwarning statements is a mixed question of law and fact. See Thomas v. State, 894 So. 2d 126, 136 (Fla. 2004) (holding that regarding whether a waiver of Miranda rights is voluntary, knowing, and intelligent, “[a]ppellate courts should . . . accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment[s]” (quoting Connor, , 803 So. 2d at 608)).

As this Court and the United States Supreme Court have made clear, “the ultimate issue of voluntariness is a legal rather than factual question.” Ramirez, , 739 So. 2d at 575 (citing Miller v. Fenton, 474 U.S. 104, 109 (1985)). The State bears the burden of showing that “the confession was not compelled, but was voluntarily made.” Id. at 573. Further, where a confession is obtained after the administration of Miranda warnings, “the State bears a `heavy burden’ to demonstrate that the defendant knowingly and intelligently waived his or her privilege against self-incrimination and the right to counsel.” Id. at 575 (citing Colorado v. Connelly, 479 U.S. 157, 167 (1986); Fare v. Michael C., 442 U.S. 707, 724 (1979); Miranda, , 384 U.S. at 475; W.M. v. State, 585 So. 2d 979, 981 (Fla. 4th DCA 1991)).

In the ordinary case, the teachings of Miranda dictate that the warnings will be administered once custodial interrogation begins and thus the prophylactic effect of Miranda will be served. This, however, is a case where the administration of the Miranda warnings was delayed for several hours into the custodial interrogation. See Missouri v. Seibert, 542 U.S. 600, 609 (2004) (plurality opinion) (“The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda.”).

Miranda was intended to address and minimize the coercive effects of interrogation and guard against police techniques “likely . . . to disable [an individual] from making a free and rational choice” about speaking. Miranda, , 384 U.S. at 464-65. Whether a defendant validly waived his rights is a twofold inquiry:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Ramirez, , 739 So. 2d at 575 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)) (internal quotation marks omitted).

In reviewing such challenges, courts must remain vigilant regarding whether a defendant was given an actual choice in order to guard against the potential danger of violating a defendant’s constitutional right against self-incrimination. Ensuring that police do not use intimidation, coercion, or deception in obtaining a waiver also helps to protect the integrity of the truth-seeking process, including guarding against the danger of false confessions. We thus review the United States Supreme Court precedent and this Court’s precedent as to whether the subsequent statements were admissible or should have been suppressed as being both a violation of the underlying principles of Miranda and a violation of Ross’s constitutional rights under the United States and Florida Constitutions.

1. Relevant Case Law

In Oregon v. Elstad, 470 U.S. 298 (1985), the United States Supreme Court held that the failure to administer the Miranda warnings before eliciting a confession does not necessarily render any subsequently warned statement inadmissible and that the admissibility of such statements must turn on whether the subsequent waiver is voluntarily, knowingly, and intelligently made. Id. at 310-11, 314-15. The eighteen-year-old defendant in Elstad first admitted guilt when he was questioned without Miranda warnings in the living room of his home while his mother was in the kitchen area, a few steps away. Id. at 315. After this initial confession, he was taken to the sheriff’s headquarters where, approximately one hour later and after a full warning and waiver of his Miranda rights, he gave a complete statement detailing his participation in the crime. Id. at 301, 314-15. The officers made no promises or threats during questioning at either the defendant’s residence or the sheriff’s headquarters. Id. at 301-02. In holding the second statement admissible, the United States Supreme Court stated:

Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. . . . We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.

Id. at 318 (emphasis supplied).

Elstad thus rejected a rigid rule that would render inadmissible a statement given after Miranda warnings were administered solely because Miranda warnings were not given earlier. However, Elstad also cautioned against a rigid rule that would simply allow the admission of all statements given after Miranda warnings. Rather, courts must examine “the surrounding circumstances and the entire course of police conduct.” Id. “When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.” Id. at 310. If a suspect made an unwarned but “clearly voluntary” earlier admission, a subsequent properly warned confession need not be suppressed, so long as the careful and thorough administration of the Miranda warning is given and the Miranda rights are waived. Id. at 310-11. Thus, the condition that rendered the initial “unwarned statement inadmissible” is “cure[d]” as to the subsequent statements after Miranda warnings are properly given. Id. at 311.

The Court in Elstad limited its holding to situations where police did not engage in “deliberately coercive or improper tactics” in obtaining the initial statements. Id. at 314. A situation in which the police did engage in improper tactics was addressed by this Court in Ramirez v. State, 739 So. 2d 568 (Fla. 1999), where the police delayed providing a seventeen-year-old defendant with his Miranda warnings until after he made incriminating statements, and when those warnings were finally provided, the officers undertook a “concerted effort to minimize and downplay the significance of the Miranda rights.” Id. at 575. After examining Elstad, this Court held that determining whether a subsequent confession is voluntarily given requires an examination of the totality of the circumstances. Id.

This Court concluded that the circumstances surrounding the statements in Ramirez were distinguishable from Elstad. First, although the officers had probable cause to arrest Ramirez at the time of questioning, they delayed providing Miranda warnings until after he made incriminating statements. Then the police failed to provide him with a careful and thorough administration of Miranda warnings, instead minimizing the significance of the warnings. This Court found that the officers in that case instead employed a concerted effort to minimize and downplay the significance of the Miranda rights, thus exploiting the statements previously made to the officers so that Ramirez would not exercise his rights. Ramirez, , 739 So. 2d at 576. This Court noted that Ramirez had just turned seventeen years old and that the officers in that case lulled the young defendant into a false sense of security by telling the suspect that they were not arresting him and did not permit him to contact his parents before questioning. Id. at 574, 576-77. Finally, the officers administered the Miranda rights orally and did not secure a written waiver until after Ramirez had fully confessed to his involvement in the crime. Id. at 578. This Court therefore held that Ramirez’s confession should have been suppressed. Id.

In Davis v. State, 859 So. 2d 465, 472 (Fla. 2003), the Court applied Elstad and distinguished Ramirez to conclude that the postwarning statements were admissible. The facts of Davis involve only brief initial questioning and no indication of a concerted effort to undermine the Miranda warnings. The officers informed Davis that they were there to discuss the disappearance of his girlfriend’s mother, Ms. Robinson. Id. During the initial ten-minute discussion with the two officers, Davis admitted that he killed Ms. Robinson. Id. at 471. Upon hearing this admission, a detective immediately read Davis his Miranda warnings and obtained a signed written waiver. Id. Davis then proceeded to draw a map to the victim’s body and gave a recorded confession. Id. We concluded that none of the circumstances that rendered Ramirez’s warned confession inadmissible were present in Davis. Relying on Elstad, this Court held that the circumstances surrounding Davis’s warned confession properly “cured” the condition that rendered the unwarned statement inadmissible. Id. at 472.

The circumstances of the police conduct in Elstad and Davis stand in stark contrast to the circumstances in Missouri v. Seibert, 542 U.S. 600 (2004), which involves the intentionally delayed administration of Miranda warnings. In Seibert, the police in fact engaged in tactics of deliberately and intentionally withholding Miranda warnings. Specifically, the officer who questioned the suspect admitted that he intentionally withheld Miranda warnings and relied on an interrogation technique he had been taught: “question first, then give the warnings, and then repeat the question `until I get the answer that she’s already provided once.’” Id. at 606. In a plurality opinion, four justices agreed that Miranda was violated when the officer intentionally elicited an unwarned confession and then used that unwarned confession to elicit a second warned confession. The plurality discussed how such intentional techniques strike at the very heart of the purpose of Miranda warnings and increase the risk of inducing a coercive confession:

Just as “no talismanic incantation [is] required to satisfy [Miranda's] strictures,” it would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance. “The inquiry is simply whether the warnings reasonably `conve[y] to [a suspect] his rights as required by Miranda.’” The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires.

Id. at 611-12 (Souter, J., plurality opinion) (alterations in original) (citations omitted) (quoting California v. Prysock, 453 U.S. 355, 359 (1981); Duckworth, , 492 U.S. at 203).

The plurality stated that the following facts were relevant to whether Miranda warnings delivered “midstream” could be effective in accomplishing their object: “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second [interrogations], the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” Id. at 615. The plurality explained that the circumstances of Seibert’s interrogation “challeng[e] the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.” Id. at 617.

Because this was a plurality opinion, Justice Kennedy’s opinion concurring in the judgment becomes a pivotal focus in determining the impact and ramifications of Seibert.⁹ Justice Kennedy stressed that he firmly believed in the correctness of the decision in Elstad because it “reflect[ed] a balanced and pragmatic approach to enforcement of the Miranda warning.” Id. at 620 (Kennedy, J., concurring in the judgment). Specifically, he expressed concern with extending Miranda and did not believe that a subsequent voluntary statement made after Miranda warnings was tainted simply because a police officer made a good-faith mistake in determining exactly when Miranda warnings were required. However, like the plurality, he was equally concerned about the situation in Seibert where police used a two-step interrogation technique “designed to circumvent Miranda,” id. at 618, because such a tactic “simply creates too high a risk that postwarning statements will be obtained when a suspect was deprived of `knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.’” Id. at 621 (quoting Moran, , 475 U.S. at 424). He concluded:

The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.

Id. at 622. These curative measures must “ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.” Id. Justice Kennedy posited that factors such as a “substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn.” Id. Alternatively, he posited that “an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.” Id.

From a review of these cases, a tension emerges between two competing principles. On the one hand, suppression of a statement based on an innocent good-faith failure to immediately administer Miranda warnings when a defendant is in custody would neither serve the purposes of Miranda nor vindicate Fifth Amendment rights. Suppressing truly voluntary and uncoerced statements would also not serve the interests of justice. On the other hand, allowing police to deliberately delay administering Miranda warnings with the hope that the defendant will confess or make inculpatory statements and then belatedly warn the defendant of the rights frustrates the prophylactic rule of Miranda. Police tactics that subject a defendant to repeated accusatorial custodial interrogation heighten the risk not only that the confession will be involuntary but also that it may in fact be unreliable.

Based on these principles and our review of the caselaw, we conclude that the issue before us is not only whether the police deliberately withheld the Miranda warnings in an impermissible “question first and warn later” technique under Seibert but whether under the totality of the circumstances the waiver was voluntary, knowing, and intelligent and whether the statements made after the waiver were voluntary under Elstad and our own precedent in Ramirez. The issue of involuntariness and coercion directly implicates the defendant’s constitutional right against self-incrimination under both the Fifth Amendment and article I, section 9, of the Florida Constitution.

Focusing on whether the statements were voluntarily given is consistent with the holdings in both Elstad and Seibert. We agree with the dissent that Seibert applies once the determination is made that the police deliberately delayed administration of the Miranda warnings. However, the totality of the circumstances analysis under Elstad also includes a multiplicity of factors that impacts the ultimate determination of voluntariness. We thus disagree with the dissent that administration of the Miranda warnings alone will suffice to render the statements admissible, absent a deliberate delay. The United States Supreme Court’s opinion in Elstad and this Court’s precedent in Ramirez support an application of a totality of the circumstances analysis when warnings are delivered midstream during an ongoing interrogation.¹⁰

The caselaw demonstrates that the analysis of the admissibility of statements made following a custodial interrogation and after the delayed administration of Miranda warnings is based on the totality of the circumstances, with the following being factors important in making this determination: (1) whether the police used improper and deliberate tactics in delaying the administration of the Miranda warnings in order to obtain the initial statement;¹¹ (2) whether the police minimized and downplayed the significance of the Miranda rights once they were given;¹² and (3) the circumstances surrounding both the warned and unwarned statements including “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second [interrogations], the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.”¹³ In addition, there are other circumstances to consider on a case-by-case basis, such as the suspect’s age, experience, intelligence, and language proficiency.¹⁴

2. Application of Law to Facts a. Improper and Deliberate Tactics in Delaying the Miranda Warnings

First, we review whether the police used improper and deliberate tactics in delaying the administration of the Miranda warnings in order to obtain the initial statement. This record in fact affirmatively establishes that, in marked contrast to both the United States Supreme Court opinion in Elstad and this Court’s opinion in Davis, the police conducted the January 9 interrogation in a manner that arose from a deliberate decision among numerous officers, including the sheriff himself, to delay the administration of the Miranda warnings in order to attempt to elicit a confession. As mentioned above, Detective Waldron believed that this would be his last opportunity to question Ross before Ross obtained an attorney. Before the interview, the sheriff spoke to Detective Waldron, informing Detective Waldron that he was counting on him to “get closure on this.” Detective Waldron and the sheriff discussed how the interview should be conducted, and the sheriff, along with numerous other officers, watched the entire proceeding from another room.

Further, Detective Waldron testified at trial that he knew his department’s general orders required him to read Miranda rights to a suspect before the questioning turned to an accusatory stage. However, he deliberately chose not to follow this policy, asserting that it was merely a guideline.¹⁵ In defending this decision, Detective Waldron asserted that while the sheriff did not explicitly tell him to violate the general policies, the sheriff gave him guidance on how this interview should proceed and since the sheriff was watching the entire interview, he would have stepped in if he disagreed with the detective’s decisions.

Finally, the manner of questioning before Miranda rights were given and the length of time that the highly accusatorial questioning lasted demonstrate that this delay was deliberate. See Elstad, , 470 U.S. at 300-01, 314 (holding that the postwarning statements were admissible where defendant confessed immediately after officer informed defendant why the police were questioning him); Davis, , 859 So. 2d at 471 (holding that the postwarning statements were admissible where the initial discussion was only ten minutes). Prior to the time when the Miranda warnings were administered, Detective Waldron constantly accused Ross of committing the crimes based on blood found on Ross’s pants. After hours of intense and highly accusatorial questioning, the police eventually wore down Ross’s will until Ross responded to repeated questioning: “This is the scary part, now I think that I did do it.”¹⁶ The detective repeatedly attempted to elicit a full confession from Ross, telling him that confessing to a crime that happened in the heat of the moment was different from confessing to a premeditated murder.

The length of time this interrogation continued without Miranda warnings distinguishes this case from Elstad and from Davis. While the length of time is not determinative, it bears noting that cases in which no intentional conduct was found involved what appeared to be relatively brief initial interrogations and certainly nothing approximating the several hours of custodial interrogation without Miranda warnings involved in this case.

In arguing that the above conduct does not violate either Elstad or Seibert, the State relies on the fact that Ross had not made a full confession before Miranda warnings were given, asserting that if Detective Waldron was intentionally attempting to avoid Miranda, he would have waited until after Ross fully confessed.¹⁷ We have already rejected this argument. See Ramirez, , 739 So. 2d at 572, 578 (finding that a midstream Miranda warning violated the defendant’s constitutional rights even though the defendant had only confessed to breaking into the victim’s house prior to the warnings and, subsequent to the warnings, confessed to being involved in the murder). While the detective certainly would have preferred to have obtained a complete confession before he administered the Miranda warning, he had already obtained multiple damaging admissions over the many hours prior to the time the Miranda warnings were given.¹⁸ He may have believed that Ross would not make any further inculpatory statements.

A violation of Elstad or Seibert depends not solely on whether a full confession was obtained before the warnings were given but also on whether the continuing custodial interrogation and delayed administration of Miranda was a deliberate attempt to elicit incriminating statements in a coercive manner, undermining the very purpose of Miranda. Miranda itself addressed “interrogation practices . . . likely . . . to disable [an individual] from making a free and rational choice” about speaking and prohibited the State from using “statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, , 384 U.S. at 444, 464-65.

The State also asserts that Detective Waldron did not delay Miranda warnings, but merely waited until he received additional incriminating evidence: the discovery of a ski mask with blood on it. This claim of an innocent good-faith mistake on the part of Detective Waldron in delaying Miranda warnings until more incriminating evidence was received is inconsistent with the facts in the record. This case does not involve a situation where only one officer was involved and, contrary to the dissent’s assertion, this determination is not a question solely of Detective Waldron’s credibility but rather a totality of the circumstances inquiry. See United States v. Street, 472 F.3d 1298, 1314 (11th Cir. 2006).¹⁹

Further, even under the case law cited by the dissent, the government bears the burden of establishing that the delay in administering the Miranda warnings was not deliberate. See United States v. Stewart, 536 F.3d 714, 719 (7th Cir.), cert. denied, , 129 S. Ct. 741 (2008). In this case, the trial court determined only that there was no evidence submitted to show that the detectives deliberately withheld Miranda until after Ross confessed, thus impermissibly shifting the burden of proof. Further, the trial court did not determine the credibility of Detective Waldron’s explanation in light of the totality of the relevant circumstances surrounding the interrogation.²⁰

Even if the trial court had assessed Detective Waldron’s credibility, a finding which would be entitled to deference,²¹ a determination of the deliberateness in delaying warnings does not turn solely on the reasons Detective Waldron gave for delaying the administration of the warnings. Detective Waldron was the only officer who testified as to why the law enforcement officers failed to give Miranda warnings. However, he was not the only officer involved in the decision as to when the Miranda warnings were to be administered. He consulted with his supervisors, was told how to proceed, and conducted the interview as requested. Although he knew his actions in delaying the Miranda warnings were contrary to his department’s general orders, he did not believe that he violated the law because he knew the sheriff was watching the interview and relied on his belief that the sheriff would stop the interview if the detective’s interrogation violated Ross’s Miranda rights.

In addition, this improper questioning lasted for several hours after this point and continued in an extremely accusatorial manner where Ross was repeatedly told that his denials were not accepted. Other officers at times entered the room during the interrogation and also watched the interrogation from a separate video room. In addition, prior to receiving the ski mask, the police had the following incriminatory evidence: Ross’s recent admissions that it was possible that he killed his parents, Ross’s bloody pants, evidence that Ross was attempting to take his mother’s money, and prior incriminating statements from Ross.

Based on the above analysis, we conclude that rather than merely making a good-faith mistake, the police used improper and deliberate tactics in delaying the administration of the Miranda warnings in order to obtain the initial statement.²²

b. Significance of Miranda Rights Minimized and Downplayed

We next review whether the police minimized and downplayed the significance of the Miranda rights once they were given. This factor is important to ensure that a suspect who is provided with a tardy administration of the Miranda warnings truly understands the importance and the effect of the Miranda warnings in light of the problems faced when warnings are delivered midstream. While a “careful and thorough administration of Miranda warnings serves to cure the condition that made an unwarned statement inadmissible,” Davis, , 859 So. 2d at 471, where police minimize and downplay the significance of the warnings, the very purpose of Miranda is undermined. See Ramirez, , 739 So. 2d at 576.

As Justice Kennedy explained in Seibert, if a deliberate two-step strategy is employed, then the postwarning statements must be excluded unless curative measures are taken that will “ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.” Seibert, , 542 U.S. at 622 (Kennedy, J., concurring in the judgment) (emphasis supplied). As the Seibert plurality similarly stated, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, “they are likely to mislead and `depriv[e] a [suspect] of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.’” Id. at 613-14 (Souter, J., plurality opinion) (first alteration in original) (quoting Moran, , 475 U.S. at 424).

For the reasons addressed below, we conclude that the significance of the Miranda rights was minimized and downplayed based on the following facts: (1) prior to providing Ross with his Miranda rights, Detective Waldron minimized the significance of the rights by asserting they were only a matter of procedure; (2) prior to the warnings, the detective lulled Ross into a false sense of security by asserting that he was not arresting him at that time; (3) when Ross indicated a hesitancy in talking, the detective did not stop the interrogation immediately; and (4) rather than informing Ross that his prior incriminating statements could not be used against him, Ross was reminded about his earlier admissions, implying that exercising the right to remain silent would be futile.

Immediately prior to providing Ross with his Miranda rights, Detective Waldron stated to Ross:

Waldron: There’s a couple of things that I need to go over with you real quick. There’s a couple of things I discovered, and before we go any further I want to cover this with you, it’s just a matter of procedure, um, based on everything we’re talking about.

Ross: So am I being arrested?

Waldron: Nope. At this time you and I are talking, okay? And I would like to talk to you some more. But before I can do that I need to go over this. You’re not in handcuffs or anything like that, okay?

This strategy, employed after the hours of unwarned interrogation, de-emphasized the significance of the Miranda warnings. By referring to it as a matter of procedure, the detective conveyed the clear impression that the warnings were merely a bureaucratic formality. After making the remarks to Ross, Detective Waldron then showed Ross a written Miranda form and told Ross,” I got to read this to you, Blaine.” The following colloquy ensued:

Waldron: Having these rights in mind you wish to talk to us now?

