        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                             DONNA HORWITZ,
                                Appellant,

                                       v.

                            STATE OF FLORIDA,
                                 Appellee.

                                No. 4D13-336

                            [ February 18, 2015 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Joseph    G.    Marx,     Judge;   L.T.    Case    No.
502011CF010843AXX.

    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, and W. Grey Tesh, West Palm Beach,
for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

  Appellant, Donna Horwitz, appeals her conviction for first degree
murder with a firearm. We reverse and hold that the trial court erred in
admitting evidence of appellant’s pre-arrest, pre-Miranda silence where
appellant did not testify at trial.1 We also certify a question to the Florida
Supreme Court as one of great public importance.

   Appellant was charged with first degree murder in connection with the
shooting death of her former husband, Lanny Horwitz. On the morning of
September 30, 2011, Lanny was shot multiple times in the master
bathroom of his home and was pronounced dead at the scene.

   Appellant and Lanny had been divorced twice, but they were living
together again at the time of the murder. The couple’s 38-year-old son,

1We find no reversible error or abuse of discretion as to any of the other issues
raised in appellant’s initial brief and supplemental brief.
Radley, also lived in Lanny’s home.

   Radley was the state’s key witness against appellant. There was
evidence that Radley had a troubled relationship with Lanny and that he
was a beneficiary on Lanny’s life insurance policy, but that evidence need
not be addressed in detail for purposes of this opinion.

   Radley testified that in the months before the murder, appellant
complained several times that Lanny was being mean and nasty to her.
Appellant also made comments about the amount of time Lanny spent
with a female business associate.

    The night before the murder, Lanny went to dinner with Radley and
told him that he was planning to travel to North Carolina with the female
business associate. Later that night, appellant mentioned to Radley that
she had seen Lanny’s luggage in the laundry room and realized that he
was leaving town. When Radley went to bed that night, his parents were
still awake.

    Radley testified that he was awakened the next morning by the sound
of gunshots. When he heard the clicking sound of an empty gun, he left
his room to see what was happening. He saw appellant running in and
out of his parents’ bedroom, screaming his name. The house alarm was
triggered by the home’s glass break sensors. Radley looked in the
bathroom and saw his father on the floor. Radley went back to appellant,
who then said, “He was so horrible.”

    Meanwhile, the security guard at the community gate received an alarm
from the Horwitz residence at about 7:00 a.m. He dispatched a security
officer, Luis Garcia, to the home. Garcia arrived at the home within about
three minutes of receiving the call about the alarm. Radley answered the
door, appearing as though he had just gotten out of bed. Garcia asked
Radley if everything was okay, and Radley responded, “I don’t know, my
mom is screaming.” Garcia entered the house and saw appellant, who was
very upset and was screaming, “I think he’s dead.”

   Appellant pointed to the master bathroom area. Garcia looked in the
bathroom and saw Lanny unresponsive on the ground, but still breathing.
There was a gun in Lanny’s hand, pointed at an angle that led Garcia to
believe the wound may have been self-inflicted. Garcia moved the gun
away from Lanny’s body when he unsuccessfully tried to resuscitate him.
Appellant told Garcia, “He said he would do this.” However, Radley told
Garcia that Lanny and appellant had been fighting. Garcia escorted
appellant and Radley out of the house. Lanny was declared dead shortly

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thereafter.

   Appellant and Radley waited in Radley’s SUV. Radley testified that he
noticed several drops of blood on appellant’s foot. Radley gave appellant
some napkins and she wiped the blood drops off. Radley did not initially
mention this to police.

    Officer Coleman arrived at the scene in response to a call about a
suicide. Coleman made contact with appellant and Radley, who were
sitting in the SUV. At the scene, appellant appeared to be in shock.
Coleman asked appellant if she needed anything, but appellant did not
answer. Coleman then asked appellant if she wanted a bottle of water. In
response, appellant put her fingers in her ears and said she couldn’t hear
Coleman. Coleman also asked appellant if she was in the room when the
gun went off, but appellant did not answer. A hearing specialist testified
for the defense that appellant had lost 48% of her ability to hear in each
ear.

   There was no evidence of forced entry into the home. Authorities found
a gun on the floor outside the master bathroom, and another gun in a
holster on the bedroom dresser. Bullet fragments fired from both guns
were found in the bathroom. Radley tested negative for gun residue.

