Ungray Lamar Murray v. State , 2015 Fla. App. LEXIS 442 ( 2015 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    UNGRAY LAMAR MURRAY,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    No. 4D13-2527
    [January 14, 2015]
    Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
    Beach County; Richard Oftedal, Judge; L.T. Case No. 502012F002108A.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant
    Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble,
    Assistant Attorney General, West Palm Beach, for appellee.
    GROSS, J.
    Ungray Murray appeals his conviction for sexual battery, contending
    the trial court erred in denying his motion to suppress DNA evidence
    obtained pursuant to a search warrant because the affidavit in support of
    the warrant contained intentional misstatements and omissions. While
    the affidavit contained several misleading statements, we nevertheless
    affirm for two reasons. First, under the inevitable discovery doctrine, since
    the DNA evidence recovered from the crime scene matched Murray’s DNA
    as uploaded to the nationwide CODIS registry, Murray’s DNA connection
    to the victim would eventually have been discovered, even if he had not
    otherwise been a suspect. Second, given the totality of information
    contained in the affidavit, the established inconsistencies, even if
    exercised, were not sufficient to negate the magistrate’s probable cause
    finding.
    Factual Background
    The victim returned home after watching football with friends and fell
    asleep on her couch. At about 2:45 a.m., she was suddenly awakened by
    the sound of a loud bang on her front door and an individual exclaiming,
    “It’s the cops. Let me in.” Concerned, the victim peered through her front
    door window, only to be partially blinded by a flashlight. She was able to
    see that the person appeared to be wearing “police pants,” given their dark
    blue coloring and the “stick” attached to his belt. As the victim slowly
    opened her door, she asked about the reason for the visit; the man
    responded, “I’ll let you know ma’am when I get in.” Believing the answer
    to be unusual for a police officer, the victim attempted to shut the door,
    but the man overpowered her, forcing his way inside while warning, “Oh,
    you’re not dreaming. This is for real.” Upon this entry, the victim saw her
    assailant’s full features, observing that he was a thin, dark-skinned
    African American male wearing a dark blue hoodie covering all but his eyes
    and mouth.
    Terrified, the victim screamed and reached for her cellphone, but the
    assailant grabbed her by the neck and tossed the phone away. With the
    victim subdued, the assailant ordered her to remove her clothes, grab his
    penis, and “put it” inside her vagina. In response, the victim took off her
    pants and did as told. The assailant then asked whether he was “in.”
    When the victim responded, “Well, I don’t know, I’m in menopause,” the
    assailant became bewildered, muttering to himself about “menopause”
    and “seed”—a euphemism, the victim believed, for the assailant “planting
    a pregnancy.”
    The assailant asked the victim where she kept her money. Unhappy
    with the victim’s response, the assailant choked her to the point that she
    collapsed on her couch. He threatened, “Do you want to die, because you
    are[.] And I’m the one that’s going to kill you.” The assailant then struck
    the victim’s face, breaking her tooth, and repeatedly hit her in the temple.
    The victim began chanting “the Lord’s Prayer,” which only angered the
    assailant. Eventually, the assailant told the victim to “shut up” before
    strangling the victim until she lost consciousness.
    Two hours later, when the victim came to, she found herself lying on
    her couch under a cardboard box that had been set on fire. The victim’s
    hands and feet were tied together by electrical cords. She was able to free
    herself, douse the fire with water, and call her neighbor to report the
    incident. Thereafter, authorities transported her to a local hospital, where
    doctors examined her and recovered DNA swabs from her vagina for later
    testing.
    At the hospital, the victim met with a detective to chronicle her ordeal.
    In a recorded interview, she told the detective that she suspected her
    assailant to be “Andre”—an employee of J.A.Y. Ministries who had cut her
    grass the previous year. “Andre” established a relationship with her,
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    coming to her house in non-work hours to smoke cigarettes and discuss
    life. As one thing led to another, Andre several times expressed his
    romantic interest in the victim, which she rebuffed. One way Andre
    expressed his interest was by telling the victim, “One day I’ll put a seed in
    you, you’ll see. There will be a little Andre in you one day”—using the term
    “seed” just as the assailant did in his moment of bewilderment.
