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ORIGINA L
IN THE SUPREME COURT OF FLORIDA
RAYMOND WELDON MARSTON,
Petitioner,
v. Case No. SC12-357
STATE OF FLORIDA,
Respondent.
ON PETITION FOR REVIEW FROMTHE SECOND DISTRICT COURT OF APPEAL
STATE OF FLORIDA
MERITS BRIEF OF RESPONDENT
PAMELA JO BONDIATTORNEY GENERAL
ROBERT J. KRAUSSChief-Assistant Attorney GeneralBureau Chief, Tampa Criminal AppealsFlorida Bar No. 238538
SONYA ROEBUCK HORBELTAssistant Attorney GeneralFlorida Bar No. 0937363Concourse Center 43507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013(813)287-7900Fax (813)[email protected]
COUNSEL FOR RESPONDENT
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ISSUE IWHETHER THE SECOND DISTRICT APPLIED THE PROPER HARMLESSERROR TEST TO COMMENTS ON THE DEFENDANT'S RIGHT TO REMAINSILENT? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ISSUE IIWHETHER THE TRIAL COURT PROPERLY DENIED PETITIONER'SMOTION TO SUPPRESS EVIDENCE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CERTIFICATE OF FONT COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
TABLE OF AUTHORITIES
CASES
Andrews v. State,443 So. 2d 78 (Fla. 1983) ....................................13
Cargle v. State,770 So. 2d 1151 (Fla. 2000). . . . . . . . . . . . . . . . . . 19
Crooks v. State,710 So. 2d 1041 (Fla. 2d DCA 1998) ...........................22
Cuervo v. State,967 So. 2d 155 (Fla. 2007) ...................................19
Fitzpatrick v. State,900 So. 2d 495 (Fla. 2005) ...................................23
Geralds v. State,35 Fla. L. Weekly S503 (Fla. 2010) ...........................11
Glock v. Moore,776 So. 2d 243 (Fla. 2001) ...................................21
Hilton v. State,961 So. 2d 284 (Fla. 2007) ...................................22
Holland v. State,696 So. 2d 757 (Fla. 1997).he ................................21
Marston v. State,36 Fla. L. Weekly D2672 (Fla. 2d DCA December 7, 2011) ........9
Milks v. State,894 So. 2d 924 (Fla. 2005). . . . . . . . . . . . . . . . . . 19
Pagan v. State,830 So. 2d 792 (Fla. 2002) ...................................20
State v. DiGuilio,491 So..2d 1129 (Fla. 1986) ..........................9,14,16-18
State v. Hernandez,718 So. 2d 833 (Fla. 3d DCA 1998) ............................22
State v. Ratner,948 So. 2d 700 (Fla. 2007). . . . . . . . . . . . . . . . . . 19
11
State v. Riley,638 So. 2d 507 (Fla. 1994) ...................................22
State v. Rodriguez,904 So. 2d 594 (Fla. 5th DCA 2005) ...........................21
Varona v. State,674 So. 2d 823 (Fla. 4th DCA 1996) ................... 9,12,13,16
Ventura v. State,29 So. 3d 1086 (Fla..2010) ....................................9
Whren v. United States,517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) .......21
STATUTES
Chapter 316, Florida Statutes ................................20
Section 316.003(75), Florida Statutes ........................20
Section 316.072(1), Florida Statutes .........................20
Section 316.090(2), Florida Statutes .......................21,22
Section 316.125(2), Florida Statutes ......................21,22
Section 316.2065(1), Florida Statutes ........................20
111
STAT m NT OF THE CASE AND FACTS
Respondent accepts petitioner's statement of the case and
statement of the facts with the following additions, corrections,
and clarifications:
MOTION TO EXCLUDE MENTION OF CODIS DATABASE
Prior to trial, petitioner filed a "motion in limine to
exclude mention of the CODIS database." (V1: R 70-71) . In this
motion, petitioner asserted that "[o]n May 29, 2008 the saliva
swabbed from the alleged victim's body was crossed checked against
the convicted of fender data base and was reported as a "match" for
Raymond Marston." (V1: R 70) . The State agreed not to mention the
database and the motion was granted. (V2: R 3-5) .