Ross: I don’t—I can’t tell you anything different.²³

Waldron: And that’s up to you.

Ross. So, I’m —

Waldron: I can’t make your decision for you.

Ross: I want—I’d really like to talk to my sister, and since she’s not here—

Waldron: We tried to get in touch with her, get her back here.

Ross: I don’t know what I’m going to do. I don’t know what’s going to happen, and—

Waldron: Well, I’m willing to talk to you if you want. We’re trying to get in touch with your sister now²⁴ so—you’re indicating that you do want to talk to me; correct?

Ross: Yes.

Waldron: Okay, if you would, please sign right there.

After having Ross sign the waiver of Miranda warnings, Detective Waldron then asked Ross about a ski mask that they found in his car with blood on it, and Ross provided an innocent explanation for the ski mask.²⁵ At that point, the interview turned back to their prior discussion. Detective Waldron reminded Ross of his prior statements as follows:

Like I was saying before, earlier, there’s a lot of things that happened today, and there’s a lot of things that have come at you, and a lot of things that you’ve admitted to now, that you’ve kept bottled up inside before, hidden, that you’re now having to deal with. I know this is very difficult. I do know that you loved your parents.

(Emphasis supplied.)

Detective Waldron continued his prior line of questioning that was established before the warnings without any break in the interrogation. He asked many of the same or similar questions. He played on the same themes and employed many of the same techniques, such as stressing that he would not think less of Ross and that he had compassion and understanding because he knew people have tempers and can hurt those they love.²⁶

Ross initially asserted that he did not believe that he committed the murders and asserted that he did not think he had anything else to say:

Ross: Well, I told you—you—you’re right, about a lot of things. I, I, I don’t think I did this. I don’t know—(unintelligible)

Waldron: I know you say you don’t think you did this, but there’s the blood on your pants. This wasn’t a burglary, somebody who broke into that house.

Ross: I don’t think I can help you anymore. I don’t think I have anything else to say.²⁷

In response, Detective Waldron stressed that Ross had to make this “right,” that the evidence already told a story as to what happened, and that Ross had to make it right by accepting responsibility for his actions. After he brought up the bloody pants again and discussed additional inferences that he could make based on the crime scene, Ross confessed that he killed his parents.

As the record establishes, Detective Waldron minimized the significance of the warning when it was given by telling Ross that reading the rights was “just a matter of procedure.” Further, when Ross asked whether he was going to be arrested, Detective Waldron told him not at that time. However, based on statements made during the evidentiary hearing, Detective Waldron clearly knew he had probable cause to arrest Ross at that time and thus his statements to the contrary were an attempt to lull Ross into a false sense of security. Specifically, Detective Waldron stated that he did not provide Miranda warnings earlier because he did not believe that he had probable cause to arrest Ross, and that once he had probable cause it would have been necessary to administer the Miranda warnings.²⁸ According to Detective Waldron, it was the discovery of the ski mask that allegedly provided this probable cause and prompted Detective Waldron to advise Ross as to his rights. Yet at this very point during the interrogation, when Ross asked if he was being arrested, Detective Waldron explicitly denied it, telling Ross that he was not being arrested at that time but that they were merely “talking.”

We have previously found troubling such attempts to lull a defendant into a false sense of security. See Ramirez, , 739 So. 2d at 576-77 (finding that the police had lulled a young defendant into a “false sense of security” which was “calculated to delude him as to his true position” when officers denied they were arresting the defendant at the time Miranda warnings were given, despite having “ample probable cause”). In addition, when Ross first hesitated about his desire to talk to the detective and said he did not wish to talk, Detective Waldron did not immediately stop the interrogation.²⁹ Instead, the detective continued in his request for Ross to talk with him, letting him know that he understood that the decision belonged to Ross, that he would not make Ross’s decision for him, that he was attempting to locate Ross’s sister, and that he was still “willing” to talk to him.

Finally, prior to resuming the interrogation relating to the bloody pants, rather than informing Ross that his prior admissions could not be used against him, Detective Waldron did the opposite, reminding Ross about everything that happened that day and that there were “a lot of things that [Ross] admitted to now.” Detective Waldron continued his prior questioning without any break from the prewarning interrogation, playing on the same themes and using the same tactics as earlier. Based on the tactics used and the fact that Detective Waldron reminded Ross about his admissions immediately after providing him with his Miranda warnings, Ross would likely have had the misimpression that his prior incriminating statements could be used against him. Such a tactic downplayed the significance of the Miranda warnings.

We conclude that in contrast to Davis and more similar to Ramirez, the police minimized and downplayed the significance of the Miranda rights once they were finally administered. In Seibert, the plurality stressed the danger of providing Miranda warnings in the middle of an interrogation, particularly after incriminating statements have already been made:

Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail.

Seibert, , 542 U.S. at 613 (footnote omitted).

Similarly in this case, when Ross was finally given his Miranda warnings, he was told, “Anything you say may be used against you in a court of law.” Ross could have reasonably believed that all of his prior statements would be admissible regardless as to what he said in the future. Thus, providing Miranda warnings at this point to Ross could have misled Ross about the consequences of the decision to abandon his rights. If Ross believed that what he stated in the previous few hours could have been used against him, any attempt to invoke his “right” to remain silent would have been futile.

As we have made clear, any waiver must be “the product of free and deliberate choice rather than intimidation, coercion, or deception . . . and must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Ramirez, , 739 So. 2d at 575 (quoting Moran, , 475 U.S. at 421). Based on all of the circumstances regarding the delay in administering Miranda and the manner of administering Miranda, we conclude that the officers minimized and downplayed the significance of the warnings so as to undermine the effectiveness of Miranda.

c. Circumstances Surrounding Both the Warned and Unwarned Statements

Finally, as addressed in both Elstad and Seibert, courts review the circumstances surrounding both the warned and unwarned statements including “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second [interrogations], the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” Seibert, , 542 U.S. at 615; see also Elstad, , 470 U.S. at 310 (also directing that courts examine the surrounding circumstances when the initial statement is actually coerced, including “the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators”).

The circumstances surrounding the warned and unwarned circumstances in Elstad are different from those in this case. In Elstad the defendant had first been questioned in the living room of his house with his mother close by. He was then taken to the sheriff’s headquarters where full Miranda warnings were given and where no threats or promises were made.

In contrast to Elstad, in this case, the accusatory questioning on January 9 took place in the same small room where Ross had previously been for hours, during which he had already made incriminatory statements. He was questioned not only in the same place, but by the same law enforcement officer, and the substance of the questioning was the same. The questioning was nothing more than one continuous round of interrogation with no meaningful break. Moreover, as emphasized above, after providing Miranda warnings, Detective Waldron again reminded Ross of his prior admissions, which also shows that the second round of questioning was treated as continuous with the first round. Thus, the first and second interrogations (if they can be divided) were conducted in the same manner, in the same room, with the same officers, with only a very short break in between. This is the very problem noted by the Seibert plurality:

Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine, 475 U.S. 412, 424 (1986). By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.

Seibert, , 542 U.S. at 613-14. This danger was present under the facts of this case, particularly in light of the fact that the interrogation consisted of “integrated and proximately conducted questioning” with no meaningful break and with constant reminders of the preceding multihour interrogation.

d. Conclusion as to Whether Confession Was Voluntary

While police eventually provided Ross with his complete Miranda warnings, the timing and circumstances of the warnings undermined the intent and effectiveness of Miranda, particularly in light of the following: (1) the initial Miranda warnings were deliberately delayed and no warnings were given until after Ross made incriminating statements; (2) police downplayed the significance of the Miranda rights and misled Ross by assuring him that he was not being arrested “at the time” despite the incriminating evidence and Ross’s prior statements; (3) before continuing the postwarning interrogation, the police reminded Ross about his earlier admissions; (4) police did nothing to counter the probable misimpression that Ross’s prior incriminating statements could be used against him; and (5) police treated the pre- and postwarning interrogation as one continuing round of questioning with only a minimal break but no change in circumstances. In addition, we also take into account that Ross was only twenty-one at the time with no indication of any prior experience with the criminal justice system.

As we explained, the danger of police engaging in the type of tactics exhibited in this case is not only that the prophylactic purpose of Miranda is undermined but that the confession itself is unreliable. Dr. DeClue, Ross’s false confession expert, explained the factors that increase likelihood of false confessions, many of which were present in Ross’s case, such as increasing the pressure, exaggerating evidence, challenging a person’s memory, continuing an interrogation for a lengthy amount of time, showing photographs of the crime scene, and using isolation. The very fact that Ross confessed that he might have taken his mother’s jewelry when in fact the evidence reveals that Kathleen Ross herself had actually taken the jewelry from her house and placed it in her mother’s house highlights this danger.

Miranda was designed to combat pressures in custodial interrogations and holds that “to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights.” Miranda, , 384 U.S. at 467. The inquiry when Miranda warnings are delayed, after a lengthy custodial interrogation, is whether the warnings functioned effectively to apprise the defendant that he or she has the “right to choose between silence and speech.” Id. at 469. When the Miranda warnings are purposely delayed after hours of custodial interrogation, when Miranda warnings are given in such a way as to minimize and downplay their significance, and when the postwarning interrogation is treated as a continuation of the prewarning interrogation, the risk is that the suspect will not understand the rights and the consequences of waiving the rights. The risk is that the very purpose of Miranda is undermined and that the warnings will not function effectively as Miranda requires.

In conclusion, the State must prove that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights and that the postwarning statements were voluntary. Here, the State did not meet that burden based on an analysis of the totality of the circumstances. We reach this conclusion both under an analysis of Elstad and Seibert and under our precedent in Ramirez. Thus, the statements provided after the Miranda warnings were likewise required to be suppressed.

C. Harmless Error Analysis

The conclusion that the multiple statements given by Ross on January 9 should have been suppressed does not end our inquiry. Our caselaw provides that “[t]he 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) (quoting Caso v. State, 524 So. 2d 422, 425 (Fla. 1988)).

In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), this Court set forth the harmless error test, which

places the burden on the state, as the beneficiary of the error, 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. Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.

Id. at 1135 (citation omitted). As DiGuilio emphasizes, “harmless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence.” Id. at 1136. In fact, DiGuilio emphasizes that constitutional errors such as comments on the right to remain silent are “high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict.” Id.

Certainly, in this case, there was evidence of the defendant’s guilt, including physical evidence. However, the statements that the defendant made on January 9 were relied on by the State to prove his guilt and repeatedly emphasized. The defendant, in his defense, attempted to show that the confession was a product of coercion by introducing the testimony of Dr. DeClue. In this case, we are unable to conclude beyond a reasonable doubt that there is no reasonable possibility that the substantial admissions heard by the jury did not contribute to the first-degree murder convictions. Compare Ramirez, , 739 So. 2d at 571-72, 577 (concluding that erroneous admission of confession could not be deemed harmless error despite strong evidence against Ramirez, including that the codefendant had confessed and identified defendant and the police recorded a call where the codefendant and Ramirez discussed the physical evidence and planned to destroy it), and Thompson v. State, 595 So. 2d 16, 18 (Fla. 1992) (concluding that erroneous admission of confession could not be deemed harmless error because based on the evidence, the court could not state beyond a reasonable doubt that the impermissible admission of the confession did not affect the jury’s verdict), with Alvord v. Dugger, 541 So. 2d 598, 600-01 (Fla. 1989) (finding the erroneous admission of statements based on an improper Miranda warning was harmless because the statements were not the principal part of the State’s case but were cumulative to significant evidence from numerous witnesses, including “primary evidence” presented by the defendant’s girlfriend, who testified that the defendant admitted that he killed all the victims and described the crime). Under the circumstances of this case, the State is unable to sustain its heavy burden. We thus find that the convictions for robbery and first-degree murder must be reversed.

CONCLUSION

Based upon the foregoing, we reverse Ross’s convictions for robbery and first-degree murder and vacate his sentences of death. We remand this case to the trial court with directions that a new trial be conducted without introducing the statements of January 9.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, and LABARGA, JJ., concur.

QUINCE, C.J., specially concurs with an opinion.

POLSTON J., dissents with an opinion, in which CANADY and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

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Notes:

1. The medical examiner found no injuries on Richard Ross from the ropes and opined that the ropes did not play a part in Richard Ross’s death. He was unable to make the same determination as to Kathleen Ross because she had a significant blunt impact injury to that same area.

2. Ross was also interrogated by police on January 9, when he gave increasingly inculpatory statements. On January 12, he was interviewed while he was in jail. All of the interviews were audio recorded, and the interrogation on January 9 was also video recorded.

3. Ross asserted that he was angry at his father because of the affair.

4. Kathleen Ross’s jewelry was missing from her house. Evidence presented at trial revealed that a few days before the murder, Kathleen Ross stopped by her mother’s house with a paper bag, which she hid in the crawlspace of her mother’s attic. After the murder, Ross’s sister, Kimberly, found the paper bag with Kathleen Ross’s jewelry box and jewelry inside.

5. Dr. DeClue also testified at the hearing on the motion to suppress.

6. We conclude that no extensive discussion is necessary as to the January 12 statements, because on that date the Miranda warnings were given once interrogation began and the court admitted only statements that were made after the Miranda warnings were administered.

7. In the motion to suppress, Ross challenged both the statements made on January 7-8 and on January 9. On appeal, Ross focuses mostly on the January 9 statements. As to the January 7 and 8 interviews, we conclude that the trial court did not err in finding that Ross was not in custody at that time for the following reasons: Ross voluntarily went to the sheriff’s office; the detective was merely obtaining Ross’s statement as to the events surrounding his parents’ deaths; although the detective did question Ross about conflicting statements, Ross was not confronted with the same type of incriminating evidence of his guilt; and Ross was often left by himself at the sheriff’s office when he was not being interviewed, thus implying that he was free to leave. Because this was not an in-custody interrogation, the court did not err in admitting these statements.

8. Such statements, however, can be used as impeachment during cross-examination. Id.

9. While we focus on Justice Kennedy’s concurrence in analyzing the holding of Seibert, there is a split in the federal circuits regarding whether the plurality rather than his concurrence operates as the controlling precedent. In fact, while the case cited by the dissent, United States v. Stewart, 388 F.3d 1079 (7th Cir. 2004), relies on Justice Kennedy’s concurrence as to the holding of Seibert, more recent circuit cases have called into question the reliance on Justice Kennedy’s concurrence rather than the plurality. See, e.g., United States v. Heron, 564 F.3d 879, 884 (7th Cir. 2009) (“[W]e conclude that the Marks [v. United States, , 430 U.S. 188 (1977)] rule is not applicable to Seibert. Although Justice Kennedy provided the crucial fifth vote for the majority, we find it a strain at best to view his concurrence taken as a whole as the narrowest ground on which a majority of the Court could agree.”); United States v. Pacheco-Lopez, 531 F.3d 420, 427 n.11 (6th Cir. 2008) (recognizing split in circuits as to whether Justice Kennedy’s concurrence is controlling precedent); United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (“Determining the proper application of the Marks rule to Seibert is not easy, because arguably Justice Kennedy’s proposed holding in his concurrence was rejected by a majority of the Court.”). In Heron, , 564 F.3d at 885, the Seventh Circuit recognized that it had not settled on a definitive approach to Seibert and held that its more recent decision in United States v. Peterson, 414 F.3d 825 (7th Cir. 2005), “may be in some tension with our decision in Stewart and Justice Kennedy’s intent-based test.”

10. The dissent asserts that Elstad and Seibert are different, coexisting standards. While it is true that a “deliberate two-step strategy” to circumvent Miranda is different from a good-faith mistake, the analysis of the factors to be considered overlap. Elstad itself rejected setting forth a rigid rule but rather directed courts to examine “the surrounding circumstances and the entire course of police conduct” in determining whether the second statement was voluntary. Elstad, , 470 U.S. at 318 (emphasis added). In its decision, the United States Supreme Court repeatedly emphasized that the relevant inquiry is whether the second statement was voluntarily made and provided examples of relevant circumstances that courts should consider when a prior statement was coerced, including “the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators.” Id. at 310. In Seibert, the plurality likewise stressed that courts must determine the voluntariness of the second statement and resolve whether Miranda warnings, given midstream, could effectively inform a defendant as to whether he had a real choice to not talk. Seibert, , 542 U.S. at 612. The plurality then set forth additional factors that were relevant to such an inquiry. Id. at 615. After doing so, the plurality reviewed Elstad and held that the factual differences in Elstad showed that questioning that occurred at the station house in that case was a “new and distinct experience” from the brief conversation that occurred at the defendant’s house, and thus concluded that the Miranda warnings given in Elstad did present a genuine choice to the defendant. Id. at 615-16.

11. See Elstad, , 470 U.S. at 314 (“We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion [as to the later statement].” (emphasis supplied)).

12. See Davis, , 859 So. 2d at 471 (noting that under Elstad, “a careful and thorough administration of Miranda warnings serves to cure the condition that made an unwarned statement inadmissible”); Ramirez, , 739 So. 2d at 574-75 (holding that postwarning statements had to be suppressed where officers employed a concerted effort to minimize and downplay the significance of the Miranda rights).

13. Seibert, , 542 U.S. at 615 (reviewing the following factors: “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second [interrogations], the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first”); see also Elstad, , 470 U.S. at 310 (“When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.”).

14. See, e.g., Bevel v. State, 983 So. 2d 505, 515-16 (Fla. 2008) (reviewing intelligence as one of the circumstances to be considered in determining whether a defendant knowingly and voluntarily waived his rights); Chavez v. State, 832 So. 2d 730, 750 (Fla. 2002) (reviewing defendant’s understanding of the English language and noting that Miranda warnings were given in Spanish as one of the circumstances to be considered in determining whether a defendant knowingly and voluntarily waived his rights); Ramirez, , 739 So. 2d at 576 (reviewing age and experience in criminal justice system as one of the circumstances to be considered in determining whether a defendant knowingly and voluntarily waived his rights).

15. We stress in this regard that the mere fact that Detective Waldron violated his department’s procedures, which would have required the Miranda warnings sooner than the law may require, is not dispositive of our inquiry. Rather, we focus on whether the tactics used in the interrogation were a deliberate attempt to wear down Ross’s resolve and produce a confession, as opposed to a good-faith mistake.

16. For example, during this portion of the interrogation, Ross stated, “You made me dig inside and think about it, and you’ve also given me hard evidence that puts me at the crime, and I can’t—I can’t—I can’t—I can’t remember if I did this or not. I don’t know. I mean, you—you have solid evidence, blood on my pants and everything, but I don’t remember doing this, if I did it.”

17. Under the State’s theory, it could be argued that Ross never actually “confessed,” since he always maintained that he had no memory of actually committing the murders. His ultimate confession addressed acts that happened only after his parents were murdered.

18. Ross made numerous admissions during this time, each of which was followed by denials that he murdered his parents. For example, he stated, “I can tell you that I didn’t plan to kill my parents. I can tell you that I do bottle things up, and things that you’ve said does [sic] make sense. They do make sense to me, that I can have done this. I could have been so angry, done this. But I don’t—I can’t put myself there. I don’t remember if I was there, so I can’t tell you if I did it or not.”

19. The dissent relies on United States v. Stewart, 536 F.3d 714 (7th Cir. 2008), for its statement that the issue of whether the warnings were deliberately withheld is solely a question of credibility, which is a factual finding of the trial court entitled to deference. However, even Stewart acknowledges that there is “not yet a general consensus among the circuits about the standard of review that applies to Seibert-deliberateness determinations.” Id. at 719.

20. The majority of the trial court’s order addresses the January 7 and January 8 interviews and whether Ross was in custody prior to being given his Miranda warnings. The trial court concluded that Ross was not in custody, a finding with which we disagree.

21. Although the trial court issued an extensive order regarding the motion to suppress, the trial court’s factual findings as to this issue are minimal. Specifically, the court stated, “There is no evidence that the detectives deliberately withheld Miranda until Defendant confessed.” The court based this conclusion on two statements: (1) Waldron recognized that he was taught to provide Miranda warnings when a person is no longer free to leave; and (2) he read Ross his Miranda warnings after he learned of the ski mask.

