from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Samantha Schosberg Feuer, Judge; L.T. Case
Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach,
MOTION FOR REHEARING
grant the motion for rehearing, vacate our prior opinion, and
substitute the following in its place.
was convicted of first degree murder with a firearm under
sections 775.087 and 782.04, Florida Statutes (2012), and
sentenced to life imprisonment without the possibility of
parole. On appeal, appellant argues that the trial court
erred by failing to suppress his custodial interview because
the police did not inform him that an attorney was attempting
to invoke his right to remain silent during the
interrogation. He also claims that the court improperly
refused to give a curative instruction during closing
arguments. We affirm on both points.
days after the murder, the police conducted three interviews
with the appellant, only the last of which was a custodial
interrogation. During the second interview, appellant
detailed the murder and confessed that he planned the crime
in advance. Following his arrest, appellant was interviewed
at the police station, where he again confessed. During this
third interview, appellant's father called a detective
assigned to the murder case, although not present at the
station. He informed the detective that he hired an attorney
to represent his son and that the attorney advised him not to
let the appellant speak to law enforcement. Minutes later,
the attorney left this detective a voicemail, attempting to
invoke the appellant's right to remain silent. At trial,
appellant moved to suppress the third interview, arguing that
the police violated his due process rights by not informing
him that the attorney was attempting to assist him.
motions to suppress, we afford a presumption of correctness
to a trial court's factual findings, but review de novo
questions of law. Wyche v. State, 987 So.2d 23, 25
(Fla. 2008). It is a violation of due process for the police
not to inform a defendant that an attorney retained by the
accused's family has offered assistance. Haliburton
v. State, 514 So.2d 1088, 1089-90 (Fla. 1987); see
Bruce v. State, 92 So.3d 902, 906 (Fla. 4th DCA 2012)
("Under Haliburton II, a suspect must be
informed promptly of efforts by a lawyer to provide legal
assistance relating to the detention."). However, in
light of appellant's second confession, we find that the
trial court's failure to suppress the third interview was
harmless beyond a reasonable doubt. State v.
DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).
further contends that the court erred in denying his request
for a curative instruction when, during the State's
closing rebuttal argument, the prosecutor indicated that the
appellant's motive for killing the victim was that
appellant did not want his girlfriend to "find out about
this Haitian girl." The court sustained defense
counsel's objection to the Haitian reference, finding the
testimony that appellant was trying to hide his relationship
with the victim because she was Haitian came out in testimony
which was stricken by the court and thus not in evidence.
Defense counsel asked the court to instruct the jury to
disregard the statement. The prosecutor contended that she
was entitled to argue inferences from the evidence, as there
was no other testimony establishing that the victim was
Haitian. The court sustained the objection and simply told
counsel to "stay away from the Haitian" reference.
The prosecutor then continued to argue that appellant's
motive for the victim's murder was to prevent his
girlfriend from finding out about the victim and that
appellant had been having sexual relations with her. She
further noted that appellant had also not told his family
about the victim. The defense made no objection to these
requesting a curative instruction, appellant preserved this
issue for appeal. See Companioni v. City of Tampa,
51 So.3d 452, 454 (Fla. 2010). The trial court had
discretion, however, in determining whether to give a
curative instruction. See Salazar v. State, 991
So.2d 364, 372 (Fla. 2008) ("[A]s to not giving the
curative instruction, the trial court had the discretion not
to give a curative instruction if it believed that doing so
would draw further attention to the improper comment.").
From the record, it appears that the court may have
considered a curative instruction as calling attention to the
error, if there was error at all, because there was evidence
other than the stricken testimony to establish that the
victim was Haitian.
even if the court should have given a curative instruction,
we conclude that this reference, which has some support in
the evidence, was harmless beyond a reasonable doubt. In
addition to a dying declaration of the victim identifying the
appellant as her killer, the appellant himself confessed to
the murder, including his planning it for several weeks. The
prosecutor mentioned the victim's ethnic background only
once during her closing argument. We conclude that, beyond a
reasonable doubt, the error did not contribute to the verdict
reached. See Rich v. State, 18 So.3d 1227, 1230-31
(Fla. 4th DCA 2009).
Warner, Gross and ...