Florida Criminal Law Opinions

Supreme Court of Florida

____________
No. SC09-780
RAY LAMAR JOHNSTON,

Appellant,
vs.
STATE OF FLORIDA,

Appellee.
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No. SC10-75
RAY LAMAR JOHNSTON,

Appellant,
vs.
EDWIN G. BUSS, etc.,
Appellee.

[March 24, 2011]

PER CURIAM.

Ray Lamar Johnston appeals an order of the trial court denying his motion to vacate his conviction for first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus.1 For the reasons that follow, we affirm the trial court‘s order denying postconviction relief. We also deny the habeas petition.I.  FACTS AND PROCEDURAL HISTORYJohnston was charged with the 1997 murder, kidnapping, robbery, and sexual battery of Leanne Coryell and with burglary of a conveyance with assault or battery. Johnston v. State, 841 So. 2d 349, 351 (Fla. 2002). The jury found Johnston guilty on all charges and unanimously recommended the death penalty. The trial court followed the jury‘s recommendation and sentenced Johnston to death. Id. at 355.The evidence presented at Johnston‘s trial demonstrated that Johnston had beaten, raped, and manually strangled Coryell, then dragged her to a pond and left her nude, floating face down. Id. at 352. When law enforcement arrived at the scene, Coryell‘s car was in a nearby parking lot with the keys in the ignition and the engine still warm. Id. Later that night and early the next morning, ATM surveillance videos captured Johnston using Coryell‘s ATM card to withdraw $1000 from her account. Id. Police obtained a warrant to search Johnston‘s apartment, where they found a pair of wet tennis shoes matching three partial impressions found at the scene. Id.1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. 2
After Johnston saw his picture on television, he voluntarily told police he was friends with Coryell and had gone out for dinner and drinks on the night of the murder. Id. At that time, he explained that he had loaned money to Coryell and that she had provided the ATM card so that Johnston could withdraw money from her account as repayment. Id. After making this initial statement, Johnston was arrested for grand theft. Id. He received Miranda2 warnings and agreed to continue the interview. Id. Thereafter, the detectives pointed out factual discrepancies in Johnston‘s initial statement and confronted Johnston with the information that they had discovered his wet tennis shoes. Id. at 352-53. Johnston continued to deny his guilt and responded that law enforcement would not find any DNA evidence, hair, or saliva that would link him to the victim. Id. at 353.At trial, the prosecution presented evidence that Coryell had clocked out of work over two hours after Johnston had purported to meet her for drinks. Id. at 351-52. His roommate testified that they lived in the same apartment complex as Coryell, that Johnston left the apartment that night without taking his car, and that Johnston returned later that night with money to repay a loan. Id. at 351.Johnston‘s fingerprint was found on the outside of Coryell‘s car.   Id. at 352.2.   Miranda v. Arizona, 384 U.S. 436 (1966).3 In imposing the death sentence, the trial court found four aggravators,3 one statutory mitigator,4 and numerous nonstatutory mitigators.5This Court affirmed Johnston‘s conviction and sentence on direct appeal. Id. at 361. Johnston subsequently filed a motion for postconviction relief. The trialcourt denied Johnston‘s postconviction motion after holding an evidentiary hearingon some of his claims.   Johnston now appeals the denial of postconviction reliefand has filed a habeas petition in this Court.
The trial court found the following aggravators: (1) the defendant was previously convicted of violent felonies (great weight); (2) the crime was committed while Johnston was engaged in the commission of sexual battery and a kidnapping (great weight); (3) it was committed for pecuniary gain (great weight); and (4) it was especially heinous, atrocious, or cruel (great weight). Id. at 355 n.3. The trial court found that Johnston‘s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was substantially impaired and gave it moderate weight. Id. at 355 n.4. The trial court gave weight to the following nonstatutory mitigation: (1) the defendant has shown remorse (slight weight); (2) the defendant has a long history of mental illness (slight weight); (3) the defendant is capable of strong, loving relationships (slight weight); (4) the defendant excels in a prison environment (slight weight); (5) the defendant could contribute while in prison (slight weight); (6) the defendant served in the U.S. Air Force (slight weight); (7) during the time the defendant was on parole, he excelled (slight weight); (8) the defendant was a productive member of society after his release from prison (slight weight); (9) when notified that the police were looking for him, he turned himself in (slight weight); (10) the defendant demonstrated appropriate courtroom behavior during trial (slight weight); (11) ?the defendant has tried to conform his behavior to normal time after time, but has been thwarted by his mental illness and brain dysfunction? (slight weight); (12) the defendant has the support of his mother and sister (slight weight); and (13) the defendant offered to be a kidney donor for his ex-wife (slight weight). Id. at 360 n.13. 4 II.  JOHNSTON’S POSTCONVICTION CLAIMSOn appeal from the denial of postconviction relief, Johnston raises ten issues: (A) counsel was ineffective for failing to adequately question juror Tracy Robinson concerning her prior misdemeanor and active capias; (B) counsel was ineffective for failing to include juror Robinson‘s resulting nondisclosure in a motion for new trial; (C) the postconviction court erred in denying Johnston‘s motion to interview juror Robinson; (D) counsel was ineffective for failing to file a motion to suppress Johnston‘s statements to law enforcement; (E) counsel was ineffective for failing to call Diane Busch as a witness; (F) counsel was ineffective for failing to inform the trial court or jury that Johnston was using prescribed psychotropic medication at the time of trial; (G) counsel was ineffective for offering ill-considered and improper advice concerning Johnston‘s need to testify;(H) counsel was ineffective for failing to present potential mitigators; (I) counsel was ineffective for failing to adequately challenge fingerprint evidence; (J) counsel was ineffective for failing to adequately challenge shoe tread evidence; (K) counsel was ineffective for failing to further question members of the venire concerning their exposure to pretrial publicity; (L) counsel was ineffective for failing to file a5 legally sufficient motion to disqualify the trial judge; and (M) cumulative errorwarrants relief.6    As explained below, we affirm the trial court‘s denial of relief.A.  Failure to sufficiently question juror Robinson at voir direJohnston first claims that counsel was ineffective for failing to sufficiently question juror Tracy Robinson at voir dire, suggesting that a targeted ?follow-up? question would have brought out additional facts not disclosed by Robinson. He also asserts that such information would have caused defense counsel to move to strike Robinson for cause or to peremptorily exclude Robinson. We disagree.Juror Robinson, who served as the jury foreperson, was arrested for a drug-related offense during the penalty phase. Johnston, 841 So. 2d at 355. 7 Her arrestrevealed that she pled nolo contendere approximately ten months before Johnston‘strial to misdemeanor charges of obstructing a police officer without violence. Id. During voir dire, juror Robinson did not reveal her prior plea and charges. Id.Robinson also failed to pay her court costs in that obstruction case; therefore, at thetime of Johnston‘s trial she was the subject of an active capias for civil contemptcharges.   Id. at 357.   On direct appeal, Johnston argued that he was entitled to a6. Because Johnston has failed to provide this Court with any basis for relief in any of his postconviction claims, Johnston is not entitled to relief based on cumulative error. See Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010).7. This Court‘s opinion on direct appeal fully set out the facts regarding juror Robinson. See id. at 355-56.6
new trial because of Robinson‘s nondisclosure and active capias. Id. at 355-57. This Court rejected Johnston‘s argument, holding that the capias did not statutorily disqualify Robinson and that Johnston had failed to raise the issue of Robinson‘s nondisclosure with the trial court. Id. at 357-58.Following the United State Supreme Court‘s decision in Strickland v.Washington, 466 U.S. 668 (1984), this Court has held that for ineffectiveassistance of counsel claims to be successful, the defendant must demonstrate bothdeficiency and prejudice:First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,490 So. 2d 927, 932 (Fla. 1986)).There is a strong presumption that trial counsel‘s performance was not deficient. See Strickland, 466 U.S. at 690. ?A fair assessment of attorneyperformance requires that every effort be made to eliminate the distorting effects ofhindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.? Id. at 689. The defendant carries the burden to ?overcome the presumption that, under the circumstances, the challenged action ?might be considered sound trial strategy.‘ ?7
Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). ?Judicial scrutiny of counsel‘s performance must be highly deferential.? Id. ?[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel‘s decision was reasonable under the norms of professional conduct.? Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. Melendez v. State, 612 So. 2d 1366, 1369 (Fla. 1992).In demonstrating prejudice, the defendant must show a reasonableprobability that ?but for counsel‘s unprofessional errors, the result of theproceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.? Strickland, 466 U.S. at 694.Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuitcourt‘s factual findings that are supported by competent, substantial evidence, butreviewing the circuit court‘s legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004).First, in this case, counsel was not ineffective for failing to sufficiently question juror Robinson regarding the capias. See Ferrell v. State, 29 So. 3d 959,976 (Fla. 2010) (?Trial counsel cannot be deemed ineffective for failing to raise a8
