Bruce Bernard Strachan v. State of Florida , 2016 Fla. App. LEXIS 10000 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRUCE BERNARD STRACHAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-123
[June 29, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 2009CF011003AMB.
Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
FORST, J.
This case comes to us after a jury found Appellant Bruce Strachan
guilty of three counts of first-degree murder for which the trial court
imposed three consecutive life sentences. We find no merit in any of the
arguments raised on appeal. We write to address only three of these
arguments; we expressly affirm the other two without further comment.
I. The trial court did not err in allowing the jury to read transcripts
of recorded calls made by Appellant.
We note first that Appellant failed to properly preserve his argument
related to the jury viewing transcripts of recorded calls because his first
objection to the transcripts was made at trial, and Martinez v. State, 761
So. 2d 1074 (Fla. 2000), only requires the trial court to independently
review a transcript when an objection is made pre-trial. See id. at 1086
(“[T]he trial court should make an independent pretrial determination of
the accuracy of the transcript . . . .”). Appellant’s cases suggesting that an
at-trial objection is sufficient are unpersuasive. Sparkman v. State, 902
So. 2d 253 (Fla. 4th DCA 2005), dealt with the actual introduction of
evidence, not with demonstrative aids. Id. at 257. And although Davis v.
State, 121 So. 3d 462 (Fla. 2013), involved a transcript, the at-trial
objection there was made at the first available opportunity when a revised
transcript was put forward which defense counsel had not previously been
given the opportunity to verify. Id. at 487. Here, Appellant and his
attorney had been relying on the transcript for pre-trial hearings and can
make no claim of surprise or lack of opportunity. Appellant failed to object
with sufficient time for the trial court to be able to perform its
responsibilities under Martinez and therefore has waived his right to
appeal this issue. See Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010).
Even if we were to consider this issue on the merits, we would hold that
the curative instructions given, the fact that the jury listened to the tapes
again without transcripts during deliberations, and the relative
insignificance of the alleged errors in the transcript compared to the
evidence as a whole, all render any error harmless. See State v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986) (establishing the harmless error
standard); Davis, 121 So. 3d at 492 (holding the error in Davis harmless
based on curative instructions and the replaying of the tape).
II. The trial court did not err in denying Appellant’s motion to
suppress recorded phone calls he made from jail.
We review motions to suppress under a mixed standard, deferring to
the trial court’s factual findings but reviewing legal conclusions de novo.
Chaffin v. State, 121 So. 3d 608, 613 (Fla. 4th DCA 2013).
Appellant argues that his calls made to family members should have
been suppressed as the fruit of the poisonous tree based on conduct by
the police that the State concedes was improper. 1 Suppression under this
doctrine requires that the illegal actions of law enforcement be the but-for
cause of the evidence sought to be suppressed. See Hudson v. Michigan,
547 U.S. 586, 592 (2006) (“Our cases show that but-for causality is only a
necessary, not a sufficient, condition for suppression.”). Appellant’s jail
calls included language suggesting that he was calling despite the
improper police conduct rather than because of it. The record as a whole
indicates that Appellant had an independent desire to make the calls and
would have made them with or without the illegal police conduct.
III. The trial court did not err in denying Appellant’s motion to
suppress the gun.
1 The police continued to question Appellant after he had invoked his right to
remain silent.
2
The police found the murder weapon (an AK-47) in a half-open duffel
bag under a bed in a shed owned by Appellant’s cousin. This shed was
used as a sort of makeshift second home by Appellant’s father. We dispose
of this issue at the very first step of a Fourth Amendment analysis. “To
invoke the Fourth Amendment, ‘a criminal defendant must establish
standing by demonstrating a legitimate expectation of privacy in the area
searched or the item seized. A legitimate expectation of privacy consists
of both a subjective expectation and an objectively reasonable expectation,
as determined by societal standards.’” Peraza v. State, 69 So. 3d 338, 340
(Fla. 4th DCA 2011) (quoting State v. Young, 974 So. 2d 601, 608 (Fla. 1st
DCA 2008)). By failing to have a subjective expectation of privacy, a
defendant can be without standing before the reasonableness analysis
even begins. See id. at 341; United States v. McBean, 861 F.2d 1570, 1573
& n.7 (11th Cir. 1988). Whether an individual has a subjective expectation
of privacy is a factual determination reviewed under a clearly erroneous
standard. McBean, 861 F.2d at 1573.
The trial court here found that Appellant “had no expectation of privacy
in that shed” and specified that its finding was about both Appellant’s
subjective and objective expectations. After a close review of the record,
we cannot conclude that the trial court’s finding as to Appellant’s
subjective expectation of privacy was clearly erroneous. The transcript of
the suppression hearing reveals that Appellant’s cousin (the shed’s owner)
gave the police permission to search the shed; multiple individuals had
access to the shed; the shed was unlocked; and the shed was not
constantly under observation. Based on these facts, the trial court did not
clearly err in its finding. We therefore affirm the denial of Appellant’s
motion to suppress the murder weapon.
Conclusion
We find no error in the proceedings below. We affirm Appellant’s
conviction and sentence.
Affirmed.
GROSS and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3