SUPPRESSION HEARING
At the suppression hearing, Detective Harris testified that
the description of the suspect was a white male, with long,
stringy, straight hair and a scab or some type of injury on the
front part of his head. (V2: T 12-13) . On May 27, 2008, Harris
went to a 7-11 near the scene of the attack to review surveillance
video. While there, he saw petitioner on a bicycle at the gas
pumps, speaking to a female. Harris and petitioner made eye
contact and petitioner immediately ended his conversation and took
off. (V2: T 15, 20). When petitioner got to the exit area of the
parking lot, he "failed to come to a stop and darted directly - -
basically in a northeastern direction across Sheldon Road, across
1
the median and onto the east side of Sheldon Road." (V2: T 15) .
Harris then stopped petitioner and requested identification, which
petitioner provided. At that time, Harris noticed that petitioner
had a scab on the front of his head. (V2: T 16) . After checking
for wants and warrants, Harris again made contact with petitioner,
at which time petitioner stated that he was leaving the area
because he had been given a trespass warning for the 7-Eleven eight
months ago. Based on that information, Harris returned to his
vehicle and contacted dispatch to determine whether there was a
valid trespass warning in effect. There was, so Harris placed
petitioner under arrest for trespass. (V2: T 16-17) . On May 30,
2008, Harris was informed of the database hit indicating that DNA
from the victim's sexual battery kit matched petitioner. (V2: T
18).
The prosecutor argued that the stop was a valid traffic stop,
and that the evidence would inevitably have been discovered based
on the match of petitioner's DNA from the CODIS database. (V2: T
25-26).
The trial court denied the motion to suppress, finding that
the stop was a valid traffic stop, that the length of the detention
was reasonable, and that the evidence would inevitably have been
discovered. (V2: T 26-28) .
DISCUSSION OF THE RIGHT TO REMAIN SILENT
During voir dire, the prosecutor informed the prospective
2
jurors that petitioner had the right to remain silent and that they
could not use it against him if he chose to exercise that right,
and attempted to determine the prospective jurors' understanding of
the right and opinions on the subject. (V2 T 56-61). The
prosecutor began the discussion by explaining the burden of proof .
(V2 T 56) . The prosecutor then explained petitioner's right to
remain silent and that any exercise of that right could not be held
against him, stating:
[Prosecutor] : . . . like I said, Mr. Marstoncan sit there and not say a word. He can readmagazines. He could bring in a laptop andplay on Facebook all day long if he wanted to,and you cannot hold that against him. Do youunderstand? Does everyone understand that?
(V2 T 57) (emphasis added) . The prosecutor then further explained
the State's burden of proof and asked several of the potential
jurors if they understood that burden. (V2: T 58) . After
receiving an affirmative reply, the prosecutor continued:
[Prosecutor]: Ms. Maldonado, you understandthat he has the absolute right to remainsilent?
PROSPECTIVE JUROR MALDONADO : Yes .
[Prosecutor] : You can't go back into the Juryroom when you deliberate and think, you knowwhat, I wonder what he would have said? Doyou understand that?
PROSPECTIVE JUROR MALDONADO: Yes .
3
(V2 T 60) . The following then occurred:
PROSPECTIVE JUROR NAKEN: So he doesn't have tobe here?
[Prosecutor] : And that would be Mr. Naken forpurposes of the record?
PROSPECTIVE JUROR NAKEN: Yeah.
[Prosecutor] : He has a right to staycompletely quiet. It's my job to prove thiscase.
PROSPECTIVE JUROR NAKEN: But he can talk?
[Prosecutor]: He can if he wants to.
PROSPECTIVE JUROR NAKEN: His people, they cantalk for him?
[Prosecutor] : They can do whatever they feelis appropriate . Like I said, they may want toput him on the stand. Do you have a problemwith that, Mr. Naken?
PROSPECTIVE JUROR NAKEN: No.
[Prosecutor]: You could judge the evidencefairly and impartially?
PROSPECTIVE JUROR NAKEN: Correct.
[Prosecutor]: You would hold me to my burdenand make sure it is only to this table thatyou look to for the evidence; do youunderstand that?