    Aside from this odd locution, Andre’s build and mannerisms fit the
    characteristics of the victim’s assailant. Andre was the only person the
    victim knew to be as thin and dark as her assailant. Further, the
    assailant’s distinctive white teeth matched those of Andre, and the
    assailant never cussed or acted rough “like a thug”—much like Andre. In
    fact, the victim believed her assailant even smelled like Andre, since she
    remembered the type of soap Andre used.
    With this information, the detective contacted J.A.Y. Ministries and
    learned of an employee named “Ungray Murray” who fit the description.
    During a voluntary interview, Murray told the detective he knew the victim
    from his days cutting her grass for J.A.Y. Ministries, but he had not seen
    her in a year. Murray further explained that he never had a personal
    relationship with the victim and never stepped foot in her house.
    Nevertheless, to clear his name, Murray allowed the detective to obtain a
    sampling of his DNA.
    Somehow, law enforcement misplaced this DNA sample. A detective
    obtained a search warrant to recover a second DNA sample from Murray.
    Pertinent to this appeal, the detective’s affidavit supporting the search
    warrant set forth the following facts related to his investigation:
    [During the hospital interview, the victim] stated that she
    knows a subject who she called “Andre”, later identified as
    Ungray Murray . . . . According to [the victim], Murray “[t]ook
    too much liking to her” as she continued to reject him. [The
    victim] stated that she met Murray approximately 1 year ago
    as Murray worked on lawns in the neighborhood with “Jay
    Ministries”.     According to [the victim,] Murray was
    incarcerated back then and got out of jail on July of 2011.
    [The victim] stated that she has rejected Murray’s advances
    and has asked him to leave her property. [The victim] stated
    that Murray matches the weight, height, and voice of the
    suspect who raped her. [The victim] states that Murray, just
    like the suspect who raped her, does not curse and that the
    suspect and Murray have very “White teeth”.
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    Approximately one week from the time of the incident,
    [the victim] stated that the subject who tried to kill her
    and sexually battered her was Ungray Murray. [The
    victim] stated that she was 99% sure. [The victim] met
    Murray at her residence because he did “yard work” for her.
    Murray later confirmed working for [the victim] in a sworn
    recorded statement, after being advised of his Miranda rights.
    (Emphasis added).
    After the search warrant’s issuance, the detective obtained a second
    DNA sample from Murray and submitted it for testing. Not only did a
    comparison of sperm fractions found on and inside the victim match
    Murray’s second DNA sample, but they also matched Murray’s DNA as
    inputted in 2006 into the Combined DNA Index System (“CODIS”).
    Motion to Suppress
    Prior to trial, Murray moved to suppress the DNA sample obtained via
    the search warrant, contending, among other things, that the detective’s
    affidavit contained false statements and omissions sufficient to invalidate
    the finding of probable cause. Specifically, Murray contended that,
    contrary to the affidavit, the victim did not identify “Ungray Murray” as the
    person who attacked her, nor did she tell the detective a week after the
    incident that “she was 99% sure” of Murray’s involvement. As to
    omissions, Murray asserted the victim told the detective in her taped
    interview at the hospital “that she ‘can’t see it being Andre’ but that he’s
    about the closest she can come to in terms of build.” The victim further
    explained in the same interview “that even though ‘Andre’ had a similar
    size and voice to the” assailant, a lot of men near Riviera Beach had similar
    voices and sizes.
    During the suppression hearing, the parties stipulated that the victim’s
    pre-trial deposition would serve as her testimony. The victim stated that
    she “wasn’t positive” who perpetrated the sexual assault at the time she
    first met with the detective, but she “suspected” Andre’s potential
    involvement given his physical characteristics and his use of the term
    “seed.” Such uncertainty was evident in the following dialogue recorded
    during her hospital interview the morning of the incident:
    [Detective]:      [Y]ou mention this gentleman Andre, okay
    tell me about him.
