Gaines v. State, 4D13–686.

• Decision Date: 11 February 2015
• Docket Number: No. 4D13–686.,4D13–686.
• Citation: 155 So.3d 1264
• Parties: Jonavon D. GAINES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

155 So.3d 1264

Jonavon D. GAINES, Appellant

v.STATE of Florida, Appellee.

No. 4D13–686.

District Court of Appeal of Florida, Fourth District.

Feb. 11, 2015.

Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

Opinion

TAYLOR, J.

Jonavon D. Gaines appeals his conviction for robbery with a firearm. He argues that the trial court erred in (1) denying his motion to suppress because the police lacked reasonable suspicion of criminal activity to stop and detain him, (2) allowing the jury to hear an unredacted version of his taped statement, which contained the detective's opinion as to appellant's guilt and improper evidence of a collateral offense, and (3) denying his motion for a new trial based on the bailiff's improper communications with the jury during deliberations. We reverse and remand for a new trial based on the first two points on appeal.

The robbery victim worked at a convenience store in Vero Beach. After closing the store one night around midnight, the victim got into his car and sat there with the windows down. A man approached him with a gun and demanded the store's money bag. He gave the man the money bag, his eyeglasses, and his wallet, which contained his identification, money cards, and $14. Then the man fled towards the back of the store. The victim called 911.

The victim testified that he told the dispatcher that he was robbed by a “tall black guy.” He said he also told the dispatcher that the robber was sixteen or seventeen years old and was wearing a dark colored garment with a hood, like the kind typically worn in winter. The victim testified that he saw the robber's face and that he had seen him before when he came into the store.

After a proffer by the defense, the 911 call was played for the jury. During the 911 call, the following exchange occurred when the dispatcher asked for a description of the suspect:

[DISPATCHER]: What, what kind of clothes did he wear?

[THE VICTIM]: Huh?

[DISPATCHER]: His clothes, like his shirt, what color was his shirt?

[THE VICTIM]: He was a black guy (inaudible).

The victim also told the dispatcher that the man fled on foot. After the tape was played, he agreed with defense counsel that he never told the dispatcher that the suspect was tall. But, despite evidence to the contrary in the 911 transcript and tape, the victim insisted that he told the dispatcher that the suspect was sixteen or seventeen years old.

Vero Beach Police Officer DeAcetis responded to the crime scene. He testified that the first BOLO sent out merely identified the perpetrator as a black male. A short time later, however, the officer obtained additional information about the suspect from the victim and he relayed it by radio to other police officers. The second BOLO described the perpetrator as a black male, sixteen to seventeen years old, with short cropped hair, wearing a long-sleeved dark T-shirt. The BOLO did not include any information about a vehicle.

Corporal Dominguez and other police officers set up a perimeter around the crime scene. Within about ten minutes of establishing a perimeter, but a half hour or more after the robbery occurred, Corporal Dominguez stopped appellant's gray van about two blocks from the store. He did not see appellant commit any traffic infractions or engage in any suspicious behavior. He stopped appellant because he matched the BOLO description of a young black male with short cropped hair. Although appellant was wearing a white T-shirt instead of a long-sleeved dark shirt, Officer DeAcetis had explained that, based on his experience, people who commit crimes will sometimes change their clothes before they are caught. After stopping appellant, Corporal Dominguez stood him behind his van until the victim could arrive for a show-up identification.

Before Officer DeAcetis escorted the victim to view appellant, he took him to another show-up. At this first show-up, the suspect was a black man, approximately thirty years old, with curly hair and a beard. During the second show-up, the victim identified appellant as the person who robbed him.

After appellant was arrested, officers found a backpack behind the front passenger seat of his vehicle. The backpack contained an eyeglass case, a handgun, and three articles of dark-colored clothes. The backpack also contained a wallet with the victim's identification and money cards.

Detective Jason Jones interviewed appellant after reading him his Miranda rights. When the state offered the taped interview into evidence, defense counsel objected to introducing certain portions of the interview. Appellant moved in limine to redact those portions of the tape in which the detective expressed his opinion that appellant was guilty and untruthful, and that there was more than sufficient evidence to convict him of the robbery.

