       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             LAMONT DAVIS,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-794

                           [December 17, 2014]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562010CF000850A.

  Gregory J. Morse of Morse & Morse, LLC, West Palm Beach, for
appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Lamont Davis was convicted of felony murder and sentenced
to life imprisonment for his role in the 2010 killing of a young mother in
Port St. Lucie, Florida. At the same trial, he also was convicted of armed
burglary with a firearm causing bodily harm or death, possession of a
firearm by a felon, possession of ammunition by a felon, and high-speed
or wanton fleeing.

    Appellant now appeals his convictions, arguing the trial court erred by
(1) admitting statements he made after he invoked his right to counsel; (2)
admitting evidence obtained pursuant to a search warrant that used
statements from the suppressed portion of his interview; (3) denying his
motion to sever his high-speed fleeing count from the rest of the trial; and
(4) admitting evidence relating to the 10 mm ammunition used during the
crime. As set forth below, we find no reversible error and affirm his
convictions.

                               Background
   The victim was shot and killed during a robbery of her home in March
2010. Investigators found two bullet casings at the scene, including one
from a 10 mm round. Investigators tracked the purchase of the 10 mm
ammunition to a gun shop in Port St. Lucie, Florida. Using security
footage from the shop, they identified Appellant and his co-defendant as
the purchasers of the ammunition.

    Eight days later, Appellant was arrested for high speed or wanton
fleeing after he sped away from a routine traffic stop and crashed his car
into an apartment building, following which he fled on foot before being
apprehended.      Items taken from the victim’s home were found in
Appellant’s car.

   While in pretrial custody, Appellant was interviewed by officers from
the Port St. Lucie Police Department and an agent from the federal Bureau
of Alcohol, Tobacco, Firearms and Explosives (“ATF”). At the beginning of
the interview, the ATF agent advised Appellant that the agent could not
speak to him unless Appellant waived his rights. Appellant replied, “Well
could I – Could I call my mother? I got a lawyer. Could I call them?” The
agent spoke with Appellant for several more minutes before an officer from
the Port St. Lucie Police administered Appellant Miranda1 rights.
Appellant agreed to speak with the officers and signed a waiver form.
Appellant continued talking to the investigators before again asking, “Can’t
I call my lawyer?” Questioning nonetheless continued, and Appellant
eventually told officers he was involved in the robbery and murder.
Following the interrogation, detectives obtained a search warrant and
executed a search of the residence of Appellant’s girlfriend. Additional
items removed from the victim’s home were found in the girlfriend’s
residence.

   Appellant filed a pretrial motion to suppress his statements made
during the course of the police interview. The trial court granted the
motion in part and denied it in part, suppressing everything Appellant said
before he was read his Miranda rights and everything after he stated,
“Can’t I call my lawyer?” The motion was denied for everything between
those points.

   Appellant also moved to suppress evidence obtained from search
warrants for his automobile and his girlfriend’s residence and to sever his
high speed fleeing charge from the other counts. The trial court denied
these motions and ruled that the fleeing charge was “episodically related
to the burglary because [Appellant’s] automobile contained many of the

1   Miranda v. Arizona, 384 U.S. 436 (1966).

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items reportedly stolen during the burglary when the murder occurred.”

   At trial, the portion of Appellant’s statement that was not suppressed
was entered into evidence. Among other testimony, Appellant’s girlfriend
stated that he had planned the robbery in her presence, brought stolen
goods to her home, and asked his co-conspirator why he had shot the
victim. The jury also heard tapes of phone calls between Appellant and
his girlfriend in which he asked her to find a gun he had hidden. Appellant
was convicted on all counts.

                                  Analysis

   1. Admission of Statements

  We apply a mixed standard of review when reviewing a motion to
suppress. We must defer to the trial court’s factual findings, but we review
any legal conclusions de novo. State v. E.W., 82 So. 3d 150, 151 (Fla. 4th
DCA 2012).

    Both the United States and Florida Constitutions protect criminal
defendants from compelled self-incrimination. U.S. CONST. amend V; Art.
I, § 9, Fla. Const. The United States Supreme Court has held that law
enforcement officers are required to inform suspects of their right to have
counsel present during custodial interrogations. Miranda, 384 U.S. at
444. “If the individual states that he wants an attorney, the interrogation
must cease until an attorney is present.” Id. at 474. “After such warnings
have been given, . . . the individual may knowingly and intelligently waive
these rights and agree to answer questions or make a statement.” Id. at
479.