22. Our conclusion is further supported by decisions of other courts that have been similarly troubled by clear custodial interrogations that occurred without providing Miranda warnings first and thus have concluded that police deliberately delayed providing Miranda warnings in order to obtain incriminating statements. See, e.g., United States v. Williams, 435 F.3d 1148, 1159 (9th Cir. 2006) (noting that after law enforcement detains a suspect and subjects him to interrogation, “there is rarely, if ever, a legitimate reason to delay giving a Miranda warning until after the suspect has confessed” unless the interrogator wants to weaken the warning’s effectiveness); United States v. Ollie, 442 F.3d 1135, 1141 (8th Cir. 2006) (holding that the delay in not providing Miranda warnings was deliberate where police chief interrogated suspect until obtaining a confession and an agreement to provide a written confession and only then provided Miranda warnings); Edwards v. United States, 923 A.2d 840, 849 (D.C. 2007) (holding that the delay was deliberate where the detective acknowledged that suspect was in custody, asked questions he knew could lead to incriminating answers, and knew the suspect had not been given his Miranda warnings); People v. Lopez, 892 N.E.2d 1047, 1070-71 (Ill. 2008) (holding that although the detectives explicitly denied using the “question first, warn later” technique, they deliberately engaged in an improper two-step interrogation by questioning a suspect without providing Miranda warnings when they acknowledged that the suspect would not have been free to leave the police station if he had attempted to do so); State v. Dailey, 273 S.W.3d 94, 109-10 (Tenn. 2009) (holding that the delay was deliberate despite the fact that officers testified that they did not provide Miranda rights because they were not yet arresting the suspect based on the following factors: (1) police called the suspect to the police station under false pretenses; (2) although the officers asserted the suspect was not under arrest, they failed to advise the defendant that he was not under arrest and that he was free to leave at any time; and (3) after he confessed and was provided with Miranda rights, they failed to inform him that his initial statement was inadmissible against him).

23. Although Ross raised the claim that police failed to abide by his invocation of the right to remain silent, he did not raise this particular incident, but points to a later portion in the interrogation where he alleges that he invoked his right to remain silent. However, we consider how Detective Waldron responded to this statement as a part of our determination of whether Detective Waldron minimized or downplayed the significance of the Miranda rights, as addressed below.

24. In actuality, as Waldron testified at trial, he was not trying to get in touch with Ross’s sister.

25. The ski mask in fact was not related to the murder and was not used at trial.

26. For example, shortly after reminding Ross as to his prior admissions, he told Ross:

And that’s why I’m capable of having some understanding and feelings and compassion. And that’s why I’m talking to you this way. Okay? You’re a human being. As human beings we make mistakes. Unfortunately we hurt people, and we hurt people we don’t mean to. We have tempers, we lose control, we do things that we later regret. And also being human, we’re allowed to go forward from those mistakes. . . . And I know what it is to hurt, the same as you do.

27. Ross asserts that this was an attempt to invoke his right to remain silent. This statement in isolation would be an equivocal invocation of his right to remain silent, which does not require the interrogation to stop. See, e.g., State v. Owen, 696 So. 2d 715, 717 n.4, 718 (Fla. 1997) (holding that the statements “I’d rather not talk about it” and “I don’t want to talk about it” were equivocal and, thus, the police had no duty to clarify the suspect’s intent and could proceed with the interrogation). However, we consider Ross’s statements and Detective Waldron’s responses as part of the totality of the circumstances as to whether Ross’s waiver was voluntary, knowing, and intelligent.

28. Of course, administration of the Miranda warnings does not depend on whether there is probable cause to arrest the individual, but on whether the interrogation is custodial.

29. As addressed above, after Detective Waldron finally provided Ross with his Miranda rights, he asked Ross whether Ross wished to talk to police, and Ross replied, “I don’t—I can’t tell you anything different.”

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QUINCE, C.J., specially concurring,

I concur in the majority opinion because the police interrogation technique used in this case was a deliberate attempt to get an admission/confession before the defendant exercised his rights. The Seibert-type technique used in this case is one that we have been seeing with more frequency. I believe it is a technique that may put in jeopardy prosecutions that might otherwise not be reversible on appeal. In Missouri v. Seibert, 542 U.S. 600 (2004) (plurality opinion), the United States Supreme Court explained the significance of Miranda³⁰ warnings. The Court indicated that a tactic that is designed “to get a confession the suspect would not make if he understood his rights,” Seibert, , 542 U.S. at 613, was unconstitutional because such tactics thwart the purpose for which Miranda was designed — to reduce the risk of coerced confessions. See id. at 611-12.

Recently, in McWatters v. State, 35 Fla. L. Weekly S169 (Fla. Mar. 18, 2010), we addressed another situation where the police used a similar albeit different kind of technique to attempt to undermine the effectiveness of the Miranda warnings. In McWatters, the police read the suspect his Miranda rights in conjunction with questioning for an offense unrelated to the murder and sexual battery case. McWatters was not questioned after the warnings were given but was instead taken to the police station and placed in a room which contained evidence relating to the murder case. He was later told that he had been taken to the wrong room; he was then paraded through the police station past witnesses related to the murder case. Although we found that the defendant knowingly waived his rights, it was of concern that the police used this technique, especially given the fact that the officer admitted that the ruse was being used to keep McWatters from invoking his rights.

In this case, the officer likewise testified that he knew the interview on January 9 would be his last opportunity to get an uncounselled statement from the defendant. Therefore, the officer boxed the defendant into a small interrogation room with other officers coming in and out, he would not allow Ross to leave, and all the while the officer was telling Ross he was not under arrest. Yet at the same time the officer was continually confronting Ross with evidence against him. It is obvious that under the circumstances the defendant was NOT free to leave; thus Miranda warnings should have been given at that point. It was only after Ross made some incriminating statements that Miranda warnings were given. And even after the warnings were given, the officer downplayed their significance by making it seem as if the warnings were only a formality that the officer had to comply with.³¹

Seibert recognized that this type of “question-first” tactic is in direct conflict with the underlying purpose of the Miranda warnings. See Seibert, , 542 U.S. at 611. It is worth noting that both the interrogation here and the interrogation in McWatters took place before the Supreme Court issued its opinion in Seibert. However, if police continue to use these types of techniques in circumstances where it is clear that the focus of any investigation has turned to the defendant and Miranda warnings should be given, I fear that we will have more cases that will be reversed on appeal.

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Notes:

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

31. Although the defendant does not challenge his statement based on the invocation of his rights, there is also some question here as to whether or not the defendant invoked his right to silence after the reading of the warnings. When asked if he wished to waive the rights and talk with the officer, the defendant said, “I don’t — I can’t tell you anything different.” However, the officer continued to talk with Ross, and Ross thereafter gave other incriminating statements.

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POLSTON, J., dissenting.

After holding an evidentiary hearing that produced more than 1,000 pages of transcript, the trial court found that the police officers in this case did not deliberately withhold Miranda warnings. This finding of fact is supported by competent substantial evidence in the record. Because of this finding of fact, the standard enunciated in Oregon v. Elstad, 470 U.S. 298 (1985), applies here. The majority’s holding is contrary to the well-settled Florida law that Elstad applies in these circumstances. See, e.g., Davis v. State, 990 So. 2d 459, 466 (Fla. 2008). Under the Elstad standard, Ross’s confession after the Miranda warnings is admissible. Accordingly, I respectfully dissent.³²

I. The Officers Did Not Deliberately Withhold Miranda

As the Seventh Circuit Court of Appeals accurately explained, “[t]he question of whether the interrogating officer deliberately withheld Miranda warnings will invariably turn on the credibility of the officer’s testimony in light of the totality of the circumstances surrounding the interrogation. This is a factual finding entitled to deference on appeal . . . .” United States v. Stewart, 536 F.3d 714, 719-20 (7th Cir. 2008). Moreover, as this Court has explained, “[a]n appellate court reviewing a ruling on a motion to suppress presumes that a trial court’s findings of fact are correct and reverses those findings only if they are not supported by competent, substantial evidence.” Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007) (citing Connor v. State, 803 So. 2d 598, 608 (Fla. 2001)).

Here, the trial court’s finding that the officers did not deliberately withhold Miranda warnings is supported by competent substantial evidence in the record. For example, Detective Waldron testified at the evidentiary hearing that he was trained by the Manatee County Sheriff’s Office to read a suspect the Miranda warnings “[a]t a point in time where a person’s not going to be free, their movements are restricted and they’re not just free to get up and walk out.” And, when asked on cross-examination why he waited until the latter part of January 9 to read Ross his Miranda rights, Detective Waldron responded as follows:

Earlier on there still was insufficient evidence or enough in my mind probable cause to charge Blaine Ross. And he had requested to talk about what had been discussed on the news and the news media, so my intention was to answer his questions and to try to see if his statement wavered at all from what his previous statement was. And then if there was any indication or inconsistencies or anything incriminating, then at that point in time I felt there would be probable cause to arrest him, which would necessitate the reading of Miranda.

Additionally, the record reflects that Detective Waldron read Ross the Miranda warnings after learning that a bloody ski mask had been discovered in Ross’ car, evidence that Detective Waldron thought provided probable cause at the time. After a break and immediately before advising Ross of his Miranda rights, Detective Waldron reentered the interview room and stated to Ross, “There’s a couple of things that I discovered, and before we go any further I want to cover this with you . . . .” Once Detective Waldron fully explained Ross’ rights, ensured that Ross understood his rights, and Ross waived those rights, Detective Waldron immediately proceeded to ask Ross about the ski mask that the police found in his car. Accordingly, there is competent substantial evidence in the record to support the trial court’s factual finding that the officers did not deliberately delay Miranda warnings and did not engage in a calculated strategy to secure an unwarned confession that could then be used to secure a warned confession.

Instead of deferring to this factual finding, the majority extensively reweighs the evidence and reevaluates the credibility of Detective Waldron. For example, the majority recognizes that at the evidentiary hearing “Detective Waldron stated that he did not provide Miranda warnings earlier because he did not believe that he had probable cause to arrest Ross.” Majority op. at 54. However, despite this testimony that supports the trial court’s finding of fact, the majority concludes that “Detective Waldron clearly knew he had probable cause to arrest Ross at that time.” Id. The majority reaches its contrary finding, which evaluates the credibility of Detective Waldron’s testimony, by focusing upon a supposed conflict between Detective Waldron telling Ross during questioning that Ross was not under arrest and Detective Waldron’s evidentiary hearing testimony that that he did not believe he had probable cause until the discovery of the bloody ski mask in Ross’ car. Id. (“According to Detective Waldron, it was the discovery of the ski mask that allegedly provided this probable cause and prompted Detective Waldron to advise Ross as to his rights. Yet at this very point during the interrogation, when Ross asked if he was being arrested, Detective Waldron explicitly denied it . . . .”). Of course, a police officer’s intent during questioning a suspect often conflicts with what the police officer actually tells the suspect. See, e.g., Davis v. State, 859 So. 2d 465, 472 (Fla. 2003) (finding a confession voluntary even though defendant claimed officers stated that they were investigating a missing person’s case when the officers were actually investigating a murder). However, in this case, the conflict that the majority reaches is not even a conflict. A police officer can have probable cause to arrest a suspect, but not formally place the suspect under arrest.

Further, the majority gives great weight to testimony that it was the department’s policy to administer Miranda warnings once questioning took on an accusatory nature. See majority op. at 42. However, the majority apparently discounts other testimony regarding the policy that was before the trial court charged with making factual findings. Specifically, while both Detective Waldron and another officer testified that there was a “general order” that stated that Miranda warnings were to be provided once accusatory questioning occurred, both also testified that “general orders” are guidelines and not requirements. In fact, when specifically asked on cross-examination whether he had been trained to administer Miranda warnings once accusatory questioning took place, Detective Waldron stated that he was taught that it depends upon the particular circumstances. Detective Waldron also testified that the manner in which he questioned Ross did not violate department policy.

It was improper for the majority to discard the trial court’s factual finding regarding deliberateness and reevaluate the evidence for itself, particularly since this factual finding is heavily based upon a determination of Detective Waldron’s credibility. See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976) (“[T]he function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence . . . .”). Whether this Court properly defers to the trial court’s deliberateness finding is important in this case because it determines whether this Court properly applies the standard from Elstad or erroneously applies the standard from Missouri v. Seibert, 542 U.S. 600 (2004).

II. Elstad Applies, Not Seibert

In Elstad, , 470 U.S. at 310-11, the United States Supreme Court held that the failure to provide Miranda warnings before an uncoerced confession does not necessarily render a second and warned statement inadmissible.³³ Rather, the admissibility of the second statement is governed by whether the subsequent waiver was voluntary and knowing. Elstad, , 470 U.S. at 309. If a defendant is fully informed of and voluntarily waives his Miranda rights, the statement after the Miranda warnings is admissible. See Davis v. State, 698 So. 2d 1182, 1189 (Fla. 1997) (“Shortly after confessing in his holding cell, Davis gave a taped statement in which he voluntarily gave the same information contained in his prior statement . . . . This [second] statement was clearly admissible because Davis was fully informed of (and waived) his Miranda rights before the start of the taping session.” (citing Elstad, , 470 U.S. 298)). Whether the second statement was voluntary requires a review of the totality of the circumstances. See Ramirez v. State, 739 So. 2d 568, 575-76 (Fla. 1999) (applying Elstad).

The United States Supreme Court addressed this area of the law again in Seibert, , 542 U.S. 600. The United States Supreme Court held that a second confession was inadmissible when a police officer intentionally questioned a suspect without administering Miranda in order to elicit an unwarned confession that was then used to elicit a second warned confession. The plurality explained the following:

The threshold issue when interrogators question first and warn later is . . . whether it would be reasonable to find that in these circumstances the warnings could function” effectively” as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier?

Seibert, , 542 U.S. at 611-12. The plurality then listed several factors to assist in determining whether the Miranda warnings were effective:

the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.

Id. at 615. However, Justice Kennedy’s concurrence in Seibert is dispositive as he provided the necessary fifth vote and the narrowest grounds. See Marks v. United States, 430 U.S. 188, 193 (1977). Justice Kennedy explained in his concurrence that he “would apply a narrower test applicable only in the infrequent case.” Seibert, , 542 U.S. at 622. Specifically, Justice Kennedy set forth the following test:

The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Cf. Westover v. United States, decided with Miranda v. Arizona, 384 U.S. 436 (1966). Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.

Id.

The majority is improperly mixing the Elstad and Seibert standards together; rather, these are separate standards applicable in different circumstances. See, e.g., majority op. at 57 (“[A]s addressed in both Elstad and Seibert, courts review the circumstances surrounding both the warned and unwarned statements including `the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second [interrogations], the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.’” (quoting Seibert, , 542 U.S. at 615 (plurality opinion) and citing Elstad, , 470 U.S. at 310); majority op. at 39-40 (“The caselaw demonstrates that the analysis of the admissibility of statements made following a custodial interrogation and after the delayed administration of Miranda warnings is one of the totality of the circumstances, with the following being factors important in making this determination: (1) whether the police used improper and deliberate tactics in delaying the administration of the Miranda warnings in order to obtain the initial statement; (2) whether the police minimized and downplayed the significance of the Miranda rights once they were given; and (3) the circumstances surrounding both the warned and unwarned statements including `the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second [interrogations], the continuity of the police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.’” (footnotes omitted) (citing Elstad, , 470 U.S. at 314; Davis, , 859 So. 2d at 471 and quoting Seibert, , 542 U.S. at 615 (plurality opinion)).

It is important to recognize that the standard enunciated in Elstad and the standard enunciated in Seibert are different, coexisting standards. As Justice Kennedy’s opinion in Seibert explains, “[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed.” Seibert, , 542 U.S. at 622 (Kennedy, J., concurring in the judgment). Elstad solely requires an inquiry into whether the defendant voluntarily and knowingly waived his Miranda rights before the second confession. See Elstad, , 470 U.S. at 309 (“Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.”). In contrast, the Seibert standard presumes that the Miranda warnings before the second confession were ineffective. See Seibert, , 542 U.S. at 617 (“These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.”); Id. at 620 (Kennedy, J., concurring) (“As Justice Souter points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made.”). Due to this presumption, the Seibert standard as enunciated in Justice Kennedy’s dispositive concurrence includes an inquiry into the additional “curative” factors listed above (such as the break in time and circumstances between the first and second statements), which are beyond the voluntariness inquiry required by Elstad.

It is well-settled under Florida law that we apply Elstad as distinct from Seibert. This Court held in Davis v. State, 990 So. 2d 459, 466 (Fla. 2008) (quoting Seibert, , 542 U.S. at 622 (Kennedy, J., concurring in the judgment)), that we apply Elstad unless officers used “the question-first method `in a calculated way to undermine the Miranda warning.’” Specifically, in Davis, , 990 So. 2d at 464-66, this Court addressed the postconviction argument that the defendant’s confession was taken in violation of Seibert. However, because the officers did not deliberately withhold Miranda in a calculated attempt to undermine the warnings, this Court held that Elstad applied to the defendant’s confession, not Seibert. Davis, , 990 So. 2d at 466; see also Tengbergen v. State, 9 So. 3d 729, 735 (Fla. 4th DCA 2009) (“[U]nless the officers deliberately withheld warnings, Elstad controls Tengbergen’s Miranda claim.”); Jump v. State, 983 So. 2d 726, 729 (Fla. 1st DCA 2008) (“[T]hese principles of Elstad continue to control `unless the deliberate two-step strategy was employed.’” (quoting Seibert, , 542 U.S. at 622 (Kennedy, J., concurring in the judgment)); State v. Lebron, 979 So. 2d 1093, 1096-97 (Fla. 3d DCA 2008) (“Justice Kennedy went on to say, `The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed.’ That portion of Justice Kennedy’s concurrence is decisive here, for there was no deliberate use of the two-step strategy under the circumstances of the present case.” (quoting Seibert, , 542 U.S. at 622 (Kennedy, J., concurring in the judgment))); State v. Pitts, 936 So. 2d 1111, 1136 (Fla. 2d DCA 2006) (“When we consider the interrogation of Pitts under the test articulated in Seibert by Justice Kennedy, we can readily conclude that Pitts’ post-Miranda statements should not be suppressed. The record before us does not show that `the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.’” (quoting Seibert, , 542 U.S. at 622 (Kennedy, J., concurring in the judgment))).

The Seventh Circuit aptly summarized the state of the law regarding two confessions with an intervening Miranda waiver as follows:

What emerges from the split opinions in Seibert is this: at least as to deliberate two-step interrogations in which Miranda warnings are intentionally withheld until after the suspect confesses, the central voluntariness inquiry of Elstad has been replaced by a presumptive rule of exclusion, subject to a multifactor test for change in time, place, and circumstances from the first statement to the second. According to the plurality, the multifactor test—timing and location of interrogations, continuity of police personnel, overlapping content of statements, etc.—measures the “effectiveness” of midstream Miranda warnings and applies in all cases involving sequential unwarned and warned admissions. In Justice Kennedy’s view, however, an inquiry into change in time and circumstances between the prewarning and postwarning statements—what he called “curative steps”—is necessary only in cases involving the deliberate use of a two-step interrogation strategy calculated to evade the requirements of Miranda. Justice Kennedy thus provided a fifth vote to depart from Elstad, but only where the police set out deliberately to withhold Miranda warnings until after a confession has been secured. Where the initial violation of Miranda was not part of a deliberate strategy to undermine the warnings, Elstad appears to have survived Seibert.

Stewart, , 388 F.3d at 1090;³⁴ see also United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005) (“The admissibility of postwarning statements is governed by Elstad unless the deliberate `question-first’ strategy is employed. If that strategy is deliberately employed, postwarning statements related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statements are made.” (citation and footnote omitted)).