meritless argument.?). As this Court held on direct appeal, Robinson‘s civil contempt charge did not disqualify her from service under section 40.013(1), Florida Statutes (1999). Johnston, 841 So. 2d at 356-57. Therefore, even if Robinson was aware of the capias and disclosed it upon questioning, such disclosure would not have provided a reason for Robinson to be removed for cause.Second, counsel was not deficient because in keeping juror Robinson, defense counsel was following its strategy of seeking a young and minority jury. After conducting a mock trial and soliciting pretrial advice from a professional jury consultant, defense counsel decided to pursue a strategy of seating jurors matching the profile shared by juror Robinson. Defense counsel testified at the evidentiaryhearing that Robinson‘s prior misdemeanor and active capias would not have madeher any less desirable to the defense. Counsel was not ineffective for pursuing this reasonable strategy. See Dillbeck v. State, 964 So. 2d 95, 103 (Fla. 2007)(?Dillbeck‘s trial counsel adopted a reasonable trial strategy of avoiding a death sentence by attempting to seat jurors likely to recommend a life sentence.?).Additionally, Johnston has failed to establish prejudice; given that defense counsel would not have moved to strike juror Robinson even if counsel had further questioned Robinson and she had disclosed her criminal history, our confidence inthe outcome is not undermined.   In fact, after learning of juror Robinson‘s arrest,9
the defense verbally objected to her removal, expressing a preference for juror Robinson over the alternate juror.Accordingly, because Johnston cannot demonstrate deficiency and prejudice, this ineffectiveness claim is without merit.B.  Failure to cite juror Robinson’s misconduct in motion for new trialJohnston next claims that defense counsel was ineffective for failing toinclude in the motion for new trial a claim of juror misconduct based on jurorRobinson‘s nondisclosure.   Because Johnston cannot demonstrate prejudice, wedisagree.This Court has explained that[i]n determining whether a juror‘s nondisclosure of information during voir dire warrants a new trial, courts have generally utilized a three-part test. First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party‘s lack of diligence.De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995) (citations omitted); seealso Lugo v. State, 2 So. 3d 1, 13 (2008).Under the first prong of De La Rosa, Johnston must establish that thenondisclosed information is relevant and material to jury service in this case.   DeLa Rosa, 659 So. 2d at 241; see also Murray v. State, 3 So. 3d 1108, 1121-22 (Fla.2009).   ?There is no per se rule that involvement in any particular prior legal10
matter is or is not material.? Roberts v. Tejada, 814 So. 2d 334, 345 (Fla. 2002); see also State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 366 n.2 (Fla. 2002). Factors that may be considered in evaluating materiality include the remoteness in time of a juror‘s prior exposure, the character and extensiveness of the experience, and the juror‘s posture in the litigation. Roberts, 814 So. 2d at 342.But ?materiality is only shown ?where the omission of the information prevented counsel from making an informed judgment—which would in all likelihood have resulted in a peremptory challenge.‘ ? Levine, 837 So. 2d at 365 (internal quotation marks omitted) (quoting Roberts, 814 So. 2d at 340)). In otherwords, ?[a] juror‘s nondisclosure . . . is considered material if it is so substantialthat, if the facts were known, the defense likely would peremptorily exclude the juror from the jury.? Murray, 3 So. 3d at 1121-22 (quoting McCauslin v. O‘Conner, 985 So. 2d 558, 561 (Fla. 5th DCA 2008)).In Lugo, we held that a juror‘s nondisclosure was not sufficiently material where the juror, sitting on a death penalty case, had been a victim of theft. Lugo, 2So. 3d at 14. In evaluating materiality, this Court observed that the juror‘s ?one-time isolated incident? did not resemble the murder victim‘s ?extended torture and captivity.? Id. Thus, we concluded that the sheer disparity between the experiences made the juror‘s experience insufficiently material or relevant toservice on that jury.   Id.11
Similarly, here, Johnston has failed to satisfy materiality under De La Rosa‘s first prong. We find nothing about the character and extensiveness of Robinson‘s own experience—she committed a nonviolent offense and then pled nolo contendere—that suggests she would be biased against a defendant pleading not guilty in a death penalty case or against legal proceedings in general. See Lugo, 2 So. 3d at 14; cf. De La Rosa, 659 So. 2d at 241. The capias, furthermore, was not issued for a criminal offense. Johnston, 841 So. 2d at 357. In fact, juror Robinson‘s positioning as a prior defendant makes bias against Johnston especially unlikely. See Garnett v. McClellan, 767 So. 2d 1229, 1231 (Fla. 5th DCA 2000) (finding that prior litigation experience was immaterial, in part, because the juror had been similarly situated to and was therefore more likely to be sympathetic to the complaining party).Neither was there any evidence to suggest that here, ?if the facts wereknown, the defense likely would [have] peremptorily exclude[d] the juror from the jury.? Murray, 3 So. 3d at 1121-22 (quoting McCauslin, 985 So. 2d at 561). In fact, as explained above, Robinson matched the profile of the optimal juror sought by the defense. Defense counsel also testified at the evidentiary hearing that in his experience, the substance of Robinson‘s nondisclosure would have caused theprosecution—not the defense—to exclude or strike a juror.12 Accordingly, because Johnston could not have demonstrated materiality, anymotion for new trial based on Robinson‘s disclosure would not have beensuccessful. And because the claim lacked merit, counsel cannot be deemed ineffective for failing to raise it. Therefore, denial of this ineffectiveness claim is affirmed.C.  The postconviction court’s denial of motion for juror interviewJohnston claims that the postconviction trial court should have permitted him to conduct an interview of juror Robinson under Florida Rule of Criminal Procedure 3.575. Johnston told the postconviction court that he sought to question juror Robinson on her motives or intent during voir dire.8 We affirm the trialcourt‘s denial.?A trial court‘s decision on a motion to interview jurors is reviewed pursuantto an abuse of discretion standard.? Anderson v. State, 18 So. 3d 501, 519 (Fla. 2009). The trial court does not abuse its discretion in denying motions to interview jurors based on juror bias or misconduct where there is no indication of bias or misconduct in the record. See id.8. To the extent that Johnston alleges entitlement to a juror interview on the same grounds advanced on direct appeal—the issue of Robinson‘s active capias— the trial court correctly denied an interview because the subject claim was procedurally barred. See, e.g., Green v. State, 975 So. 2d 1090, 1106 (Fla. 2008)(?Because the . . . issue was raised on direct appeal, Green is not permitted to relitigate it on postconviction appeal.?).13 Here, the trial court did not abuse its discretion in denying Johnston‘s rule3.575 motion because a juror interview was unnecessary given that the substance of Robinson‘s nondisclosure was already known.D.  Johnston’s statement to law enforcementJohnston argues that trial counsel was ineffective under Strickland for failing to move to suppress his statement made to law enforcement prior to issuance of a Miranda warning. Johnston also asserts that counsel should have moved to suppress the statement made after Johnston received a Miranda warning because the warning came in the middle of continual interrogation. We affirm denial of both arguments.Upon seeing his picture on television, Johnston phoned police, drove himself to the police station, and made a statement to detectives he knew to be assigned to the case. He believed his statements would account for his whereabouts on the night of the murder and his use of the victim‘s ATM card. At the postconviction evidentiary hearing, defense counsel explained that he wanted the jury to hearJohnston‘s statements because they provided the only lawful explanation as to why Johnston possessed the victim‘s ATM card.Defense counsel‘s explanation demonstrates that his decision not to move to suppress Johnston‘s statements was a reasonable, strategic choice. See Occhicone, 768 So. 2d at 1048; Lawrence v. State, 969 So. 2d 294, 309 (Fla. 2007). Short of14 calling Johnston to testify, there was no available evidence aside from thestatement that could explain Johnston‘s use of the ATM card.Additionally, counsel cannot be deemed ineffective because any motion to suppress would have been meritless. See Kormondy v. State, 983 So. 2d 418, 430 (Fla. 2007); Fitzpatrick v. State, 900 So. 2d 495, 511 (Fla. 2005). Evidencepresented at the postconviction evidentiary hearing demonstrated that Johnston‘sinitial statement was voluntary. Therefore, no Miranda warnings were required until Johnston was formally arrested. See Traylor v. State, 596 So. 2d 957, 965-66 (Fla. 1992). And, since Johnston was not in custody when he gave his initial statement, it follows that Johnston‘s post-Miranda statement was obtained following a valid waiver. See Ault v. State, 866 So. 2d 674, 682 (Fla. 2003) (?[I]t is custodial interrogation that triggers the Miranda prophylactic.?). Therefore, a motion to suppress either statement would have been denied.Because defense counsel made a reasonable strategic choice and because a motion to suppress would have lacked merit, Johnston cannot demonstrate the deficiency prong of Strickland. Therefore, we affirm the trial court‘s denial of this ineffectiveness claim.E.  Failure to call Diane Busch as a witnessJohnston claims that counsel was ineffective for failing to investigate and call Diane Busch as a witness. We disagree.15
Johnston proffered the testimony of his friend, Diane Busch, at the postconviction evidentiary hearing. She testified that in the months prior to the murder, Johnston paid for several social outings and did not appear to be in need of money. She also testified that when she was hospitalized for an illness, Johnston saved her life by being concerned for her and listening to her. However, Busch also testified that while she was still in recovery at the hospital, she saw something on television indicating law enforcement was looking for Johnston and reported him to the police. At the postconviction evidentiary hearing, her statement to thepolice was introduced to show that she found Johnston to be ?possessive and obsessed? and verbally abusive to her family and hospital staff during her hospitalstay.   She told police that once she realized how Johnston was acting, sherequested that he be kept from visiting her.This Court has ?consistently held that a trial counsel‘s decision to not call certain witnesses to testify at trial can be reasonable trial strategy.? Everett v. State, 35 Fla. L. Weekly S587, S589 (Fla. Oct. 14, 2010); see also Hertz v. State, 941 So. 2d 1031, 1039 (Fla. 2006) (holding counsel not ineffective for failing tocall a witness at the penalty phase when counsel decided that he ?was not a good witness and not that helpful? during the guilt phase). ?[I]t is reasonable for trialcounsel to forego evidence that, if presented in mitigation, could damage a defendant‘s chances with the jury.? Nelson v. State, 43 So. 3d 20, 32 (Fla. 2010);16
