Lundberg v. State

127 So. 3d 562, 2012 WL 5870104, 2012 Fla. App. LEXIS 20191
CourtDistrict Court of Appeal of Florida
DecidedNovember 21, 2012
DocketNo. 4D10-4902
StatusPublished
Cited by3 cases

This text of 127 So. 3d 562 (Lundberg v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lundberg v. State, 127 So. 3d 562, 2012 WL 5870104, 2012 Fla. App. LEXIS 20191 (Fla. Ct. App. 2012).

Opinion

WARNER, J.

The defendant appeals the denial of his motion for postconviction relief from his convictions and sentences for attempted sexual battery and lewd or lascivious molestation. We affirm and write to address two issues. Defendant alleged that his trial counsel was ineffective for failing to move to suppress the videotape of defendant’s conversation at the police station with his girlfriend. Based upon the totality of circumstances in this case, we conclude that defendant has not shown that the police violated a reasonable expectation of privacy in recording his conversations. Second, defendant alleged that counsel was ineffective in failing to object to testimony which was tantamount to victim bolstering. Although the court found that the evidence was part of counsel’s trial strategy, we also conclude that the introduction of the evidence did not create Strickland prejudice. We affirm as to all issues raised.

Defendant Robert Lundberg was convicted of attempted sexual battery on a child under the age of twelve by a perpetrator eighteen years of age or older, and lewd or lascivious molestation on a child under the age of twelve by an offender eighteen years of age or older. These charges were based on testimony that defendant molested his minor niece on one occasion by penetrating her vagina with his finger and on another occasion by touching her vagina. He was sentenced to thirty years in prison for the first count and a consecutive term of fifteen years in prison for the second. He appealed, arguing trial court erred in the denial of his motion to suppress statements he made to his girlfriend in a police interview room. We affirmed in Lundberg v. State, 918 So.2d 444 (Fla. 4th DCA 2006), rev. denied, 932 So.2d 193 (Fla.2006). Although the trial court had suppressed statements defendant had made to the police because of coercion, we rejected his argument that the statements to his girlfriend were obtained through an exploitation of the initial coercion and were “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). While he also made a claim on appeal that the statement should be suppressed because the police induced him into a reasonable expectation of privacy, we found that the issue had not been properly preserved for appellate review. Lundberg, 918 So.2d at 445.

[564]*564Defendant filed a motion for postconviction relief raising twenty-three claims of ineffective assistance of counsel. In one claim, he maintained that counsel erred in not moving to suppress his statements to his girlfriend on the grounds that the police created a false belief that his conversation would be private. Defendant had voluntarily appeared for questioning when the child’s parents reported the incidents with their daughter. The detective interviewing the defendant read him his rights even though she told him he was not in custody. He agreed to speak to her without an attorney. Through the course of the interview he admitted at least one of the events, but he claimed that the touching was accidental when he was carrying the child to bed. Defendant then asked to see his girlfriend who was at the station. The detective agreed and turned off the tape recorder on the interview room table. She told him that she would not tell the girlfriend anything but that it was up to him what to tell her. Then the detective brought the girlfriend into the interview room and as she left said, “I’m going to give you all privacy.” Defendant then told his girlfriend what had just transpired and that he thought that he might have touched the little girl when he was drunk. Essentially, what he told his girlfriend coincided with what he told the detective. This conversation was recorded on the video camera in the interview room.

In his postconviction motion, defendant claimed that because the detective had told him that he was giving him “privacy,” counsel should have moved to suppress the conversation based upon a violation of privacy and that counsel’s failure to do so constituted ineffective assistance.

The state responded to this claim by arguing that no defendant has any expectation of privacy in the interview room of a police station. The trial court summarily denied the claim, agreeing with the state. It ordered an evidentiary hearing on other claims. During the evidentiary hearing, however, the issue of the failure to suppress the statement to the girlfriend was addressed. Defense counsel testified that he did not move to suppress the conversation because there was no expectation of privacy in the interrogation room. The trial court did not readdress the issue in its ruling following the evidentiary hearing.

Ineffective assistance of counsel requires the defendant to prove two requirements:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The first prong is established by showing that “counsel’s representation fell below an objective standard of reasonableness” under “prevailing professional norms.” Id. at 688, 104 S.Ct. at 2064-65. The second prong is established by showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.

The question presented in this case is whether counsel was ineffective for failing to move to suppress the recorded conversation between the defendant and his girlfriend as violating the Fourth Amend[565]*565ment, because of an invasion of the defendant’s reasonable expectation of privacy. In Williams v. State, 982 So.2d 1190, 1194 (Fla. 4th DCA 2008), we set forth the test to be applied:

A citizen’s right to privacy under the Fourth Amendment of the Constitution of the United States is determined by a two prong test: 1) whether the citizen had a subjective expectation of privacy; and 2) whether that expectation was one that society recognizes as reasonable. State v. Smith, 641 So.2d 849, 851 (Fla.1994) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). Under this test, a prisoner does not have a right to privacy because areas of confinement do not share the same attributes as a private car, home, office, or hotel room. Id.

In the present case the trial court summarily denied this claim of ineffective assistance, because it concluded that no reasonable expectation of privacy had been violated. Defendant was well aware of his previous conversation in the interview room having been recorded. Therefore, he had no reasonable expectation of privacy.

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Related

Robert Lundberg v. State of Florida
149 So. 3d 1126 (Supreme Court of Florida, 2014)
Lundberg v. State
149 So. 3d 1126 (Supreme Court of Florida, 2014)

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Bluebook (online)
127 So. 3d 562, 2012 WL 5870104, 2012 Fla. App. LEXIS 20191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lundberg-v-state-fladistctapp-2012.