As the majority explains in footnote nine, there is a split among the federal circuits regarding the applicability of Justice Kennedy’s concurrence in Seibert. However, no such split exists in the State of Florida. This Court as well as four district courts of appeal have all held that Justice Kennedy’s concurrence in Seibert is the law in Florida. Stated otherwise, prior to this decision, this Court and the First, Second, Third, and Fourth District Courts of Appeal have all applied the standard enunciated in Justice Kennedy’s concurrence in Seibert, not the standard enunciated in the plurality’s opinion. Davis, , 990 So. 2d at 465-66 (quoting and applying Justice Kennedy’s concurrence in Seibert and recognizing that “Justice Kennedy stated that he would apply a narrower test than the plurality”); Tengbergen, , 9 So. 3d at 735 (“Florida courts have heretofore applied Justice Kennedy’s rule [in Seibert], as it represents the narrower view.”); Jump, , 983 So. 2d at 728 (applying Justice Kennedy’s concurrence in Seibert—not the plurality opinion—because, “[a]s our sister courts have recognized, Justice Kennedy’s concurring opinion in Seibert offers the narrowest grounds”); Lebron, , 979 So. 2d at 1096 (“Justice Kennedy’s opinion concurring in the judgment is the dispositive opinion. Addressing the exact issue now before us, Justice Kennedy stated that `it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning.’” (quoting Seibert, , 542 U.S. at 620 (Kennedy, J., concurring in the judgment)); Pitts, , 936 So. 2d at 1136 (“[T]he holding of Seibert should be viewed as the position taken by Justice Kennedy, which articulates the `narrowest grounds’ for the judgment of the Court.”). Consequently, the majority opinion is receding from this Court’s precedent as well as overruling the four district courts’ decisions by improperly mixing together the standard in Elstad, Justice Kennedy’s standard in Seibert, and the plurality’s standard in Seibert.³⁵

In this case, because of the trial court’s factual finding that the withholding of Miranda warnings was not deliberate, Elstad applies. See Mashburn, , 406 F.3d at 309 (“Here, the district court found no evidence that the agents’ failure to convey Miranda warnings to Mashburn was deliberate or intentional. Therefore, the admissibility of Mashburn’s statements is governed by Elstad.” (citations omitted)). Applying Elstad‘s voluntariness inquiry, I believe this case is analogous to Davis v. State, 859 So. 2d 465 (Fla. 2003).

In Davis, this Court applied Elstad and held that a second confession given after Miranda warnings was voluntary and therefore admissible. Davis, , 859 So. 2d at 471-72. The defendant admitted that he killed the victim in an initial discussion with officers. Id. at 471. Then, an officer administered Miranda warnings, and Davis signed a written waiver. Id. Thereafter, Davis gave a recorded confession. Id. In ruling that the recorded confession was admissible, this Court stressed that the officers “carefully read Davis his Miranda rights, explaining each section of the waiver form, clearly reading aloud and explaining each right, and confirming after each right that Davis understood.” Id. at 472. This Court also noted that Davis signed a written waiver and that the officers did not attempt to downplay the Miranda warnings. Id.

As in Davis, here, Detective Waldron carefully read Ross’ Miranda rights to him, asked if he understood those rights, obtained a written waiver, and then asked if Ross wished to talk to him. Ross stated that he did.³⁶ Only then did the interview proceed. “In these circumstances, a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible.” Elstad, , 470 U.S. at 310-11. Therefore, like the second confession in Davis, Ross’ post-Miranda confession was voluntary and admissible. See id. at 311 (“The warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an `act of free will.’” (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)).

III. Conclusion

I would defer to the trial court’s factual finding that the officers in this case did not deliberately withhold the Miranda warnings because this finding is supported by competent substantial evidence. As a result, I would employ the Elstad standard, which applies to nondeliberate delays in Miranda warnings. See Davis, , 990 So. 2d at 466 (holding that we apply Elstad unless officers used “the question-first method `in a calculated way to undermine the Miranda warning.’ “(quoting Seibert, , 542 U.S. at 622 (Kennedy, J., concurring in the judgment))). Under a proper application of the Elstad standard, Ross’ post-Miranda confession is admissible. The trial court did not err in denying Ross’ motion to suppress it.

Accordingly, I respectfully dissent.

CANADY and PERRY, JJ., concur.

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Notes:

32. I agree with the majority that the statements made by Ross on January 9, once he was confronted with the evidence of blood on his pants, but before the Miranda warnings were given, are inadmissible. However, that error was harmless. Before the Miranda warnings on January 9, Ross did not confess. Rather, Ross merely admitted that, because he could not remember, it was possible that he killed his parents, but that he did not believe that he had done so. There is not a reasonable possibility that these equivocal statements affected the verdict given the admissible evidence in this case, including his parents’ blood on his pants and his confession after the Miranda warnings.

33. In this case, on January 9, Ross went to the police station on his own and voluntarily met with Detective Waldron. In fact, prior to this meeting, Ross had left several phone messages for Detective Waldron indicating his desire to discuss the case with the detective. Therefore, Ross’ statements on January 9 prior to the Miranda warnings were uncoerced.

34. The Seventh Circuit has yet to decide exactly how it will apply Seibert. In its most recent opinion on the subject, the Seventh Circuit decided that the statements at issue would be admissible under any possible rule from Seibert. United States v. Heron, 564 F.3d 879, 885 (7th Cir. 2009) (“We have no need here to resolve once and for all what rule or rules governing two-step interrogations can be distilled from Seibert. This is because Heron’s May 11 statements would be admissible under any test one might extract.”). However, the Seventh Circuit in Heron repeated its prior statement that Elstad survives Seibert and again deferred to the trial court’s finding of fact that the delay in Miranda warnings was not deliberate. Id. at 885-86.

35. The majority cites the following language from Elstad as its support that Elstad requires an examination of the same factors as the plurality in Seibert would require: “When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.” Majority op. at 31 (quoting Elstad, , 470 U.S. at 310 (citing Westover v. United States, decided together with Miranda, , 384 U.S. at 494)). However, this language does not apply every time there are two confessions with an intervening Miranda waiver. Rather, this language referencing Westover only applies after a determination that the pre-Miranda statements were coerced, which was not the case in Elstad. As the United States Supreme Court explained in Elstad,

[t]he failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced, but only that courts will presume the privilege against compulsory self-incrimination has not been intelligently exercised. See New York v. Quarles, 467 U.S., at 654, and n. 5; Miranda v. Arizona, supra, at 457. Of the courts that have considered whether a properly warned confession must be suppressed because it was preceded by an unwarned but clearly voluntary admission, the majority have explicitly or implicitly recognized that Westover‘s requirement of a break in the stream of events is inapposite. In these circumstances, a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an “act of free will.” Wong Sun v. United States, 371 U.S., at 486.

Elstad, , 470 U.S. at 310-11 (footnote omitted). Indeed, in Elstad, the United States Supreme Court reversed the Oregon court’s holding that, despite the fact that the pre-Miranda statements were uncoerced, “lapse of time, and change of place from the original surroundings are the most important considerations” in determining the admissibility of the post-Miranda statements. Id. at 303 (quoting State v. Elstad, 658 P.2d 552, 554 (Or. App. 1983), rev’d, , 470 U.S. 298 (1985), which cited Westover v. United States, 384 U.S. 436, 496 (1966)).

36. Contrary to the majority’s characterization of this conversation on pages 51 and 55, it is clear from the transcript that Ross was not attempting to invoke his right to remain silent. Ross initially stated, “I can’t tell you anything different.” (Emphasis added.) He did not say that he would not talk. Instead, after he was directly asked, “You’re indicating that you want to talk to me; correct?” Ross responded, “Yes.” Ross then signed the written waiver.

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Courtesy of David Edelstein

RONALD WAYNE HENDRICKS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-357.

District Court of Appeal of Florida, First District.

Opinion filed May 26, 2010.

An appeal from the Circuit Court for Duval County, John M. Merrett, Judge.

D. Gray Thomas, Wm. J. Sheppard, and Bryan E. DeMaggio of Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, for Appellee.

ON MOTION FOR REHEARING AND CERTIFICATION

LEWIS, J.

We deny Appellant’s Motion for Rehearing and Certification. On our own motion, we withdraw our previous opinion and substitute the following in its place.

Page 2

Ronald Wayne Hendricks, Appellant, appeals his convictions for one count of battery and two counts of sexual battery on a child less than twelve years of age by a person eighteen years of age or older. Appellant raises five issues, three of which merit discussion. First, Appellant argues that the trial court abused its discretion in excluding evidence of his reputation for sexual morality. Second, he argues that the trial court committed per se reversible error by failing to invite objections from defense counsel after announcing its anticipated response to the jury’s request to view a portion of the trial transcript. Finally, and relatedly, Appellant argues that the trial court fundamentally erred in denying the jury’s request to view a portion of the transcript without advising the jury that it could request a “read-back.” For the reasons explained below, we find no reversible error. Accordingly, we affirm Appellant’s convictions and write to explain our reasoning as to the three issues that merit discussion.

I. FACTS

The State charged Appellant with four counts of sexual battery on a child less than twelve years of age. The victim was the daughter of Appellant’s former girlfriend, in whose home he had lived for several years as part of the family. The State’s evidence consisted of the victim’s testimony and a recording of an incriminating telephone conversation between Appellant and the victim, who was an adult by the time of trial. In his own defense, Appellant testified that he did not

Page 3

commit the charged offenses. He also introduced testimony from several witnesses who stated that he had a good reputation in the community for truth and veracity. Two of these witnesses, Appellant’s former wife and natural daughter, also would have testified that he had a reputation for sexual morality, but the trial court excluded this testimony based on the State’s motion in limine.

Appellant’s adult daughter testified that she knew “many, many, many people” who knew Appellant and that, when she was a child and Appellant was raising her, she had friends come to the home for sleepovers. She further testified that she knew Appellant’s reputation in the community for truth and veracity and that she “[didn't] think it could be better.” Similarly, Appellant’s former wife testified that she knew “hundreds and hundreds” of people who knew Appellant, that Appellant had “outstanding morals and character,” and that he was “highly, highly respected.” Outside the jury’s presence, Appellant’s counsel advised the court that, if given the opportunity, both of these witnesses would testify that they knew Appellant’s reputation in the community for being sexually moral and that it was “excellent.” The trial court stood by its earlier ruling that this evidence was inadmissible.

After the jury retired to deliberate, it submitted the following written request to the trial court: “May we see the transcript of the testimony of [the victim] regarding the third charge related to the allegation about [Appellant's] placing his

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penis on [the victim] and ejaculating[?]” In testifying about this offense, the victim stated that this memory bothered her, that it was “probably . . . the hardest for [her] to talk about,” that it disturbed her, and that it was “horribly vivid in [her] head.” The incident occurred on the bed Appellant shared with the victim’s mother, and the victim recalled that Appellant first attempted to “force . . . his penis into [her] vagina” and that “it wasn’t working because [she] was so small.” She explained that he then “started rubbing . . . his penis against [her] vagina until . . . he ejaculated on [her].”

The court considered the jury’s request to view this portion of the transcript outside the jury’s presence, stating, “I think the answer is no, rely on your memory.” There was no response to this statement from the attorneys, although the record shows that counsel for Appellant was present. After the court announced its anticipated response and received no objections, the jury was brought into the courtroom. To the jury, the trial court stated, “Ladies and gentlemen, I have your question about the transcript, and the short answer is, no. You have to rely on your recollection and reach your decision based on that. Thank you.” The jury then went back to the deliberation room. Later, it found Appellant guilty as charged of counts one and two, guilty of battery as a lesser-included offense of count three, and not guilty of count four. After the trial court sentenced Appellant, this appeal followed.

II. ANALYSIS

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A. Exclusion of Evidence of Appellant’s Reputation for Sexual Morality

On appeal, Appellant argues that the exclusion of the evidence of his reputation for sexual morality was error because it was admissible under section 90.404(1)(a) and 90.405, Florida Statutes (2008). The State agrees that sections 90.404(1)(a) might support Appellant’s theory of admissibility, but it contends that section 90.405 presents an “insurmountable bar” to the admission of evidence that a person does not have the character trait necessary to commit acts of child molestation, as this trait is not susceptible to proof by reputation evidence. We agree with the State.

A trial court’s decision to admit or exclude evidence is typically reviewed for abuse of discretion. McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006). However, a trial court’s discretion over such decisions is limited by the evidence code and the applicable case law, and its interpretation of those authorities is subject to de novo review. Id.

As a general rule, all relevant evidence is admissible unless it is specifically excluded by a rule of evidence. Bryan v. State, 533 So. 2d 744, 746 (Fla. 1988). Section 90.404(1)(a), Florida Statutes (2008), provides that “[e]vidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except . . . [e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.”

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Under this rule, an accused is permitted to introduce evidence of any character trait pertinent to the charges against him despite the general proscription against character evidence. See id.

Section 90.405, Florida Statutes (2008), dictates the methods of proving character at trial. Under section 90.405(1), any time a person’s character is admissible, it may be proven by evidence of that person’s reputation. However, proof of a person’s character may not be made by specific instances of conduct unless that person’s character is “an essential element of a charge, claim, or defense.” § 90.405(2). A defendant may not offer proof of his character by admitting evidence of an individual’s opinion. See § 90.405 (listing the proper methods of proving character and omitting opinion testimony from the list); Charles W. Ehrhardt, Florida Evidence § 404.5, at 201 (2009 ed.). In contrast, reputation evidence may be admitted because “[w]hen many people in the community discuss and compare an issue, it is felt that the resulting community opinion is trustworthy.” Ehrhardt, § 405.1, at 283.

No Florida case has yet held that a person accused of child molestation may or may not introduce evidence of his reputation for sexual morality for the purpose of showing he does not have the character trait necessary for committing acts of child molestation. However, the Fifth District addressed this issue in dicta in Alvelo v. State, 769 So. 2d 476, 477 (Fla. 5th DCA 2000). There, the defendant,

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who was accused of committing lewd acts upon a child, attempted to call “a string of witnesses to testify that [he] had never abused them or anyone they knew.” Id. at 477. Although the defendant in Alvelo apparently characterized this evidence as reputation evidence, it was clearly inadmissible as evidence of specific acts of conduct (or lack thereof). See Ehrhardt, § 404.5, at 201-02 n.7. Regardless, in addressing this issue, the Fifth District observed that, “[u]nlike one’s reputation for honesty or peacefulness, traits that might be noticed by the community, whether one secretly molests children or does not would not be openly exhibited to the community.” Alvelo, , 769 So. 2d at 477. We agree with this statement, which was also embraced by the Third District in dicta in Russ v. State, 934 So. 2d 527, 532 (Fla. 3d DCA 2006).

At issue in Russ was whether the trial court properly excluded evidence that the defendant had a reputation for non-violence and respect toward females, where he had been charged with lewd or lascivious exhibition and sexual battery on a person under the age of twelve. 934 So. 2d at 531-32. Noting that “[i]t was not argued that Russ had acted violently,” the Third District found no abuse of discretion in the exclusion of such evidence. Id. at 532. The court went on to quote, with approval, the Fifth District’s observation in Alvelo that “whether one secretly molests children or does not would not be openly exhibited to the community.” Id. (quoting Alvelo, , 769 So. 2d at 477).

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To date, Alvelo and Russ are the only Florida cases to have addressed, either in dicta or a holding, the issue of whether a defendant should be allowed to introduce evidence of his reputation for sexual morality to rebut a charge of a sexual offense against a child. However, several out-of-state cases have mentioned this issue, and the majority of those cases, in contradiction of Alvelo and Russ, indicate that evidence of the defendant’s sexual morality or “normalcy” is admissible when the defendant offers it to show that he does not have the character trait necessary to commit acts of child molestation. See, e.g., State v. Rhodes, 200 P.3d 973, 976-77 (Ariz. Ct. App. 2008) (holding that evidence that a defendant had a reputation for sexual normalcy and appropriate behavior around children should have been admitted); U.S. v. John, 309 F.3d 298, 303 (5th Cir. 2002) (noting that personal opinion and reputation testimony regarding sexual morality are admissible to show that defendant was not capable of engaging in sexual conduct with a child, where the issue was whether the trial court erred in failing to instruct the jury that such evidence could give rise to a reasonable doubt); Wheeler v. State, 67 S.W. 3d 879, 882-83 (Tex. Crim. App. 2002) (noting that the defendant “was entitled to proffer evidence of his good character (or propensity) for moral and safe relations with small children or young girls,” where the issue concerned the propriety of the State’s introducing specific acts of misconduct as rebuttal evidence); People v. McAlpin, 812 P.2d 563, 576-78 (Cal. 1991) (holding that the trial court should

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have admitted evidence of the defendant’s reputation for “normalcy in his sexual tastes” but that its failure to do so was harmless); State v. Miller, 709 P.2d 350, 353-54 (Utah 1985) (indicating that evidence of the defendant’s reputation for sexual morality would have been admissible had it been offered but that evidence of specific acts was not). Notably, these out-of-state cases do not squarely address the distinction recognized by our sister court in Alvelo v. State, 769 So. 2d 476, 477 (Fla. 5th DCA 2000), between traditionally admissible reputation evidence and evidence of a person’s reputation for sexual morality as it relates to a charge of a sexual offense against a child. See generally, e.g., State v. Rhodes, 200 P.3d 973 (Ariz. Ct. App. 2008); U.S. v. John, 309 F.3d 298 (5th Cir. 2002); Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002); People v. McAlpin, 812 P.2d 563 (Cal. 1991); State v. Miller, 709 P.2d 350 (Utah 1985). For example, although the Texas Court of Criminal Appeals in Wheeler v. State noted that “one might certainly have a reputation in the community concerning” the “conduct-oriented traits” of pedophilia and child sexual abuse and “the more general character trait for `safe and moral treatment of children,’” it did not acknowledge the unreliability of such a reputation due to the tendency of acts of child molestation to occur in secret, as the court in Alvelo did. See 67 S.W.3d at 883 n.4.

In contrast, this key distinction was acknowledged in State v. Jackson, 730 P.2d 1361, 1364 (Wash. Ct. App. 1986). In Jackson, the court held that a

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defendant’s reputation for “sexual morality and decency” was not admissible in a trial concerning a sexual offense against a child. The Jackson court provided the following reasoning:

The crimes of indecent liberties and incest concern sexual activity, which is normally an intimate, private affair not known to the community. One’s reputation for sexual activity, or lack thereof, may have no correlation to one’s actual sexual conduct. Simply put, one’s reputation for moral decency is not pertinent to whether one has committed indecent liberties or incest. The trial court properly refused to permit Jackson’s witnesses to testify concerning his reputation for sexual morality and decency.

730 P.2d at 1364. In dicta, the Jackson court also “doubt[ed] the validity” of the assertion that “sexual morality and decency is the specific trait pertinent to the charge of indecent liberties.” See id. However, the crux of its decision was the inherent unreliability of reputation evidence of that trait. See id. (concluding, that, “[s]imply put, one’s reputation for moral decency is not pertinent to whether one has committed indecent liberties or incest”) (emphasis added). Under the Jackson court’s reasoning, even if the trait of “sexual morality or decency” is itself pertinent to a charge of a sexual offense against a child, a person’s reputation concerning that trait is not pertinent, due to the nature of the crime as one that occurs in secret. See id. The Jackson decision was reaffirmed in State v. Spencer, where the court provided the following analysis:

[T]he [Jackson] court was concerned with the reliability of such reputations given that sexual conduct of the nature alleged here normally does not occur in public. Implicit in the court’s analysis is

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the conclusion that reputations for truthfulness, peacefulness, etc., are more reliable and less likely to differ from reality because those traits are commonly displayed in public. Reputations concerning sexual conduct, however, are more likely to be based on speculation than on observed conduct. In addition, it is highly unlikely that a person will discuss his or her immoral or indecent sexual conduct; therefore, a person’s reputation for sexual conduct is not likely to reflect immoral or indecent conduct.

84 Wash. App. 1010 (Wash. Ct. App. 1996) (unreported), No. 35276-8-I, 1996 WL 665931, at *4 (Wash. Ct. App. Nov. 18, 1996). We agree with the reasoning in Jackson and Spencer, which is based on the same concerns expressed in Alvelo, , 769 So. 2d at 477, regarding the susceptibility of the particular character trait at issue to proof by reputation evidence.

