Rodriguez v. State

• Court: Florida District Court of Appeals
• Writing for the Court: GREEN, J.
• Citation: Rodriguez v. State, 906 So.2d 1082, 2004 WL 93942 (Fla. App. 2004)
• Decision Date: 21 January 2004
• Docket Number: No. 3D01-2332.,3D01-2332.
• Parties: Alberto RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.

906 So.2d 1082

Alberto RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.

No. 3D01-2332.

District Court of Appeal of Florida, Third District.

January 21, 2004.

Bennett H. Brummer, Public Defender and Lisa Walsh, Assistant Public Defender, for appellant.

Charlie J. Crist, Jr., Attorney General and Barbara A. Zappi, Assistant Attorney General, for appellee.

Before GERSTEN, GREEN, and SHEVIN, JJ.

ON MOTION FOR REHEARING/CLARIFICATION

GREEN, J.

We grant rehearing and clarification, withdraw our previous opinion dated July 23, 2003, and substitute this opinion in its stead.

The appellant, Alberto Rodriguez, proceeded to trial by jury on the charges of resisting arrest without violence, Count 1; aggravated fleeing, Count II; unlawful display of authorized indicia of law enforcement authority, Count III; and reckless driving, Count IV. He was convicted of, and sentenced for, resisting an officer without violence, Count I; fleeing or attempting to elude a law enforcement officer, a lesser included offense of Count II; unlawful display of authorized indicia of law enforcement authority, Count III; and reckless driving, Count IV.

He timely brought the instant appeal and raises four issues. First, he asserts that his conviction and sentence for the unlawful display of authorized indicia of law enforcement authority pursuant to section 843.085, Florida Statutes (1995), must be vacated because this statute is impermissibly content-based and proscribes conduct which is protected by article I, sections 4 and 9 of the Florida Constitution, and the First and Fourteenth Amendments to the United States Constitution. Second, he asserts that the trial court erred in denying his motion for mistrial where the State elicited testimony from a police officer that he behaved in accordance with a class of other criminals. The appellant next contends that the trial court erred in denying his motion for mistrial where the state improperly argued that its police officer witness had no motive to lie and thereby improperly bolstered this witness's testimony. Finally, he maintains that the trial court erred in not suppressing certain portions of his statements which he maintains were made pursuant to the functional equivalent of a police interrogation, and without the benefits of his Miranda warnings.¹ For the reasons which follow, we reverse and vacate his conviction and sentence for the unlawful display of authorized indicia of law enforcement authority, but affirm his convictions and sentences on the remaining counts.

I

The evidence which gave rise to the charges was essentially that the appellant was observed by police driving recklessly and erratically on a motorcycle in traffic. A BOLO was issued indicating that a white Latin male on a motorcycle was fleeing from an officer who was traveling southbound on State Road 826, approaching State Road 874.

The officer in pursuit of the appellant, Detective Rodriguez, attempted to stop the appellant when he spotted him doing "wheelies" and cutting in and out of traffic, traveling in excess of 100 miles per hour. Detective Rodriguez could not keep up with the appellant, and lost him even though he was driving 105 miles per hour. He eventually caught up with the motorcycle and observed that the appellant was wearing a black shirt with the word "POLICE" written on the front and back. The motorcycle would slow down to perform "wheelies" and then continue to drive at excessive speeds. Many cars swerved out of the way to avoid either hitting the motorcycle or being hit by it.

Detective Rodriguez radioed for backup, and when he was confident enough backup was present, he activated his siren and lights, attempting to stop the appellant. The appellant looked back at the detective, who immediately pointed for the appellant to move off to the shoulder of the road. The appellant, however, pointed to his shirt, mouthed the word "police," and kept on driving. When the detective attempted to pass the appellant on the right, the appellant again mouthed the word "police" and pointed to his shirt.

The appellant finally slowed down and moved to the right. With the detective directly behind him, the appellant looked back, waved and took off again at over 100 miles per hour. The appellant began to drive erratically again, but Detective Rodriguez was able to keep up with him.

