DONOVAN JONATHAN TILLMAN v. STATE OF FLORIDA , 247 So. 3d 523 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DONOVAN JONATHAN TILLMAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-2516
[August 23, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara A. McCarthy, Judge; L.T. Case No.
11001165CF10A.
Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Appellant challenges his conviction and sentence for four counts of
sexual battery and two counts of lewd or lascivious molestation of a minor
by a person under the age of eighteen. He raises four main issues as to
his conviction, and we affirm as to all, addressing three, as well as his
sentence. First, he claims that the court abused its discretion in refusing
to allow his mother to sit through the pretrial suppression hearing and
trial after the state invoked the rule of sequestration, because the state
had listed the mother in discovery as a “Class C” witness who was not
expected to be called. 1 We conclude that the court did not abuse its
discretion, given the State’s representation that the mother could be called
as a rebuttal witness and the fact that this was a familial crime. Second,
1 Rule 3.220, Fla. R. Crim. P. defines the various categories of witnesses who may
be called. Category C witnesses are all witnesses who perform ministerial
functions or whom the prosecutor does not intend to call at trial, or whose
knowledge is fully set out in a police report.
appellant contends that the court erred in denying a motion to suppress
his statements to a detective, which were given without the warnings
required of Miranda v. Arizona, 384 U.S. 436 (1966). The court did not err,
however, in finding that appellant was not in custody and thus Miranda
warnings were not compelled. Finally, we reject his claim that he was
convicted of a nonexistent crime, as contact between the tongue and a
sexual organ constitutes sexual battery. We also affirm appellant’s
sentence based upon Davis v. State, 199 So. 3d 546 (Fla. 4th DCA 2016).
Appellant, who was sixteen or seventeen at the time of the incidents,
was charged with sexual battery and lewd or lascivious molestation for
abuse of his cousin, who was five or six years old at the time of the
incidents, which occurred at the victim’s home as well as the home of
another relative. The sexual battery incidents involved appellant placing
his mouth over the victim’s penis and having the victim do the same to
appellant. The lewd and lascivious counts were incidents where appellant
touched the victim’s penis both above and beneath his clothes. In two
statements to investigators appellant admitted the incidents, although he
sought to suppress the more incriminating statement. The victim also
made a statement, through a therapist, confirming the abuse. Appellant
was convicted after trial of all counts and ultimately sentenced to 31.125
years in prison, the lowest permissible sentence for the charges. He
appeals his convictions on various grounds.
In his first issue, appellant claims that the court erred in excluding his
mother from the courtroom. At the suppression hearing, and again at
trial, appellant sought to have his mother remain in the courtroom. The
prosecutor objected on the ground that the State might call the mother as
a witness and invoked the rule of sequestration. 2 Noting that in the
discovery request the mother was listed as a Class C witness, the defense
objected to the mother’s exclusion. Pursuant to rule 3.220(b), Florida
Rules of Criminal Procedure, “Class C” witnesses are witnesses who
perform ministerial functions or whom the prosecutor does not intend to
call at trial, or whose knowledge is fully set out in a police report. Because
the mother was neither a witness who performed ministerial functions nor
whose knowledge was set out in a police report, the defense argued that
the mother was a “witness” that the State did not intend to call at trial;
therefore, sequestration should not apply to the mother. Nevertheless, the
trial court excluded the mother from the hearing as well as from the trial.
2 In his brief he also claims his stepfather was also improperly excluded, but at
trial he conceded that his stepfather might be a witness and could be
sequestered.
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“The rule in Florida and elsewhere is that the trial judge is endowed
with a sound judicial discretion to decide whether particular prospective
witnesses should be excluded from the so-called sequestration of
witnesses rule.” Spencer v. State, 133 So. 2d 729, 731 (Fla. 1961). When
a party requests that witnesses be excluded from trial under the
sequestration rule, then generally, the trial court will exclude all
prospective witnesses from the courtroom, in order to avoid the witnesses’
testimony being colored by what he or she hears from other testifying
witnesses. Id.; Goodman v. W. Coast Brace & Limb, Inc., 580 So. 2d 193,
194 (Fla. 2d DCA 1991). Where the trial court exercises its discretion in
excluding a witness or allowing a witness to remain in the courtroom, it is
the complaining party’s burden to show an abuse of discretion which
caused injury. Spencer, 133 So. 3d at 731.
We cannot say that under the rule the trial court abused its discretion
in excluding appellant’s mother. The prosecutor maintained that he might
call the mother on rebuttal, depending upon whether the appellant
testified and what he said. While the mother had no direct knowledge of
the incidents, she was the sister of the victim’s mother. The victim’s
mother had called appellant’s mother when she discovered that her son
was abused by appellant. Shortly after that call, appellant texted his aunt,
expressing regret for the incidents. Thus, at the very least, the mother
must have confronted her son about her sister’s accusations. And what
he said to her could have been very relevant to the prosecution. Because
of the familial relationships involved, the trial court was within its
discretion in determining that appellant’s mother should be excluded from
the courtroom so that her testimony, if necessary, would not be affected
by what she might hear from other testifying witnesses, including her
sister and the appellant, if he testified.