PROSPECTIVE JUROR NAKEN: They can't give anyevidence?
[PROSECUTOR] : I'm sure the defense willprobably go into that a little more.
[Defense Counsel]: Judge, I object. May weapproach? (T 61) .
4
(V2: T 61) . A bench conference was held, at which the following
occurred:
[Defense Counsel] : Basically, Judge, I think Isee where Ms. Peters is going with this, butthis guy is getting confused, and he's going toask us to address his right to remain silent.Can the Court gives some kind of curative thathe has a right to remain silent because thisguy is getting the wrong idea?
THE COURT: You will have an opportunity toquestion him if you don't think that Ms . Petershas done an adequate job. Make clear to himthat they have no obligation.
[Prosecutor] : Absolutely.
(V2: T 61-62) (emphasis added) .
Defense counsel spent approximately thirty transcript pages
discussing petitioner's right to remain silent. (V2: T 143-168,
170-173). After defense counsel stated that petitioner had the
right to remain silent, prospective juror Naken asked: "I know he
can remain silent. He can do whatever he wants, but is he allowed
to speak?" (V2: T 143) .
At the beginning of the trial, before the presentation of any
evidence, the jury was instructed as follows on petitioner's right
to remain silent:
In every criminal proceeding thedefendant has the absolute right to remainsilent. At no time is it the duty of adefendant to prove his innocence. From theexercise of a defendant's right to remain
5
silent, a jury is not permitted to draw anyinference of guilt, and the fact that adefendant did not take the witness stand mustnot influence your verdict in any mannerwhatsoever.
(V3: T 213) (emphasis added). During the final instructions, the
jury was instructed that it must not be influenced in any way by
petitioner's decision not to testify. (V1: R 111; V6: T 713-714).
TRIAL TESTIMONY
The victim, E.C., was twenty-one years old and was walking
home from working at Starbucks when petitioner attacked her. (V3: T
234, 236). During the attack, E.C. was punched in the head at
least nine times. (V3: T 247, 297). When she tried to use her
cell phone to call 911, petitioner grabbed her arm and tried to
twist the phone away. E.C. described the pain of being hit as
"excruciating." (V3: T 245-246). By the time the punching stopped,
her left eye was so swollen that she could not see out of it, and
it felt like her nose was broken. Her hand felt very stiff and she
had to keep it curled to lessen the pain. (V3: T 247). She was
dragged by her neck and was forced to crawl on her hands and knees.
(V3: T 251) . She was pulled by her arm down an embankment. (V3:
T 253). She was pleading to go home. (V3: T 255). Petitioner
told her that if she tried to get away he would kill her. (V3: T
257).
During the attack, petitioner kissed and fondled the victim's
breasts. (V3: T 258). He also placed his mouth on the victim's
6
vagina. (V3: T 258-259, 261) . At some point, the victim felt a
scab on the top of her attacker's head. (V3: T 264) . After walking
home, the victim was taken to the hospital by ambulance. (V3: T
275). She identified photographs of herself taken at the hospital
and testified that the injuries depicted in the photos were
inflicted by her attacker. (V3: T 277) .
Deputy Lyonelle De Veaux, of the Hillsborough County Sheriff's
Office, testified that he responded to the sexual battery call in
the early morning hours of May 27, 2008. (V4: T 333) . When he
arrived, the victim was crying. (V4: T 334) . Her left eye was
swollen shut, there was a cut on her lip, and her face was swollen
and had dried blood on it. (V4: T 336) .
Detective Robert Der testified that he was dispatched to the
bridge on Sheldon Road just after 1:00 a.m. on May 27, 2008. (V4:
T 344). Blood was discovered at various locations on and around
the bridge. (V4: T 354-359, 363) . The victim's eyeliner, glasses,
earrings, and deodorant were found at the scene. (V3: T 272-273;
V4: 354, 359, 362).
Mollie Rae Jerman, a nurse practitioner, testified that she
spoke to the victim at Tampa General Hospital at about 3:00 a.m. on
May 27, 2008. (V4: T 396, 402-403) . The victim had obvious
injuries and was unable to open her eyes. (V4: T 397-398) . The
victim indicated that she had been vaginally penetrated by a
tongue, a penis, and a finger. (V4: T 404) . Jerman took swabs of
7
the victim's vaginal area, face, and breasts to be examined for DNA.