    In order for a suspect to invoke his right to counsel, he must make, “[a]t
a minimum, some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney.” Moss v. State, 60
So. 3d 540, 543 (Fla. 4th DCA 2011) (quoting McNeil v. Wisconsin, 501
U.S. 171, 178 (1991)). However, “if a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable officer in light
of the circumstances would have understood only that the suspect might
be invoking the right to counsel, our precedents do not require the
cessation of questioning.” Davis v. United States, 512 U.S. 452, 459 (1994)
(emphasis in original); see also State v. Owen, 696 So. 2d 715 (Fla. 1997)
(holding that Florida follows the rule in Davis, allowing questioning until
a suspect clearly requests an attorney).

   While courts have not always been clear on what constitutes an

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“unequivocal invocation” of one’s right to counsel, Appellant’s initial
request for an attorney in this case seems to qualify. Although he also
references a desire to speak to his mother, Appellant’s initial statement,
“Well, could I – [c]ould I call my mother? I got a lawyer. Could I call them?”
is a sufficiently clear expression of his desire for the assistance of an
attorney.

   “Under the well-settled principles of Miranda, once a suspect
unequivocally invokes the right to counsel, all interrogation must cease.”
McKenzie v. State, 125 So. 3d 906, 909 (Fla. 4th DCA 2013). “If the
accused invoked his right to counsel, courts may admit his responses to
further questioning only on finding that he (a) initiated further discussions
with the police, and (b) knowingly and intelligently waived the right he had
invoked.” Moss, 60 So. 3d at 544 (quoting Smith v. Illinois, 469 U.S. 91,
95 (1984)).

   [W]hen an accused has invoked his right to have counsel present
   during custodial interrogation, a valid waiver of that right cannot be
   established by showing only that [the accused] responded to further
   police-initiated custodial interrogation even if he has been advised
   of his rights. We further hold that an accused, . . . having expressed
   his desire to deal with the police only through counsel, is not subject
   to further interrogation by the authorities until counsel has been
   made available to him, unless the accused himself initiates further
   communication, exchanges, or conversations with the police.

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Since questioning never
ceased, Appellant never reinitiated the conversation with the officers, and
he did not appear to “knowingly and intelligently” waive the right he had
invoked. Accordingly, there is insufficient evidence of a valid waiver.

   Despite our agreement with Appellant that his Miranda rights were
violated, such violations are subject to a harmless error analysis. Caso v.
State, 524 So. 2d 422, 425 (Fla. 1988). The harmless error doctrine
permits a conviction to stand where the State can “prove beyond a
reasonable doubt that the error complained of did not contribute to the
verdict or, alternatively stated, that there is no reasonable possibility that
the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129,
1135 (Fla. 1986). The “application of [the harmless error] test requires an
examination of the entire record by the appellate court including a close
examination of the permissible evidence on which the jury could have
legitimately relied, and in addition an even closer examination of the
impermissible evidence which might have possibly influenced the jury
verdict.” DiGuilio, 491 So. 2d at 1135.

                                      4
   In this case, the error in admitting Appellant’s statements was
harmless, as the improperly admitted statements were cumulative of other
evidence presented at trial. Appellant informed the detectives that he was
in the gun store from which the ammunition used in the burglary and
murder had been purchased; however, the detectives initially had
suspected that the ammunition had been purchased at this store before
Appellant’s interview, and the jury was shown a video still of Appellant
purchasing ammunition in the store, heard testimony that he was
identified as the man inside the store, and a store clerk identified Appellant
in a photo lineup. Appellant admitted that he was a convicted felon; this
information was stipulated to by the parties at trial and was easily
discoverable. Appellant also admitted that he fled from the police and that
he was the driver and sole occupant of the vehicle; this information was
brought forward by the arresting officer during his testimony at trial.

