Full Opinion

Third District Court of Appeal State of Florida Opinion filed January 15, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D17-941 Lower Tribunal No. 05-11774 ________________ Samuel Wright, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge. Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Jonathan Tanoos (Tampa), Assistant Attorney General, for appellee. Before SCALES, LINDSEY, and HENDON, JJ. HENDON, J. Samuel Wright (“Defendant”) appeals from a final judgment of conviction and sentence on charges of burglary with assault or battery, and armed robbery with a firearm. We affirm. The police initially noticed the Defendant based on information in a “need to identify” flier1 that described a vehicle similar to the one the Defendant was driving. The officers observed the Defendant stop and enter a house known by the officers as a place where drugs were sold. The officers observed the Defendant exit the house and open the car’s trunk, place something in the trunk, and then depart. The police stopped the Defendant when he failed to properly observe a stop sign. 2 Upon the Defendant exiting the vehicle, police noted an odor of marijuana and observed marijuana in plain view. After the Defendant stated that his license was “no good,” the officers confirmed that he was driving with a suspended license. The officers 1 The flier provided: On Monday, 04/11/05, the above pictured subjects were involved in three Commercial Armed Robberies. The subjects, three black males, were dressed all in black and wearing gloves. One subject was armed with a shotgun and the other two subjects were armed with handguns. In two of the incidents one of the subjects was wearing a t-shirt with "07" on the front. An older model black Lincoln, boxy body style, was seen in the Pinecrest incident. The security camera photos printed in the flier depicted three individuals wearing black masks or t-shirts obscuring their faces. 2 The police officer testified that he pulled over Defendant’s car because Defendant ran a stop sign – not because of the information contained in the “need to identify” flier. 2 arrested the Defendant for possession of marijuana and for driving with a suspended license. Upon searching the trunk, the officers discovered weapons and a ski mask that matched the description of a mask used by one of the suspects in the “need to identify” flier. They immediately stopped the search, impounded the car, and notified the detective who was investigating the robberies described in the “need to identify” flier, during which one of the perpetrators wore a similar ski mask. After initially waiving his rights, the Defendant was questioned regarding his participation in several armed robberies. In the process of questioning the Defendant about these crimes, the detective asked him specifically about an armed burglary of a Marathon gas station, during which a person in a ski mask came into the store and robbed the proprietor at gunpoint. The Defendant, post-Miranda, 3 ultimately identified himself as the person in the surveillance video of the robbery at the Marathon gas station. He later signed a written waiver of his constitutional rights and subsequently cooperated with detectives. 4 As a consequence of his confession to the Marathon gas station robbery, the Defendant was charged with burglary with 3 Miranda v. Arizona, 384 U.S. 436 (1966) (holding that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of defendant unless it demonstrates use of procedural safeguards effective to secure privilege against self-incrimination). 4 A codefendant interviewed by the police also implicated the Defendant in the other robberies. Together with Defendant’s confession, the codefendant was an independent source which contributed further probable cause to arrest Defendant for the Marathon robbery. 3 assault or battery, and robbery with a firearm. He went to trial and was convicted as charged. The Defendant was sentenced to fifteen years for the burglary and to a consecutive fifteen-year term for the robbery, with concurrent ten-year mandatory minimum sentences on each conviction for the use of the firearm. On appeal, the Defendant raises eight issues. We address four of those issues, finding the remaining claims to be without merit. The Defendant first argues that the evidence obtained as a result of the allegedly pretextual traffic stop and illegal post-arrest search of the car trunk should be suppressed. The Defendant’s motion to suppress listed the items sought to be suppressed and requested that all evidence and statements derived from those items also be suppressed. The Defendant asserts that the trial court failed to make any credibility findings or articulate a legal basis for its denial of the motion to suppress. At trial, however, the State did not seek admission of any of the physical items seized from the car listed in the motion, and none of the witnesses testified about those items. The trial court held a thorough evidentiary hearing on the Defendant’s motion to suppress and concluded that there was no basis for granting the defense motion to suppress on the traffic stop. A motion to suppress evidence generally involves a mixed question of fact and law. The trial court’s factual determinations will not be disturbed if they are supported by competent substantial evidence, while the 4 constitutional issues are reviewed de novo. Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006); C.A.M. v. State, 819 So. 2d 802, 804 (Fla. 4th DCA 2001) (stating “if the ruling consists of a mixed question of law and fact addressing certain constitutional issues . . . , the ultimate ruling must be subjected to de novo review but the court’s factual findings must be sustained if supported by competent substantial evidence”), quoting State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001). In the instant case, the record supports the trial court’s conclusion that there was no basis to grant the motion to suppress. The Defendant next asserts that the trial court erred by denying his motion to suppress his confession. The Defendant argued that, despite his subsequent multiple Miranda waivers, he was coerced into confessing to the Marathon robbery. He asserted that the arresting police officers threatened him, choked him, slapped him and put a gun to his head to intimidate him into confessing. The determination whether a waiver of Miranda rights was knowingly and voluntarily made is a two- part inquiry. First, the evidence must show that the waiver was a free choice by