(V4: T 409) . She also conducted a physical examination. The victim
had friction burns on both knees, several bruises around her knees,
the back of her left hand was tender and swollen, and she had a
bump on her head. There was debris or dirt, as well as swelling,
redness, and tenderness, at the vaginal entrance. Nurse Jerman was
unable to use a speculum because it was too painful. (V4: T 413) .
Detective Dirks testified that petitioner was not cooperative
when Harris and Dirks tried to execute a search warrant for a
buccal swab. (V4 : T 501-502) .
Referring to the vaginal swab, the analyst testified that she
could not say that Michael Luna "cannot be excluded or he is
included . . . . It is so low that I can't make a determination."
(V4: T 572-573) . With regard to the vulva swab, she testified that
she could say that Michael Luna cannot be excluded. (V4: T 574) .
A foreign DNA prof ile was found on the face swabs . (V4 : T
577) . Michael Luna was not a possible source of that DNA. (V4: T
579) . Foreign DNA which matched petitioner's DNA was found on the
breast swabs. (V4: T 581-582) . The DNA types from the face swab
were consistent with those from the breast swab. (V4: T 582) .
Blood found on the bridge and the bridge railing matched
petitioner's DNA. (V4: T 615-616, 620-624) .
APPEAL
In district court case number 2D10-305, petitioner sought
8
appellate review of his convictions for aggravated battery with
great bodily harm, kidnapping, three counts of sexual battery using
force causing injury, and attempted robbery. On appeal, petitioner
asserted that the trial court had abused its discretion by failing
to give a curative instruction after the prosecutor improperly
commented on petitioner's right to remain silent . On December 7,
2011, the district court issued an opinion affirming petitioner's
convictions and sentences. Marston v. State, 36 Fla. L. Weekly
D2672 (Fla. 2d DCA December 7, 2011) . In affirming petitioner's
convictions, the district court found that the prosecutor had
improperly commented on petitioner's right to remain silent, but
that there was "no reasonable possibility that the failure to give
a curative instruction affected the verdict."
Petitioner sought this Court's discretionary review on the
ground that the district court's application of the harmless error
test conflicts with the decisions in Varona v. State, 674 So. 2d
823 (Fla. 4th DCA 1996) , Ventura v. State, 29 So. 3d 1086 (Fla.
2010), and State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). This
Court granted review on November 11, 2012.
9
SUMMARY OF THE ARGUMENT
ISSUE I.
The prosecutor's discussion, during voir dire, of petitioner's
right to remain silent was not improper. Moreover, if there were
any improper comments by the prosecutor, they were harmless. The
Second District applied the correct harmless error test and its
decision should be affirmed.
ISSUE II.
The trial court properly denied petitioner's motion to suppress
evidence. Florida's traffic laws do apply to bicycles and the stop
of petitioner was reasonable based either on his failure to stop
before entering a public roadway from a private driveway or on his
riding over the median. Moreover, even if the stop was improper,
the evidence was admissible because it ultimately would have been
discovered by legal means.
10
ARGUMENT
ISSUE I
WHETHER THE SECOND DISTRICT APPLIED THE PROPERHARMLESS ERROR TEST TO COMMENTS ON THEDEFENDANT'S RIGHT TO REMAIN SILENT?
The State maintains, as it did below, that the prosecutor's
discussion during voir dire of petitioner's right to remain silent
was not improper. The prosecutor was attempting to determine the
prospective jurors' understanding of the right and opinions on the
subject and specifically informed them that they could not hold it
against petitioner if he chose to exercise his right to remain
silent. This was not improper.
"[W]here a juror's attitude about a particular legal doctrine
. . . is essential to a determination of whether challenges for cause
or peremptory challenges are to be made, it is well settled that
the scope of the voir dire properly includes questions about and
references to that legal doctrine . . . ." Geralds v. State, 35
Fla. L. Weekly S503 (Fla. 2010) (quoting Walker v. State, 724 So. 2d
1232, 1233 (Fla. 4th DCA 1999) ) . A juror's attitude about a
defendant's right to remain silent is essential to a determination
of whether challenges for cause or peremptory challenges are to be
made and it is not improper to discuss the issue during voir dire
as long as the jurors are informed that they cannot hold the
exercise of the right against the defendant.
