Perez v. State

• Decision Date: 19 March 2008
• Docket Number: No. 3D06-356.,3D06-356.
• Citation: 980 So.2d 1126
• Parties: Manuel PEREZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

980 So.2d 1126

Manuel PEREZ, Appellant, v. The STATE of Florida, Appellee.

No. 3D06-356.

District Court of Appeal of Florida, Third District.

March 19, 2008.

Robbins, Tunkey, Ross, Amsel, Raben & Waxman and Benjamin S. Waxman, for appellant.

Bill McCollum, Attorney General, and Stormie Stafford, Assistant Attorney General, for appellee.

Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.

ON REHEARING GRANTED

SUAREZ, J.

On consideration of the appellant's motion for rehearing, the Court grants the motion for rehearing, withdraws the opinion issued on December 5, 2007, and substitutes the following opinion.

The defendant appeals convictions and sentence for attempted second-degree murder with a firearm and aggravated battery. We affirm the convictions and sentence.

On October 5, 2004, at approximately 9:00 a.m., Orestes Machado was working near his garage at his Miami Lakes home when three armed, masked men robbed him. During the robbery, he was hit on the head with a gun and shot in the chest and forearm. Machado shot two of the robbers. He saw the robbers escape in a white Nissan or Toyota which was parked in front of his house. On October 7, 2004, investigating Detective Ballata spoke to the victim who communicated that he had shot two of his attackers, described their height and weight, and described the car they were driving. Ballata received a lead that the Nissan Maxima was registered to Manuel Martin. Martin told Ballata that he had given the car to Hector Laurencio, and he gave the detective a picture showing the defendant and suspect Laurencio together. Martin stated that Laurencio had told him that he was involved in a robbery with another man, "The Fish," or Salgado. Ballata next discovered that, on the night of the incident, Manuel Perez was admitted to Hialeah Hospital emergency room with a gunshot wound and was later transferred to Jackson Ryder Trauma Center for treatment. On November 16, 2004, Detective Ballata arrested Manuel Perez and took him into custody. Ballata administered the defendant's Miranda¹ rights. During questioning, the defendant invoked his right to counsel, and Ballata ceased conversation and started to leave the room. As Ballata was walking out, the defendant stopped him and asked what charges would be filed against him. Ballata showed him a photograph of Laurencio and told him that he and Laurencio were being charged with a home-invasion robbery. The defendant denied knowing Laurencio. Ballata then showed him the picture of the defendant and Laurencio together. The defendant responded that it was taken before Laurencio went to jail. There was no further conversation, and the Detective left the room. Ballata obtained the cell phone records of the defendant's brother, Miguel Perez, which showed that calls were made between Laurencio, Salgado and Miguel Perez on the day of, and about the time of, the robbery. Manuel Perez and Laurencio were charged with the attempted second-degree murder of Orestes Machado.

The defendant moved to suppress his post-arrest statements, first denying that he knew Laurencio and then acknowledging that the photograph depicting the two of them together was taken before Laurencio went to jail. The trial court denied the motion. He then filed a motion in limine to exclude the introduction of the cell phone records, which also was denied by the trial court.

At trial, over defense objection, cellular telephone records custodians were permitted to testify from the cell phone records of Miguel Perez, Laurencio, and Salgado as to the time of calls between the three and also as to the physical location of the cell towers receiving and transmitting each call. The records custodian from Sprint-Nextel testified that persons making and receiving cell calls would physically be not more than three miles from the receiving tower.

Manuel Martin testified, over objection at trial, that Laurencio had admitted to him that he used the Maxima in the robbery, and that he committed the robbery with someone named "The Fish." Martin further testified that the defendant and Laurencio were friends from Cuba, and that he had seen them together on occasion. "The Fish" was identified as Orlando, who used the last names of Alfonso and Salgado. The trial court gave a limiting jury instruction that the statements made by Laurencio were not to be considered evidence of the guilt of the defendant. The evidence at trial further showed that the defendant had removed a bullet from himself on the day of the robbery before going to Hialeah Hospital to be treated. Miguel Perez testified that the defendant told him that he had been shot on 79th Street, in Miami, while someone tried to rob him. Miguel Perez could not explain the cellular phone calls between himself, Laurencio and Salgado made at or near the time of the robbery.

