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Saunders v. State

Florida Court of Appeals, Fourth District

January 11, 2017


         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ilona M. Holmes, Judge; L.T. Case No. 10-13801CF10A.

          Stuart Adelstein of Law Offices of Adelstein & Matters, P.A., and Philip R. Horowitz of Law Offices of Philip R. Horowitz, Miami, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

          Damoorgian, J.

         Terrence Saunders appeals his conviction and sentence for one count of battery and one count of lewd or lascivious conduct. On appeal, Appellant raises a jury selection issue and challenges two evidentiary rulings below. We affirm the trial court's rulings on the jury selection issue and on a defense objection to law enforcement officer testimony during cross examination without further comment. However, we conclude that the trial court erred in denying Appellant's motion to suppress his post-arrest statements to an undercover officer and his cellmate and, therefore, reverse.

         By way of background, Appellant was arrested and charged with three counts of sexual battery by a person eighteen years of age or older on a person less than twelve years old and one count of lewd or lascivious conduct based on a family member's accusations of sexual abuse. After Appellant was advised of his Miranda[1] rights, Appellant requested to have a lawyer present and did not provide a statement to law enforcement.

         While awaiting a bond determination, Appellant was placed in a cell with a jailhouse informant who worked with law enforcement in setting up and reporting in-prison drug transactions. The placement was the result of medical circumstances and not law enforcement influence.

         Shortly after Appellant was placed with the informant, the informant approached his law-enforcement handler and reported that Appellant indicated he was facing sexual battery charges and wanted to hire a hitman to kill the victim and the primary witness in his case. The handler, who had no previous knowledge of Appellant or his charges, asked the informant to obtain more information about Appellant's intended targets. The informant complied and, based on the information he obtained, the handler was able to verify the charges against Appellant and the identities of the victim and witness. The handler then devised a plan wherein the informant, while wearing a wire, would tell Appellant that he knew of a hitman. The informant would then put Appellant in contact via telephone with the handler who would pose as the hitman. While developing this plan, the handler also contacted the lead investigator in Appellant's sexual battery case, who in turn met with the informant to determine if he had any information pertinent to the sexual battery case. The sexual battery investigator determined that the informant did not have any useful information and instructed the informant not to ask any questions about the sexual battery case. The investigator did, however, advise the informant to portray himself as "somewhat of a pedophile" in order to gain Appellant's trust in gathering more information on the murder for hire plot.

         Thereafter, law enforcement obtained several recordings of conversations between Appellant and the informant and Appellant and the handler posing as a hitman. During one recorded telephone conversation between Appellant and the handler, Appellant provided information on the victim and the witness, including where they resided, where the witness worked, and where the victim went to school. In a separate recorded conversation between Appellant and the informant, Appellant provided a description of what he thought a witness saw happen between Appellant and the victim. Prior to trial, the State notified Appellant of its intent to use these statements against Appellant. Appellant moved to suppress the evidence, arguing that it was gathered in contravention to his Sixth Amendment right to counsel.

         After hearing evidence of how the statements were gathered, the court issued an order denying Appellant's motion to suppress. It concluded that Appellant's Sixth Amendment rights were not violated because law enforcement did not take any action beyond merely listening which was designed to deliberately elicit incriminating statements. The court reasoned that since the informant initially gathered and reported Appellant's statements on his own initiative without law enforcement intervention or assistance, all of Appellant's subsequent recorded statements to the informant and law enforcement were admissible. The State went on to introduce the recorded statements as well as the handler's and the informant's testimony at trial. The jury ultimately acquitted Appellant on two of the sexual battery counts and found him guilty of lewd or lascivious conduct as well as the lesser included offense of battery on one of the sexual battery counts. This appeal follows.

         "The Sixth Amendment prohibits law enforcement officers from deliberately eliciting statements from a defendant after the right to counsel has attached." Brown v. State, 725 So.2d 1164, 1165 (Fla. 2d DCA 1998) (citing Massiah v. United States, 377 U.S. 201, 206 (1964)). "The 'deliberately elicited' standard is clearly satisfied when the police directly interrogate or question a defendant, but it also may be satisfied by less direct types of questioning." Id. "[A] knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity." Maine v. Moulton, 474 U.S. 159, 176 (1985). As such, "[t]he passivity of law-enforcement authorities is the critical element in assessing the facts in any given case." State v. Zecckine, 946 So.2d 72, 74 (Fla. 1st DCA 2006).

         In Brown, the cellmate of a defendant in a high profile murder case contacted the state attorney and offered to obtain information from the defendant in exchange for a possible sentencing benefit. 725 So.2d at 1165. Law enforcement then worked to keep the defendant and the cellmate placed together, and the investigating detective periodically stopped by the jail to obtain updates from the cellmate. Id. The Brown court held that under these circumstances, the statements made to the cellmate should have been suppressed because they were "a product of a 'stratagem deliberately designed to elicit an incriminating statement.'" Id. at 1166 (quoting Rolling v. State, 695 So.2d 278, 291 (Fla. 1997)). Conversely, in Rolling, the court held that statements made by a defendant to his cellmate were admissible because the evidence established the cellmate obtained the statements on his own initiative without assistance or a promised benefit from the state. 695 So.2d at 290-91. See also Cooper v. State, 856 So.2d 969, 973 (Fla. 2003) (holding that a defendant's statements made to his cellmate were admissible because the evidence established that the cellmate contacted authorities of his own accord after the defendant bragged about his crimes).

         Applying the framework set forth in Rolling and Brown, the First District's decision in Zecckine establishes that the proper inquiry in determining whether a defendant's statement to a jail-mate/informant violates a defendant's Sixth Amendment rights is the degree of law enforcement involvement at the time the statement was made. 946 So.2d at 74. In Zecckine, the defendant made incriminating statements to his cellmate who then reported the statements to law enforcement and worked with law enforcement to obtain more information. Id. at 73. The court affirmed that any statements made by the defendant to his cellmate after the date the cellmate began working with law enforcement were obtained in violation of his Sixth Amendment rights and were not admissible, but that any statements made before that date were admissible. Id. at 74. See also Peoples v. State,612 So.2d 555, 556 n.1 (Fla. 1992) (although a defendant's jail-mate ...

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