A juror's understanding of , and opinions on, a defendant's
11
right to remain silent are important considerations in determining
whether the juror can be fair and impartial and follow the law, and
it benefits both the defense and the prosecution to be aware of a
potential juror's views on the issue. A misunderstanding of the
right could be detrimental to either side, and either side should
be permitted to address the issue to determine whether potential
jurors have a proper understanding of the issue.
In this case, it appears that prospective Juror Naken may have
been under the impression that although petitioner had the right to
remain silent, he did not have the right to testify. Not allowing
the prosecutor to address the issue in voir dire would prevent the
State from discovering and correcting such an impression, and it
would be unfair to the State for a juror to believe that a
defendant was prevented from testifying and telling his side of the
story. The prosecutor said nothing which would devalue the right
to remain silent. The prosecutor did not know whether petitioner
would choose to testify and made no insinuation that a failure to
testify would indicate guilt in any manner. And both the
prosecutor during voir dire and the court after the jury was
selected specifically told the jurors that they could not hold a
defendant's exercise of his right to remain silent against him.
Under these circumstances, there was no error.
Varona v. State, 674 So. 2d 823 (Fla. 4th DCA 1996), relied on
by petitioner, is distinguishable because there is no indication in
12
that case that the jury was informed that they could not use the
defendant's exercise of his right not to testify against him. The
Varona court, in finding the prosecutor's comments improper, relied
on Andrews v. State, 443 So. 2d 78 (Fla. 1983) . In Andrews, this
Court found it improper for the trial court to inform the jury of
the defendant's right not to testify without also informing them
that they could not use the exercise of that right against the
defendant. The Court indicated that a trial court can inform the
jury of a defendant's right not to testify, even over a defense
objection, as long as the jury is also informed that they cannot
use the exercise of that right against the defendant. The same
should apply to a prosecutor's discussion of the subject during voir
dire. There are legitimate reasons for discussing the right to
remain silent during voir dire. As long as the jury is informed
that they cannot use the defendant's exercise of that right against
him, such a discussion is not improper. The jury in this case was
so informed and this Court should find that the prosecutor's
discussion of petitioner's right to remain silent did not constitute
improper comments on that right.
Moreover, if the prosecutor's comments were improper, the
Second District properly found any error to be harmless. Upon
objecting, defense counsel requested a curative instruction
informing the jury that petitioner had an absolute right not to
testify. (V2 T 61) . This is exactly what the jury had already been
13
told. Moreover, although the trial court did not give a curative
instruction at the time one was requested, once a jury was
selected, and before any evidence was presented, the court did
instruct the jury on petitioner's right riot to testify, including
instructing the jury that they could not use petitioner's exercise
of that right against him. (V3 213) . Under these circumstances,
there is no reasonable possibility that the discussion of
petitioner's right to remain silent af fected the verdict and any
error in not giving such an instruction was harmless under the test
set forth in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) .
Petitioner contends that the Second District failed to
properly apply DiGuilio. Petitioner asserts that the district
court failed to consider all of the evidence and that the factors
relied on by that court did not support its conclusion that any
error was harmless. Petitioner is wrong. The Second District
explained its finding of harmless error as follows:
. . . we find no reasonable possibility thatthe failure to give a curative instructionaffected the verdict. See Hitchcock v. State,755 So.2d 638, 643 (Fla.2000) ("Any error inprosecutorial comments is harmless if there isno reasonable probability that those commentsaffected the verdict." (citing King v. State,623 So.2d 486, 487 (Fla.1993)). Comment on adefendant's right to remain silent, inferringthat he has any burden to prove his innocence,potentially can affect a verdict in two ways.First, the jury may infer guilt because thedefendant did not take the stand. Second, thecomment on silence may have a coercive effect
14
on the defendant, who decides he had bettertestify, when otherwise he may have chosen toremain silent .