see also Reed v. State, 875 So. 2d 415, 437 (Fla. 2004) (?An ineffective assistance claim does not arise from the failure to present mitigation evidence where that evidence presents a double-edged sword.?).The decision to not use Johnston‘s friend as a witness at trial was clearlywithin ?the wide range of professionally competent assistance.?   Strickland, 46U.S. at 690.   Given the slight value of her proffered testimony and the likelihoodthat it would have opened the door to the prosecution‘s highly damaging cross-examination and impeachment evidence also presented to the postconviction court,trial counsel‘s decision was reasonable.   See Gaskin v. State, 822 So. 2d 1243,1248 (Fla. 2002) (?Trial counsel will not be held to be deficient when she makes areasonable strategic decision to not present mental mitigation testimony during the penalty phase because it could open the door to other damaging testimony.?).Accordingly, we affirm denial of this claim.F.  Johnston’s use of prescribed psychotropic medication at trialJohnston claims that counsel was ineffective because counsel failed to inform the jury that Johnston was taking prescribed psychotropic medications at the time of trial. Johnston alleges that the medications rendered him incompetent and that when he testified at the penalty phase, the medications made him appear cold and callous. However, this ineffectiveness claim is without merit because Johnston has failed to demonstrate prejudice.17
?In order to demonstrate prejudice from counsel‘s failure to investigate hiscompetency, a petitioner has to show that there exists ?at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.‘ ? Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir. 1989) (quoting Alexander v. Dugger, 841 F. 2d 371, 375 (11th Cir. 1988)), quoted in, Nelson v. State, 43 So. 3d 20, 29 (Fla. 2010).A defense expert evaluated Johnston‘s general competency several timesthroughout the trial and testified at the postconviction evidentiary hearing that he never saw any reason to question Johnston‘s competence. Johnston‘s defense counsel also testified that Johnston never appeared blunted or confused at anystage of the proceedings. With respect to Johnston‘s testimony at the penalty phase, both the expert and defense counsel testified that Johnston appeared emotional and not cold or callous at the time he delivered his testimony.Johnston has failed to demonstrate prejudice because there was no reasonable probability that an evaluation would have produced a finding of incompetence. In fact, the postconviction court determined that Johnston was not incompetent, confused, or blunted. This finding was supported by competent, substantial evidence in the form of testimony from an evaluating defense expert and from counsel. See Reed, 875 So. 2d at 421-22; Zakrzewski v. State, 866 So.18
2d 688, 696 (Fla. 2003) (where defendant‘s and counsel‘s testimony conflicted,upholding the trial court finding that counsel was credible).Regarding the failure to request an instruction prior to Johnston‘s penalty-phase testimony, because Johnston was not incompetent and did not appear cold or callous, the lack of instruction in this case does not undermine our confidence in the outcome. Thus, Johnston cannot demonstrate prejudice.Accordingly, we affirm denial of this claim.G.  Johnston’s decision to testify at the penalty phaseWe also affirm the denial of Johnston‘s claims that defense counsel providedhim with ill-considered and improper advice about the need to testify at the penalty phase. The trial court found after an evidentiary hearing that defense counsel in fact discouraged Johnston from testifying. The trial court‘s finding was based onthe competent substantial evidence provided by defense counsel‘s evidentiaryhearing testimony.   See Roberts v. State, 840 So. 2d 962, 973 (Fla. 2002)(?Findings on the credibility of evidence by a lower court are not overturned ifsupported by competent, substantial evidence.?).   The voluntariness of Johnston‘sdecision is underscored by the penalty-phase colloquy in which Johnston represented that he understood it was his decision whether to testify and that he wanted to testify. See Gonzalez v. State, 990 So. 2d 1017, 1031-32 (Fla. 2008). Accordingly, this claim does not warrant relief.19 H.  Potential mitigatorsNext, Johnston claims that his trial counsel should have presented additional evidence of psychological issues that could have served as nonstatutory mitigation.Johnston also claims that trial counsel‘s general theory of mitigation was incoherent. Because Johnston has failed to show a constitutional deficiency of counsel, we affirm the trial court‘s denial of this claim.Johnston‘s expert, who testified during the postconviction evidentiary hearing, suggested that there should have been additional evidence of neurological and brain functioning impairment, the nexus between the impairment andJohnston‘s criminal conduct, aggressive reactivity, reactive impulsivity and poor judgment, affective and anxiety disorders, familial dysfunctional factors, and attention deficit hyperactivity disorder (ADHD). However, other testimony from the postconviction evidentiary hearing revealed that prior to trial, defense counsel enlisted a mitigation specialist and reviewed Johnston‘s medical, criminal, hospital, education, and employment records. The mitigation specialist contacted and interviewed Johnston and his family members, consulted with medical experts who eventually testified on behalf of Johnston, scheduled a PET scan, and communicated all information, including PET scan results, to defense counsel and an evaluating psychologist. Defense counsel secured a mental health evaluation, consulted with the evaluator and other medical experts, and at the penalty phase,20 elicited from four medical experts testimony that Johnston had frontal lobe braindamage and mental health problems.   Johnston, 841 So. 2d at 354-55.As this Court explained in Pagan v. State, 29 So. 3d 938 (Fla. 2009),?Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case.? Rather, in deciding whether trial counsel exercised reasonable professional judgment with regard to the investigation and presentation of mitigation evidence, a reviewing court must focus on whether the investigation resulting in counsel‘s decision not to introduce certain mitigation evidence was itself reasonable. When making this assessment, ?a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.?Id. at 949 (citations omitted) (quoting Wiggins v. Smith, 539 U.S. 510 (2003).Here, the evidence presented to the postconviction court demonstrated that defense counsel did not fail to reasonably investigate mitigation. See Stewart v. State, 37 So. 3d 243, 258 (Fla. 2010) (holding that the defendant did not showdeficiency or prejudice where ?the mental health experts and lay witnesses whotestified during the penalty phase conveyed the substance, though perhaps not allof the details, of the proposed mitigating circumstances to the penalty phase jury?).Substantial evidence of Johnston‘s mental health was considered and presented bycounsel at the penalty phase.   In fact, the substance of almost all the informationnow presented by Johnston was presented to the jury. Therefore, counsel was not 21
deficient in failing to present additional mitigation evidence. See Pagan, 29 So. 3d at 950; Darling v. State, 966 So. 2d 366, 378 (Fla. 2007) (holding that trial counsel was not ineffective for failing to present cumulative and redundant psychiatricmitigation).   And, to the extent that Johnston disagrees with the defense‘s mentalhealth expert and his decision not to diagnose Johnston with ADHD or any other condition, counsel was not deficient for relying on the prior psychiatric evaluation. See Darling, 966 So. 2d at 377 (?[D]efense 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.?).Accordingly, this claim does not warrant relief.I. Fingerprint evidenceJohnston claims that counsel was ineffective for failing to consult and present an expert who could testify as to the lack of reliability regarding latent fingerprint analysis. However, the expert presented by Johnston had no formal training in latent fingerprint analysis and did not examine the latent fingerprints in this case. Therefore, it is highly unlikely that this testimony would have been admissible.Regardless of the admissibility of such testimony, defense counsel‘s failure to present it does not undermine confidence in the outcome. Because the expert was neither qualified nor prepared to offer testimony on whether the latent22 fingerprint found on the victim‘s car indeed matched Johnston‘s fingerprint, the expert could not have called into question the State‘s positive identification of Johnston. See Morris v. State, 931 So. 2d 821, 830 (Fla. 2006) (?[T]he failure to call witnesses can constitute ineffective assistance of counsel if the witnesses may have been able to cast doubt on the defendant‘s guilt. . . . ? (quoting Ford v. State, 825 So. 2d 358, 360-61 (Fla. 2002))).Accordingly, this ineffectiveness of counsel claim does not warrant relief.J.  Shoe tread evidenceJohnston claims that defense counsel was ineffective for failing to secure the most defense-friendly statistic on the number of shoes that could have matched the impressions found at the crime scene. However, counsel cannot be deemed deficient for failing to present evidence that does not exist. See, e.g., Clark v. State, 35 So. 3d 880, 888 (Fla. 2010) (?At the evidentiary hearing, Clark presented no evidence to support this claim. Trial counsel cannot be ineffective for failing to present evidence that did not exist at the time of trial.?). Johnston himself failed to obtain any evidence from the shoe manufacturer or from any other source toestablish that the number of matching shoes was ?millions,? as he claims, or thatthe affidavit presented at trial was otherwise incorrect.   Therefore, we affirm denialof this claim.K.  Pretrial publicity23

