Rehearing Denied Feb. 14, 2012.
[Copyrighted Material Omitted]
Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
Raymond Kelly appeals his conviction on multiple counts of armed sexual battery, kidnapping, robbery, and impersonating an officer. He claims that the trial court erred in denying his motions to suppress evidence found in his office desk drawer, as well as a backpack in his home, both places having been searched by the authorities without a warrant. We hold that the court did not err in denying the suppression of evidence from his office desk, as Kelly had no expectation of privacy and his employer gave permission for the search. As to the search of the backpack, the detectives did not have consent to search the backpack, but the admission of its contents constitutes harmless error. In addition, Kelly contends that ineffective assistance of counsel appears on the face of the record, where his counsel failed to object to the admission of Kelly's statement where he invoked his right of silence. This issue cannot be addressed, however, on direct appeal. We affirm.
The incident giving rise to the charges, the facts of which we briefly recite, began with the victim seeking a ride on a street corner after having left a party. A man approached her, claiming to be a detective, and offered assistance. Instead, he placed
her in his car, blindfolded, bound and gagged her, and drove her to another area where he committed various sexual batteries upon her, taking pictures as he did so. He then let her go. Eventually, the police found her and took her to a sexual assault center. Later, after they had developed a suspect, they showed her a photo lineup where she positively identified Kelly as her attacker. DNA swabs taken from her body proved a positive match for Kelly's DNA.
Police connected Kelly to the crimes through papers left in a dumpster two blocks from the crime scene of a different sexual battery victim. The papers identified Cynthia Morales (Kelly's girlfriend). Officers located Morales who identified Kelly in a surveillance photograph taken at a nearby gas station. Morales consented to a search of her home, and evidence was taken, including several cameras.
As a result, police arrested Kelly, and he was taken to the police station where he was given Miranda warnings and talked to police. In that statement Kelly told the officer that he had met a woman at the beach who had posed nude for him. The victim looked like the woman he had met, but he denied having sex with her. He consented to a DNA sample, a computer search, and a camera search. In his briefcase, which was in his possession at the time of the interview, the officers found the victim's camera and discovered pictures from that camera on his laptop computer.
Kelly testified at trial, denying all of the charges, and claiming that the pictures on the laptop were put there by a friend. The jury found him guilty, and the court convicted him and sentenced him to life in prison as a habitual felony offender and dangerous sexual offender, resulting in this appeal.
Kelly claims that the trial court erred in denying his motions to suppress evidence taken from his office desk and the house where he lived. The trial court's ruling on a motion to suppress comes to the appellate court with a presumption of correctness, and the court must interpret the evidence, inferences and deductions therefrom in favor of sustaining the trial court's ruling. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). While the appellate court is bound by factual determinations which are supported by competent substantial evidence, it reviews mixed questions of fact and law de novo. Cote v. State, 14 So.3d 1137, 1139 (Fla. 4th DCA 2009).
Property Seized From Workplace
Kelly worked as a front desk manager at a local hotel. He shared an office with another employee where he had an assigned desk and desktop computer. Other employees would come into the office to use office equipment or obtain paperwork. Although other employees generally did not go into Kelly's desk, his desk had been searched by ...