   The gun on the floor near the bathroom had a mixture of Lanny’s DNA
and one other DNA source. Radley and the security guards were excluded
as the second DNA source, but appellant could not be excluded. About
one in fifteen Caucasian individuals (and an even smaller proportion of
individuals from other races) would exhibit the same results as appellant.
The gun on the dresser also contained DNA from two people, but the test
results were inconclusive as to their identities.

    A bloody finger smudge was found on the gate to the home. The blood
on the gate contained a mixture of two DNA profiles, one from Lanny and
the other from an unidentified source. Appellant, Radley, and the security
officers were all excluded as the second DNA source on the gate.

   A suitcase was found with appellant’s name on the tag. The suitcase
contained ammunition matching the type of ammunition fired from the
guns.

   The police also located appellant’s journal, which contained several
references to Lanny’s relationship with his female business associate. The
last entry of the journal was dated September 5th, 2011. It mentioned
that Lanny went to see the female associate, and stated in relevant part:

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“Another long day of lies, of being Mr. Meany. I stayed home all day. Very
tired.”

    During trial, the court permitted the state, over appellant’s objections,
to introduce evidence of appellant’s pre-arrest, pre-Miranda silence during
its case-in-chief. In addition to Coleman’s testimony regarding appellant’s
silence in response to her questions, the state also elicited testimony that
appellant never told Garcia or the police officers that there was anyone
else in the house besides appellant, Lanny, and Radley at the time of the
shooting.

   Appellant did not testify at trial. During closing, the prosecutor
commented on appellant’s pre-arrest silence, arguing to the jury that it
could take appellant’s silence in her interactions with others at the scene
as evidence of her consciousness of guilt.

   The jury found appellant guilty of first degree murder with a firearm.
This appeal ensued.

    On appeal, appellant argues that while evidence of pre-arrest, pre-
Miranda silence is admissible under Florida law to impeach a defendant’s
trial testimony, her pre-arrest, pre-Miranda silence was inadmissible in
this case because she did not testify at trial.2

   A trial court’s ruling on the admissibility of evidence is subject to an
abuse of discretion standard of review, but the court’s discretion is limited
by the rules of evidence and the applicable case law. Lopez v. State, 97
So. 3d 301, 304 (Fla. 4th DCA 2012); McCray v. State, 919 So. 2d 647, 649
(Fla. 1st DCA 2006).

   In Salinas v. Texas, 133 S.Ct. 2174, 2178-84 (2013), a plurality of the
United States Supreme Court ruled that where a defendant does not
expressly invoke the privilege against self-incrimination, the Fifth
Amendment does not prohibit the prosecution from commenting on the
defendant’s pre-arrest, pre-Miranda silence.



2 We find that appellant’s objections below were broad enough to preserve this
argument. Cf. State v. Hoggins, 718 So. 2d 761, 764 n.5 (Fla. 1998) (“Hoggins
phrased his objection in terms of the right to silence guaranteed by the Fifth
Amendment of the United States Constitution. However, we find that Hoggins’
objection and the subsequent discussion of Rodriguez sufficiently alerted the trial
court to the possibility of a violation of the defendant’s rights guaranteed by the
Florida Constitution.”).

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   Under Salinas, the prosecutor’s use of appellant’s pre-arrest, pre-
Miranda silence, which occurred before she invoked her constitutional
rights, did not violate the federal Constitution. The question therefore
becomes whether the comment on appellant’s silence was nonetheless
inadmissible under Florida law.

   It is well-established that Florida courts are free to interpret the right
against self-incrimination afforded under the Florida Constitution as
affording greater protection than that afforded under the United States
Constitution. Rigterink v. State, 66 So. 3d 866, 888 (Fla. 2011).

   In State v. Hoggins, 718 So. 2d 761, 765, 769-72 (Fla. 1998), for
example, the Florida Supreme Court held that the use of post-arrest, pre-
Miranda silence to impeach a defendant’s testimony at trial violates
Florida’s constitutional privilege against self-incrimination, even though
such impeachment evidence is not barred by the Fifth Amendment.