The prosecutor agreed to mute the portion of the video where the detective asked appellant about driving with a suspended license. But the trial court ruled that the remainder of the interrogation would be permitted because it is not uncommon for detectives to tell suspects that they are lying when they believe that the suspect is not being forthright with them.

The taped interview was played for the jury. At one point, Detective Jones stated:

You're lying out your mouth. If your mouth is opening, you're lying me. This is (inaudible) bull I think I've ever heard. You're caught with everything at a crime scene. The victim identified you. He got you on video going around [the] damn building.

Appellant responded, “I don't know what you're talking about, sir.”

The interrogation continued and appellant repeatedly denied committing the robbery while the detective insisted he was lying. The detective told appellant, “There ain't no judge, jury in this land that's going to believe otherwise.”

The following exchange occurred when Detective Jones attempted to collect appellant's DNA:

(Detective Jones): Yes, you are giving me a hard time. All right?

(Appellant): I just want—

(Detective Jones): This, this stuff—

(Appellant):—(audible)

(Detective Jones):—here is to try to clear you—

(Appellant): (Inaudible)

(Detective Jones):—and you're doing just the opposite. You're making everything you do guilty, guilty, guilty.

(Appellant): I ain't guilty, though. That's the point.

(Detective Jones): You are guilty. You're as guilty as, the most guiltiest person I've seen.

(Appellant): All right.

(Detective Jones): All right?

(Appellant): Yes, sir.

When appellant asserted his right to wait for a court order before giving a DNA sample, the detective told appellant that the DNA sample did not matter, stating: “I don't, it makes no difference to me because I got you dead to rights on everything.”

The jury found appellant guilty as charged. The trial court sentenced him to fifteen years in prison with a mandatory minimum of ten years.

Unlawful Stop and Detention Based on BOLO

In his first point on appeal, appellant argues that the trial court erred in denying his motion to suppress evidence, because the police officers lacked a well-founded, articulable suspicion of criminal activity to stop and detain him. He contends that the BOLO description of the robbery suspect as a teenaged black male with short cropped hair was too vague and general to warrant his stop and detention. We agree.

“A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.” Jackson v. State, 18 So.3d 1016, 1027 (Fla.2009) (citations omitted) (internal quotation marks omitted). The appellate court will accept the trial court's factual findings if they are supported by competent substantial evidence. State v. Triplett, 82 So.3d 860, 863 (Fla. 4th DCA 2011). However, the trial court's application of the law to the historical facts is reviewed de novo.Id.

To conduct an investigatory stop, a police officer must have “a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple v. State, 626 So.2d 185, 186 (Fla.1993).

In this case, appellant was stopped in his vehicle solely based on a BOLO description. “Several factors are relevant in assessing the legitimacy of a vehicle stop pursuant to a BOLO: (1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information.” Hunter v. State, 660 So.2d 244, 249 (Fla.1995). “Other information which is relevant to determine the validity of the stop includes the time of day, the absence of other persons or vehicle in the vicinity of the sighting, any other suspicious conduct, and other activity consistent with guilt.” Sapp v. State, 763 So.2d 1257, 1259 (Fla. 4th DCA 2000).

Regarding the first factor, appellant was stopped in his van about thirty minutes after the robbery and within two blocks of the robbery location. However, the BOLO did not give any basis for believing that there was a vehicle involved in the robbery. The only information given was that the perpetrator fled the scene on foot; nothing was said about a vehicle or his route of travel.

As to the third and fourth factors, the robbery victim provided only a vague, general description of the suspect as a black male between sixteen and seventeen years old with short cropped hair and wearing a long dark-sleeved shirt. Although appellant was a young black male with short cropped hair, that description could have fit many young black men. See M.M. v. State, 80 So.3d 1125, 1126–27 (Fla. 4th DCA 2012) (holding that BOLO stating that “two white males had just robbed the victim at gunpoint and fled the area on foot” lacked...