Notably, the Jackson court made its decision after considering rules of evidence similar to those of Florida. See 730 P.2d at 1363-64 (quoting Washington’s evidentiary rule 404(a) and acknowledging that an individual’s opinion is not admissible to prove character); compare Wash. R. Evid. 404(a) (“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except. . . [e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.”) with § 90.404(1), Fla. Stat. (2008) (“Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except . . . [e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.”);

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compare Wash. R. Evid. 405 (providing that when character evidence is admissible, “proof may be made by testimony as to reputation,” that inquiry into relevant specific instances of conduct is allowable on cross-examination, and that proof of character may be made evidence of specific instances of conduct when “character or a trait of character is an essential element of a charge, claim, or defense”) with § 90.405, Fla. Stat. (2008) (providing that “[w]hen evidence of the character of a person or of a trait of that person’s character is admissible, proof may be made by testimony about that person’s reputation” and that “[w]hen character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct”).¹ Additionally, the reasoning of Jackson and Spencer is particularly

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important for the purposes of the instant case because in Florida the reliability of reputation testimony is an issue of admissibility. See Larzelere v. State, 676 So. 2d 394, 399 (Fla. 1996) (explaining that “the community from which the reputation testimony is drawn [must be] sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment”); accord Ehrhardt, § 405.1, at 283 (explaining that “[w]hen many people in the community discuss and compare an issue, it is felt that the resulting community opinion is trustworthy”).

In short, we agree with the point in Alvelo, Russ, Jackson, and Spencer that because a person’s tendency, or lack thereof, to commit acts of child molestation is not something that a community tends to have knowledge of, testimony concerning a person’s reputation for having such a trait is inherently unreliable and distinguishable from traditionally admissible reputation evidence. For this reason, we find no abuse of discretion in the exclusion of such evidence in the instant case. To the extent Appellant attempted to introduce evidence only of his reputation for having appropriate sexual relationships with adults, it was within the trial court’s

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discretion to exclude it as either irrelevant or substantially more likely to confuse the issues than to offer probative value. Cf. Russ v. State, 934 So. 2d 527, 532 (Fla. 3d DCA 2006) (holding that the defendant’s reputation “for respectfulness toward women” had no bearing on whether he committed lewd or lascivious exhibition or sexual battery on a child); see § 90.403, Fla. Stat. (2008) (providing that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence”).

B. The Jury’s Request to View a Portion of the Trial Transcript During Deliberations

Having found no error in the trial court’s exclusion of the evidence of Appellant’s reputation for sexual morality, we turn to his arguments, raised for the first time on appeal, concerning the trial court’s handling of the jury’s request to view a portion of the trial transcript. First, Appellant argues that the trial court committed per se reversible error by failing to afford him an opportunity to participate in a discussion of the action to be taken in response to the jury’s request. Second, Appellant argues that the trial court’s instruction was reversible error because it suggested that a read-back of trial testimony was impermissible as a matter of law, as opposed to discretionary. Both of these arguments relate to Florida Rule of Criminal Procedure 3.410, which provides as follows:

After the jurors have retired to consider their verdict, if they request

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additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

(i) Notice under Rule 3.410

Appellant’s argument that the trial court’s failure to request objections to its proposed instruction violated the notice requirements of Rule 3.410, thus constituting per se reversible error, is based on Ivory v. State, 351 So. 2d 26 (Fla. 1977), and Bradley v. State, 513 So. 2d 112, 112-13 (Fla. 1987). In Ivory, during deliberations, the jury sent notes to the trial court requesting the jury instructions and evidentiary documents. 351 So. 2d at 27. The trial court provided those documents to the jury “[w]ithout notifying the defendant, his counsel, or counsel for the state, and outside of their presence.” Id. The supreme court determined that this error required a new trial, explaining its holding as follows:

Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless. . . . We now hold that it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request. This right to participate includes the right to place objections on record as well as the right to make full argument as to the reasons the jury’s request should or should not be honored.

Id. at 28.

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In Bradley v. State, 513 So. 2d 112 (Fla. 1987), the supreme court was confronted with a record showing a violation of Rule 3.410 similar to the one at issue in Ivory. The trial court in Bradley responded in writing to the jury’s request during deliberations to read a police report. 513 So. 2d at 112. The record in Bradley did not reflect whether the trial court gave notice to the prosecutor and defense counsel before sending the note back to the jury. Id. For this reason, the Bradley court held that reversal was required. Id. at 112-13. Notably, at oral argument, the appellant’s counsel admitted that defense counsel was present during the trial court’s consideration of the jury’s inquiry. Id. at 114. Based on this concession, the State requested that the court remand the case for a reconstruction of the record to determine who was present. Id. The supreme court rejected this request and the argument “that presence of counsel is all that is required under rule 3.410.” Id. The court then made the following observations:

The right to participate, set forth in Ivory, includes the right to place objections on the record as well as the right to make full argument as to why the jury request should or should not be honored. . . . `Notice is not dispositive. The failure to respond in open court is alone sufficient to find error.’

Bradley, , 513 So. 2d at 114 (citations omitted).

In Thomas v. State, 730 So. 2d 667, 668-69 (Fla. 1998), the supreme court clarified its position regarding the requirements of Rule 3.410. There, the bailiff had informed the trial court that the jury had a question concerning a notation on

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one of the State’s exhibits. Id. at 667. The trial court instructed the bailiff “that they should consider [the notation] as part of the evidence and continue to deliberate on their verdict.” Id. The trial court advised the prosecutor and defense counsel of this communication after it occurred but before the jury returned a verdict and asked whether they had any objections to the process the court used to communicate with the jury. Id. at 667-68. Both attorneys stated that they had no objection. Id. at 668. On appeal, citing Ivory and its progeny, the defendant argued that the trial court’s communication with the jury constituted per se reversible error. Id. The supreme court declined to find reversible error, however, due to defense counsel’s affirmative waiver of the issue. Id. at 668-69. The Thomas court noted that “[t]he per se reversible error rule announced in Ivory is prophylactic in nature and must be invoked by contemporaneous objection at trial.” Id. at 668. The Thomas court also emphasized that the “particular evil rule 3.410 and the per se error standard of Ivory were designed to prevent is the lack of notice to counsel, coupled with the lost opportunity for counsel to argue and to place objections on the record” and that “an opportunity to contribute after the instruction has been given is insufficient.” 730 So. 2d at 668 (quoting Mills v. State, 620 So. 2d 1006, 1008 (Fla. 1993) (internal citations omitted)).

Based on the Thomas court’s clarification that counsel must lodge a contemporaneous objection when given the opportunity to do so, this Court, in

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Paige v. State, 802 So. 2d 1161, 1164 (Fla. 1st DCA 2001), affirmed the defendant’s convictions, despite the trial court’s failure to invite defense counsel to comment on the jury’s request for re-instruction. The Paige Court explained that affirmance was proper “[b]ecause defense counsel and defendant were present in the courtroom at the time of the asserted error and did not make a contemporaneous objection at trial.” Paige, , 802 So. 2d at 1164.

Here, Appellant requests that we reverse his convictions and require a new trial because the trial court did not expressly invite his attorney to object to its anticipated answer to the jury’s question. We decline to do so because Appellant received both notice and an opportunity to be heard, as required under Rule 3.410 and the case law interpreting it. In stating, “I think the answer is no, rely on your memory,” the trial court gave Appellant’s attorney the opportunity to argue for a different answer. Like the defense counsel in Paige, Appellant’s attorney simply chose not to object. See 802 So. 2d at 1164. The jury was not in the courtroom yet, and nothing in the record indicates that the trial court cut off Appellant’s right to respond. We have no reason to believe that the trial court would not have listened to a full argument if defense counsel had attempted to make one. Therefore, we do not agree with Appellant’s claim that the trial court denied him appropriate notice and an opportunity to be heard under Rule 3.410.

(ii) Availability of a “Read-back” of Trial Testimony

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Finally, we consider Appellant’s argument that the trial court reversibly erred in instructing the jury that it had to rely on its memory. Appellant contends that the trial court should have instructed the jury that, at the trial court’s discretion, it could hear a read-back of portions of the testimony, even though he did not request such an instruction. He further argues that the error in the instant case cannot be considered harmless because if the jury had been permitted to review the testimony of the victim, it may have found him not guilty as to count III or determined that the victim lacked credibility as to all of her allegations. Thus, Appellant claims that the trial court was required not only to advise the jury of the rules governing read-backs but also to take the additional step of reading back the testimony.

Although Appellant does not argue that the omission of the additional instruction or the denial of a read-back was fundamental error, such a conclusion is required for reversal because Appellant failed to object to the trial court’s instruction either when it was announced outside the jury’s presence, when it was read to the jury, or otherwise. See State v. Delva, 575 So. 2d 643, 644 (Fla. 1991) (noting that an error in the trial court’s instructions to the jury is subject to the contemporaneous objection rule and may not be raised on appeal absent fundamental error). Despite Appellant’s failure to argue fundamental error, we consider whether the purported error is of a fundamental nature because it is an

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appellate court’s “unrenunciable judicial duty” to correct fundamental error even if it is not raised. See Bain v. State, 730 So. 2d 296, 302 (Fla. 2d DCA 1999) (called into doubt on other grounds in State v. Jefferson, 758 So. 2d 661, 664 (Fla. 2000)); see also I.A. v. H.H., 710 So. 2d 162, 165 (Fla. 2d DCA 1998) (noting that it is an appellate court’s “duty to notice and correct . . . fundamental errors even when they have not been identified by the parties”).

Before proceeding to fundamental error analysis, we will review the general standards governing a trial court’s response to a jury’s request to either view a trial transcript or have testimony read back to it. There is no rule of criminal procedure providing that a jury may view a transcript of the proceedings. See Fla. R. Crim. P. 3.400(a) (omitting transcripts from the list of items a jury may view in the deliberation room). In contrast, Rule 3.410 provides that a trial court may, in its discretion, have portions of the trial testimony read back to the jury upon request. Fla. R. Crim. P. 3.410. A trial court’s discretion over whether to allow a read-back of testimony is wide. Avila v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001). In fact, the Florida Supreme Court has observed that “courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury’s request for a read back.” Francis v. State, 808 So. 2d 110, 130 (Fla. 2001) (citing McKee v. State, 712 So. 2d 837, 838 (Fla. 2d DCA 1998)).

Despite the wide latitude a trial court is accorded in exercising its discretion

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to either read back testimony or not, a trial court “may not mislead the jury into thinking that a readback is prohibited.” Avila, , 781 So. 2d at 415. The reasoning behind this rule is that juries should not be prospectively discouraged from requesting read-backs of other portions of the trial simply because the trial court has denied its request for a read-back of a particular portion. See Johnson v. State, 10 So. 3d 680, 681 (Fla. 3d DCA 2009). In Avila v. State, the Fourth District found the trial court’s instructions misleading where the jury requested a read-back and the trial court responded by stating that no transcripts were available and that the jury was required to rely on its own recollection. 781 So. 2d at 415-16. The Third District cited Avila with approval in Johnson v. State, where it found error, albeit harmless, in the trial court’s pre-deliberation instruction that there was not a “simultaneous transcript” of the trial and that the jury would have to rely on its own recollection if it had any questions regarding the facts. Johnson, , 10 So. 3d at 681.

However, the Third District distinguished Avila in Hazuri v. State, 23 So. 3d 857 (Fla. 3d DCA 2009), where the trial court gave an instruction similar to the one at issue in the instant case. In Hazuri, the jury sent a note to the court requesting trial transcripts. 23 So. 3d at 857. The trial court informed the prosecutor and defense counsel that it believed “the accurate and correct response is that they must rely on their own collective recollection of the evidence.” Id. at

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858. Defense counsel objected based on the failure of the suggested instruction to inform the jury of the availability of a read-back. Id. The trial court overruled the objection and instructed the jury as it had announced it would. Id. On appeal, the Third District held that the instruction was “fair and legally accurate” and that the trial court was under no obligation, in response to the request for transcripts, to inform the jury that a read-back may be available upon request. Id. at 858-59. The basis of the Hazuri court’s distinction of Avila was that in Avila, the jury had requested a read-back, while in Hazuri, it had requested to view the transcripts. Hazuri, , 23 So. 3d at 859-60.

The Fourth District repudiated this distinction in Barrow v. State, 27 So. 3d 211 (Fla. 4th DCA 2010). There, as in Hazuri, the jury requested to view the trial transcript. Barrow, , 27 So. 3d at 215. Both the prosecutor and defense counsel suggested that the court advise the jury of its right to request a read-back. Id. at 215-16. The court, however, refused to give such an instruction, and instead told the jury, “There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.” Id. at 216. The Fourth District held that this instruction was misleading and, thus, constituted reversible error. Id. at 217-18. Accordingly, the Barrow court certified conflict with Hazuri. Id. at 218.

This Court has not yet considered in a written opinion whether it is error for a trial court to deny a jury’s request to view a portion of the trial transcript without

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informing the jury that a read-back of testimony may be permissible at the trial court’s discretion. However, we will leave that determination for another day. For the purposes of the instant case, we will assume arguendo that the instruction given was erroneous and proceed to a determination of whether any error in the instruction rose to the level of fundamental error.

Error may be harmful and yet not fundamental. Reed v. State, 837 So. 2d 366, 370 (Fla. 2002). Fundamental error is “error that `reaches down into the validity of the trial itself to the extent that a verdict of guilty . . . could not have been obtained without the assistance of the alleged error.’” Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000) (quoting McDonald v. State, 743 So. 2d 501, 505 (Fla. 1999)). Moreover, error is fundamental only if it “goes to the very heart of the judicial process” and “extinguishes a party’s right to a fair trial,” such that it results in a miscarriage of justice. Martinez v. State, 933 So. 2d 1155, 1159 (Fla. 3d DCA 2006).

The Florida Supreme Court has cautioned that “[t]he doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Smith v. State, 521 So. 2d 106, 108 (Fla. 1988). As this Court has explained, one reason for appellate courts’ reluctance to find fundamental error is that “[w]e do not want to encourage the creation of `gotchas’ whereby the defense

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is allowed to sit on its rights [and] say nothing until after it sees whether the jury returns an adverse verdict.” Jones v. State, 571 So. 2d 1374, 1376 n.3 (Fla. 1st DCA 1990); accord Sailor v. State, 816 So. 2d 182, 184 (Fla. 1st DCA 2002) (noting that the contemporaneous objection rule was designed to prevent the type of “gamesmanship” that occurs when “a party waits to see if the jury renders a favorable verdict while the party withholds a claim of error in the process”). For this reason, it has been established that an error of omission in jury instructions is fundamental only when “the omission is pertinent or material to what the jury must consider in order to convict.” State v. Delva, 575 So. 2d 643, 645 (Fla. 1991).

In recent cases considering whether a trial court may deny a request to view a portion of the trial transcript without simultaneously informing the jury of the rules governing read-backs, the district courts have either specifically noted that the issue was preserved or recited facts showing preservation. E.g., Barrow, , 27 So. 3d at 215-16 (noting that the prosecutor suggested that the trial judge tell the jury it could request read-backs and that the defense attorney affirmatively requested such an instruction); Hazuri, , 23 So. 3d at 858 (quoting trial counsel’s request for an instruction regarding the read-back option); Johnson, , 10 So. 3d at 681 (noting that trial counsel preserved the issue by objecting to the instructions to the jury that no transcripts were available and that it had to “rely upon [its] own recollection of the evidence”); Avila, , 781 So. 2d at 415 (finding the issue concerning the trial court’s

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failure to advise the jury of its right to request a read-back preserved by trial counsel’s request for a read-back after the jury asked to review a portion of the testimony); Roper v. State, 608 So. 2d 533, 533-34 (Fla. 5th DCA 1992) (noting defense counsel’s objection to the court’s response to the jury’s request to “see” testimony). Because the issue was preserved, the courts in those cases were not called upon to consider fundamental error.

In contrast, in Farrow v. State, 573 So. 2d 161, 162-63 (Fla. 4th DCA 1990), the Fourth District considered whether it was fundamental error for the trial court to announce to the jury during voir dire, “[Y]ou’re going to have to listen very carefully to the testimony of the witnesses because you’re only going to hear it once. The court stenographer is not going to be reading back to you the testimony of the witnesses.” The Farrow court declined to find fundamental error, explaining that while the instruction was error, it did not “go to the merits of the case” and did not deprive the defendant of a fair trial. 573 So. 2d at 163. The court noted that to find fundamental error would encourage gamesmanship. See id. Specifically, the court explained, “It would be far better for the defendant not to object, even though the error is easily curable, and await the outcome of the trial. If the defendant is convicted, then defense counsel can be assured of securing a reversal on appeal because of the `fundamental’ error which the judge committed in voir dire.” Id. The same risk is present in cases where the jury asks to view a specific portion of

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the transcript and defense counsel remains silent as the trial court denies the request and fails to explain the rules governing read-backs.

Despite this risk, in LaMonte v. State, 145 So. 2d 889, 893 (Fla. 2d DCA 1962), the court found fundamental error when considering the related issue of whether the trial court erred in denying a jury’s affirmative request for a read-back even though defense counsel did not object to the ruling. In LaMonte, the State presented an entirely circumstantial case of robbery, and the only competent evidence that tied the defendant to the robbery was a mask that was found in his home. 145 So. 2d at 891-92. The police officer who found the mask first testified that he found it “when he got a chair to look up into the attic and that when he did he noticed this mask on the floor.” Id. at 892. Later, he clarified his testimony, stating that he found the mask on the floor of a closet. Id. 892-93. The jury found this testimony important to its decision, as it illustrated by asking during deliberations “whether the rubber mask was found on the floor of the closet or whether it was found in the attic.” Id. at 892. In posing this question, the jury suggested that the court either answer the question or have the testimony on this issue repeated. Id. The trial court denied the jury’s request, stating that it could not comment on the evidence or tell the jury what was in the record and that the jury had already heard the testimony. Id. Even though defense counsel did not make a contemporaneous objection, the appellate court reversed, holding that the trial

Page 27

court should have read back the testimony because “there was considerable doubt in the jury’s mind concerning the very testimony which they wished read to them and this testimony was material to the case.” Id. at 893(quoting Penton v. State, 106 So. 2d 577, 580 (Fla. 2d DCA 1958) (finding reversible error where defense counsel agreed to the jury’s request for a read-back of material testimony, but the trial court failed to have it read back due to confusion as to whether a transcript was available)).

We disagree with LaMonte. In LaMonte, the court did not consider the possibility that defense counsel’s silence may have been strategic. Of course, we do not know defense counsel’s reason for not going along with the jury’s request in LaMonte, but there could be any number of reasons, including that defense counsel hoped the jury would remain confused about the officer’s testimony and, therefore, be unable to reach a verdict beyond a reasonable doubt. To find fundamental error in a trial court’s refusal to read back testimony would allow defense counsel to sit back in silence while the trial court errs and then raise the error on appeal once it is clear that the strategy failed. Such an approach is the type of gamesmanship the contemporaneous objection rule was designed to prevent. See Sailor, , 816 So. 2d at 184; accord Farrow, , 573 So. 2d at 163; cf. Coulliette v. State, 949 So. 2d 1078, 1078 (Fla. 1st DCA 2007) (declining to find fundamental error in improper questioning of the defendant where the court could not “rule out the possibility that

Page 28

defense counsel may have allowed such questioning to continue as part of her trial strategy”).

The facts of the instant case illustrate the point that the failure of a defense attorney to request instructions on the availability of a read-back may be strategic. In this case, the testimony the jury requested was material to count III. However, the testimony was detailed, descriptive, and disturbing, and if the jury remembered and believed that testimony, it established the crime of sexual battery on a child. See § 794.011(1)(h), Florida Statutes (1993) (defining sexual battery, in pertinent part, as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another”) (emphasis added). Additionally, the testimony included the victim’s statements that she had a vivid memory about this incident and that it was the offense that bothered her the most. While we do not know the defense counsel’s reasons for failing to request that the jury be informed that this testimony could be read back, we cannot ignore the fact that defense counsel may have believed that it was not in Appellant’s best interests to have this testimony emphasized. For this reason, we decline to find fundamental error in the trial court’s failure to advise the jury, sua sponte, of the availability of a read-back at the court’s discretion.

Finding no preserved, reversible error, we AFFIRM.

No further motions for rehearing will be entertained. The Clerk is directed to issue the mandate forthwith.