    The Hoggins court stated that its holding did not extend to pre-arrest
silence, explaining that “prearrest, pre-Miranda silence can be used to
impeach a defendant.” Id. at 770. But the Hoggins court cautioned that
such evidence is admissible “only if the silence was inconsistent with the
defendant’s testimony at trial.” Id. at 770 n.11. The court further
explained that “[e]ven if Florida’s constitution did not preclude the use of
Hoggins’ post-arrest, pre-Miranda silence for impeachment purposes,
Florida’s rules of evidence would preclude its use because Hoggins’ silence
was not inconsistent with his trial testimony.” Id. at 770. The court
elaborated:

      In Florida, a defendant takes the stand in a criminal case
      subject to impeachment by prior inconsistent statements to
      the extent that the probative value of the prior inconsistent
      statements is not outweighed by the risk of unfair prejudice
      to the defendant. The same rule applies to impeachment by
      prior silence, which is not precluded by the federal or state
      constitution. Thus, inconsistency is a threshold question when
      dealing with silence that may be used to impeach. If a
      defendant’s silence is not inconsistent with his or her
      exculpatory statement at trial then the [silence] lacks
      probative value and is inadmissible.

Id. at 770-71 (emphasis added; citations omitted).

  The prosecutor in this case relied upon Rodriguez v. State, 619 So. 2d
1031 (Fla. 3d DCA 1993), disapproved in part by State v. Hoggins, 718 So.

                                     5
2d 761 (Fla. 1998), to argue that pre-arrest, pre-Miranda silence was
admissible. But Rodriguez merely held that the use of pre-arrest silence
to impeach a defendant’s credibility did not violate the Constitution.3
Rodriguez did not hold that a defendant’s pre-arrest silence could be
admitted as substantive evidence of guilt.

   Moreover, the Hoggins decision flatly states that a defendant’s pre-
arrest, pre-Miranda silence is admissible “only if the silence was
inconsistent with the defendant’s testimony at trial.” 718 So. 2d at 770
n.11. Silence is generally deemed ambiguous, and a defendant may stand
mute for reasons other than guilt. See id. at 771.

    Here, evidence of appellant’s pre-arrest, pre-Miranda silence was
inadmissible under Florida law because appellant did not testify at trial.
Hoggins thus precluded the use of appellant’s pre-arrest, pre-Miranda
silence in her interactions with police.4 Because appellant did not make
any exculpatory statements at trial, her pre-arrest, pre-Miranda silence
lacked probative value and was inadmissible.

   In short, the trial court erred in admitting evidence of appellant’s pre-
arrest, pre-Miranda silence. On this record, we cannot conclude that the
error was harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.
1986). We therefore reverse and remand for a new trial.

   Nonetheless, we acknowledge that footnote 11 of the Hoggins opinion
could arguably be characterized as dicta. We further note that Hoggins
was decided before the United States Supreme Court’s recent Salinas
decision. In light of the need for clarity in the law, we certify the following
question to the Florida Supreme Court as one of great public importance:

      WHETHER, UNDER             FLORIDA LAW, THE STATE IS
      PRECLUDED FROM             INTRODUCING EVIDENCE OF A

3 The Florida Supreme Court disapproved Rodriguez to the extent that it
contained overly broad language which might have suggested that even post-
arrest, pre-Miranda silence may be admissible to impeach a defendant’s trial
testimony. Hoggins, 718 So. 2d at 770.

4 Our holding is limited to appellant’s silence in her interactions with police
officers. It was permissible for the prosecutor to introduce evidence of silence or
omissions by appellant in connection with her interactions with individuals who
were not state actors. See State v. Jones, 461 So. 2d 97, 99 (Fla. 1984)
(defendant’s right to silence was not violated when the state elicited testimony
that the defendant remained silent after a private store security officer detained
her for shoplifting).

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      DEFENDANT’S PRE-ARREST, PRE-MIRANDA SILENCE
      WHERE THE DEFENDANT DOES NOT TESTIFY AT TRIAL?

   Reversed and remanded; question certified.

WARNER, J., concurs.
KLINGENSMITH, J., dissents with opinion.

KLINGENSMITH, J., dissenting.

   In my opinion, this court should follow the United States Supreme
Court’s decision in Salinas v. Texas, 133 S. Ct. 2174 (2013). While I agree
with my colleagues that Hoggins suggests that evidence of appellant’s pre-
arrest silence was inadmissible where she did not testify at trial, Hoggins
was nonetheless decided before the recent Salinas decision. Therefore, I
believe the Supreme Court’s ruling in Salinas should serve as controlling
precedent here, and for that reason I respectfully dissent.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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