    [The victim]:      Well, he just looks like the size you know
    the build just Andre.
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    [Detective]:       How about his voice, you said his voice
    sounds familiar?
    [The victim]:      Yeah, well . . .
    [Detective]:       Familiar?
    [The victim]:      Yeah, as around there in Riviera Beach, all
    the guys’ voices and they’re all about the
    same size all along Riviera Beach. Now
    Andre was somebody that took too much of
    a liking to me.
    [Detective]:       Okay.
    [The victim]:      And I said “no,” you know “just go.” But I
    can’t see it being Andre but to notice the
    build or anything, he’s the closest I could
    you know come to.
    (Emphasis added).
    The day after the hospital visit, the victim met with the detective for a
    second time, during which the victim identified a picture of Murray as
    “Andre”—her suspected assailant. Regarding her relative certainty of
    Murray’s involvement at the time, the victim stated in her deposition as
    follows:
    Q:                 Did you tell [the detective] that you had any
    doubts, that you were sure, that you
    weren’t sure, that you were 50% sure?
    What did you say?
    [The victim]:      That I was pretty sure.
    Q:                 Did you give a number?
    [The victim]:      Not really.
    Q:                 Okay. Did you say that you were like 75%
    sure, fifty?
    [The victim]:      Ninety percent if you want a number. I said
    90%.
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    Q:                No, I don’t want a number. I’m wondering
    what you said to him.
    [The victim]:     Well, that’s just it. If you – about 90%. I
    wasn’t totally sure, at first.
    Q:                Well let me go back. I didn’t ask that
    question well at all because I led you into
    it. Tell me what you told him about how
    sure you were.
    [The victim]:     Ninety percent. I said I’m pretty sure. This
    is who I think it is.
    Q:                Okay. So the words that came out of your
    mouth was –
    [The victim]:     This is who I think it is.
    Q:                Okay.
    [The victim]:     Yes.
    Q:                And the 90% thing, you were telling me
    that. That’s not what you told the officer
    that day, right?
    [The victim]:     I just said, this [is] who I think it is.
    Q:                Okay.
    [The victim]:     It wasn’t no percentage at the time.
    Q:                Okay.
    [The victim]:     It was just, this is who I think it is.
    During the suppression hearing, the detective described his
    investigation. He testified that upon receiving the victim’s suspicions of
    “Andre,” he went to J.A.Y. ministries, where he learned of Ungray Murray.
    The following day, after meeting with Murray, the detective contacted the
    victim over the phone, at which point she stated she was “99% sure that
    the person that cut her grass was the person that attacked her.” The
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    detective conceded, however, that the victim never stated without
    qualification that “Ungray Murray” was the person who assaulted her.
    A forensic biologist with the Palm Beach County Sheriff’s Office testified
    regarding the procedures used to match Murray’s DNA with the sperm
    fractions recovered from the victim. The biologist explained that in
    comparing Murray’s second DNA sample to the DNA evidence recovered
    from the victim, she also received a match with Murray via the CODIS
    registry, since his DNA had been uploaded to the system in 2006. The
    biologist testified that had there been no suspect for the victim’s sexual
    assault, she ultimately would have run the victim’s DNA evidence through
    the CODIS system and received a match with Murray.
    The trial court denied the suppression motion upon two grounds. First,
    the trial court found that the inevitable discovery doctrine applied, since
    the DNA samples obtained from the victim “produce[d] a CODIS hit which
    linked [Murray] directly to the crime”; the court found it logical to infer
    “that ultimately in the absence of a suspect [the DNA evidence recovered
    from the victim] would have been submitted” for testing, which would have
    resulted in the CODIS match. Second, the trial court denied the
    suppression motion on its substantive merits, finding that while “the
    affidavit itself certainly wasn’t entirely accurate,” the detective had, at the
    time, “already verified through his conversation with [Murray] . . . that . .