The former situation presented itself inVarona. The evidence as to the robbery was"strong, but not 'clearly conclusive,'" and thevictim did not identify the appellant in courtas her assailant. 674 So.2d at 825. Here,however, the evidence was stronger. Mr.Marston's DNA matched DNA found on thevictim's breast. The victim's description ofher assailant matched Mr. Marston, including aprotruding Adam's apple, a scabbed patch shehad felt on top of his head, long thinninghair, and facial scruff. She identified himfrom a photopack and said she was seventy-fivepercent sure he was her attacker.
Andrews v. State, 443 So.2d 78(Fla.1983), illustrates the second way thatcomment on a defendant's right to remainsilent can affect a verdict. In Andrews, thetrial court refused a cautionary instructionafter the prosecutor's comment on thedefendant's right to remain silent, and theappellant decided to testify on his ownbehalf. Id. at 83. The supreme court reversedand remanded for a new trial, concluding thatthe comment on silence may have had a coerciveeffect on the appellant. Id. at 85; see alsoHarrell v. State, 647 So.2d 1016, 1018 (Fla.4th DCA 1994) (same) . In contrast here, thepossibility of coercion to testify is absent;Mr. Marston remained silent.
Although the trial judge declined to givea formal curative instruction, he directed theprosecutor to make it clear to the jurors thatthe defense had no burden of proof . And, thetrial judge instructed the jury beforedeliberating that they must not be influencedin any way by Mr. Marston's decision not totestify. We must assume that the jury followedthese instructions. See Crain v. State, 894So.2d 59, 70 (Fla.2004) (citing Burnette v.State, 157 So.2d 65, 70 (Fla.1963)). Underthese circumstances, we cannot say that the
15
trial court abused its discretion in denying acurative instruction.
This discussion demonstrates that the Second District applied the
proper harmless error test, i.e., the DiGuilio test.
Petitioner contends that the district court did not properly
apply the DiGuilio test because it "cherry-picked facts from the
record to support its result; it did not evaluate all the
evidence ." (Petitioner's Merits Brief at page 21) . Petitioner bases
this claim on the fact that the district court pointed out facts
which distinguished the instant case from Varona and demonstrated
that the evidence of guilt in this case was stronger than that in
Varona. However, the fact that the court mentioned only those facts
which distinguished Varona ln no way indicates that it did not
consider all of the evidence.
Moreover, although the district court's opinion indicates that
the court considered the strength of the evidence in making its
determination, nothing in DiGuilio prohibits a court from
considering the strength of the evidence in performing a harmless
error analysis. In fact, in DiGuilio, in explaining why there
should not be a per se rule of reversal for impermissible comments
on silence, this Court stated:
. . . It would be possible to set forth aninfinite number of realistic hypotheticalcases where an analysis of the strength andnature of the permissible evidence of guiltand of the strength and nature of the
16
impermissible comment on silence would showbeyond any reasonable doubt that the juryverdict was not affected by the comment onsilence. Accordingly, it cannot be said thatcomment on silence always denies the accused afair trial and is thus subject to per sereversal.
DiGuilio, 429 So. 2d at 1137. Moreover, in explaining the test to
be applied in determining whether an error was harmless, this Court
stated:. . . Application of the [harmless error] testrequires not only a close examination of thepermissible evidence on which the jury couldhave legitimately relied, but an even closerexamination of the impermissible evidencewhich might have possibly influenced the juryverdict.
Id. at 1138. This Court then discussed the strength and nature of
the evidence at trial and the improper comments in DiGuilio and
determined that the error in that case was not harmless. Thus, it
is clear that the strength and nature of the evidence can and
should be considered in making a harmless error determination,
although the ultimate question is not how strong the evidence is,
but whether there is any reasonable possibility that the error
affected the verdict. Id.
It is clear from a review of the district court's entire
decision that it applied the correct harmless error test and that
the strength of the evidence was just one factor, and not even the
major factor, that the court considered in making its
determination. In addition to the strength of the evidence, the
17
court considered the manner in which comments on silence might
affect the verdict, and analyzed whether the comments in the
instant case might have af fected the verdicts in any such manner.
