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Tillman v. State

Florida Court of Appeals, Fourth District

August 23, 2017

DONOVAN JONATHAN TILLMAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barbara A. McCarthy, Judge; L.T. Case No. 11001165CF10A.

          Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.

          Warner, J.

         Appellant challenges his conviction and sentence for four counts of sexual battery and two counts of lewd or lascivious molestation of a minor by a person under the age of eighteen. He raises four main issues as to his conviction, and we affirm as to all, addressing three, as well as his sentence. First, he claims that the court abused its discretion in refusing to allow his mother to sit through the pretrial suppression hearing and trial after the state invoked the rule of sequestration, because the state had listed the mother in discovery as a "Class C" witness who was not expected to be called.[1] We conclude that the court did not abuse its discretion, given the State's representation that the mother could be called as a rebuttal witness and the fact that this was a familial crime. Second, appellant contends that the court erred in denying a motion to suppress his statements to a detective, which were given without the warnings required of Miranda v. Arizona, 384 U.S. 436 (1966). The court did not err, however, in finding that appellant was not in custody and thus Miranda warnings were not compelled. Finally, we reject his claim that he was convicted of a nonexistent crime, as contact between the tongue and a sexual organ constitutes sexual battery. We also affirm appellant's sentence based upon Davis v. State, 199 So.3d 546 (Fla. 4th DCA 2016).

         Appellant, who was sixteen or seventeen at the time of the incidents, was charged with sexual battery and lewd or lascivious molestation for abuse of his cousin, who was five or six years old at the time of the incidents, which occurred at the victim's home as well as the home of another relative. The sexual battery incidents involved appellant placing his mouth over the victim's penis and having the victim do the same to appellant. The lewd and lascivious counts were incidents where appellant touched the victim's penis both above and beneath his clothes. In two statements to investigators appellant admitted the incidents, although he sought to suppress the more incriminating statement. The victim also made a statement, through a therapist, confirming the abuse. Appellant was convicted after trial of all counts and ultimately sentenced to 31.125 years in prison, the lowest permissible sentence for the charges. He appeals his convictions on various grounds.

         In his first issue, appellant claims that the court erred in excluding his mother from the courtroom. At the suppression hearing, and again at trial, appellant sought to have his mother remain in the courtroom. The prosecutor objected on the ground that the State might call the mother as a witness and invoked the rule of sequestration.[2] Noting that in the discovery request the mother was listed as a Class C witness, the defense objected to the mother's exclusion. Pursuant to rule 3.220(b), Florida Rules of Criminal Procedure, "Class C" witnesses are witnesses who perform ministerial functions or whom the prosecutor does not intend to call at trial, or whose knowledge is fully set out in a police report. Because the mother was neither a witness who performed ministerial functions nor whose knowledge was set out in a police report, the defense argued that the mother was a "witness" that the State did not intend to call at trial; therefore, sequestration should not apply to the mother. Nevertheless, the trial court excluded the mother from the hearing as well as from the trial.

          "The rule in Florida and elsewhere is that the trial judge is endowed with a sound judicial discretion to decide whether particular prospective witnesses should be excluded from the so-called sequestration of witnesses rule." Spencer v. State, 133 So.2d 729, 731 (Fla. 1961). When a party requests that witnesses be excluded from trial under the sequestration rule, then generally, the trial court will exclude all prospective witnesses from the courtroom, in order to avoid the witnesses' testimony being colored by what he or she hears from other testifying witnesses. Id.; Goodman v. W. Coast Brace & Limb, Inc., 580 So.2d 193, 194 (Fla. 2d DCA 1991). Where the trial court exercises its discretion in excluding a witness or allowing a witness to remain in the courtroom, it is the complaining party's burden to show an abuse of discretion which caused injury. Spencer, 133 So.3d at 731.

         We cannot say that under the rule the trial court abused its discretion in excluding appellant's mother. The prosecutor maintained that he might call the mother on rebuttal, depending upon whether the appellant testified and what he said. While the mother had no direct knowledge of the incidents, she was the sister of the victim's mother. The victim's mother had called appellant's mother when she discovered that her son was abused by appellant. Shortly after that call, appellant texted his aunt, expressing regret for the incidents. Thus, at the very least, the mother must have confronted her son about her sister's accusations. And what he said to her could have been very relevant to the prosecution. Because of the familial relationships involved, the trial court was within its discretion in determining that appellant's mother should be excluded from the courtroom so that her testimony, if necessary, would not be affected by what she might hear from other testifying witnesses, including her sister and the appellant, if he testified.

         In a second claim of error, appellant argues that the court erred in denying his motion to suppress his confession to a detective. Appellant made two statements to police. The first was to a Pembroke Pines detective and the second to a Coral Springs detective. Appellant filed a motion to suppress statements he made to the Coral Springs detective on grounds that, although he wasn't under arrest, this was a custodial interrogation and he was not read his Miranda rights.[3] The trial court held a hearing and concluded that the defendant was not in custody and thus, the statement was voluntary. The appellate court defers to the trial court's findings regarding the facts and uses the de novo standard of review for legal conclusions. Nshaka v. State, 82 So.3d 174, 178-79 (Fla. 4th DCA 2012).

         Miranda warnings apply only to in-custody interrogations. Ross v. State, 45 So.3d 403, 414 (Fla. 2010). In Ramirez v. State, 739 So.2d 568 (Fla. 1999), the Florida Supreme Court explained that determining whether a suspect is in custody for purposes of giving Miranda warnings is a mixed question of law and fact. It set forth a four factor test to determine whether a person is in custody:

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed ...

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