    . Murray had in fact cut the victim’s grass and knew her.” Further, the
    trial court believed the victim’s statement at the hospital that “it couldn’t
    have been Andre” was more likely than not a statement “reflecting disbelief
    that this person that she knew and had talked to and had cut her grass
    previously could have been this person who brutally attacked and raped
    her.”
    Murray’s case proceeded to trial on the charges of sexual battery with
    force and attempted felony murder. The jury acquitted Murray of the
    attempted murder charge and found him guilty of the lesser included
    offense of sexual battery.
    In his primary issue on appeal, Murray contends that the denial of his
    motion to suppress the DNA match was error “because the affidavit utilized
    by [the detective] was invalid, due to the detective’s false statements or
    misrepresentations of significant material facts from the search warrant’s
    application affidavit.”
    “‘On a motion to suppress the fruits of a search in accordance with a
    warrant, a trial court examines whether the issuing magistrate had a
    substantial basis for concluding that probable cause existed, and this
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    determination is made by examining the affidavit in its entirety.’” Pilieci v.
    State, 
    991 So. 2d 883
    , 892 (Fla. 2d DCA 2008) (quoting State v.
    Vanderhors, 
    927 So. 2d 1011
    , 1013 (Fla. 2d DCA 2006)). Applying this
    standard, we afford the magistrate’s determination “great deference” while
    focusing our inquiry on whether, “based on the totality of the
    circumstances, and a common sense assessment, probable cause is
    shown.” Martin v. State, 
    906 So. 2d 358
    , 360 (Fla. 5th DCA 2005) (citing
    Pagan v. State, 
    830 So. 2d 792
    , 806 (Fla. 2002); McCall v. State, 
    684 So. 2d
    260, 262 (Fla. 4th DCA 1996)); State v. Rabb, 
    920 So. 2d 1175
    , 1180
    (Fla. 4th DCA 2006) (citing United States v. Soderstrand, 
    412 F.3d 1146
    ,
    1152 (10th Cir. 2005)). As the Supreme Court explained in Illinois v.
    Gates, 
    462 U.S. 213
    , 236 (1983):
    after-the-fact scrutiny by courts of the sufficiency of an
    affidavit should not take the form of de novo review. A
    magistrate’s determination of probable cause should be paid
    great deference by reviewing courts. A grudging or negative
    attitude by reviewing courts toward warrants is inconsistent
    with the Fourth Amendment’s strong preference for searches
    conducted pursuant to a warrant [and] courts should not
    invalidate . . . warrant[s] by interpreting affidavit[s] in a
    hypertechnical, rather than a commonsense, manner.
    
    Id. (internal quotations
    omitted).
    Where there is no attack on the contents of an affidavit supporting a
    warrant application, review of a magistrate’s probable cause determination
    is typically limited to the contents of the warrant application, including the
    “four corners of the supporting affidavit.” Williams v. State, 
    130 So. 3d 757
    , 759 (Fla. 2d DCA 2014) (citing Art. I, § 12, Fla. Const.); Redini v. State,
    
    84 So. 3d 380
    , 382 (Fla. 4th DCA 2012).
    However, an evidentiary hearing is warranted where the defendant
    makes a substantial preliminary showing that (1) the affiant knowingly or
    intentionally, or with reckless disregard for truth, made untruthful
    statements or omitted important facts and (2) the untrue facts were
    necessary for the finding of probable cause or the omitted facts, “if added
    to the affidavit, would have defeated probable cause.” 
    Pagan, 830 So. 2d at 807
    . The second district has explained the dynamics of such a hearing:
    Under Franks v. Delaware, 
    438 U.S. 154
    , 
    98 S. Ct. 2674
    , 
    57 L. Ed. 2d 667
    (1978), if a defendant makes a substantial
    preliminary showing that the affiant knowingly or
    intentionally or with reckless disregard for the truth included
    -8-
    a false statement in the affidavit, and that statement was
    necessary to the finding of probable cause, the circuit court
    must hold a hearing. If the defendant establishes these
    allegations by a preponderance of the evidence, the court
    must suppress the fruits of the search. The federal courts
    have extended the reasoning of Franks to apply to an
    allegation that law enforcement omitted material facts with
    the intent to make, or in reckless disregard of whether they
    thereby made, the affidavit misleading. United States v.