Moreover, it is clear that the court relied more on the fact that
the jury was instructed that it could not use petitioner's exercise
of his right not to testify against him than on the strength of the
evidence in determining that any error was harmless. The court
specifically found that there was no reasonable possibility that
the failure to give a curative instruction af fected the verdict and
explained its reasons for so finding. Those reasons included not
only the strength of the evidence but the nature of the
instructions to the jury. Petitioner's claim that the court below
failed to properly apply the harmless error test set forth in
DiGuilio is without merit.
The question before the district court in this case was
whether the trial court erred in failing to give a curative
instruction concerning petitioner's right not to testify. Because
both the prosecutor and the court instructed the jury that
petitioner had an absolute right not to testify and that his
exercise of that right could not be held against him, the district
court found that there was "no reasonable possibility that the
failure to give a curative instruction affected the verdict." This
was a proper application of DiGuilio and the Second District's
opinion should be affirmed.
18
E
ISSUE II
WHETHER THE TRIAL COURT PROPERLY DENIEDPETITIONER'S MOTION TO SUPPRESS EVIDENCE?
Petitioner contends that the trial court erred in denying his
motion to suppress. This Court should decline to review this issue
because it was not addressed by the district court. Although this
Court has discretion to review issues beyond the conflict issue, it
generally declines to do so when the issue has not been addressed
by the district court. See State v. Ratner, 948 So. 2d 700, 702
n.1 (Fla. 2007); Milks v. State, 894 So. 2d 924, 925 (Fla. 2005);
Cargle v. State, 770 So. 2d 1151, 1155 n.3 (Fla. 2000).
If this Court does review this issue, it should find that the
motion to suppress was properly denied. Petitioner asserts that
Detective Harris had no valid basis for stopping him and that
Florida's traf f ic laws do not apply to bicycles . Petitioner's
argument is without merit . Florida's traf f ic laws do apply to
bicycles and the stop of petitioner was reasonable based either on
his failure to stop before entering a public roadway from a private
drive or on his riding over the median. Furthermore, even if the
stop was improper, the evidence was admissible because it
ultimately would have been discovered by legal means . Thus, the
trial court properly denied petitioner's motion to suppress.
STANDARD OF REVIEW
On appeal from the denial of a motion to suppress, legal
questions are reviewed de novo. See Cuervo v. State, 967 So. 2d
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155, 160 (Fla. 2007). However, the trial court's ruling is
presumed correct and this court must interpret the evidence and
reasonable inferences therefrom in a manner most favorable to
sustaining that ruling. Pagan v. State, 830 So. 2d 792 (Fla.
2002) .
APPLICABILITY OF FLORIDA'S TRAFFIC LAWS TO BICYCLISTS
Florida's traf f ic laws are contained in Chapter 316, Florida
Statutes. Section 316.072(1) provides: "The provisions of this
chapter shall apply to the operation of vehicles and bicycles . . .
upon all state-maintained highways, county-maintained highways, and
municipal streets and alleys and wherever vehicles have the right
to travel." Section 316.003(75) defines a "vehicle" as "[e]very
device, in, upon, or by which any person or property is or may be
transported or drawn upon a highway, excepting devices used
exclusively upon stationary rails or tracks ." A bicycle clearly
fits this definition. Section 316.2065(1) provides: "Every person
propelling a vehicle by human power has all of the rights and all
of the duties applicable to the driver of any other vehicle under
this chapter, except as to special regulations in this chapter, and
except as to provisions of this chapter which by their nature can
have no application." Based on these statutes, it is clear that
Florida's traffic laws do in fact apply to bicycles, and
petitioner's argument to the contrary is without merit .
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VALIDITY OF THE TRAFFIC STOP
In determining the validity of a traffic stop, "generally the
only determination to be made is whether probable cause existed for
the stop in question. " Holland v. State, 696 So.2d 757, 759 (Fla.
1997) . " [T] he violation of a traff ic law provides suf f icient
probable cause to make a lawful stop . . . ." Glock v. Moore, 776
So. 2d 243 (Fla. 2001). Thus, if Detective Harris had probable
cause to believe that petitioner violated a traffic law, the stop
was reasonable under the fourth amendment and the trial court
properly denied the motion to suppress. See Whren v. United
States, 517 U.S. 806, 116 S. Ct. 1769, 1777, 135 L. Ed. 2d 89
(1996) . This is true regardless of Harris' subjective intentions.