In a second claim of error, appellant argues that the court erred in
denying his motion to suppress his confession to a detective. Appellant
made two statements to police. The first was to a Pembroke Pines detective
and the second to a Coral Springs detective. Appellant filed a motion to
suppress statements he made to the Coral Springs detective on grounds
that, although he wasn’t under arrest, this was a custodial interrogation
and he was not read his Miranda rights. 3 The trial court held a hearing
3 Appellant waived his Miranda rights in the first statement and confessed to
some of the same incidents as were contained in the second statement. However,
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and concluded that the defendant was not in custody and thus, the
statement was voluntary. The appellate court defers to the trial court’s
findings regarding the facts and uses the de novo standard of review for
legal conclusions. Nshaka v. State, 82 So. 3d 174, 178-79 (Fla. 4th DCA
2012).
Miranda warnings apply only to in-custody interrogations. Ross v.
State, 45 So. 3d 403, 414 (Fla. 2010). In Ramirez v. State, 739 So. 2d 568(Fla. 1999), the Florida Supreme Court explained that determining
whether a suspect is in custody for purposes of giving Miranda warnings
is a mixed question of law and fact. It set forth a four factor test to
determine whether a person is in custody:
(1) the manner in which police summon the suspect for
questioning; (2) the purpose, place, and manner of the
interrogation; (3) the extent to which the suspect is confronted
with evidence of his or her guilt; (4) whether the suspect is
informed that he or she is free to leave the place of
questioning.
739 So. 2d at 574. The court found that the defendant in Ramirez was in
custody at the time his statement was taken. The officers, who already
had probable cause to arrest the defendant, took him to the station and
interrogated him in a small room, confronting the defendant with evidence
of his guilt. Significantly, the court noted that the officers never told the
defendant that he was free to leave.
Applying the Ramirez factors to the facts of this case, we agree with the
trial court that the appellant was not in custody such that Miranda
warnings were required. Appellant was brought to the stationhouse by his
mother in the middle of the afternoon at the request of the detective, who
had left a message on the mother’s phone. His mother remained in the
lobby during the questioning. In contrast, in Ramirez, a uniformed and
armed deputy came to Ramirez’s home demanding production of evidence
of the murder and burglary and then asked Ramirez to come with him to
the station. Clearly, the manner that Ramirez was summoned for
questioning was far more coercive than the manner in which appellant
arrived for questioning.
As to the second and third factors, the interrogation of appellant must
the second statement was more detailed than the first and contained appellant’s
admission of abuse of two other children.
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be placed in the context that this was appellant’s second interrogation
regarding the same abuse allegations. He had already admitted the
allegations of abuse to the Pembroke Pines detective, after having waived
his Miranda rights. Thus, the appellant knew of the purpose of the
interrogation, and the Coral Springs detective told appellant that she had
read the report of the other detective. Then the detective began by simply
asking the appellant to tell her what he remembered. At no time did she
read back to him his own prior statements. She did not confront him with
victim statements for the crimes for which he was charged, although she
did imply that another victim had told her of sexual contact with appellant.
Mainly, she simply kept prodding him to remember the various incidents
with the victim. While he was questioned in the interrogation room, and
the court considered whether the door was locked, there was no testimony
from the detective that the door was locked. And the appellant seemed
relatively relaxed at the beginning. He agreed with the detective that he
was there of his own accord. Finally, as to the fourth factor, and contrary
to what occurred in Ramirez, the detective told the appellant he was free
to leave at any time. She even explained to him exactly how he could exit
the building, and he said he understood that he could leave, and he did
leave at the end of the interview.
In sum, the four Ramirez factors do not point to a conclusion that
appellant was in custody such that Miranda warnings had to be
administered. The court properly denied the motion to suppress.
We affirm the remaining issues arising out of the trial. As to his claim
that the court erred in allowing experts to express opinions based upon
studies rather than training and experience, the issue was not properly
preserved by a specific objection which raised the ground now argued in
this appeal. Appellant also claims that the court erred in allowing
collateral crime evidence of his abuse of another family member to which
he confessed in his statement to the detective. Under section 90.404(2)(b),
Florida Statutes (2013), and McLean v. State, 934 So. 2d 1248 (Fla. 2006),
we conclude that the evidence was admissible. Even if either of the
foregoing issues were error, we would conclude that they were harmless
beyond a reasonable doubt, given his two confessions. State v. DiGuilio,
491 So. 2d 1129 (Fla. 1986).
Appellant also challenges his sentence of thirty-one years, followed by
fifteen years’ probation, as a violation of the Cruel and Unusual
Punishment Clauses, because it is a lengthy term-of-years sentence for a
non-homicide crime which he committed as a juvenile. His crimes were
committed prior to the enactment of Chapter 2014–220, which revamped
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juvenile sentencing but expressly made the law prospective. We have
already decided this issue against his position in Davis v. State, 199 So.
3d 546 (Fla. 4th DCA 2016); see also Rollins v. State, 216 So. 3d 644 (Fla.
4th DCA 2017). We certify the same question as we certified in Davis:
DO THE SENTENCE REVIEW PROVISIONS ENACTED IN
CHAPTER 2014–220, LAWS OF FLORIDA, APPLY TO ALL
JUVENILE OFFENDERS WHOSE SENTENCES EXCEED THE
STATUTORY THRESHOLDS, EVEN THOSE CONVICTED OF
NON–HOMICIDE OFFENSES COMMITTED PRIOR TO JULY 1,
2014?
For the foregoing reasons, we affirm both the convictions and
sentences.
CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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