Johnston claims that trial counsel was ineffective for failing to sufficiently question members of the venire regarding their exposure to pretrial publicity. Because Johnston has not shown that the jurors were actually biased, our confidence in the outcome is not undermined. See Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007).During voir dire, two eventual jurors indicated that they had heard about the case on the news. Trial counsel asked one of those jurors directly whether, given exposure to media reports, he could be fair and impartial. That juror responded that he could. While counsel did not directly question the other juror, the second juror gave no indication as to what he had heard on the news or whether he was at all influenced by the news report, even after defense counsel invited jurors to respond to his repeated explanation of the requirement that jurors must be fair and impartial.In Carratelli, we explained:[W]here a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased.A juror is competent if he or she ?can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.? Therefore, actual bias means bias-in-fact that would prevent service as an impartial juror. Under the actual bias standard, the defendant must demonstrate that the juror in question was not impartial–i.e., that the juror was biased against the defendant, and the evidence of bias must be plain on the face of the record.24
961 So. 2d at 324 (citations omitted) (emphasis supplied) (quoting Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984)). To be entitled to relief, the defendant mustshow that the juror ?was actually biased, not merely that there was doubt about herimpartiality.?   Owen v. State, 986 So. 2d 534, 550 (Fla. 2008).In Carratelli, we held that the defendant failed to demonstrate actual bias where the challenged juror represented during voir dire that he could be fair, listen to the evidence, and follow the law. See 961 So. 2d at 327. And in Lugo, we found that the defendant could not demonstrate actual bias where, after the trialcourt‘s specific discussion on improper bias, the juror simply did not indicate thathis ability to be impartial was affected by a prior experience. 2 So. 3d at 16. Johnston has failed to demonstrate actual bias. See id.; Owen, 986 So. 2d at550; Carratelli, 961 So. 2d at 324. One juror, like the juror in Carratelli, indicated that he retained the ability to be impartial. The other juror, like the one in Lugo, simply declined to respond to specific discussion on bias during voir dire. There is no evidence that either juror was biased.Because Johnston must show more than mere doubt about the juror‘simpartiality and because there is no evidence of actual bias, we affirm denial of this claim. See Owen, 986 So. 2d at 549-50.L.  Motion to disqualify25
Johnston claims that counsel was ineffective for failing to file a legally sufficient motion to disqualify the trial judge. The record indicates that a motion to disqualify was filed and that the trial judge denied the motion. Nevertheless, Johnston asserts—without argument—that the postconviction trial court erred in summarily denying this claim because the claim required an evidentiary determination. However, Johnston waived this argument because he does not identify the alleged error, describe the factual determination he believes was necessary, or even set out the facts he believes are pertinent to the claim. See Cooper v. State, 856 So. 2d 969, 977 n.7 (Fla. 2003) (?Cooper . . . contend[s], without specific reference or supportive argument, that the ?lower court erred in its summary denial of these claims.‘ We find speculative, unsupported argument of this type to be improper, and deny relief based thereon.?); Duest v. Dugger, 555 So. 2d 849, 852 (Fla. 1990) (?The purpose of an appellate brief is to presentarguments in support of the points on appeal.   Merely making reference toarguments below without further elucidation does not suffice to preserve issues.?).III.  PETITION FOR WRIT OF HABEAS CORPUSJohnston raises three claims in his petition for writ of habeas corpus: (A) the sentence constitutes cruel and unusual punishment; (B) appellate counsel was ineffective for failing to claim fundamental error on the issue of juror Robinson‘s26
nondisclosure; and (C) admission of Johnston‘s statements to law enforcementviolated his right against self-incrimination.A. Cruel and unusual punishmentJohnston argues that his execution would violate the Eighth and Fourteenth Amendments as interpreted by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002) (holding the death penalty unconstitutional for mentally retarded defendants), and Roper v. Simmons, 543 U.S. 551 (2005) (holding the death penalty unconstitutional for defendants under age eighteen at thetime of the crime). Johnston claims that he is a ?profoundly mentally ill individual? and that evolving standards of decency prohibit his execution. Hemakes no claim of mental retardation.However, this Court has consistently rejected similar claims. See Nixon v. State, 2 So. 3d 137, 146 (Fla. 2009) (declining to extend Atkins to mentally ill). Accordingly, relief is denied as to this claim.B.  Juror Tracy RobinsonNext, Johnston claims that his appellate counsel was ineffective for failing toframe the issue of juror Tracy Robinson‘s nondisclosure as one involvingfundamental error.   We disagree.Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must determine27
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 Freeman v. State,761 So. 2d 1055, 1069 (Fla. 2000); Thompson v. State, 759 So. 2d 650, 660 (Fla.2000).In raising such a claim, ?[t]he defendant has the burden of alleging aspecific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.? Freeman, 761 So. 2d at 1069 (citing Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981)). Claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000). ?If a legal issue ?would in all probability have been found to be without merit‘ had counsel raised the issue on direct appeal,the failure of appellate counsel to raise the meritless issue will not render appellatecounsel‘s performance ineffective.?   Id. (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla. 1994)).We deny relief for two reasons. First, Johnston‘s claim is procedurally barred. Johnston‘s argument that he is entitled to a new trial based on juror Robinson‘s alleged misconduct was raised in direct appeal to this Court, Johnston,28
841 So. 2d at 357, and as the first issue in his rule 3.851 motion. Johnston is not permitted to camouflage the underlying argument as an ineffective assistance of appellate counsel claim. See Schoenwetter v. State, 46 So. 3d 535, 562 (Fla. 2010)(?Because every argument raised in this portion of appellant‘s habeas petitioneither could have been or in fact was raised in his motion filed pursuant to rule3.851, this claim is rejected as procedurally barred.?); Blanco v. Wainwright, 507So. 2d 1377, 1384 (Fla. 1987) (?By raising the issue in the petition for writ ofhabeas corpus, in addition to the rule 3.850 petition, collateral counsel has accomplished nothing except to unnecessarily burden this Court with redundantmaterial.?).Second, even if the claim were not procedurally barred, it is meritless.Contrary to Johnston‘s assertion, appellate counsel did raise on direct appeal the unpreserved issue of entitlement to a new trial based on juror misconduct. See Johnston, 841 So. 2d at 357 (?Johnston next asserts that he is entitled to a new trial because juror Robinson deliberately failed to disclose that she pled nolo contendere to a misdemeanor charge within the past year.?). Inherent in this Court‘s treatmentof the claim on direct appeal was the determination that Johnston‘s claim was  notfundamental error. See Carratelli, 961 So. 2d at 325 (?If an appellate court refuses to consider unpreserved error, then by definition the error could not have beenfundamental.?).29 Accordingly, we deny relief.C.  Right against self-incriminationFinally, Johnston claims that his statements to law enforcement were admitted at trial in violation of Miranda.9 He also asserts, without argument, that appellate counsel was ineffective for failing to raise the issue on direct appeal.Johnston‘s claim is procedurally barred because each argument could havebeen, or was raised in Johnston‘s postconviction motion.   SeeTeffeteller v. Dugger, 734 So. 2d 1009, 1025 (Fla. 1999). In fact, Johnston‘s argument that his statement was obtained in violation of his Miranda rights in his postconviction motion has been addressed above. See Hildwin v. Dugger, 654 So.2d 107, 111 (Fla. 1995) (?Habeas corpus is not to be used for additional appeals ofissues that could have been, should have been, or were raised in a [postconviction]motion.?) (emphasis omitted).Accordingly, we reject this claim.IV.  CONCLUSIONBased on the foregoing, we affirm the trial court‘s order denying Johnston‘srule 3.851 motion, and we deny his habeas petition.It is so ordered.9. To the extent that Johnston claims State v. Powell, 998 So. 2d 531 (Fla. 2008), reversed, 130 S. Ct. 1195 (2010), dictates another result, his claim is meritless. As Johnston concedes, he was clearly advised of his Miranda rights.30
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.Two Cases:An Appeal from the Circuit Court in and for Hillsborough County, Rex Martin Barbas, Judge – Case No. CR07-13379CAnd an Original Proceedings – Habeas CorpusBill Jennings, Capital Collateral Regional Counsel, David D. Henry, Assistant CC Regional Counsel, Middle Region, Tampa, Florida,for Appellant/PetitionerPamela Jo Bondi, Attorney General, Tallahassee, Florida, and Katherine V. Blanco, Assistant Attorney General, Tampa, Florida,for Appellee/Respondent31