At this time, additional police officers responding to the backup request spotted the appellant when he came up behind their police vehicle. The appellant passed them, crossing over to the shoulder of the road to pass another vehicle, causing that vehicle to swerve into the officers' lane. The police vehicle was driving about 90 miles per hour at this point, and took evasive action to avoid hitting this vehicle. In the process, the officers' car spun out of control and struck the retaining wall. The police officers in this vehicle took no part in the remainder of the chase.

Eventually, the appellant exited the highway and dropped his motorcycle, attempting to flee on foot. There was another police vehicle right behind the appellant at this time. As the driver of the police vehicle put the car in park, the other officer exited the vehicle, chased the appellant on foot, and yelled, "Stop, police." The officer then apprehended the appellant and handcuffed him.

After the appellant was apprehended, other officers arrived on the scene. At this time, the appellant had not been read his Miranda rights. The appellant was seated on an embankment, handcuffed, when Miami-Dade Police Officer Johnson told him that he looked familiar. The appellant replied that they worked out at the same gym. Officer Johnson asked the appellant why he didn't stop during the chase. The appellant replied that he didn't want to, and that if his bike hadn't blown up, he probably would have outrun the other police officers.

Detective Rodriguez and some of the other officers who responded to the scene began to talk among themselves and question out loud whether the appellant had been fleeing because the motorcycle was stolen. The appellant again stated that the only reason the police caught him was because he blew the engine on his motorcycle. The appellant also stated that he knew doing a "wheelie" was considered reckless driving, and that he didn't stop because he didn't think that he would be pulled over because he was wearing a police shirt. At this time, the appellant also offered that the shirt could be purchased at a "ninety-nine cents" store. The appellant was charged with resisting arrest without violence, aggravated fleeing, unlawful display of authorized indicia of law enforcement authority and reckless driving.

II

The defense moved to suppress the statements that the appellant made to the police while seated on the embankment. At the hearing, Miami-Dade Police Officer Johnson testified that he had told the appellant that he looked familiar, and the appellant replied that was because they exercised at the same gym. Officer Johnson thereafter testified that he had asked the appellant why he failed to stop during the police chase, and the appellant replied that "he didn't want to" and would probably have outrun the police had his bike not blown up. Officer Johnson admitted on cross-examination that he had not Mirandized the appellant, and he didn't believe that anyone else did either.

Detective Rodriguez was also called to testify at the suppression hearing. He stated that he and other officers who responded to the scene began to talk among themselves and question out loud whether the appellant had been fleeing because the motorcycle was stolen. He claimed that the appellant's response that the only reason the police caught him was because he blew the engine on his motorcycle, was uttered spontaneously. On cross-examination, Detective Rodriguez testified that he never Mirandized the appellant because he had never asked him any questions. Instead, Detective Rodriguez believed that the appellant voluntarily offered that the t-shirt that he was wearing could be purchased at a "ninety-nine cents" store.

After hearing argument on the motion to suppress, the trial court suppressed only the appellant's statement that his "POLICE" shirt could be purchased at a ninety-nine cents store, but denied the motion as to the appellant's other statements. The case then proceeded to trial.

During the trial, Detective Rodriguez testified to the facts as described above. In addition, the detective testified that in the past, he had pulled people over in his unmarked car. Specifically, upon examination from the State, the following exchange occurred:

Q. And have people fled when you've done that or generally pulled over?

[DEFENSE COUNSEL]: Objection, relevance.

THE COURT: Overruled.

THE WITNESS: Well, most of the people pull over unless they're committing a crime.

[DEFENSE COUNSEL]: Objection. We have a motion, sidebar.

THE COURT: All right. I'll reserve on that motion. Mark it, Kattia.

Q. Did you finish your answer?

A. Usually, they pull over unless they have done something and they choose not to pull over.

THE COURT: Same objection and same motion.

THE COURT: Same ruling.

Following Detective Rodriguez's testimony, several other officers involved in the chase and arrest of the appellant testified, after which the State rested.

After the State rested its case, the defense moved for a mistrial arguing that when Detective Rodriguez said that most people pull over when they are asked to by the police, unless they are committing or have committed a crime, it turned the jury against the appellant. The prosecutor explained that he asked Detective Rodriguez that question to show that in the detective's experience, people would pull over even though he was in an unmarked vehicle. The trial court denied the motion.

The defense then moved for a judgment of acquittal. The court reserved without ruling on Count I, resisting an officer without violence, and denied the...