Perez v. State

980 So. 2d 1126, 2008 WL 723786
District Court of Appeal of Florida·Decided March 19, 2008·No. 3D06-356·Published·Cited by 26 cases

Opinion

980 So.2d 1126 (2008)

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

No. 3D06-356.

District Court of Appeal of Florida, Third District.

March 19, 2008.

*1128 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 Miranda[1] 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.

*1129 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 *1130 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

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Perez v. State, 980 So. 2d 1126, 2008 WL 723786 (Fla. Ct. App. 2008).

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