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA SECOND DISTRICT

JOSEPH LAMAR WILSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D07-4775

Opinion filed March 23, 2011.

Appeal from the Circuit Court for Hendry

County; Bruce E. Kyle, Judge.

James Marion Moorman, Public Defender, and Lee Adam Cohen, Special Assistant

Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Marilyn Muir Beccue,

Assistant Attorney General, Tampa, for

Appellee.

DAVIS, Judge.

Joseph Wilson challenges the new sentences he received after he wasgranted relief through a motion to correct illegal sentence pursuant to Florida Rule of

Criminal Procedure 3.800(a). We affirm the new sentences as orally imposed but write to correct two clerical errors in the written judgments and sentences.

Wilson was originally charged under alternative theories with first-degree premeditated murder and first-degree felony murder of the same victim. When the jury returned a guilty verdict under both theories, the convictions were merged to reflect one count of first-degree murder, for which Wilson received a life sentence with a twenty-five-year minimum mandatory. He also was convicted of one count of robbery with a firearm, for which he received a fifteen-year sentence with a three-year minimum mandatory. Because the minimum mandatory sentences were run consecutively even though the crimes occurred as part of the same criminal episode, resentencing was ordered.

At resentencing, the court specifically stated that it was sentencing Wilson to life on his merged convictions for first-degree murder. The court’s written order also reflects the imposition of a single life sentence on these merged counts. Wilson’s life sentence was orally pronounced to run concurrently with his fifteen-year sentence for robbery with a firearm. The written judgment and sentence entered after resentencing do not reflect that the first-degree premeditated and first-degree felony murder convictions were merged. Rather, on the face of the written judgment and sentence it appears that Wilson is serving two life sentences on two separate first-degree murder convictions. Additionally, the sentences do not reflect that they were designated to run concurrently. There is nothing in the record to suggest that these were anything more than clerical errors. Accordingly, we affirm all aspects of Wilson’s sentences as orally imposed but remand for the trial court to enter written judgments and sentences that

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correctly reflect a single life sentence for the merged convictions and reflect that his life sentence and fifteen-year sentence are to run concurrently. See Parajon v. State, 50

So. 3d 105 (Fla. 3d DCA 2010).Affirmed; remanded.SILBERMAN and VILLANTI, JJ., Concur.

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA SECOND DISTRICT

JAMAEL DERON LUCKETT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D09-3786

Opinion filed March 23, 2011.

Appeal from the Circuit Court for Polk

County; John K. Stargel and Keith Spoto,

Judges.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public

Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Marilyn Muir Beccue,

Assistant Attorney General, Tampa, for

Appellee.

CRENSHAW, Judge.

In this Anders1 appeal, Jamael Luckett challenges his judgment andsentence for robbery with a firearm. We affirm his judgment and sentence without

1Anders v. California, 386 U.S. 738 (1967).

discussion, but vacate the trial court’s order striking Luckett’s motion to withdraw his plea.

After Luckett pleaded guilty and was sentenced by the trial court, Luckett filed a motion to withdraw his plea alleging coercion and misadvice by his trial counsel.

Luckett filed a pro se notice of appeal the following day. Several months later, the trial court entered an order finding that it did not have jurisdiction to rule on Luckett’s motion because of the pending appeal in this court. Hence, the trial court struck the motion and directed Luckett to refile it after this court issued its mandate in the direct appeal.

Under Florida Rule of Appellate Procedure 9.020(h)(3),a pending motion to correct a sentence or order of probation or a motion to withdraw the plea after sentencing shall not be affected by the filing of a notice of appeal from a judgment of guilt. In such instance, the notice of appeal shall be treated as prematurely filed and the appeal held in abeyance until the filing of a signed, written order disposing of such motion.See also Clemons v. State, 3 So. 3d 364, 365-66 (Fla. 2d DCA 2009) (“A timely motion to withdraw plea delays rendition of a defendant’s judgment and sentence until the trial court files a signed, written order disposing of the motion.”). In this instance, the trial court had jurisdiction to rule on Luckett’s motion, and Luckett raised cognizable claims under Florida Rule of Criminal Procedure 3.170(l). See Kegler v. State, 46 So. 3d 1061, 1062 (Fla. 2d DCA 2010); Applegate v. State, 23 So. 3d 211, 212 (Fla. 2d DCA 2009).And despite being represented by counsel at the time Luckett filed his motion, his pro se pleading could not be stricken as a nullity. See Sheppard v. State, 17 So. 3d 275, 277 (Fla. 2009). Likewise, any notice of appeal filed by either Luckett or his counsel did not signify that Luckett waived or abandoned his motion to withdraw plea. See Thompson v. State, 50 So. 3d 1208, 1211 (Fla. 4th DCA 2010). Thus, the trial court erroneously

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struck Luckett’s motion. See Sharp v. State, 884 So. 2d 510, 511 (Fla. 2d DCA 2004)(finding order dismissing motion to withdraw plea was erroneous where trial court had jurisdiction to consider the motion). Accordingly, we affirm Luckett’s judgment and sentence, but we vacate the order striking his motion to withdraw his plea. On remand, the trial court shall address Luckett’s motion on the merits and appoint conflict-free counsel if an evidentiary hearing is required.

Affirmed in part, vacated in part, and remanded with directions.

DAVIS and SILBERMAN, JJ., Concur.

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed March 23, 2011.

Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D09-1215 & 3D09-3446

Lower Tribunal Nos. 01-31256-B & 07-24549

________________

Manuel Fernandez a/k/a Emmanuel Fernandez,

Appellant,

vs.

The State of Florida,

Appellee.

Appeals from the Circuit Court for Miami-Dade County, Julio E. Jimenez, Judge.

Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

Before ROTHENBERG, LAGOA, and EMAS, JJ.

ROTHENBERG, J.

The defendant, Manuel Fernandez a/k/a Emmanuel Fernandez, was convicted and sentenced for violating his probation in case number 01-31256-B, and for three counts of armed robbery in case number 07-24549. The issue raised in these consolidated appeals is whether the trial court erred in denying the defendant’s motions to suppress the identifications and evidence seized. We affirm.

The evidence at both the violation of probation hearing and the trial on the substantive offenses was that Sabrina and Hiram Perez were robbed at gunpoint in Miami Gardens of several items, including cash and jewelry. The BOLO that was issued following these robberies described the armed assailant as a black man wearing black shorts and a white T-shirt, and driving a blue Toyota with the tag hanging down. Approximately twenty minutes later and in close proximity to the first robbery, Joseph Perez was robbed at gunpoint in his driveway. Joseph Perez described the assailant as wearing black shorts, a white T-shirt, and black Jordan shoes.Shortly thereafter, Officer Sirois pursued a vehicle matching the BOLO, but before he could effectuate a stop, the driver fled from the vehicle. Officer Vangilis, who also heard the BOLO, saw Officer Sirois standing near the abandoned blue Toyota and a man matching the BOLO, whom he later identified as the defendant, walking on the side of the road. However, when Officer Vangilis

2

attempted to approach the defendant, he began running. Officer Vangilis pursued the defendant, called for backup, and lost sight of the defendant when he ran between two buildings.

Thereafter, while Officer De La Paz was responding to the second armed robbery, he saw the defendant, who matched the description given in the BOLO, standing near a pay phone, breathing heavily, and sweating “profusely.” Based on the BOLO, Officer De La Paz approached the defendant. After verifying the information relayed in the BOLO, due to his safety concerns, he handcuffed the defendant and conducted a pat-down search finding $444 and two gold chains in the defendant’s pocket. Approximately thirty minutes later, the three victims arrived at the gas station, and they identified the defendant as the armed robber. In addition, Hiram and Sabrina identified the defendant’s vehicle as the vehicle used in the armed robbery, and Sabrina also identified a firearm that was retrieved from a nearby dumpster as the firearm the defendant used during the robbery.