    Colkley, 
    899 F.2d 297
    , 300 (4th Cir. 1990) (citing United
    States v. Reivich, 
    793 F.2d 957
    , 961 (8th Cir. 1986)); see also
    Johnson v. State, 
    660 So. 2d 648
    , 656 (Fla. 1995) (adopting
    the reasoning of Colkley to extend Franks to apply to material
    omissions resulting from “intentional or reckless police
    conduct that amounts to deception”).
    
    Pilieci, 991 So. 2d at 893
    . “In short, to meet the Franks test, police conduct
    must rise to the level of hoodwinking or bilking, duping the issuing judge
    or magistrate into signing the warrant . . . . ” State v. Petroni, 
    123 So. 3d 62
    , 65 (Fla. 1st DCA 2013).
    Applying this procedure, a reviewing court’s finding that the police
    acted in a deceptive manner will not, by itself, result in automatic
    suppression. Under such circumstances, the reviewing court
    must excise the erroneous material and determine whether
    the remaining allegations in the affidavit support probable
    cause. If the remaining statements are sufficient to establish
    probable cause, the false statement will not invalidate the
    resulting search warrant. See Terry v. State, 
    668 So. 2d 954
          (Fla. 1996). If, however, the false statement is necessary to
    establish probable cause, the search warrant must be voided,
    and the evidence seized as a result of the search must be
    excluded. See 
    id. (citing Franks,
    438 U.S. at 156); see also
    Thorp v. State, 
    777 So. 2d 385
    (Fla. 2000).
    Garcia v. State, 
    872 So. 2d 326
    , 330 (Fla. 2d DCA 2004) (quoting 
    Pagan, 830 So. 2d at 807
    ).
    Even if the warrant was deficient, the DNA match to Murray is admissible
    under the inevitable discovery doctrine
    Regardless of the affidavit’s omissions or falsities, the trial court
    correctly concluded that Murray’s second DNA swab was admissible under
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    the inevitable discovery doctrine. “Under this exception, evidence obtained
    as the result of unconstitutional police procedure may still be admissible
    provided the evidence would ultimately have been discovered by legal
    means.” Maulden v. State, 
    617 So. 2d 298
    , 301 (Fla. 1993). The rationale
    is that the “[e]xclusion of physical evidence that would inevitably have been
    discovered adds nothing to either the integrity or fairness of a criminal
    trial.” Nix v. Williams, 
    467 U.S. 431
    , 446 (1984).
    “For the inevitable discovery doctrine to apply, the State must establish
    that the evidence would have been discovered ‘by means of normal
    investigative measures that inevitably would have been set in motion as a
    matter of routine police procedure.’” Rowell v. State, 
    83 So. 3d 990
    , 995
    (Fla. 4th DCA 2012) (quoting Craig v. State, 
    510 So. 2d 857
    , 863 (Fla.
    1987)). “In other words, the case must be in such a posture that the facts
    already in the possession of the police would have led to this evidence
    notwithstanding the police misconduct.” Moody v. State, 
    842 So. 2d 754
    ,
    759 (Fla. 2003). The prosecution must also “show that the lawful means
    which made discovery inevitable were being actively pursued prior to the
    occurrence of the illegal conduct.” 
    Rowell, 83 So. 3d at 995
    .