State v. Rodriguez, 904 So.2d 594, 598 (Fla. 5th DCA 2005) .
Detective Harris testified that petitioner failed to stop when
exiting the 7-11 and entering a public roadway. Section 316.125 (2)
Florida Statutes requires that a vehicle entering a road from a
private driveway in a business or residential district stop before
entering the roadway. Detective Harris had probable cause to
believe that petitioner had violated section 316.125(2). Thus, the
stop of petitioner was lawful, and the trial court properly denied
petitioner's motion to suppress .
Moreover, section 316.090(2), Florida Statutes prohibits any
vehicle being driven over, across, or within any median. Detective
21
Harris testified that petitioner drove his bicycle across the
median. Thus, Harris had probable cause to stop petitioner for a
violation of section 316.090(2). See State v. Hernandez, 718 So.
2d 833, 836 (Fla. 3d DCA 1998) ("The driver's undisputed act of
driving across the grassy median . . . was a civil traffic
violation for which he could have been cited by the police pursuant
to section 316.090(2). The driver's commission of this traffic
infraction thus provided the detectives with probable cause for the
lawful stop and detention of this vehicle, regardless of their
actual motives.")
Contrary to petitioner's assertions, it is irrelevant whether
petitioner's actions were unsafe or affected any other traffic.
Neither section 316.125(2) nor section 316.090(2) contain any
language suggesting that a violation requires a finding that the
driver's actions be unsafe or affect any other traffic. This
distinguishes this case from the cases relied on by petitioner such
as State v. Riley, 638 So. 2d 507 (Fla. 1994), Crooks v. State, 710
So. 2d 1041 (Fla. 2d DCA 1998) and Hilton v. State, 961 So. 2d 284
(Fla. 2007). In each of those cases, the statute at issue
indicated that a violation required the driver's conduct to affect
other drivers or create a reasonable safety concern.
Petitioner's assertion that the State failed to prove that the
stop was not unreasonably lengthy is also without merit. Detective
Harris testified that it took just a few minutes to obtain
22
petitioner's identification and run a wants and warrants check. (V2
T 16, 20-21) . He then returned petitioner's identification to him
and petitioner indicated that he had previously been trespassed
from the 7-11. Harris then checked to see if the trespass warning
was still active, determined that it was, and arrested petitioner.
Harris' testimony demonstrates that the length of the stop was
reasonable. He stopped petitioner, obtained ID, checked for
warrants, returned the ID to petitioner, learned about the previous
trespass, checked to see if the trespass warning was still active,
and arrested petitioner. There is no indication that there was any
unreasonable delay.
INEVITABLE DISCOVERY
Finally, even if the stop was unlawful, the motion to suppress
was properly denied because the DNA and identity evidence would
inevitably have been obtained by lawful means even if there had
been no stop of petitioner. See Fitzpatrick v. State, 900 So. 2d
495, 514 (Fla. 2005) (finding DNA evidence properly admitted even if
obtained by police misconduct because it "would ultimately have
been discovered.") Even before obtaining a buccal swab from
petitioner, the police had been advised that petitioner's DNA
matched DNA found on the victim based on a comparison with a
convicted offender database. Thus, the motion to suppress was
properly denied.
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CONCLUSION
The State respectfully requests that the district court's
decision be affirmed.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by email to Karen M. Kinney, Assistant Public
Defender, at [email protected], this 21st day of
December, 2012.
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that the size and style of type used in this
brief is 12-point Courier New, in compliance with Fla. R. App. P.
9.210 (a) (2) .
Respectfully submitted,PAMELA JO BONDIATTORNEY GEN
OB RT J. KRAUSief-Assistant Attorney General
Bureau Chief, Tampa Criminal AppealsFlorida Bar No. 2385 8
SONYA ROEBUCK H EAssistant Attorney GeneralFlorida Bar No. 0937363Concourse Center 43507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013(813)287-7900Fax (813)281-5500CrimAppTpa@myfloridalegal . comsonya.horbelt@myfloridalegal. com
COUNSEL FOR RESPONDENT
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