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VAN NORTWICK and ROWE, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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Notes:

1. It should be noted that Jackson is in conflict with an opinion issued by its sister court in State v. Griswold, 991 P.2d 657, 663 (Wash. Ct. App. 2000) (abrogated on other grounds by State v. DeVincentis, 74 P.3d 119 (Wash. 2003)) (disagreeing with Jackson and relying on State v. Thomas, 757 P.2d 512 (Wash. 1988), where the issue was not whether such reputation evidence was admissible, but rather whether an instruction on character evidence should have been given once evidence of the defendant’s reputation for sexual morality had been admitted). However, we are not persuaded by Griswold. Additionally, we note that the same court that issued Griswold later agreed with the Jackson court’s observation that evidence of the defendant’s reputation for sexual morality “may be at odds with his actual character.” State v. Woods, 70 P.3d 976, 978 n.1 (Wash. Ct. App. 2003). Thus, the key disagreement among the intermediate appellate courts of Washington is over whether the inherent unreliability of a person’s reputation for being sexually moral in one’s relationships with children renders such evidence inadmissible, not whether such evidence is in fact unreliable. Griswold holds that the rules of evidence require admission of such evidence, 991 P.2d at 663, while Jackson holds that they do not, 730 P.2d at 1364, based on considerations similar to those expressed by our sister courts in Alvelo, , 769 So. 2d at 477, and Russ, , 934 So. 2d at 532.

Griswold also expresses disagreement with the dicta in Jackson to the effect that sexual morality is not a character trait pertinent to the charge of indecent liberties. 991 P.2d 657; accord State v. English, 150 Wash. App. 1051, 2009 WL 1763664, No. 37047-6-II, at *6 (Wash. Ct. App. June 23, 2009) (unreported) (noting that Griswold and Woods hold that sexual morality is a pertinent character trait in sexual offense cases). This disagreement does not concern us because, as discussed above, the crux of the Jackson reasoning is on the reliability of reputation evidence about this trait. See 730 P.2d at 1364.

—————

Courtesy of David Edelstein

David Dwayne Brown, Appellant,
v.
The State of Florida, Appellee.

Case No. 3D04-2348.

District Court of Appeal of Florida, Third District.

Opinion filed May 26, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 03-21018, Alex E. Ferrer, Judge.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Ansley P. Peacock, Assistant Attorney General, for appellee.

Before COPE, ROTHENBERG, and LAGOA, JJ.

ON REMAND FROM THE SUPREME COURT OF FLORIDA

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ROTHENBERG, J.

We reconsider on remand our opinion in Brown v. State, 967 So. 2d 236 (Fla. 3d DCA 2007) (“Brown I“), which was quashed by the Supreme Court of Florida following its decision in State v. Brown, 3 So. 3d 1190 (Fla. 2009) (“Brown II“). As ordered by the Supreme Court of Florida, we have reconsidered our earlier decision in light of Garzon v. State, 980 So. 2d 1038 (Fla. 2008) (“Garzon II“), and conclude that based on an examination of the “totality of the record,” the jury instructions given in this case do not constitute fundamental error. Accordingly, we affirm the defendant’s convictions.

THE ISSUE

The defendant, David Dwayne Brown, and the codefendant, Collies Jasper Robinson, were charged with the first degree murders of Eric Williams (Count I) and Edward Leon Bernard (Count II), and the attempted first degree murder of Lawrence Wade (Count III). The defendant was also charged with possession of a firearm by a violent career criminal (Count IV) and display of a firearm while committing a felony (Count V). The defendant and codefendant were tried separately, with the defendant’s trial proceeding on Counts I-III and V.

The jury found the defendant guilty of Counts I-III and V, and he was subsequently sentenced. Although the defendant did not object to the instructions given, other than to object to the name of the codefendant not being included in the

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instructions, he argued on appeal that the instructions improperly implied that he could be convicted of first degree murder and attempted first degree murder based solely on the acts of another. This Court agreed. Because the evidence as to Counts II and III did not directly implicate the defendant, this Court concluded that the instructions as to those two counts constituted fundamental error. However, because there was direct evidence as to the defendant’s guilt regarding Count I, this Court found no fundamental error and affirmed the defendant’s conviction as to that count. Brown I, , 967 So. 2d at 238.

GARZON v. STATE (GARZON II)

The Florida Supreme Court granted review of this Court’s decision in Brown I, and stayed the proceedings pending its review of Garzon v. State, 939 So. 2d 278 (Fla. 4th DCA 2006) (“Garzon I“). Garzon and codefendants Coles and Balthazar were tried together for seven offenses stemming from a home invasion. As to Garzon, the State’s theory was that he was involved in the criminal scheme although he was not physically present. Without objection, the instructions as to each count included an “and/or” conjunction between the names of the defendants. For example, as to the charge of armed burglary, the jury was instructed as follows:

[T]o prove the crime of armed burglary of a dwelling, as charged in Count Two of the information, the State must prove the following three elements beyond a reasonable doubt. Number one, Zamir Garzon and/or [Charly] Coles and/or Ray Balthazar entered or remained in a structure owned by or in the possession of Sandra Smith.

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Number two, Zamir Garzon and/or [Charly] Coles and/or Ray Balthazar did not have the permission or consent of Sandra Smith or anyone authorized to act for her to enter or remain in the structure at the time.

Number three, at the time of entering or remaining in the structure, Zamir Garzon and/or [Charly] Coles and/or Ray Balthazar had a fully formed, conscious intent to commit the offense of grand theft and/or robbery in that structure.

Garzon I, , 939 So. 2d at 281 (emphasis added). In addition to the charges on the substantive offenses, the trial court gave the jury the standard charge on principals. Garzon I, , 939 So. 2d at 282 (citing Fla. Std. Jury Instr. (Crim.) 3.5(a)). Further, as Garzon, Coles, and Balthazar were tried together, the trial court gave a multiple defendants instruction¹ and used a verdict form that was individualized as to each defendant without the use of the “and/or” language. Garzon II, , 980 So. 2d at 1040. Balthazar was convicted on all counts, whereas Garzon and Coles were acquitted on one of the seven charges.

On appeal to the Fourth District Court of Appeal, Garzon and Balthazar

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argued that “the inclusion of the `and/or’ conjunction in the jury instructions was fundamental error because the jury `could’ have convicted one defendant based solely upon the conclusion that another codefendant’s conduct `may have satisfied the elements’ of an offense.” Garzon I, , 939 So. 2d at 283. In essence, Garzon and Balthazar argued that because of the “and/or” conjunction, the jury could have convicted them based on the acts of their codefendants without finding that they were acting as principals.

In addressing the issue, the Fourth District, however, noted that not all erroneous jury instructions constitute fundamental error:

To be fundamental, an erroneous jury instruction “must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” [State v.] Delva, 575 So. 2d [643, 644-45 (Fla. 1991)] (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)); see Floyd v. State, 850 So. 2d 383, 403 (Fla. 2002). This means that an erroneous jury instruction is fundamental error “when the omission is pertinent or material to what the jury must consider in order to convict.” Id. at 645 (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982)); accord Reed v. State, 837 So. 2d 366, 369-70 (Fla. 2002). Thus, “[f]ailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” Delva, , 575 So. 2d at 645.

Garzon I, , 939 So. 2d at 282-83. The Fourth District explained that the “determination of whether fundamental error occurred requires that the `and/or’ instructions be examined in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case. ” Garzon I, , 930 So. 2d at 283. After

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considering the “totality of the record,” the Fourth District concluded that the erroneous jury instructions did not constitute fundamental error, reasoning as follows:

This is not a case where the court failed to correctly instruct on an element of the crime over which there was a dispute. All elements of all crimes were correctly charged. What the “and/or” conjunctions placed in issue was whether one defendant could be held criminally liable for the conduct of a codefendant. If the law of principals applies to a defendant’s conduct, that defendant can properly be convicted for a codefendant’s criminal acts. Garzon could have been found guilty if either Coles or Balthazar committed a substantive crime and Garzon helped either man commit the crime within the meaning of the principals instruction.

In this case, the standard principals instruction placed all the other instructions in the proper context. The instruction explained that a defendant is responsible for the criminal act of another person if “the defendant had a conscious intent that the criminal act be done” and the “defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person. . . to actually commit the crime.” Fla. Std. Jury Instr. (Crim.) 3.5(a). If the jury found the principals instruction applied to him, Garzon could lawfully have been found guilty of crimes that either Balthazar or Coles, or both, committed in the house.

With respect to Garzon, everyone in the courtroom knew that the issue boiled down to whether the state had proven that he was the person to whom Balthazar spoke over the cell phone during the home invasion.

The prosecution used the principals instruction as the centerpiece of its argument that Garzon was guilty of the crimes committed by his codefendants. The state did not use the “and/or” conjunctions to argue for a legally incorrect or improper theory of guilt.

Garzon I, , 939 So. 2d at 284.

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The Florida Supreme granted review of the Fourth District’s decision in Garzon I, and issued its decision in Garzon II, addressing whether the unobjected-to “use of the `and/or’ instructions together with the standard principals instructions was fundamental error.” Garzon II, , 980 So. 2d at 1042.

The Florida Supreme Court agreed with the Fourth District that the use of the “and/or” conjunction did not constitute fundamental error, reasoning:

[T]his is not a case where the court failed to correctly instruct on an element of the crime over which there was a dispute, as in Delva/Reed. Since this case does not present a Delva/Reed error, the Fourth District was correct in examining the totality of the record to determine if the “and/or” instruction met the exacting requirements of fundamental instruction error.

Garzon II, , 980 So. 2d at 1043.

Following its independent review of the “totality of the record,” including the standard jury instruction on principals, the jury instruction on multiple defendants, the individualized verdict form, the attorneys’ arguments, and the jury’s verdict, the Florida Supreme Court concluded that the erroneous instructions did not constitute fundamental error. Garzon II, , 980 So. 2d at 1044.

Following Garzon II, the Florida Supreme Court issued its decision in Brown II, quashing this Court’s opinion in Brown I and remanding for reconsideration in light of Garzon II. Thus, on remand, this Court must determine, based on the “totality of the record,” whether the jury instructions given in the instant case constitute fundamental error.

Page 8

BASED ON A REVIEW OF THE TOTALITY OF THE RECORD WE FIND NO FUNDAMENTAL ERROR

No fundamental error occurred in this case. This conclusion is based on the indictment, the opening statements, the evidence introduced at trial, the closing arguments, the jury instructions, the verdict form, and the fact that the defendants were tried separately.

The State’s theory of this case was that the defendant and codefendant, acting in concert with one another from a common scheme or plan, killed Eric Williams and Edward Leon Bernard, and attempted to kill Lawrence Wade. That is how this case was charged and tried. The arguments of counsel made it clear that the jury was going to have to determine whether the State proved beyond a reasonable doubt that they were acting together in each instance. The trial court’s instructions to the jury also made it clear that this was the State’s theory of the case and an issue to be resolved by the jury. Because the jury was instructed throughout the proceedings that before the defendant could be held responsible for the actions of another, the State was required to prove that the defendant and that other person were working together, they both had a conscious intent that the criminal acts be committed, and they were helping each other carry out a common criminal purpose, we conclude that the instructions given did not mislead the jury or constitute fundamental error.

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A. The Indictment

In all three Counts: I, II, and III, the murder of Eric Williams, the murder of Edward Leon Bernard, and the attempted murder of Lawrence Wade, respectively, the indictment charged that David Dwayne Brown (the defendant) and Collies Jasper Robinson (the codefendant) “each in concert with each other from a common scheme or plan, did unlawfully and feloniously” kill or attempt to kill the victim.² (Emphasis added). At the beginning of the trial, the trial court read

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the indictment to the jury. Thus, from the very beginning of the proceedings, the jury was told that the State was charging the defendant and codefendant as acting together to commit these offenses.

B. Opening Statements

In its opening statement, the State described the location of the shooting, Mr. Bernard’s home, as a “neighborhood hangout” from which Mr. Bernard and Mr. Williams would sell drugs and where individuals, including Mr. Williams, would

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gather to play cards in the carport. The State explained that the evidence would demonstrate the following. Mr. Williams routinely kept an AK-47 rifle within reach to protect himself. On the night of the shooting, Mr. Bernard was having a party at his house. Between 7:00 p.m. and 8:00 p.m., the defendant arrived at the party, headed straight to the carport, and asked Mr. Bernard, “Where’s my money?” After Mr. Bernard failed to respond, the defendant stated, “Do you think I am playing with you?” The defendant left the party, but returned several hours later with a “partner and a plan”—”to get the money or to get these two men.” Upon returning, the defendant walked into the carport and grabbed the AK-47, pointing it at Mr. Williams. Mr. Williams and Mr. Bernard rushed the defendant, and the three men began to struggle for the AK-47. During the struggle, codefendant Robinson exited a vehicle carrying a shotgun. Upon seeing codefendant Robinson with the shotgun, Mr. Wade ran and was shot in the back by codefendant Robinson. After Mr. Bernard dropped to the floor, codefendant Robinson came “in close for the kill,” shooting Mr. Bernard in the chest at close range. After Mr. Bernard was shot by codefendant Robinson, Mr. Williams stopped struggling for the AK-47 and began to run. While running, the defendant shot at Mr. Williams several times with the AK-47, hitting him in his back, face, thigh, and head. The defendant and his “partner”—codefendant Robinson—left, taking the two weapons with them.

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Defense counsel told the jurors that the witnesses they would be hearing from lacked credibility because they are convicted felons who were using drugs and alcohol on the night of the shooting. Defense counsel also suggested that the actual shooter of the shotgun was not the codefendant, Robinson, but one of the eyewitnesses, Ramlah Aquamina, because gunshot residue was found on his hand.

C. The Evidence

The following evidence was introduced at trial. The defendant, Mr. Bernard and Mr. Williams (the two deceased victims), and a fourth individual were partners in a drug dealing business. On the day of the shooting, Mr. Bernard was having a party at his house to celebrate a friend’s birthday, and the defendant came to Mr. Bernard’s house twice that evening. During the first encounter, the defendant confronted both Mr. Bernard and Mr. Williams, claiming that they owed him money. Mr. Bernard and Mr. Williams ignored the defendant and the defendant left the party. Nathan Mathis, who was at the party and witnessed this exchange, told Mr. Williams he should pay the defendant the money owed, but Mr. Williams told Mr. Mathis to mind his own business. Mr. Williams then brought out an AK-47 (allegedly for protection because they were selling drugs at the party), and propped it against a wall. Mr. Mathis also testified that there were no other guns at the party that night.

Several hours later, around midnight, the defendant returned to the party,

Page 13

entered the carport, grabbed the AK-47 that Mr. Williams had propped against the carport wall, pointed the gun at Mr. Williams and Mr. Bernard, who were seated at a table playing cards, and tried to fire the gun, which did not fire because the safety was on. Mr. Williams and Mr. Bernard rushed the defendant, and the three men began to struggle over the AK-47. While everyone else ran for cover, Mr. Wade was shot in the back with a shotgun. Mr. Bernard was fatally shot in the chest with the same shotgun at a very close range. The defendant was seen shooting Mr. Williams with the AK-47. Mr. Aquamina, one of the witnesses who heard shots being fired as he fled, called the police, directed them to the house, returned to the scene, and spoke with the police. Pursuant to its investigation, law enforcement issued a BOLO for the vehicle seen leaving the house. Days later, a vehicle matching the BOLO was stopped, and the driver of the vehicle was identified as the defendant and the passenger was identified as the codefendant, Robinson.

It was later determined that Mr. Williams was shot multiple times with a high-powered rifle such as an AK-47, including shots to his back and one to his chest. The projectiles went through his lung and spinal column paralyzing him. Conversely, Mr. Bernard and Mr. Wade were shot with the same shotgun. The defendant was positively identified by several individuals, and a Nike cap found at the crime scene contained the defendant’s DNA.

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D. Closing Arguments

In defense counsel’s initial closing argument, he read the complete standard jury instruction on the law of principals and argued that the evidence did not establish that the defendant and another person acted together as principals to commit the charged offenses. Specifically, defense counsel argued:

The Judge is going to instruct you about principals and the state is obligated to prove each and every essential element as they do in any crime about principals. And the Judge is going to tell you and he will in a little while if the defendant helped another person or persons commit or attempt to commit a crime that defendant is a principal and must be treated as if he had done all of the things that the other person or persons did if the defendant has a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did insight [sic], cause, encourage, assist or advice [sic] the other person or persons to actually commit the attempt to commit the crime. To be a principal the defendant does not have to be present when a crime is committed or attempted to be committed. Where does it indicate that the other person and/or David Brown advised each other, told each other, did something together to cause a crime? Where? Where is there any issue, any evidence that they were principals? This other fellow, where? There is no evidence. . . . The state is obligated to prove to you that somehow they got together to commit this crime or these crimes. There is no such evidence. It doesn’t exist.

(Emphasis added).

Thereafter, the State presented its closing argument, stating that the evidence showed that the defendant shot and killed Mr. Williams with an AK-47; a second individual, who the State contended was the codefendant, Collies Jasper Robinson, shot and killed Mr. Bernard, and shot Mr. Wade with a shotgun; and these two

Page 15

men were acting together as principals to commit these crimes. Therefore, the defendant was guilty of murdering Mr. Bernard and attempting to murder Mr. Wade because the defendant was working in concert with the second shooter. The State argued that although it contended that the second shooter (with the shotgun) was Collies Jasper Robinson, the State was not required to prove the identity of the second shooter. Specifically, the State argued that the defendant believed Mr. Bernard and Mr. Williams owed him money, and “the defendant decided to take justice into his own hands. He and someone else, because the person’s identity is unknown to you. . . . But he and somebody else came there with the intent of doing harm. They came loaded with a shotgun and were ready to use it.” (Emphasis added). Thereafter, the State also read the standard jury instruction on the law of principals, thus providing this instruction to the jury for a second time. After re-reading the principals instruction to the jury, the State explained that the instruction worked both ways—if the defendant was helping someone else commit the crimes or the other person helped the defendant commit the crimes, they were equally responsible:

In other words, when two people help each other they are both responsible. And one thing that you will decide at the end of this case is if there are, in fact two people involved. . . . [W]e have two gunmen and two people who are willing to use those guns. And the fact that one shot one and another shot the other does not change the fact that they were both deeply involved in what was going on. And how do we know that two people were involved?

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The State outlined the physical evidence and argued that the physical evidence suggested that two people, working in concert, were involved in the shooting:

It is very clear. All you have to do is put the physical evidence together in the proper way. . . . We do not have to prove the identity of the second person to you in this trial. . . . What we do have to prove is that another person was involved and that that other person was acting as a principal with the defendant as I have already discussed with you how we have done that. . . . [O]nce again bringing in the principal theory, even though it is clear that David Brown did not fire the shot that killed Edward Leon Bernard he is just as guilty as the person who filed [sic] this shot because he was working together with that individual and they were working in concert. And for all intents and purposes, each time that the trigger was pulled there are were [sic] two fingers on the trigger. Both on the shotgun and on the A.K. 47. And those were the fingers of David Brown and the other person, whoever that was. You don’t have to decide who the identity of this person is to hold the defendant responsible. All you have to do, all you have to decide is for all intents and purposes his finger was on the trigger because these guys were working together.

(Emphasis added).

Defense counsel reiterated on rebuttal that the State had to prove that the defendant and the second shooter were working in concert, and argued that the evidence did not support such a finding:

How did they act in concert? How did they agree to kill anybody? . . . [T]ell me where any evidence exists that two people tried to help one another in this scenario in this context. . . . [The State] has to show the connection between those two people and that they somehow in concert decided to kill somebody. That is what they have to show.

(Emphasis added).

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E. Jury Instructions

Following closing arguments, the trial court explained to the jury that the defendant had been charged with several crimes, and although all counts were tried together, “each crime and the evidence applicable to it must be considered separately and a separate verdict returned as it [sic] each.” Thereafter, the trial court instructed the jury on the circumstances that must be proven before the defendant could be found guilty of first degree murder, attempted first degree murder, or any lesser included offense.