    In this case, law enforcement obtained DNA evidence from the victim
    the morning of her sexual assault. In comparing this evidence to Murray’s
    second DNA sample, the assigned forensic biologist testified that she also
    ran the results through the nationwide CODIS system, which returned a
    match for Murray. Even assuming that the search warrant was not
    supported by probable cause or that Murray had not been identified, given
    the nature of the crime, law enforcement would eventually have tested the
    sperm fractions recovered from the victim and run them through the
    CODIS system, resulting in a match with Murray. See, e.g., State v. Notti,
    
    71 P.3d 1233
    , 1239 (Mont. 2003) (“Notti’s DNA profile would have been
    placed on the State’s DNA Identification Index and submitted to CODIS,
    which would have inevitably led to the discovery of a match by either a
    CODIS computer check or when another Crime Lab employee compared
    profiles in the ‘forensic unknown’ database with the State’s DNA
    Identification Index.”); United States v. Gross, 
    554 F. Supp. 2d 773
    , 776-
    77 (N.D. Ohio 2008) aff’d in part, rev’d in part, 
    624 F.3d 309
    (6th Cir. 2011)
    (“As the use of Defendant’s on-file DNA would not invoke[] any Fourth
    Amendment issue, the Government was free to compare the DNA from the
    firearm to Defendant’s DNA in possession of the State of Ohio. As DNA
    does not change over time, the Government inevitably would have matched
    Defendant’s DNA to the DNA on the firearm, even without a warrant for
    the buccal swab.”).
    The deficiencies in the affidavit do not negate the finding of probable cause
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    Alternatively, the trial court did not err in finding the affidavit’s
    misstatements or omissions insufficient to negate probable cause. A
    probable cause inquiry is an inexact science, not “susceptible to formulaic
    determination.” Doorbal v. State, 
    837 So. 2d 940
    , 952 (Fla. 2003). When
    making the determination,
    [t]he task of the issuing magistrate is simply to make a
    practical, common-sense decision whether, given all the
    circumstances set forth in the affidavit before him, . . . there
    is a fair probability that contraband or evidence of a crime will
    be found in a particular place.
    
    Gates, 462 U.S. at 238
    ; see also Green v. State, 
    946 So. 2d 558
    , 561 (Fla.
    1st DCA 2006).
    Murray’s chief argument derives from the detective’s statements in his
    affidavit that the victim identified “Ungray Murray as the person who
    attacked her” and “stated that she was 99% sure” of that fact. While it is
    true—as the detective conceded at the suppression hearing—that the
    victim never referred to her assailant as “Ungray Murray,” the victim did
    identify a picture of Murray as the “Andre” she suspected to be her
    assailant. Furthermore, the victim during her hospital interview provided
    substantial descriptions justifying her reasons for suspecting Andre,
    particularly his likeness in physical appearance and vocal and physical
    mannerisms.
    To the extent the victim was not 99% certain during her second
    interview that her assailant was “Ungray Murray,” this conjecture, when
    excised, does not negate a finding of probable cause. According to the
    remaining portions of the affidavit, the victim told the detective that Andre
    mowed her lawn while working for J.A.Y. Ministries, that he frequently
    expressed romantic interest in her, and that he “match[ed] the weight,
    height, and voice of her suspect[ed]” assailant as well as his mannerisms.
    During a later interview, Murray confirmed his business relationship with
    the victim and J.A.Y. Ministries, demonstrating that he was the “Andre”
    the victim purported to know. Probable cause is a relatively flexible
    threshold, dependent upon a common-sense determination. It cannot be
    said that the search warrant would not have issued without consideration
    of the challenged facts.
    The same reasoning applies to the omissions from the affidavit. First,
    Murray contends that the detective’s affidavit should have included the
    victim’s statement from her hospital interview that she “can’t see it being
    Andre.” However, as the trial court found, this statement could easily be
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    interpreted as a side comment expressing her disbelief that a person she
    knew could have been capable of such a crime. Next, Murray contends
    the detective should have included the victim’s statement from the same
    interview that “Andre” had a similar voice and size to many men in Riviera
    Beach. While this statement would have shed light on the strength of the
    victim’s identification, it does not negate the other facts in the affidavit
    that established “Andre’s” connection to the victim. Had the omitted facts
    been included in the affidavit, there would still have been probable cause
    to obtain a DNA sample from Murray.
    We have considered the other issue raised on appeal and find no abuse
    of discretion in the trial court’s ruling on the additional jury instruction.
    Affirmed.
    DAMOORGIAN, C.J., and MAY, J., concur.
    *         *        *
    Not final until disposition of timely filed motion for rehearing.
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