Nock v. State

211 So. 3d 321, 2017 WL 626094, 2017 Fla. App. LEXIS 2052
CourtDistrict Court of Appeal of Florida
DecidedFebruary 15, 2017
DocketNo. 4D14-1240
StatusPublished
Cited by1 cases

This text of 211 So. 3d 321 (Nock 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
Nock v. State, 211 So. 3d 321, 2017 WL 626094, 2017 Fla. App. LEXIS 2052 (Fla. Ct. App. 2017).

Opinion

May, J.

The defendant appeals his conviction and sentence for first degree murder while [322]*322engaged in the commission of a robbery, and tampering with physical evidence. He raises three issues. We find no merit in any of them, but write to discuss the third issue concerning the detective’s testimony regarding the defendant’s statement. We affirm.

The evidence revealed that the victim, a sixty eight-year-old retired man, took the defendant, a twenty-seven-year-old man, home with him from the beach. When the victim did not show up later that day for a planned dinner, the victim’s friend went to his house. There, he discovered the victim lying face down in the kitchen.

A detective arrived at the scene and spoke to witnesses, who saw the victim eating with a younger man on his back porch earlier that day. A medical examiner determined the victim had extensive injuries to his neck consistent with pressure being applied to the area. He questioned whether it was horseplay or erotic choking, but determined more force was likely used to cause the victim’s death.

During the investigation, law enforcement discovered videos showing the defendant using the victim’s credit card at various Broward County stores. Surveillance videos showed the victim’s car at locations where the card was used. The defendant actually gave his phone number to a cashier while using the victim’s credit card.

Law enforcement obtained a pen-register/trap and trace order to access information concerning the defendant’s cell phone, and an order specifically authorizing the use of real time cellular site information (“CSLI”) to track the cell phone. Six days after the victim’s death, a Broward detective was notified that the defendant’s cell phone had been turned on for the first time in three days. The cell phone signal was tracked to South Beach.

Broward law enforcement traveled to South Beach in unmarked police cars. Using a still photo of the defendant from a surveillance video, they located him. They flagged down a Miami Beach police officer, who detained the defendant.

When the detective arrived, he introduced himself to the defendant, who responded by asking whether he was being approached about the car or the warrant out of Delaware. The detective observed the defendant in possession of a tote bag with the victim’s initials on it. The detective saw the victim’s business cards, credit cards, car keys, and a lap top computer inside the tote bag. He confirmed the defendant’s cell phone as the one they were tracking and noted the defendant’s resemblance to the still photo.

Broward law enforcement then took the defendant to their office where he gave a Mirandized statement to the detective. Neither party introduced the video recording of the interrogation into evidence. Instead, the State called the detective to testify about the defendant’s statement.

On direct examination, the detective testified that the defendant initially stated he did not know the victim and he had bought all the items from someone on the beach. The defendant later acknowledged he knew the victim. The detective testified: “[the defendant] put his head down and shook his head and said, he wasn’t suppose[d] to die, it wasn’t suppose[d] to happen this way, and then he began telling me more details about what had happened.”

The defendant told the detective that he left the beach with the victim, who was going to pay him for sex. The victim had a wrestling fetish and asked the defendant to engage in “wrestling moves” where he would put the victim in a headlock until he “tap[ped] out,” indicating that the move was too forceful. This activity first occurred upstairs in the victim’s home. The [323]*323defendant then took the victim’s wallet and credit cards before going downstairs.

In the kitchen, the defendant again put the victim in a headlock, but this time the victim collapsed. The defendant claimed the victim never tapped out. He became scared when he could not wake the victim. He then poured bleach around the kitchen and living room to cover up his presence, grabbed whatever items he could, and left in the victim’s car.

The State charged the defendant with first degree murder and tampering with physical evidence. The defendant moved to suppress all statements and evidence recovered by Broward law enforcement through the tracking of his cell phone with an unknown tracking device. The trial court denied the motion to suppress.

When the defendant was asked to present evidence to support his contention that something other than CSLI was used, defense counsel offered only that the defendant believed law enforcement was lying. The court concluded that no unknown tracking device was used after a deputy testified that only CSLI had been used. The trial court added that if a tracking device was used, the defendant had no expectation of privacy when using a cell phone in public.

The defendant next moved to suppress all evidence stemming from the arrest because the arrest was made outside of Bro-ward law enforcement’s territorial jurisdiction. The court also denied that motion.

The defendant also filed a motion seeking to require the State to admit the entire video recording of the defendant’s statement into evidence, under the best evidence rule and the rule of completeness. The trial court denied the request, specifically finding the rule of completeness inapplicable because the State did not offer the video into evidence. The court stated that if the desired portions of the statements were elicited when the defense cross-examined the detective, then section 90.806(1), Florida Statutes (2014), allowed the State to use the defendant’s prior convictions for impeachment.

The defendant later renewed his rule of completeness objection during the State’s direct examination of the detective; the court denied the motion. During a sidebar, the State suggested that the defendant was free to introduce the video in his portion of the ease. Rather than do so, the defense cross-examined the detective regarding the exculpatory portions of the defendant’s statement, which supported his defense of the victim’s death being an accident.

As a result, the jury was later advised of the defendant’s “nine prior convictions of felonies or crimes involving dishonesty.” The trial court instructed the jury that the prior crimes were not evidence of guilt and should only be used in assessing the defendant’s credibility.

The jury found the defendant guilty of first degree murder while engaged in the commission of a robbery and tampering with physical evidence. The court sentenced the defendant to life imprisonment with a concurrent term of 120 months. From his conviction and sentence, the defendant now appeals.

We find no merit in the defendant’s first argument that Broward law enforcement conducted a warrantless and unlawful search by using a tracking device to determine his location. Suffice it to say, law enforcement obtained a warrant for the use of CSLI to locate the defendant. See Tracey v. State, 152 So.3d 504 (Fla. 2014).

Nor do we find any merit in the defendant’s argument that Broward law enforcement arrested the defendant outside [324]*324of its jurisdiction. The defendant volunteered to return to Broward where he was subsequently Mirandized, interrogated, and arrested.

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Related

Gabriel Brian Nock v. State of Florida
256 So. 3d 828 (Supreme Court of Florida, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
211 So. 3d 321, 2017 WL 626094, 2017 Fla. App. LEXIS 2052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nock-v-state-fladistctapp-2017.