The trial court instructed the jury that: (1) as to first degree premeditated murder, the State had to prove that the death of each victim was caused by the criminal act of the defendant or another person acting as principal; (2) as to first degree felony murder, the State had to prove that the death of each victim occurred as a consequence of and while the defendant was in the commission of or the attempt to commit murder and he was the person who actually killed each victim or each victim was killed by another person, but both the defendant and the person who killed each victim were principals in the commission of the murder; and (3) as to the attempted murder of Lawrence Wade, the State had to prove that the defendant or another person acting as a principal did some act intended to cause the death of Lawrence Wade that went beyond just thinking or talking about it and the defendant or another person acting as a principal acted with a premeditated design

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to kill Lawrence Wade.³

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Following these instructions, the trial court read the standard jury instruction regarding principals—thus providing the jury with this instruction for a third time:

If the defendant helped another person or persons commit or attempt to commit a crime the defendant is a principal and must be treated as if he had done all of the things that the other person or

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persons did if the defendant had a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did insight [sic], cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime.

To be a principal the defendant does not have to be present when the crime is committed or attempted.

CONCLUSION

Based on the totality of the record, we conclude that the instructions provided to the jury did not confuse the jury as to its responsibility nor constitute fundamental error.

As to Count I, the murder of Mr. Williams, several eyewitnesses saw the defendant grab the AK-47 and at least one of these witnesses saw the defendant actually shoot Mr. Williams with the AK-47. Neither the State nor the defense argued during trial or closing arguments that another person participated in the murder of Mr. Williams. Thus, based on the evidence and the arguments of counsel, it is clear that the defendant’s conviction for the first degree murder of Mr. Williams was based on his own criminal acts, not the acts of another person acting as a principal. The trial court’s instructions as to this count, therefore, did not constitute fundamental error.

As to the first degree murder of Mr. Bernard (Count II) and the attempted first degree murder of Mr. Wade (Count III), the evidence, including eyewitness accounts and the location where the spent shotgun casings were located,

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demonstrate that the defendant was not the person who fired the shotgun at Mr. Wade and Mr. Bernard. Therefore, the defendant’s convictions as to Counts II and III were based on the acts of another person. Nonetheless, in reviewing the “totality of the record,” we find that the jury instructions did not constitute fundamental error because the trial court read the indictment to the jury at the beginning of the trial which charged the defendant as acting in concert with the codefendant from a common scheme or plan to commit the murders and the attempted murder; the trial court read the standard jury instruction to the jury on the law of principals; and the attorneys repeatedly communicated to the jurors that they could not convict the defendant for the acts of another person unless they found that the law of principals was met. For example, during its opening statement, the State argued that “[t]he defendant left the party, but returned several hours later with a “partner and a plan”—”to get the money or to get these two men.” Additionally, during closing argument, defense counsel argued: “The state is obligated to prove to you that somehow they got together to commit this crime or these crimes.” Similarly, the State argued in closing, “once again bringing in the principal theory, even though it is clear that David Brown did not fire the shot that killed Edward Leon Bernard he is just as guilty as the person who filed [sic] this shot because he was working together with that individual and they were working in concert.” Finally, on rebuttal, defense counsel once again explained to the jury

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that in order to convict the defendant for the acts of another, the jury had to find that the defendant and the other person were working in concert: “[The State] has to show the connection between those two people and that they somehow in concert decided to kill somebody. That is what they have to show.” Additionally, during voir dire, the trial court explained the law of principals to the jury, as did the State. Thus, after performing a complete review of the record, we conclude that based on the “totality of the record,” we find there was no fundamental error as to Counts II and III. Accordingly, we affirm the defendant’s convictions.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

1. The multiple defendants instruction read as follows:

A separate crime is charged against each defendant in each count of the information. The defendants have been tried together; however, the charges against each defendant and the evidence applicable to him must be considered separately. A finding of guilty or not guilty as to one or some of the defendants must not affect your verdict as to any other defendants or other crimes charged.

Garzon II, , 980 So. 2d at 1040.

2. Count I provides in relevant part:

DAVID DWAYNE BROWN . . . and COLLIES JASPER ROBINSON, each in concert with the other from a common scheme or plan, did unlawfully and feloniously kill a human being, to wit: ERIC WILLIAMS . . . from a premeditated design to effect the death of the person killed or any human being, or while engaged in the perpetration of, or in an attempt to perpetrate any murder of another human being, to wit: LAWRENCE WADE and/or EDWARD LEON BERNARD …, by shooting the said ERIC WILLIAMS … and during the course of the commission of the offense, said defendants discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon ERIC WILLIAMS …, a human being, in violation of s. 782.04(1), s. 777.011 and s. 775.087, Florida Statutes.

(Emphasis added).

Count II provides in relevant part:

DAVID DWAYNE BROWN . . . and COLLIES JASPER ROBINSON, each in concert with the other from a common scheme or plan, did unlawfully and feloniously kill a human being, to wit: EDWARD LEON BERNARD . . . from a premeditated design to effect the death of the person killed or any human being, or while engaged in the perpetration of, or in an attempt to perpetrate any murder of another human being, to wit: LAWRENCE WADE and/or ERIC WILLIAMS …, by shooting the said EDWARD LEON BERNARD … and during the course of the commission of the offense, said defendants discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon EDWARD LEON BERNARD …, a human being, in violation of s. 782.04(1), s. 777.011 and s. 775.087, Florida Statutes.

(Emphasis added).

Count III provides in relevant part:

DAVID DWAYNE BROWN . . . and COLLIES JASPER ROBINSON, each in concert with the other from a common scheme or plan, did unlawfully and feloniously attempt to kill a human being, to wit: LAWRENCE WADE, from a premeditated design to effect the death of a human being, by shooting him with a shotgun, and during the course of the commission of the offense, said defendants discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon LAWRENCE WADE, a human being, with a weapon, to wit: A firearm, in violation of s. 782.04(1), s. 777.04(1), s. 777.011 and s. 775.087, Florida Statutes.

(Emphasis added).

3. The relevant portions of the trial court’s instructions are as follows:

I now instruct you on the circumstances that must be proven before the defendant may be found guilty of murder in the first degree or any lessor [sic] included crime and/or attempted first degree murder or any lessor [sic] included crime.

There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.

Before you can find the defendant guilty of first degree premeditated murder the state must prove the following three elements beyond a reasonable doubt. As to Count one, first Eric Williams is dead. Second, the death was caused by the criminal act of the defendant or another person acting as a principal. Third, there is a premeditated killing of Eric Williams.

As to Count Two, Edward Leon Bernard is dead. Second, the death was caused by the criminal act of the defendant or another person acting as a principal. Third, there was a premeditated killing of Edward Leon Bernard.

. . . .

Before you can find the defendant guilty of first degree felony murder the state must prove the following three elements beyond a reasonable doubt. As to Count One, first, Eric Williams is dead. Second, the death occurred as a consequence of and while the defendant was engaged in the of [sic] murder. Or the death occurs as a consequence of and while the defendant was attempting to commit murder. Third, the defendant was the person who actually killed Eric Williams or Eric Williams was killed by a person other than the defendant, but both the defendant and the person who killed Eric Williams were principals in the commission of murder.

As to Count two, Edward Leon Bernard is dead. Second, the death occurred as a consequence of and while the defendant was engaged in the commission of murder. Or the death occurred as a consequence of and while the defendant was attempting to commit murder. Third, the defendant was the person who actually killed Edward Leon Bernard. Or Edward Leon Bernard was killed by a person other than the defendant but both the defendant and the person who killed Edward Leon Bernard were principals in the commission of murder.

In order to convict of first degree felony murder it is not necessary for the state to prove that the defendant had a premeditated design or intent to kill.

. . . .

Before you can find the defendant guilty of attempted first degree murder premeditated murder the state must prove the following three elements beyond a reasonable doubt.

First, the defendant or another person acting as a principal did some act intended to cause the death of Lawrence Wade that went beyond just thinking or talking about it.

Second, defendant or another person acting as a principal acted with a premeditated design to kill Lawrence Wade.

Third, the act would have resulted in the death of Lawrence Wade except that someone prevented the defendant from killing Lawrence Wade or he failed to do so.

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Courtesy of David Edelstein

RICHARD KEITH ALAN, II, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-3012.

District Court of Appeal of Florida, First District.

Opinion filed May 26, 2010.

An appeal from the Circuit Court for Leon County, Kathleen F. Dekker, Judge.

Richard Keith Alan II, pro se, West Palm Beach.

Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

HAWKES, C.J..

Richard Keith Alan, II, appeals a judgment of indirect criminal contempt and his resulting incarceration. Because the trial court did not abuse its discretion or otherwise err in adjudicating and sentencing Mr. Alan, we affirm its ruling.

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Facts

The day after her selection to the jury in a proceeding in which Mr. Alan served as defense counsel, one of the jurors asked the court to excuse her from further participation in the proceeding, claiming to have a medical condition that prevented her continued presence on the jury. As a result, the court excused the juror and substituted an alternate juror in her place. Immediately after the juror was excused from the jury, Mr. Alan accused her of having been “tampered with” and made an oral request that the court permit him to obtain her medical records. The court expressly denied this request calling it “nothing short of outrageous.”

At the close of trial, Mr. Alan filed a document entitled A[Defendant's] Motion for New Trial, Notice of Intent to Interview Jurors, and Request for Extension of Time to File Motion for Permission to Interview Jurors.” Two days after filing the motion (and without receiving authorization from the court), Mr. Alan contacted the juror via telephone.

The juror testified to the content of that conversation as follows:

[Mr. Alan] told me that he had got permission from the Judge to contact me and to contact some other jurors. And basically he said he had a couple of more questions to ask me. And some of the questions he wanted to find out about my medical information . . .

He wanted to get my medical records. But I told him that he couldn’t get my medical records. But the Judge could

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get my medical records. I would give the Judge permission to get my medical records, but I didn’t feel that he had permission to get my medical records . . . So, I wasn’t comfortable with him getting my medical records.

Yes, [the phone call upset me]. I was crying, and I went in the restroom. Because my son was there and it was — I was just like so upset and — because I didn’t mind the Judge getting my medical records. I had no problem with her getting them.

The only thing I came up [to the courthouse] to see, did he have permission from the Judge. Because I had told Mr. Alan that I was going to come up here to see if he had permission from the Judge.

Upon learning the nature of Mr. Alan’s contact with the juror, the court charged him with criminal contempt for willfully and knowingly contacting her “without court authorization in violation of the Court’s ruling.” Mr. Alan was adjudicated guilty and sentenced to five months and twenty-nine days in jail.

Applicable Statutes

Both the Rules Regulating the Florida Bar and the Florida Rules of Criminal Procedure set forth the specific procedures an attorney must follow if he wishes to communicate with a juror.

Rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar provides:

A lawyer shall not:

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(4) after dismissal of the jury in a case with which the lawyer is connected, initiate communication with or cause another to initiate communication with any juror regarding the trial except to determine whether the verdict may be subject to legal challenge; provided, a lawyer may not interview jurors for this purpose unless the lawyer has reason to believe that grounds for such challenge may exist; and provided further, before conducting any such interview the lawyer must file in the cause a notice of intention to interview setting forth the name of the juror or jurors to be interviewed. A copy of the notice must be delivered to the trial judge and opposing counsel a reasonable time before such interview. The provisions of this rule do not prohibit a lawyer from communicating with members of the venire or jurors in the course of official proceedings or as authorized by court rule or written order of the court. (emphasis added).

Florida Rule of Criminal Procedure 3.575 provides:

A party who has reason to believe that the verdict may be subject to legal challenge may move the court for an order permitting an interview of a juror or jurors to so determine. The motion shall be filed within 10 days after the rendition of the verdict, unless good cause is shown for the failure to make the motion within that time. The motion shall state the name of any juror to be interviewed and the reasons that the party has to believe that the verdict may be subject to challenge. After notice and hearing, the trial judge, upon a finding that the verdict may be subject to challenge, shall enter an order permitting the interview, and setting therein a time and a place for the interview of the juror or jurors, which shall be conducted in the presence of the court and the parties. If no reason is found to believe that the verdict may be subject to challenge, the court shall enter its order denying permission to interview. (emphasis added).

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Pursuant to these rules, attorneys who suspect juror misconduct are permitted to interview individual jurors, but may do so only after they file a notice of intent to interview and the presiding court enters an order authorizing the interview. See Ramirez v. State, 922 So. 2d 385 (Fla. 1st DCA 2006) (explaining the dichotomy between Rule 4-3.5(d)(4) and Rule 3.575). An attorney who interviews a juror regarding suspected juror misconduct without receiving prior authorization from the presiding court risks facing criminal contempt charges. Id.; see also §38.22 Fla. Stat. (2008) (stating Florida courts have inherent authority to punish contempts against it “whether such contempts be direct, indirect, or constructive”); and see Aaron v. State, 345 So. 2d 641, 642-43 (Fla. 1977) (holding such inherent authority enables courts to “maintain order and dignity in court proceedings, and to punish acts which obstruct the administration of justice”).

Analysis

Mr. Alan made an oral request that the court permit him to obtain the juror’s medical records. The court expressly denied this request, calling it “nothing short of outrageous.” Despite the court’s express denial, Mr. Alan proceeded to undermine the court’s authority by (1) contacting the juror in an effort to obtain her medical records; (2) falsely representing to the juror that he had obtained a court order permitting juror interviews; (3) falsely claiming the juror was required to turn over her medical records to him; and (4) generally harassing the juror to the

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point that she deemed it necessary to bring his actions to the court’s attention. Clearly, the court’s statement that Mr. Alan’s request was “outrageous” and therefore denied, taken in context, relates directly to Mr. Alan’s ability to seek the juror’s medical records. Such facts, when read in conjuncture with rule 3.575, Florida Rules of Criminal Procedure, indicate the court was well within its authority to hold Mr. Alan in criminal contempt for his actions.¹

Moreover, although Mr. Alan filed a document titled “[Defendant's] Motion for New Trial, Notice of Intent to Interview Jurors, and Request for Extension of Time to File Motion for Permission to Interview Jurors”; the circuit court did not, at any time, enter an order granting him permission to interview any juror. In fact, the record indicates the motion contained neither a legal nor factual basis for his request to interview the juror. This is demonstrated by the circuit court’s denial of the motion, in which the court stated:

[The motion] is completely confusing and incomplete as to [the juror]. It never names her. A general description of a juror with no name or time or date of anticipated interview under the criminal rule, does not meet the terms or spirit of the rule of professional conduct.

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Moreover, the rule requires the lawyer have a reason to believe grounds for a challenge exist. No such grounds were alleged, nor do they exist. [Mr. Alan] does not even appear to request an interview of the juror described in his motion.

Conclusion

Because the record supports the circuit court’s decision to hold Mr. Alan in criminal contempt for improperly interviewing the juror, we affirm the trial court’s ruling finding Mr. Alan guilty of criminal contempt.

AFFIRMED.

WOLF, J., CONCURS; BENTON, J., CONCURS IN PART AND DISSENTS IN PART.

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Notes:

1. Courts are granted great discretion in their inherent power to punish those who commit contempt. Orr v. Orr, 192 So. 466 (Fla. 1939). While this Court might not have entered the same sentence, we are not free to reweigh evidence and make such a determination absent a clear abuse of that discretion. The circuit court’s sentence was not totally disproportional to the actions for which Mr. Alan was held in contempt. Citizens showing up for jury duty need to be protected from harassment and unnecessary invasions into their privacy.

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BENTON, J., concurring in part and dissenting in part.

We review contempt orders for abuse of discretion. See Thomas v. State, 752 So. 2d 679, 685 (Fla. 1st DCA 2000). But a “`judge cannot base contempt upon noncompliance with something an order does not say.’ Under such circumstances, the standard of review is legal error, not abuse of discretion.” DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005) (quoting Keitel v. Keitel, 716 So. 2d 842, 845 (Fla. 4th DCA 1998)).

More than a year after appellant appeared as defense counsel in a criminal trial, the circuit court found him in contempt of court, and sentenced him to five months and twenty-nine days in jail. In my view, except insofar as it rests on defense counsel’s a) getting to court late the day the criminal trial began and b) misrepresenting a court order in the course of a post-trial telephone call, the adjudication of contempt should be reversed, and the case should be remanded for resentencing.

The day the criminal trial began appellant was an hour and thirteen minutes late for court because he decided to go personally to another court (this one) in an (unsuccessful) effort to block the start of trial. The trial judge was well within her rights to adjudicate him in contempt for this deliberate tardiness. See State v. Harwood, 488 So. 2d 901, 902 (Fla. 5th DCA 1986) (concluding that if “the court was of the opinion that the failure of the assistant state attorney to appear on time

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was an offense against the authority or dignity of the court, the procedure prescribed by Florida Rule of Criminal Procedure 3.830 for direct criminal contempt should have been followed”); James v. State, 385 So. 2d 1145 (Fla. 3d DCA 1980) (noting that failure of counsel to appear at a regularly set trial court hearing he had a duty to attend could constitute a direct criminal contempt); see also Smith v. State, 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007) (“[D]irect criminal contempt may be based upon . . . an act which is facially contemptuous.”).

But the conduct that the learned trial judge seems to have found most deserving of punishment—and which became the basis for four of the five separate contempt specifications she drew—occurred in the course of a telephone call that defense counsel made, after the criminal trial in which he represented one of the defendants was over, to a woman who did not serve on the jury, although she had been initially selected. At oral argument, the state conceded that the predicate for two of the specifications based on the telephone call had inadequate support in the record.

Upon learning of the telephone call, the trial judge charged Mr. Alan with indirect criminal contempt, on the following grounds:

a. Defendant wilfully and knowingly contacted Juror Gwendolyn Wiggins without court authorization in violation of the Court’s ruling.

b. Defendant wilfully and knowingly misrepresented to Juror Gwendolyn Wiggins that he had

Page 10

the Court’s permission or order which allowed him to interrogate Ms. Wiggins.

c. Defendant wilfully and knowingly interrogated Juror Wiggins against her will, or failed to cease contact when she clearly expressed her participation in the interrogation was not free and voluntary.

d. Defendant wilfully and knowingly sought production from Juror Wiggins[] of her medical records or interrogated her further about them, in direct contravention of the Court’s ruling.

. . . .

e. Defendant wilfully and knowingly failed to appear timely for trial with his client on 12/11/06 at 9:00 a.m.

(Emphasis supplied.) The final specification (e), added almost as an afterthought,² was the only one not based on the telephone call.

The trial judge found that Mr. Alan misrepresented to Ms. Wiggins that he had express judicial permission to contact her regarding her medical records. Such an intentional misstatement constitutes indirect criminal contempt.³ See Ex parte Crews, , 173 So. 275, 278-79 (Fla. 1937) (concluding that an information charging that Mr. Crews approached a defendant and “represented and pretended” that he “could influence the decision and judgment of the court by [] payment of money”

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sufficiently alleged contempt); Eubanks v. Agner, 636 So. 2d 596, 598 (Fla. 1st DCA 1994) (“If no order has been violated, contempt can only be found if the conduct is calculated to embarrass, hinder, or obstruct the court in the administration of justice or calculated to lessen the court’s authority and dignity.”).

One species of “indirect criminal contempt concerns conduct that has occurred outside the presence of the judge that violates a court order.” Via v. State, 633 So. 2d 1198, 1198 (Fla. 2d DCA 1994)). See also K.M. v. State, 962 So. 2d 969, 970 (Fla. 4th DCA 2007) (disposition listing juvenile’s probation requirements was not a “valid court order” that could support finding juvenile in indirect criminal contempt after juvenile’s arrest for violating probation by breaching curfew); M.W. v. Lofthiem, 855 So. 2d 683, 685 (Fla. 2d DCA 2003) (“Neither does M.W.’s admission to prior use of marijuana constitute indirect criminal contempt unless the use violated a valid court order that was in effect at the time he used the drug.”); Shields v. Shields, 636 So. 2d 169, 170 (Fla. 2d DCA 1994) (“In an indirect criminal contempt proceeding, the movant must prove, beyond a reasonable doubt, that the defendant willfully violated the court order.”). Accord Baker v. United States, 891 A. 2d 208, 215 (D.C. Cir. 2006) (“We . . . hold that the elements of criminal contempt in these circumstances may be satisfied upon a showing of: (1) conduct committed in the presence of the court that disrupts the orderly administration of justice; or (2) willful disobedience of a court order,

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committed outside the presence of the court.” (emphasis in original)).