At the violation of probation hearing, the defendant moved to suppress the gold chains and money found on his person during the pat-down search. He argued that, at the time of the search, law enforcement lacked probable cause, and therefore the search was unlawful. The trial court found that, although law enforcement had reasonable suspicion to detain the defendant, they lacked probable cause to make an arrest until after the victims had identified the

3

defendant. The trial court, however, denied the defendant’s motion to suppress based on the doctrine of inevitable discovery, finding that after the victims identified the defendant, the police officer had probable cause to arrest and search the defendant incident to the arrest. Thus, the trial court found that the police officer would have discovered the victims’ chains and money on the defendant’s person during the search incident to the arrest. The defendant was subsequently found to have violated his probation, and he was sentenced to life in prison.Thereafter, the defendant was tried on the three counts of armed robbery. Prior to trial, based on the same arguments raised at the violation of probation hearing, the defendant filed a motion to suppress the victims’ identifications and the items seized during the pat-down search. The trial court denied the motion. Thereafter, the jury found the defendant guilty of three counts of armed robbery, and he was sentenced to thirty years in prison followed by ten years of probation. These consolidated appeals followed.The defendant does not dispute the legality of the stop and temporary detention of the defendant, which was based on a well-founded suspicion to believe he had committed the armed robberies. He argues, however, that law enforcement exceeded the scope of the temporary detention by handcuffing him, conducting a pat-down search, and holding him for approximately thirty minutes until the victims of the three armed robberies were transported for show-up

4

identifications.In Saturnino-Boudet v. State, 682 So. 2d 188 (Fla. 3d DCA 1996), this Courtexplained that a temporary investigative “stop and frisk,” which is commonlyreferred to as a Terry stop, is “permissible if the detention is temporary andreasonable under the circumstances [but] only if the police officer has a wellfounded suspicion that the individual detained has committed, is committing, or is about to commit a crime.” Id. at 191 (citing Terry v. Ohio, 392 U.S. 1

(1968)). This Court further explained that during a Terry stop,“the officer may conduct a limited search or frisk of the individual for concealed weapons where the officer is justified in believing the person is armed and dangerous to the officer or others.” [State v.] Simons, 549 So. 2d [785,] 786 [(Fla. 2d DCA 1989)]. Additionally, the officer may detain the individual even at gunpoint and/or by handcuffs for the officer’s safety without converting the Terry stop into a formal arrest.Saturnino-Boudet, 682 So. 2d at 191. Moreover, we rejected Saturnino-Boudet’sargument “that his 30-40 minute detention by the police to await the arrival of thepolice canine unit was the de facto equivalent of an arrest without probable cause.”Id.In the instant case, the police officer handcuffed and patted down thedefendant, who matched the BOLO description of a man who had just committedthree armed robberies and had attempted to evade capture. The defendant thusposed a danger warranting a pat-down search, and he was handcuffed because he

5

was a flight risk. Additionally, the detention was brief and was limited to the sole purpose of allowing the victims to be transported to where the defendant was being detained to conduct show-up identifications. Thus, based on Saturnino-Boudet, we reject the defendant’s contention that the police officer exceeded the scope of the temporary detention. See also Reynolds v. State, 592 So. 2d 1082, 1084 (Fla. 1992) (“Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officers’ safety or to thwart a suspect’s attempt to flee.”).

Although we find that law enforcement did not exceed the scope of the temporary detention, we agree with the trial court that the items seized from the defendant’s pockets were admissible under the inevitable discovery doctrine. See Maulden v. State, 617 So. 2d 298, 301 (Fla. 1993) (holding that “under ‘inevitable discovery’ doctrine, evidence obtained as the result of an unlawful search is admissible if the evidence would ultimately have been discovered by legal means”).Affirmed.6

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed March 23, 2011.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D10-3064

Lower Tribunal No. 06-35685

________________

Gary E. Marshall,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Stacy Glick, Judge.

Gary E. Marshall, in proper person.

Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.

Before SHEPHERD, SALTER, and EMAS, JJ.

SHEPHERD, J.

Appellant, Gary E. Marshall, appeals a trial court order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Marshall contends he is entitled to further credit for time served, specifically for: 1) a sentence imposed on October 22, 2008, of ninety days received as a result of probation violation; and 2) for a sentence of 180 days imposed on April 6, 2009, as a result of a probation violation.

The State concedes county jail cards do, indeed, reflect that Marshall commenced serving a ninety-day sentence on or about October 23, 2008, and likewise commenced serving a 180-day sentence on April 6, 2009, but states both sentences expired prior to Marshall completing them.Because the record does not show conclusively that Marshall is entitled to no relief, we reverse and remand to the trial court with directions that it obtain the transcript from the sentencing hearing, and 1) either attach it to a further order, or 2) grant any additional credit to which Marshall might be entitled under the plea if there was no waiver of credit for time served. See Fla. R. App. P. 9.141(b)(2)(D).Reversed and remanded with directions.2

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed March 23, 2011.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D11-286

Lower Tribunal No. 08-123

________________

James E. Daniels,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge.

James Edward Daniels, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before GERSTEN, WELLS, and SALTER, JJ.

WELLS, Judge.

This is an appeal of an order summarily denying a motion under Florida

Rule of Criminal Procedure 3.800(a),

Appellant maintains that court records establish his entitlement to 108 days served, however he was incorrectly awarded 69 days for time served. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. Varela v. State, 29 So. 3d 398, 399 (Fla. 3d DCA 2010). If the trial court enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to the credit for time served as sought.

Reversed and remanded.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

ARTHUR L. SIMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-3274

[March 23, 2011]

PER CURIAM.

Appellant, Arthur Sims, argues that his trial counsel was ineffective in two respects and that the trial court erred in imposing a public defender fee without advising Sims of his right to contest the amount. We affirm Sims’s conviction in this direct appeal because his arguments that his counsel was ineffective are not apparent on the face of the record. See Aversano v. State, 966 So. 2d 493, 494-95 (Fla. 4th DCA 2007). We do, however, strike the public defender fee and remand for a hearing for Sims to contest the amount of the public defender fee. See Johnson v. State, 944 So. 2d 474, 477 (Fla. 4th DCA 2006) (holding that failure to advise defendant of his right to contest a public defender fee pursuant to Florida Rule of Criminal Procedure 3.720 requires that fee “must be stricken, without prejudice to being reimposed on remand after the proper procedure is followed”). The state concedes the error.Affirmed in part; remanded in part.POLEN, HAZOURI and CIKLIN, JJ., concur.* * *Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert A. Hawley, Judge; L.T. Case No. 312008CF001298A.Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, a n d Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

R.H., a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4654

[March 23, 2011]

LEVINE, J.

The issue presented is whether the appellant violated section 790.115(2), Florida Statutes (2009), by possessing a common pocketknife on school property. We find that the appellant cannot be adjudicated of this crime since the statute exempts possession of a “common pocketknife” from the definition of a weapon that may not be possessed on school property.After an incident at school, R.H. was brought to the assistant principal’s office, where a search revealed a knife hidden in R.H.’s boxer shorts. The school resource officer described the knife as “a folding pocketknife with a wooden handle and blade with the tip broken off, and the blade from [his] measurement was three and a quarter inches.” The assistant principal at trial estimated the folding pocketknife as being roughly four inches long. The school resource officer measured the pocketknife in the courtroom and confirmed its size as being three-and-a-quarter inches in length.At the end of trial, R.H. moved for judgment of dismissal under Rule 8.110(k), on the basis that possession of a pocketknife, as defined under section 790.001(13), is not a violation of section 790.115(2). The trial court denied the motion, and this appeal ensues.The standard of review of a motion for judgment of dismissal is the same standard we apply to review a judgment of acquittal. J.P. v. State, 855 So. 2d 1262, 1264 n.1 (Fla. 4th DCA 2003). The denial of a motion for judgment of acquittal is reviewed de novo. Jones v. State, 869 So. 2d

1240, 1242 (Fla. 4th DCA 2004). “If the evidence, taken in a light most favorable to the state does not support a conviction, the motion must be granted. If the state establishes the existence of each element of the crime charged, then the motion must be denied.” T.L.T. v. State, 36 Fla. L. Weekly D180 (Fla. 4th DCA Jan. 26, 2011).R.H. was charged with violating section 790.115(2), which reads, in pertinent part, as follows:A person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school, school bus, or school bus stop . . . .§ 790.115(2)(a), Fla. Stat. In other words, section 790.115(2) specifically prohibits the possession of a weapon as defined by section 790.001(13) on school premises. A weapon is defined by section 790.001(13), as being “any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.”1In this case, R.H.’s adjudication is based solely on the possession of a common pocketknife on school grounds. In L.B. v. State, 700 So. 2d 370, 372 (Fla. 1997), the Florida Supreme Court, quoting Webster’s Third New International Dictionary, defined a common pocketknife as “[a] type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.” Further, it found that a knife that had a “3 3/4-inch blade” fell within the range of a common pocketknife. Id. at 373. The trial court, in the present case, correctly found the knife with a three-and-a-quarter inch blade was a “common pocketknife.”The key definitional provision of section 790.001(13), referenced in section 790.115(2), exempts a common pocketknife from the ambit of the statute for which R.H was adjudged to have violated. We are therefore compelled to reverse R.H.’s adjudication by the plain language of the statutes. If the legislature wanted to prohibit the possession of a

1 Section 775.021(1), Florida Statutes, codifying the rule of lenity, states that “[t]he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”

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common pocketknife on school premises, the legislature could and would have included the “common pocketknife” in the list of prohibited weapons found in section 790.115(2). Further, the legislature could have removed the defining reference to section 790.001(13) in section 790.115(2) and included a special definition of “weapon” for that section. Instead, the legislature relied o n a definition of “weapon” explicitly excluding the device R.H. possessed on school grounds.As the state concedes, A.B. v. State, 757 So. 2d 1241 (Fla. 4th DCA 2000), is inapplicable as it was based on an earlier version of the statute which outlawed the possession o n school grounds of any “firearm, electric weapon or device, destructive device, or other weapon, including a razor blade, box cutter, or knife, except as authorized in support of school-sanctioned activities, at a school-sponsored event or o n the property of any school, school bus, or school bus stop.” Id. at 1241-42. The key difference in A.B. is that nowhere in the statute at that time was there any reference to section 790.001(13) and that section’s definition of a weapon to not include a common pocketknife.In summary, we find that R.H. did not violate the statute in question, and as such we reverse the adjudication in this case and remand for entry of a judgment of dismissal.Reversed and remanded.MAY and DAMOORGIAN, JJ., concur.* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Merrilee Ehrlich, Judge; L.T. Case No. 09-2263 DL00A.Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.Not final until disposition of timely filed motion for rehearing.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

TAYLOR CHRISTINE COLEMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________/

CASE NO. 1D09-6039

Opinion filed March 23, 2011.