The defendant was found guilty of attempted second-degree murder with a firearm and aggravated battery. He was sentenced to twenty-five years in prison on the attempted second-degree murder charge and fifteen years on the aggravated battery charge to run concurrently. He raises three points on appeal of his convictions and sentence.

I.

Perez first contends that the trial court erred in failing to suppress his post-arrest statements made to Ballata that he did not know Laurencio and that a picture depicting the two of them together was taken before Laurencio went to jail. He argues that, after he already had invoked his right to silence and counsel, Ballata's use of the pictures of Laurencio was tantamount to custodial interrogation in violation of his right to remain silent and his right to counsel.

The State responds that, after fully being advised of his Miranda rights and with full knowledge, the defendant initiated contact with the officers by asking about the nature of the charges against him after they had already ceased interrogation. Therefore, his statements were spontaneous, and the initiation of contact served as a knowing, intelligent and voluntary waiver of counsel.

We review the denial of the motion to suppress below by according a presumption of correctness to the trial court's findings of fact. See Parker v. State, 873 So.2d 270 (Fla.2004). We view the evidence and reasonable inferences in a manner which gives great deference to the trial court's rulings. State v. Gelin, 844 So.2d 659 (Fla. 3d DCA 2003).

We find that the trial court was correct in denying the motion to suppress the defendant's statements made to Detective Ballata after he invoked his right to remain silent and his right to counsel under Miranda. We disagree with the inference that showing the picture of Laurencio, in response to the defendant's question about his charges,² or showing the subsequent picture of the defendant with Laurencio constituted a continuation of interrogation in violation of his rights under Miranda. When the defendant invoked his right to counsel, the detective ceased any further conversation and prepared to leave the room. The defendant then initiated the conversation by asking about the charges. Therefore, the detective could not have intentionally planned to introduce the photographs to elicit an incriminating response when he did not even know he would have a further opportunity to do so after interrogation had ceased. The trial judge correctly found that Ballata's action of showing the photographs to the defendant was not the functional equivalent of interrogation because the defendant was the one who initiated the conversation and not the detective. We hold that the defendant's question as to what charges were being brought against him constituted an initiation of the conversation with police after the giving of Miranda warnings, and his statements were properly admitted. See Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); Bassett v. State, 449 So.2d 803 (Fla.1984); Bryan v. State, 947 So.2d 1270 (Fla. 5th DCA 2007). Compare Dixon v. State, 816 So.2d 172 (Fla. 4th DCA 2002) (police rather than defendant reinitiated contact with the defendant). See generally Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

II.

The defendant next contends that the trial court abused its discretion in allowing cellular telephone records custodians to testify that persons who placed cell phone calls would be within a certain distance (one to three miles) from the cell towers identified with those calls. The cell phone records of Miguel Perez, Laurencio and Salgado were introduced at trial. The records included account information, a list of cell phone tower locations in Miami-Dade County, Florida, and a log of incoming and outgoing calls on October 5, 2004, from their cell phones. Both cell phone companies' records indicated the times of the calls, the duration, and the identity and location of the tower receiving and transmitting the calls. The defendant argues that the records custodians' testimony regarding how far a hypothetical caller would be from the phone tower was testimony beyond their expertise and personal knowledge, and, therefore, should not have been admitted as a business records exception to the hearsay rule. See § 90.803(6), Fla. Stat. (2007).

The State responds that the records were created in the regular course of business activity upon receiving or sending a call. Thus, they were admissible under subsection 90.803(6). The cell phone information combined with the records of the locations of the cell phone towers was sufficient for jurors to ascertain the location of the calls with respect to the location of the towers without the necessity of expert testimony.

We find that the testimony of Donna Plasmir and Janan Chandler, the records custodians from Sprint-Nextel and Metro PCS, did not constitute expert testimony under section 90.702, Florida Statutes (2007), and therefore was properly admitted. As in Gordon v. State, 863 So.2d 1215, 1219 (Fla.2003), the record demonstrates that...