the suspect and that it was not produced by police intimidation, coercion, or deception. Second, the evidence must show that the waiver was made with a full awareness of the nature and consequences of the rights given up. Pierce v. State, 221 So. 3d 1218, 1221 (Fla. 1st DCA 2017). The burden is on the State to show by a preponderance of the evidence that a waiver of a defendant’s Miranda rights was knowingly and 5 voluntarily made. Brookins v. State, 704 So. 2d 576, 577 (Fla. 1st DCA 1997). In assessing “voluntariness,” the court is required to consider whether, in light of “the totality of the circumstances” surrounding the confession, coercive police activity or direct or implied promises produced that confession. Johnson v. State, 696 So. 2d 326, 329 (Fla. 1997); Traylor v. State, 596 So. 2d 957, 964 (Fla. 1992). Moreover, a trial court's ruling on the voluntariness of a confession will not be overturned unless clearly erroneous. Chambers v. State, 742 So. 2d 466 (Fla. 3d DCA 1999). The evidence introduced at the suppression hearing refutes the Defendant’s claim that his confession to the Marathon robbery was the product of police intimidation. The Defendant’s videotaped confessions do not show any bruises to his face or any evidence of intimidation in his demeanor. During the Defendant’s taped statement, he repeatedly assured the detectives that he was providing his confession of his own free will, and he did the same on the written constitutional rights waiver form that provides: “This statement is signed of my own free will without any threats or promises having been made to me.” The record indicates that the interviewing detectives advised the Defendant of his constitutional rights verbally and in written form before initially speaking with him and then again before each of his recorded statements. There is no extrinsic evidence to indicate that the Defendant’s confessions were the result of threats, duress, coercion, or promises. See Johnson, 696 So. 2d at 330 (holding modified on other grounds by State v. 6 Evans, 770 So. 2d 1174 (Fla. 2000)). The record facts and testimony indicate no error in denying the motion to suppress. The Defendant next argues that, during voir dire, the prosecutor incorrectly commented on his right to remain silent. While the prosecutor initially stated, “. . . if the defendant were to testify – and if he does not, . . . ,” the prosecutor did not finish her sentence. Immediately after the defense objected to the statement as a comment on the Defendant’s right to remain silent, the prosecutor stated, “I’ll repeat again. They [the defense] don’t have to put on anything. The burden is mine. The burden belongs to the State. My question to you is, if you believe, if – if the defense were to put on any witnesses including the defendant, they are bound by the same rules as the State.” The trial court did not rule on the defense objection, and the defense did not renew that objection before the jury was sworn or ask to strike the panel based on the prosecutor’s comment. The trial court repeated the instruction on the State’s burden before the prosecutor made the comment, as well as before the start of trial and during final jury instructions before the jury retired to deliberate. “In Florida, we have adopted a very liberal rule for determining whether a comment constitutes a comment on silence: 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). “[A]ny comment on, or which is fairly susceptible of being interpreted as referring to, a defendant’s failure to 7 testify is error and is strongly discouraged.” Rodriguez v. State, 753 So. 2d 29, 37 (Fla. 2000) (quoting State v. Marshall, 476 So. 2d 150, 153 (Fla. 1985)); see also DiGuilio, 491 So. 2d at 1139 (“[A]ny comment, direct or indirect, by anyone at trial on the right of the defendant not to testify or to remain silent is constitutional error and should be avoided.”). See Marston v. State, 136 So. 3d 563, 569-70 (Fla. 2014). “[C]omments on a defendant’s silence are subject to harmless error analysis.” DiGuilio, 491 So. 2d at 1137. 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. Marston, 136 So. 3d at 571. With no ruling on the objection by the trial court, however, and no motion to strike the venire based on that comment, we conclude that this isolated comment did not violate the Defendant’s right to remain silent, and did not vitiate the fairness of the trial. See Chandler v. State, 848 So. 2d 1031, 1046 (Fla. 2003) (holding that the prosecutor’s comments, although some were ill-advised, did not constitute fundamental error because they were not so prejudicial as to vitiate the entire trial). Finally, the Defendant argues that the trial court abused its discretion by allowing evidence that Detective Iris Deegan interviewed the Defendant about other robberies. The trial court, however, precluded evidence that the Defendant had 8 admitted to detectives that he had committed sixteen other robberies and three murders. To avoid any unfair inference, the trial court also allowed Detective Deegan to testify and explain that when she gave certain details of the Marathon robbery to the Defendant, she was trying to orient the Defendant to this particular robbery at the Marathon gas station out of the many others they had already discussed. Detective Deegan testified that the Defendant described facts specific to this robbery that she did not disclose to him. The trial court took the extra precaution of asking the detective to present her testimony outside the presence of the jury to ensure that it complied with the trial court’s ruling. In addition, the trial court gave the jury a curative instruction stating that the jury was not to presume that because the Defendant spoke with the detective about this and other robberies, that he was involved in any other incidents whatsoever. The Defendant argues that this testimony amounted to prejudicial evidence of other crimes and prior contacts with police that harmed his defense. This claim fails in light of the fact that no details of any other incidents or events were admitted into evidence. The incidents were obliquely referred to as “events” and “incidents.” The jury presumably followed the trial court’s instruction, and reasonable people could conclude that the Defendant was asked about these other “incidents” as a witness, not as a criminal suspect. After thoroughly considering each of the issues raised on appeal in light of the extensive appellate record, we affirm the Defendant’s convictions and sentences. 9 Affirmed. 10