Darius L. Grayson v. State , 212 So. 3d 481 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DARIUS LAMAR GRAYSON,
Appellant,
v. Case No. 5D15-3128
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed February 24, 2017
Appeal from the Circuit Court
for Brevard County,
Robin C. Lemonidis, Judge.
James S. Purdy, Public Defender, and
Thomas J. Lukashow, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Kaylee D. Tatman,
Assistant Attorney General, Daytona
Beach, for Appellee.
EDWARDS, J.
Appellant raises three issues on appeal from two related cases. In one case, he
was convicted, following a jury trial, of burglary of a dwelling and third-degree grand theft
(property valued at more than $300 but less than $20,000). In the second case, he
pleaded guilty, after losing the first trial, to attempted burglary of an occupied dwelling
and grand theft (property valued at more than $300 but less than $20,000).1
Background Facts
On the night of Appellant’s arrest, one resident of the burglarized house went
downstairs at approximately 2:00 a.m. He did not observe anything out of place. He went
back downstairs around 2:30 a.m. and noticed that a previously closed sliding glass door
was half-way open and several kitchen drawers were opened. The resident alerted others
in the house, and they quickly determined that car keys, a backpack with nursing school
textbooks, a laptop computer, two iPads, a Kindle Fire tablet, several gaming systems,
and a Prada purse were missing from the home.
The victims called the police and reported that the burglary had occurred within
thirty minutes of their call. Several police cars responded to the call because the
neighborhood was recently plagued with residential burglaries. Within minutes of the call,
one police car reported to the victims’ house. Other police cars surrounded the
neighborhood in an attempt to intercept any suspects leaving the area. Two officers in a
patrol car drove to an adjacent public ball field and parked on the other side of a wood
line separating the field from the victims’ neighborhood in case the burglar or burglars
escaped through the woods. The ball field was closed at that time of night.
Within approximately two minutes of arriving at the ball field, the police officers saw
the silhouette of a single person walking in and out of the wood line. The individual, who
was later identified as Appellant, was approximately 150 yards away when first spotted
1When pleading guilty in the second case, Appellant reserved his right to appeal
the denial of his motion to suppress, which was deemed dispositive.
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that Appellant ran back into the woods as soon as the officers identified themselves also
contributed to the officers’ suspicion.
The issue presented on the motion to suppress is whether the events,
circumstances, and police observations created an articulable, well-founded suspicion of
Appellant’s involvement in criminal activity or whether the seizure was simply a well-
played hunch. Turner v. State, 552 So. 2d 1181, 1182 (Fla. 4th DCA 1989). “In
determining whether an officer had a reasonable suspicion of criminal activity, courts
consider the totality of the circumstances.” Parker v. State, 18 So. 3d 555, 558 (Fla. 1st
DCA 2008) (citing Huffman v. State, 937 So. 2d 202, 206 (Fla. 1st DCA 2006)). “Relevant
factors include ‘the time of day; the appearance and behavior of the suspect . . . and
anything incongruous or unusual in the situation as interpreted in light of the officer’s
knowledge.’” Id. (alteration in original) (quoting Huffman, 937 So. 2d at 206).
Many cases have discussed what consideration should be given to a defendant
running from the police when determining the legality of an investigatory stop. In Illinois
v. Wardlow, 528 U.S. 119, 123-25 (2000), the United States Supreme Court held that
unprovoked flight in a high crime area can provide grounds for reasonable suspicion to
justify an investigatory Terry stop.2 While flight is “not necessarily indicative of
wrongdoing . . . it is certainly suggestive of such.” Wardlow, 528 U.S. at 124.
“[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature
is not ‘going about one’s business’; in fact it is just the opposite.” Id. at 125.
In Parker, the First District held that once the defendant “began to run, [police]
had a reasonable suspicion to conduct an investigatory stop, based on the additional
2 Terry v. Ohio, 392 U.S. 1 (1968).
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house, located several miles away, when he was apprehended. He explained that he cut
through the wood line to avoid the police because they always bother him.
In his interview, Appellant stated that he saw three young men, dressed in black,
walking behind a house in the neighborhood. He suggested that those three men
committed the burglary. Appellant admitted that he walked through several backyards,
peeked inside one screen door, and entered the porch of one house. He also admitted
he needed money but denied stealing any personal property. He informed the officers
that if, hypothetically, he had stolen property, he would not have taken the items to a pawn
shop but instead would have sold the items to his friends.
At trial, the State presented the testimony of the responding officers and the
victims. It also played Appellant’s recorded interview with the police. Appellant did not
testify at trial. The residents could not identify Appellant as the burglar. Appellant moved
for a judgment of acquittal (“JOA”), which was denied.
Motion to Suppress
The first issue on appeal is whether Appellant’s seizure was legal. “While the test
to be applied to factual findings of the trial court in this regard is whether competent,
substantial evidence supports those findings, the trial court’s application of the law to the
facts is reviewed de novo.” Pritchard v. State, 987 So. 2d 204, 205 (Fla. 5th DCA 2008)
(citations omitted). The trial judge denied the motion to suppress, noting that a nearby
home was burglarized thirty minutes earlier and that Appellant was roaming in and out of
the wood line at 3:00 a.m. near a neighborhood that experienced a recent rash of
burglaries. According to the police, no other suspects were encountered, and it was
unusual to encounter anyone walking through the ball field at that time of night. The fact
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that Appellant ran back into the woods as soon as the officers identified themselves also
contributed to the officers’ suspicion.