An appeal from the Circuit Court for Okaloosa County.

John T. Brown, Judge.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.

BENTON, C.J.

Taylor Coleman appeals her convictions on two counts of third-degreefelony theft, one count of third-degree burglary, and one count of criminalmischief. Because the trial court erred in overruling defense counsel’s objection to

a witness’s comment on Ms. Coleman’s invoking her right to remain silent, and the state did not establish beyond a reasonable doubt that the improper comment was harmless, we reverse and remand for a new trial.

Ms. Coleman was accused of committing thefts at two separate Lenny’s Sub Shops. At trial, Okaloosa County Sheriff’s Investigator Jason Folley testified about interviewing Ms. Coleman as part of his investigation. Specifically, he testified that he told Ms. Coleman that he had begun to suspect both thefts involved a single employee with the opportunity and ability to gain access to both stores. Ms. Coleman had such opportunity and ability, he testified. Investigator Folley further testified that as he “began to put these pieces together she abruptly ended the interview.” Defense counsel objected and simultaneously moved for a mistrial on grounds Investigator Folley was improperly commenting on Ms. Coleman’s exercise of her right to remain silent. The trial judge overruled the objection and denied the motion for mistrial.But “any comment which is ‘fairly susceptible’ of being interpreted as a comment on silence will be treated as such.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (citing State v. Kinchen, 490 So. 2d 21 (Fla. 1985); David v. State, 369 So. 2d 943 (Fla. 1979)). The state now concedes that Investigator Folley made an improper comment on Ms. Coleman’s reportedly sudden silence, and that the trial court erred in overruling defense counsel’s objection. The Fifth2

Amendment to the United States Constitution provides that no person “shall be . . .compelled in any criminal case to be a witness against himself. . . .” U.S. Const. amend. V. “To give effect to this clause, it is well-settled that ‘courts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the [defendant’s] right of silence.’ Smith v. State, 681 So. 2d 894, 895 (Fla. 4th DCA 1996) (citing State v. Smith, 573 So. 2d 306, 317 (Fla.1990)).” Morris v. State, 988 So. 2d 120, 122 (Fla. 5th DCA 2008). See also Traylor v. State, 596 So. 2d 957, 964-66 (Fla. 1992) (discussing state constitutional right not to be compelled to be a witness against oneself).The state contends, however, that the error was rendered harmless when defense counsel asked Investigator Folley on cross-examination about whether there was anything unusual in an interviewee’s decision to stop talking to police once the interviewee realized she had come under suspicion. Appellant explains this line of questioning as an attempt to mitigate the damage done by the improper comments. See generally In re M.E.G., 353 So. 2d 594, 595 (Fla. 4th DCA 1977) (improper comment on silence during a jury trial “is reversible error incapable of being rendered harmless error by some later statements”). “The harmless error test. . . 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 . . ..” DiGuilio, 491 So. 2d at 1135. “If the appellate court cannot say beyond a

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reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id. at 1139.In this circumstantial evidence case, we cannot say beyond a reasonable doubt that the witness’s improper comment on Ms. Coleman’s right to remain silent did not contribute to the verdict on all four counts. See Id. Defense counsel’s follow-up questioning of Investigator Folley concerning the improper comment was an understandable effort to attenuate the harm which, however, we cannot be sure succeeded in undoing the damage.Reversed and remanded. DAVIS and THOMAS, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEALFIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

KELVIN ORLANDO MILES,

Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________/

CASE NO. 1D09-6475
Opinion filed March 23, 2011.
An appeal from the Circuit Court for Alachua County.Ysleta W. McDonald, Judge.
Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM
The Appellant, Kelvin Orlando Miles, appeals his convictions for sexualbattery with a deadly weapon and kidnapping with a deadly weapon and thecorresponding consecutive life sentences. Miles raises three arguments on appeal,asserting that the trial court erred by (1) denying his motion in limine to excludeDNA evidence and testimony concerning the DNA evidence; (2) denying his oral

motion to suppress statements he made during a police interview after he invoked his right to remain silent; and (3) by imposing a sentence which deviated from the recommended or permitted score sheet sentence. We find no error in the trial court’s denial of the motion in limine to exclude the evidence regarding the DNA or the trial court’s imposition of the sentence. However, we conclude that the trial court erred by denying Miles’ motion to suppress the statements he made to police after he invoked his right to remain silent. Despite compelling evidence of Miles’ guilt in this case, we are unable to conclude beyond a reasonable doubt that the error did not contribute to Miles’ conviction. We must, therefore, reverse and remand for a new trial.

Facts and Procedural BackgroundDuring the early morning hours of January 13, 1990, the victim in this case was exiting the vehicle she was driving when she was kidnapped and sexually battered by an assailant. The victim was unable to identify the assailant. When police officers found the victim in the vehicle a few hours later, they transported her to Alachua General Hospital where a sexual assault examination was conducted. Four sexual assault swabs were collected from the victim, placed in a sealed kit, and turned over to the Gainesville Police Department.The Gainesville Police Department sent the sealed kit to the Florida Department of Law Enforcement (FDLE) in late 1993. Due to a backlog of cases2

requiring DNA analysis, the kit was not tested until 2003. The 2003 testing yielded a DNA profile that was matched to Miles in 2008, after the DNA profile was entered into FDLE’s Combined DNA Index System database.

After obtaining the hit in the database, in April 2008 two detectives from the Gainesville Police Department met with Miles in prison where he was incarcerated for other crimes to interview him about the 1990 crimes. The detectives began the interview as follows: “We have to discuss why we’re here, why we know you’re associated with this case. I just want to ask you, would you be willing to talk to us about this case?” Miles responded by stating, “[a]ctually, I don’t know nothing about this, so I’m not fixing to say nothing about this.” The detectives then told Miles that “it was not a question of whether . . . [he] did it.” They informed Miles that they had his DNA and that was as good as a signed confession. The detectives continued the interview, making a few more statements, then advising Miles of his Miranda rights.At no point during the interview was Miles provided any details of the sexual battery other than that it occurred in Gainesville in 1990. During the interview, Miles made the following statements: “It wasn’t like I raped this girl or nothing like that. It ain’t like what she’s saying. . . . What can I possibly tell you? We had sex. Just – - that’s that.”3

During the interview, the detectives also obtained a cheek swab from Miles. The analyst from the lab who performed the DNA analysis on the cheek swab and compared it to the unknown DNA profile developed by the lab in 2003 testified at trial that there was a one in 900 quadrillion likelihood that an unrelated person’s DNA would contain the same profile.At a pre-trial hearing, Miles moved to suppress the statements he made during the interview asserting that he had invoked his right to remain silent, but made potentially incriminating statements after the detectives continued to question him. After hearing argument from the parties and listening to an audiotape of the interview, the court denied Miles’ motion, stating that it did not hear “Miles make an unequivocal invocation of his right to remain silent.”The audiotape of the police interview was played for the jury. The detectives who conducted the interview testified at trial regarding the interview. During opening and closing statements, the prosecution referred to the statements made by Miles during the interview. Just before the jury retired for deliberations, two members of the jury inquired of the trial judge whether the audiotape or a transcript of the audiotape of the 2008 police interview would be available to the jury during deliberations. The court responded that the jury could listen to the audiotape in the courtroom, but that no transcript would be available. The record does not reflect that the jury listened to the audiotape for a second time. The jury4

returned a verdict finding Miles guilty of sexual battery with a deadly weapon and kidnapping with a deadly weapon. Miles was sentenced to life sentences on both counts, to be served consecutively.