The court order violated need not have been reduced to writing. Indirect criminal contempt can be based on noncompliance with an oral order when “an individual acknowledges understanding a court order, and disobedience of it.” First Midwest Bank/Danville v. Hoagland, 613 N.E. 2d 277, 284 (Ill. App. Ct. 1993) (cautioning courts to “use extreme caution in holding an individual in indirect civil contempt of court based upon the violation of a court order not found in the court record” because “[h]olding an individual in contempt of court is a drastic remedy, especially where the sanction involves incarceration of the alleged contemnor”).

Appellant was found guilty of two specifications in the present case which alleged he violated a court order.⁴ When—after the prospective juror mentioned various medical problems—the trial court allowed a belated “back strike” and excused her, defense counsel voiced the (apparently groundless) suspicion that she had been “tampered with,” and moved for a three-hour “stay” in order to obtain her

Page 13

medical records. The trial judge ruled that defense counsel’s “claim and request . . . is nothing short of outrageous, and that is denied.” But the trial court did not order defense counsel not to contact the prospective juror or any other venireperson. Since the only request addressed to the court was for a “stay” or continuance of the proceeding, the request for a “stay” or continuance was the only request that was denied. At oral argument, the State conceded that the trial court’s ruling did not, if intended to prohibit contact, constitute an order “express enough to survive scrutiny on appeal.”

Since the evidence did not prove beyond a reasonable doubt that appellant violated a court order, he was improperly adjudicated in contempt on that basis. Because other grounds were proven, the case should be remanded for resentencing⁵ as punishment for only those grounds that were proven.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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Notes:

2. The specification charging Mr. Alan with failure to appear timely with his client on the first day of trial could have been the basis for a finding of direct criminal contempt at the time, see State v. Harwood, 488 So. 2d 901, 902 (Fla. 5th DCA 1986), but the trial judge did not treat it as contempt of court until after learning of Mr. Alan’s telephone call to the venireperson.

3. The specification that Mr. Alan interrogated the venireperson against her will appears to be another way of alleging that he misrepresented his authority.

4. Incidentally, it is not clear that a court order is ever required in order for counsel to speak to a venireperson excused from jury service. A court order is not even required for counsel to speak to a juror once the trial is over if counsel follows “the alternative procedure under Rule Regulating The Florida Bar 4-3.5(d)(4), which allows an attorney with `reason to believe that grounds for such challenge may exist’ to interview a juror or jurors to determine whether the verdict may be subject to legal challenge after merely `fil[ing] in the cause a notice of intention to interview setting forth the name of the juror or jurors to be interviewed.’” Ramirez v. State, 922 So. 2d 386, 389 (Fla. 1st DCA 2006).

5. A remand for resentencing would make it unnecessary to reach Mr. Alan’s contention that the trial court abused its discretion in imposing the sentence now under review for reasons extraneous to the case.

—————

Courtesy of David Edelstein

ISAIAH BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2795.

District Court of Appeal of Florida, Fourth District.

May 26, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Cynthia L. Cox, Judge, L.T. Case No. 562007CF003594A.

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

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

STEVENSON, J.

Isaiah Brown challenges his conviction for aggravated child abuse, asserting, among other things, that the trial court fundamentally erred in instructing the jury on a theory of the crime not charged in the information. We find merit in this argument and reverse Brown’s conviction.

The charges against the defendant followed a family argument. The defendant and his son resided with his long-time girlfriend, Carla B., and her two daughters, K.O., age 15, and Ke.O., age 19. The defendant and his girlfriend were arguing, the argument escalated, and the defendant called K.O. “stupid” and “a whore.” K.O. heard the defendant, approached him, and a physical altercation between the defendant and K.O. ensued. The State presented evidence that the defendant grabbed K.O.’s hair and banged her head on the floor and that, in turn, K.O. struck the defendant with a barstool. K.O.’s mother pulled her out of the house. K.O. testified that the defendant then came at her with a bat. K.O. slipped and fell near the driveway and testified that the defendant twice struck her in the head with the bat. K.O. was taken to the hospital, receiving four stitches and twelve staples to close the head wound. There was testimony that K.O. continued to suffer from bad headaches, nightmares and memory loss and that she has a “brain injury.” The State also presented testimony that defendant struck Carla B. and Ke.O., but the facts related to those incidents are not germane to this appeal.

For his part, the defendant admitted the physical altercation with

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K.O. and admitted grabbing the bat. He insisted that he grabbed the bat because he feared he might need it to protect his son. He denied striking K.O. with the bat, suggesting that the injury to her head was the result of her striking her head on the drainage pipe near the driveway.

Defendant was charged with aggravated child abuse (count I — victim K.O.), aggravated battery with a deadly weapon, i.e., a bat (count II victim K.O.), and two counts of aggravated assault with a deadly weapon, i.e., a bat (counts III & IV — victims Carla B. and Ke.O., respectively). The jury found defendant guilty of counts I and II, and not guilty of count IV. Count III was nolle prossed. Since the victim of both counts I and II was K.O., following the jury verdict, the parties agreed that a conviction for both counts I and II would violate double jeopardy. Consequently, the trial court entered a judgment of conviction solely on the aggravated child abuse conviction of count I. Of note, aggravated child abuse is a first degree felony and aggravated battery is a second degree felony. See §§ 827.03(3)(b), 784.045(2), Fla. Stat. (2007).

The crime of aggravated child abuse may be committed in three ways: (a) “when a person . . . [c]ommits aggravated battery on a child”; (b) “when a person . . . [w]illfully tortures, maliciously punishes, or willfully and unlawfully cages a child”; or (c) “when a person . . . [k]nowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.” § 827.03(2). A person may commit an aggravated battery in two ways: by “[i]ntentionally or knowingly caus[ing] great bodily harm, permanent disability, or permanent disfigurement” or by “us[ing] a deadly weapon.” § 784.045(1)(a). The first manner of committing aggravated battery (i.e., causing great bodily harm) is specifically referenced in section 827.03(2)(c) of the aggravated child abuse statute.

In the instant case, count I of the information read as follows:

[On] July 31, 2007 Gardner Lee Browne[¹] did willfully torture, maliciously punish or willfully and unlawfully cage [K.O.] [tracking section 827.03(2)(b)], a child under the age of 18 years, or did knowingly or willfully abuse said child and in so doing caused great bodily harm, permanent disability or permanent disfigurement to said child [tracking section 827.03(2)(c)], in violation of Florida Statute 827.03(2).

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Count I did not track the language of, or otherwise reference, section 827.03(2)(a), which provides that the crime of aggravated child abuse is committed when a person commits an aggravated battery on a child. And, count I made no reference to the defendant’s use of a deadly weapon as the basis for his commission of aggravated child abuse.

During closing arguments, the prosecutor invited the jury to convict the defendant of aggravated child abuse based upon his use of a deadly weapon, i.e., the bat. And, the jury was instructed in part as follows:

[T]he Defendant in this case, has been accused of the crimes of aggravated child abuse, aggravated battery and aggravated assault. To prove the crime of aggravated child abuse, the State must prove the following two elements beyond a reasonable doubt: . . . number one, Gardner Lee Browne committed aggravated battery upon [K.O.]. [K.O.] was under the age of 18 years.

In order to prove that an aggravated battery was committed, the State must prove the following: Gardner Lee Browne intentionally touched or struck [K.O.] against the will of [K.O.], caused bodily harm to [K.O.]. In doing so, Gardner Lee Browne intentionally or knowingly caused great bodily harm, permanent disability, permanent disfigurement or used a deadly weapon. (emphasis added).

Neither the prosecutor’s argument nor the instructions read to the jury were the subject of any objection at trial. Instead, for the first time on appeal, defendant insists that the giving of the preceding jury instruction was fundamental error since it permitted the jury to convict him of aggravated child abuse based upon a theory not charged in the information, i.e., by committing the crime of aggravated battery by using a deadly weapon. Defendant maintains that given the evidence at trial and the prosecutor’s arguments to the jury, it is impossible to determine which theory the jury relied upon in returning its guilty verdict of aggravated child abuse. The authorities support defendant’s argument.

“A defendant is entitled to have the charge against him proved substantially as alleged in the indictment or information and cannot be prosecuted for one offense and convicted and sentenced for another, though the offenses are of the same general character or carry the same penalty.” Zwick v. State, 730 So. 2d 759, 760 (Fla. 5th DCA 1999). “`[W]here an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the

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indictment. . . . [I]f one of the state of facts is alleged, it cannot be established by proof of another.’” Id. (quoting Long v. State, 92 So. 2d 259, 260 (Fla. 1957)). For this reason, it is fundamental error to instruct the jury on a theory of the crime not charged in the information where evidence and argument are presented on the uncharged theory. See, e.g., Beasley v. State, 971 So. 2d 228 (Fla. 4th DCA 2008). This is so because under such circumstances it will ordinarily be “`impossible to determine whether [the defendant] was convicted of a charged or uncharged offense,’” Cogbill v. State, 940 So. 2d 537, 539 (Fla. 1st DCA 2006) (quoting Debose v. State, 920 So. 2d 169, 170 (Fla. 1st DCA 2006)), and it is a due process violation to convict a defendant of a crime with which he was not charged, see Carswell v. State, 23 So. 3d 195, 198 (Fla. 4th DCA 2009).

In Sanders v. State, 959 So. 2d 1232 (Fla. 2d DCA 2007), the evidence at trial established that the defendant struck the victim with a walking stick, the victim bled profusely, and the victim was taken to the hospital and received stitches. During closing argument, the State argued that misdemeanor battery, as opposed to aggravated battery, occurs where there is no great bodily harm, like the stitches. The jury was instructed on both theories of the aggravated battery, i.e., by “[i]ntentionally or knowingly caus[ing] great bodily harm, permanent disability, or permanent disfigurement” or by “us[ing] a deadly weapon.” § 784.045(1)(a). The information, though, had charged the defendant with only aggravated battery with a deadly weapon. Given the evidence before the jury and the State’s closing argument, the error in the instruction was held to be fundamental error.

Here, as in Sanders, the jury instructions and the State’s closing argument permitted the jury to convict the defendant based upon a theory of the crime not charged, i.e., the commission of aggravated child abuse as a consequence of the use of a deadly weapon. It is possible that the jury found that the defendant “intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement,” a theory that was instructed upon and which could fall within the indisputably charged violation of section 827.03(2)(c). It is also possible, however, that the jury convicted the defendant based upon his use of a deadly weapon, a theory not charged. This latter possibility cannot be excluded since the State specifically invited the jury to convict the defendant of aggravated child abuse based upon his use of a deadly weapon and the evidence of great bodily harm was debatable.

The State seeks to avoid this result by arguing that it is too late for the defendant to complain that the information failed to charge

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aggravated child abuse as the consequence of the use of a deadly weapon and that the defendant invited any error. We reject both arguments. With regard to the former, we note that “`[a]n information must allege each of the essential elements of a crime to be valid.’`” Brown v. State, 21 So. 3d 108, 110 (Fla. 4th DCA 2009) (quoting State v. Dye, 346 So. 2d 538, 541 (Fla. 1977)). Here, count I did not allege the use of a deadly weapon and it did not track the language of, or otherwise reference, section 827.03(2)(a)—the only portion of section 827.03 that could have supported a charge of aggravated child abuse as the consequence of an aggravated battery on the child with a deadly weapon. Compare DuBoise v. State, 520 So. 2d 260, 265 (Fla. 1988) (stating that to cure the deficiency in the information, the statutory citation must be to “a specific section of the criminal code which sufficiently details all the elements of the offense”). Lastly, based upon our review of the record, we cannot say with certainty that defendant “invited error” in this case where the trial court was obligated to instruct the jury on the separate charged offenses of both aggravated child abuse and aggravated battery.

Accordingly, the defendant’s conviction for count I is reversed and the matter remanded for a new trial. Our disposition of this issue makes it unnecessary for us to reach the remaining points raised on appeal.

Reversed and Remanded.

GROSS, C.J., and POLEN, J., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. At trial, appellant spelled his last name as “Browne,” and testified that he’s also “been called Gardner Browne, Isaiah Browne and Lee Browne.”

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Courtesy of David Edelstein

ROBERT FRATCHER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4002.

District Court of Appeal of Florida, Fourth District.

May 26, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County, Dan L. Vaughn, Judge, L.T. Case No. 2000CF001746A.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

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

JEFFREY R. LEVENSON, Associate Judge.

Robert Fratcher appeals his judgment and sentence for burglary of a dwelling with assault or battery. Fratcher raises three issues on appeal; we affirm without further comment the first two issues concerning the motion to suppress and the rule of sequestration. As to the third issue, we hold that the trial court abused its discretion when it overruled Fratcher’s objection to the prosecutor’s comments on his refusal to consent to a search. However, we conclude that the error was harmless. Accordingly, we affirm.

On December 6, 2000, Fratcher broke into the Hyatt family’s home.¹ He was arrested early the next morning at his girlfriend’s house. At the scene of the arrest, Detective Nancy McNally asked Fratcher for consent to search his truck, but he refused. During the prosecutor’s opening statement at the jury trial, she made two comments on Fratcher’s withholding of consent. First, the prosecutor said,

The police get there. Fratcher opens the door and they place him under arrest. He immediately—the officer, you hear Detective McNally . . . say, can I search your truck. No, you can’t search my truck.

Shortly after that comment, the prosecutor made this one:

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Nancy McNally, the detective, looked in Fratcher’s truck and saw [clothing that matched a victim's description.] Since Fratcher said she couldn’t search, she couldn’t go into his truck, which is his right, that’s fine. She went and got a search warrant.

The prosecutor then told the jury what she thought the evidence would show, and she asserted that the jury would hear a conversation between Fratcher and his father that was recorded at the county jail. At that point, Fratcher’s attorney objected to the reference to Fratcher being in jail.

After argument and the trial judge’s ruling on that objection, Fratcher’s attorney argued for a mistrial because the prosecutor stated that Fratcher did not consent to a search of his truck. It appears Fratcher’s attorney did not raise this objection earlier because he could not adequately hear the prosecutor during her opening statement. As a result, Fratcher’s attorney did not point to which of the two comments he thought objectionable. In response, the prosecutor argued that Fratcher had the right to refuse consent, and contended that commenting on a defendant’s refusal to consent was not the same as commenting on his remaining silent. The trial judge overruled Fratcher’s objection and denied the motion on the basis that Fratcher’s attorney did not timely object to the comment and that, if he did so timely object, the comment did not vitiate the entire trial. Despite his ruling, the judge admonished the prosecutor not to make further reference to Frather’s refusal to give consent, and to instead say only that law enforcement obtained a search warrant.

Ultimately, the jury found Fratcher guilty of burglary of a dwelling with an assault or battery. No further mention of the defendant’s refusal to the car search was made during the trial.

At the outset, we find the issue of the prosecutor’s comments to be preserved. A defendant need not object immediately after the state makes an impermissible comment. Cf. Jackson v. State, 451 So. 2d 458, 461 (Fla. 1984) (within context of witness’s in-court testimony, “[a]n objection need not always be made at the moment an examination enters impermissible areas of inquiry”). Additionally, “[A]n objection may be considered timely if it is made soon enough to allow the trial court to provide a remedy.” Philip J. Padovano, Appellate Practice § 8:3, at 150-51 (2009 ed.). Here, even though Fratcher’s attorney did not object immediately after the prosecutor’s comment, he did object shortly thereafter, and soon enough that the judge could have issued a curative

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instruction to the jury had he sustained the objection. However, Fratcher’s attorney did not specify whether he was objecting to one or both of the comments the prosecutor made. Because Fratcher complains of only the first prosecutorial comment in his brief, we confine our analysis to that comment.

We now turn to the merits. Fratcher argues that the judge abused his discretion when he overruled Fratcher’s objection to the prosecutor’s comment and denied his motion for mistrial. He contends that the prosecutor improperly commented on his constitutional right to refuse to consent to a search. The state responds that the judge did not abuse his discretion because he instructed the prosecutor not to make further comments on Fratcher’s refusal. We hold that the trial judge abused his discretion when he overruled Fratcher’s objection, but not when he denied Fratcher’s motion for mistrial. See Taylor v. State, 640 So. 2d 1127, 1133 (Fla. 1st DCA 1994) (standard of review for ruling on prosecutorial comments); Elisha v. State, 949 So. 2d 271, 273 (Fla. 4th DCA 2007) (standard of review for denial of motion for mistrial).

The fifth district wrote in Gomez v. State, 572 So. 2d 952, 953 (Fla. 5th DCA 1990), that

[c]omment on a defendant’s denial of permission to search a vehicle, although not exactly the same thing as comment on a defendant’s right to remain silent, since [different constitutional amendments are involved], constitutes constitutional error of the same magnitude. A defendant who has a constitutional right to refuse to consent to a search . . . should be free to exercise that right with impunity. No comment on its exercise should be permitted to raise an inference of guilt, if the Fourth Amendment right against unreasonable search and seizure is to be given its full meaning.

(Footnotes omitted). In Gomez, the fifth district reversed for a new trial because a state witness, a police officer, testified that he asked for permission to search Gomez’s car; that Gomez understood the officer would be looking for cocaine; and that Gomez refused consent for the search. Id. at 952-53. The court found that the error was harmful because “[t]he evidence that Gomez knew cocaine was lodged in the back seat of her car was circumstantial.” Id. at 953.

We followed Gomez in Kearney v. State, 846 So. 2d 618 (Fla. 4th DCA 2003). There, Kearney had been acquitted of unlawfully intercepting an

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oral communication but nonetheless convicted of perjury. Id. at 619. We reversed the perjury conviction because of two remarks the prosecutor made during closing argument. Id. at 622. Both of these comments referenced Kearney’s right to refuse consent to a search, which she had apparently exercised, leading to the state’s inability to produce a tape Kearney had denied making; this denial served as the basis of the perjury charge. Id. at 620. We held that “[t]hese comments, on their face, [were] `fairly susceptible’ of being read as impermissible comments on the defendant’s constitutional rights.” Id. at 621. We then held that the error was harmful. Id. at 621-22. Since Kearney was acquitted on the charge of unlawfully intercepting an oral communication, “it [was] clear that the jury did not believe the State presented a case of overwhelming guilt against Kearney in that instance.” Id. at 621. Because the evidence against Kearney was thin (Kearney claimed she did not make the tape, a co-worker claimed she heard the tape, and no one knew who possessed the tape), we could not say that the prosceutor’s “indictment of Kearney’s credibility . . . did not influence the jury on the perjury charge.” Id. at 621-22.

In this appeal, Fratcher complains of the following comment the prosecutor made during her opening statement:

The police get there. Fratcher opens the door and they place him under arrest. He immediately—the officer, you hear Detective McNally . . . say, can I search your truck. No, you can’t search my truck.

We believe that, under Gomez, the trial judge abused his discretion in overruling Fratcher’s objection to this comment. While the prosecutor did not make the comment in a closing argument—so that it was not tinged with the argumentative character that made the Kearney comments so harmful—it was made as part of a narrative retelling of the facts, as was the impermissible comment in Gomez. Against this case’s constitutional backdrop, the prosecutor’s comment ran afoul of the strong prohibition against comment on a defendant’s exercise of his Fourth Amendment rights that the fifth district announced in Gomez and we followed in Kearney. Nonetheless, we find the error to be harmless. See Goodwin v. State, 751 So. 2d 537 (Fla. 1999).

Contrary to Fratcher’s argument, however, the judge did not abuse his discretion in denying the motion for mistrial. “Improper prosecutorial comments give rise to error justifying mistrial when they are so prejudicial that they vitiate the entire trial. In determining whether reversal is warranted . . ., the court must determine whether the effect of

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the comment was to prejudice the jury and impair the fairness of the proceeding.” Mannarino v. State, 869 So. 2d 650, 652 (Fla. 4th DCA 2004) (citations omitted) (some internal punctuation marks omitted) (in context of comments made by prosecutor during closing argument). Here, the trial court ruled that the comment did not vitiate the entire trial. We agree. The prosecutor made the comment during opening statement in a non-argumentative manner and did not focus on the fact that Fratcher refused consent to a search. After the judge admonished the prosecutor not to mention it again, the prosecutor did not.

Accordingly, we affirm the judgment of conviction and sentence.

FARMER and TAYLOR, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. We state the facts in the light most favorable to the state. See Carter v. State, 23 So. 3d 1238 (Fla 4th DCA 2009).

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Courtesy of David Edelstein