The issue presented on the motion to suppress is whether the events,
circumstances, and police observations created an articulable, well-founded suspicion of
Appellant’s involvement in criminal activity or whether the seizure was simply a well-
played hunch. Turner v. State, 552 So. 2d 1181, 1182 (Fla. 4th DCA 1989). “In
determining whether an officer had a reasonable suspicion of criminal activity, courts
consider the totality of the circumstances.” Parker v. State, 18 So. 3d 555, 558 (Fla. 1st
DCA 2008) (citing Huffman v. State, 937 So. 2d 202, 206 (Fla. 1st DCA 2006)). “Relevant
factors include ‘the time of day; the appearance and behavior of the suspect . . . and
anything incongruous or unusual in the situation as interpreted in light of the officer’s
knowledge.’” Id. (alteration in original) (quoting Huffman, 937 So. 2d at 206).
Many cases have discussed what consideration should be given to a defendant
running from the police when determining the legality of an investigatory stop. In Illinois
v. Wardlow, 528 U.S. 119, 123-25 (2000), the United States Supreme Court held that
unprovoked flight in a high crime area can provide grounds for reasonable suspicion to
justify an investigatory Terry stop.2 While flight is “not necessarily indicative of
wrongdoing . . . it is certainly suggestive of such.” Wardlow, 528 U.S. at 124.
“[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature
is not ‘going about one’s business’; in fact it is just the opposite.” Id. at 125.
In Parker, the First District held that once the defendant “began to run, [police]
had a reasonable suspicion to conduct an investigatory stop, based on the additional
2 Terry v. Ohio, 392 U.S. 1 (1968).
5
factors of the time of night, the emptiness of the street, and the recent occurrence of a
crime in the near vicinity.” Parker, 18 So. 3d at 559. “Flight, in itself, is insufficient to
support a reasonable suspicion of criminal activity.” Id. at 558 (citing S.G.K. v. State, 657
So. 2d 1246, 1248 (Fla. 1st DCA 1995)). “Nonetheless, flight can be one factor, among
others, that contributes to an officer’s reasonable suspicion of criminal activity.” Id. (citing
Blue v. State, 837 So. 2d 541, 546 (Fla. 4th DCA 2003)). “Flight can support a resisting
[arrest without violence] charge if the [S]tate proves that (1) the officer had an articulable
well-founded suspicion of criminal activity that justifies the officer’s detention of the
defendant, and (2) the defendant fled with knowledge that the officer intended to detain
him or her.” V.L. v. State, 790 So. 2d 1140, 1142-43 (Fla. 5th DCA 2001) (citations
omitted).
Similarly, in Sinclair v. State, 816 So. 2d 149, 150-51 (Fla. 1st DCA 2002), with two
judges concurring and one dissenting, the First District held that an articulable well-
founded suspicion existed for a Terry stop when the defendant was spotted in the area of
the crime around the time the crime was committed, the defendant changed his direction
of travel when he first saw the police and again when one of the officers indicated that he
wanted to speak with the defendant, and the responding officers did not observe any
other individuals in the area. Although the facts of this case present a close call, we agree
with the trial court that there was a reasonable suspicion to justify an investigative stop.
Thus, the motion to suppress was properly denied.
Denying Motion for JOA
Second, Appellant argues that the trial court erred in denying his motion for JOA.
In moving for a JOA, the “defendant admits not only the facts stated in the evidence, but
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also every reasonable conclusion favorable to the State that the fact-finder might fairly
infer from the evidence.” State v. Odom, 56 So. 3d 46, 49 (Fla. 5th DCA 2011). We have
carefully reviewed the record and find that there was sufficient evidence introduced at trial
to submit the case to the jury. Therefore, the motion for JOA was properly denied.
Ineffective Assistance of Counsel
Third, Appellant claims that the State did not sufficiently prove that the value of the
stolen property exceeded $300 and that defense counsel was ineffective for failing to
move for a JOA as to the third-degree grand theft charge. He contends that if the motion
was granted, he would have been convicted of petit theft, which carries a shorter
sentence. “Claims of ineffective assistance of counsel are generally not reviewable on
direct appeal.” Gordon v. State, 126 So. 3d 292, 294 (Fla. 3d DCA 2011). However,
claims of ineffective assistance of counsel may be raised on appeal if ineffectiveness is
obvious on the face of the appellate record and the prejudice caused by the conduct is
indisputable. See Larry v. State, 61 So. 3d 1205, 1207 (Fla. 5th DCA 2011).
Several victims provided testimony related to the value of the stolen property. The
relevant testimony included that that the iPads were recently purchased, the laptop cost
$400, the backpack cost $100, the Kindle Fire cost $200, the PlayStation cost $300, the
Prada purse was valued between $350 and $900, and a replacement smart car key would
cost between $100 and $200, plus an additional cost to have the car rekeyed. The victims
also testified to the accuracy of photographs depicting the stolen property recovered by
police outside the victims’ house. While the proof of value of each item could have been
more detailed to include the condition of each item when stolen, the evidence was
sufficient to permit a jury to find that the total value of the stolen property exceeded $300.
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We conclude that a motion for judgment of acquittal on that point would not have been
granted; thus, there was no ineffective assistance of counsel and no prejudice to
Appellant. Furthermore, because this claimed ineffective assistance of counsel is not
clear on the face of the record, it should be raised, if at all, in a motion for postconviction
relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, having now
carefully considered this fully briefed claim of ineffective assistance of counsel raised by
Appellant, we deny it on the merits.
AFFIRMED.
ORFINGER, J., and JACOBUS, B.W., Senior Judge, concur.
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