AnalysisStandard of ReviewIn reviewing a trial court’s ruling on a motion to suppress, the appellate court must determine (1) whether competent, substantial evidence supports the trial court’s findings of historical fact; and (2) whether the trial court reached the correct legal conclusion. Thomas v. State, 894 So. 2d 126, 136 (Fla. 2004). Because the facts in this case are undisputed and the issue is purely one of law, we review the trial court’s ruling under the de novo standard.Invocation of the Right to Remain SilentUnder both the United States and Florida Constitutions, a person may not be “compelled” to be a witness against himself or herself in any criminal matter. U.S. Const. amend. V; art. I, § 9, Fla. Const. To safeguard the privilege against self-incrimination, a person questioned while in custody must be clearly informed as to his or her rights, including the “right to remain silent” and that “any statement he does make may be used as evidence against him.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). A defendant may waive these rights, but the waiver must be made voluntarily, knowingly, and intelligently. Id.5

Further, police must not begin interrogation, or if it has already begun, must immediately cease “if the suspect indicates in any manner that he or she does not want to be interrogated.” Cuervo v. State, 967 So. 2d 155, 161 (Fla. 2007) (quoting Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992)). Although no magic words are required to invoke the right to remain silent, a suspect must communicate his desire to remain silent and to end questioning “with sufficient clarity that a reasonable police officer in the circumstances would understand thestatement to be an assertion of the right to remain silent.” State v. Owen, 696 So.2d 715, 718 (Fla. 1997). Once a suspect has invoked his right to remain silent, “the police must refrain from ‘any words or actions . . . (other than those normally attendant to arrest and custody) that the police should know are reasonably likely

to elicit an incriminating response from the suspect.’” State v. Hunt, 14 So. 3d 1035, 1038 (Fla. 2d DCA 2009) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). Statements obtained after a suspect has invoked his right to remain silent may only be admitted when “the suspect’s right was ‘scrupulously honored.’” Id. (quoting Michigan v. Mosley, 423 U.S. 96, 104 (1975)).On the other hand, where a defendant makes only an equivocal or ambiguous request to terminate an interrogation, police are not required to ask questions to clarify the suspect’s intent, but may instead continue with the

interrogation. Owen, 696 So. 2d at 719. In Owen, the supreme court held that

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the responses of “I don’t want to talk about it” and “I’d rather not talk about it” to factual questions concerning insignificant details of crime and not whether the defendant wished to speak about the crime were equivocal requests to invoke the right to silence. Id. at 717, 719-20. However, the Florida Supreme Court has since made clear that the holding in Owen regarding equivocal requests “applies only where the suspect has waived the right earlier during the session.” Almeida v. State, 737 So. 2d 520, 523 n.7 (Fla. 1999); accord Cuervo v. State, 967 So. 2d 155, 162 (Fla. 2007). Accordingly, if the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation. See Alvarez v. State, 15 So. 3d 738, 745 (Fla. 4th DCA 2009).Here, at the very outset of the interview of Miles by detectives and before he was advised of his Miranda rights, Miles made a statement indicating his reluctance to talk to the police. The detectives who conducted the interview testified at trial that before beginning the interview they told Miles that they were there to talk to him about a rape or sexual battery that occurred in 1990. The audiotape of the interview begins with the detectives inquiring whether Miles would be willing to talk to them about the case: “We have to discuss why we’re here, why we know you’re associated with this case. I just want to ask you, would you be willing to talk to us about this case?” Miles responded to the inquiry with7

the following statement: “Actually I don’t know nothing about this, so I’m not fixing to say nothing about this.”The trial court determined that this statement by Miles was not an unequivocal invocation of his right to remain silent, and therefore, denied Miles’ motion to suppress statements he made later in the interview. This was error. Under binding precedent from the Supreme Court, we are unable to conclude that the statement was equivocal. See Cuervo v. State, 967 So. 2d 155, 163 (Fla. 2007). In Cuervo, the Florida Supreme Court held that Cuervo’s statement “I don’t want to declare anything” was a “clear invocation of the right to remain silent.” Miles’ statement to the detectives in this case is indistinguishable from the statement at issue in Cuervo. Because Miles’ statement indicating that he did not want to discuss the case was unequivocal, the detectives were required to terminate the interrogation. Id. at 163-65. Even if the statement could be construed as an equivocal request to remain silent, because Miles had not yet waived his Miranda rights, the detectives were required to clarify his intent before proceeding further with the interrogation. See Almedia, 737 So. 2d at 523 n.7. They did not do so.Based on the facts of this case and the binding authority of Cuervo and Owen and its progeny, we are compelled to hold that the trial court erred by denying Miles’ motion to suppress statements he made to police after he invoked8

his right to remain silent. See Dubon v. State, 982 So. 2d 746, 746-47 (Fla. 1st DCA 2008).Harmless Error AnalysisThe trial court’s ruling is subject to harmless error analysis. The harmless error test 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.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). When applying the harmless error test, appellate courts are required not only to examine the permissible evidence on which the jury relied, but to even more closely examine “the impermissible evidence which might have possibly influenced the jury verdict.” Id.Although the State presented compelling DNA evidence linking Miles to the crimes in this case and suggesting his guilt, the State produced no additional forensic evidence connecting Miles to the crimes. The sexual battery and kidnapping took place in a car, with no witnesses other than the victim present. The victim could not identify her assailant and when she testified at trial, the victim was unable to identify Miles as the assailant.The detectives who conducted the 2008 interview of Miles were examined at length during the trial regarding their questions to Miles and his responses to the9

questions, as well as Miles’ demeanor during the interview. An audiotape of the interview was played for the jury. Although the detectives testified that Miles was not provided any details of the sexual battery and kidnapping other than that it occurred in Gainesville in 1990, the jury heard the following statements by Miles in response to questioning by detectives through the admission of the audiotape: “It wasn’t like I raped this girl or nothing like that. It ain’t like what she’s saying. .. . What can I possibly tell you? We had sex. Just – - that’s that.” During opening and closing statements, the prosecution referred to the statements Miles made during the interview. Finally, immediately before the jury retired for deliberations, two members of the jury asked the trial court whether the audiotape or a transcript of the audiotape were available to the jury to review during its deliberations.Although the evidence of Miles’ guilt is compelling, the standard we must apply in reviewing the error here is not a “sufficiency-of-the-evidence” or “an overwhelming evidence” test. DiGuilio, 491 So. 2d at 1139. Instead, this court is required under the controlling precedent of DiGuilio to examine whether the improperly admitted statements and testimony concerning those statements contributed to the jury’s verdict. Id. Under the facts of this case, we are unable to conclude to the exclusion of all reasonable doubt that the erroneously admitted statements did not contribute to the jury’s verdict. Id. Accordingly, we10

reverse Miles’ conviction and sentence and remand for a new trial.WEBSTER and ROWE, JJ., CONCUR; MARSTILLER, J., CONCURS IN PART, DISSENTS IN PART.

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MARSTILLER, J., concurring in part, dissenting in part.I concur with the majority that the trial court neither erred in denying Appellant’s motion in limine or in imposing sentence. Further, I agree Appellant’s statement to police (“I’m not fixing to say nothing about this.”) sufficed to invoke his right to remain silent and is indistinguishable from the statement made in Cuervo. Because the facts do not show Appellant validly waived his right, the trial court should have suppressed Appellant’s subsequent statements.

But I do not find the error harmful and respectfully dissent from the majority opinion on that point. Police interrogating Appellant told him he was about to be charged with rape, robbery and kidnapping because “there would be no other reason why your DNA would be in this girl from 1990.” They neither identified “this girl” nor gave Appellant any details about the crimes. Appellant’s only statements to police in response were:It wasn’t like I raped this girl or nothing like that. It ain’t like what she’s saying.* * *What could I possibly tell you? We had sex. Just – that’s it.* * *I mean, it ain’t like I raped nobody or kidnapped nobody.Thereafter he allowed police to swab his cheeks for DNA collection and testing. The victim testified she was kidnapped and raped. The DNA evidencecollected from the victim immediately after the rape matched Appellant’s DNA 12

profile in FDLE’s database. The cheek swab Appellant consented to during the police interview confirmed the match. Testimony established that there is a one-in-900 quadrillion chance the DNA belongs to someone other than Appellant. On the other hand, all the jury heard in Appellant’s taped interrogation was Appellant claiming he had consensual sex with someone in 1990 and unequivocally denying he committed any crime. The statements neither dominated nor became a feature of the prosecutor’s opening statement or closing arguments. The prosecutor mentioned them once in opening. In closing, he argued simply that Appellant’s words were not those of an innocent person and urged the jurors not to let the statements create doubt in their minds. Indeed, the prosecutor posited that the only factual “debate” in the case was whether Appellant used a knife during the rape and kidnapping.When applying the DiGuilio harmless error test, “[t]he focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.” State v. DiGuilio, 491 So. 2d at 1139. I have no trouble, under the circumstances of this case, concluding that the trial court’s error in admitting Appellant’s statements denying guilt did not contribute to the guilty verdicts. Cf. O’Brien v. State, No. 1D09-5396 (Fla. 1st DCA Mar. 16, 2011) (reversing sexual battery convictions where court erred by admitting appellant’s confession obtained in violation of Miranda, and error was13

not harmless beyond a reasonable doubt because prosecution hinged solely on victim’s testimony and state relied on appellant’s confession to bolster victim’s credibility). Accordingly, I would not reverse Appellant’s convictions and life sentences.

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