    Moreover, during the interview, Appellant stated that he heard the
victim was killed in front of her child, information which a testifying police
officer indicated had not been disclosed to the media. Without this
information, the State nonetheless had sufficient evidence to convict
Appellant, in light of the other evidence presented at trial, including
testimony from his girlfriend that she observed Appellant planning the
robbery and discussed the shooting of the victim with him; the discovery
of the stolen items in Appellant’s car and at his girlfriend’s residence; and
the video recording and testimony with respect to high speed car chase
and the purchase of 10 mm ammunition. Additionally, Appellant informed
the detectives that he merely was repeating “word on the street,” and
denied having any first-hand knowledge about the victim’s murder.
Appellant also told the police detectives that he had heard that the victim
died in front of her daughter; evidence presented at trial reflected that the
victim had two sons, no daughters.

   “Where the evidence introduced in error was not the only evidence on
the issue to which the improper evidence related, the introduction can be
harmless.” Hojan v. State, 3 So. 3d 1204, 1210 (Fla. 2009). That is the
case here. As there was abundant evidence linking Appellant to the crimes
charged, the trial court’s error in not suppressing the entirety of
Appellant’s interview constituted harmless error.

   2. Search Warrant

  Some of the physical evidence used to convict Appellant was seized
pursuant to a warrant to search the home of Appellant’s girlfriend. Search
warrants must be based on “probable cause supported by affidavit or

                                      5
affidavits, naming or describing the person, place, or thing to be searched
and particularly describing the property or thing to be seized.” § 933.05,
Fla. Stat (2010). The affidavit in support of this search warrant included
information obtained from Appellant in contravention of his Constitutional
rights.

   The inclusion of illegally obtained evidence in the supporting
   affidavit, where the affidavit contains other valid allegations
   sufficient to establish probable cause, does not invalidate a search
   warrant. The trial court’s duty is to excise the invalid allegations
   and determine whether the independent and lawfully obtained
   information demonstrates probable cause.

State v. Hunwick, 434 So. 2d 1000, 1001 (Fla. 4th DCA 1983) (internal
citations omitted). When Appellant’s statements are removed from the
affidavit, there are no facts to support probable cause to search his
girlfriend’s home.

   However, like the admission of Appellant’s statements, this is not the
end of our analysis. “[T]he exclusionary rule will not be applied where it
can be shown that, had the evidence in question not been obtained by the
challenged police conduct, it ‘ultimately or inevitably would have been
discovered by lawful means.’” Craig v. State, 510 So. 2d 857, 862 (Fla.
1987) (quoting Nix v. Williams, 467 U.S. 431, 434 (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.” Id. at 863.

   “In making a case for inevitable discovery, the State must show ‘that at
the time of the constitutional violation an investigation was already under
way.’” Moody v. State, 842 So. 2d 754, 759 (Fla. 2003) (quoting Nix, 467
U.S. at 457 (Stevens, J., concurring)). Here, investigators had already
discovered sufficient evidence to create probable cause for a search of
Appellant’s girlfriend’s residence prior to his interrogation. Officers linked
the stolen item found in Appellant’s car to the murder scene before talking
to Appellant. Likewise, investigators obtained a recording of the phone
call from Appellant to his girlfriend, asking her to find the gun he had
hidden, two days before he was interrogated. This recording would give
investigators reason to believe his girlfriend might know of or possess
evidence relevant to their ongoing investigation. From this information,
routine investigative measures would have inevitably discovered the
evidence presented at trial, making that evidence admissible. Therefore,
there was no error in admitting the evidence obtained from the search

                                      6
warrant.

   3. Severance of High Speed or Wanton Fleeing Count

   “Because the decision to grant or deny a motion for severance rests
within the sound discretion of the trial court, we review the denial of the
motion for an abuse of discretion.” Williams v. State, 40 So. 3d 89, 91 (Fla.
4th DCA 2010).

   Two or more offenses can be charged in the same indictment or
information “when the offenses . . . are based on the same act or
transaction or on 2 or more connected acts or transactions.” Fla. R. Crim.
P. 3.150(a).

   The “connected acts or transactions” requirement set forth in rule
   3.150(a) requires that the charges joined for trial must be considered
   in an episodic sense. . . . [T]he crimes in question must be linked in
   some significant way. . . . [C]rimes linked in an episodic sense
   generally fall into two categories: first, those that occurred during a
   crime “spree” interrupted by no significant period of respite; and
   second, situations in which one crime is causally related to the
   other, even though there may have been a significant lapse of time
   between crimes.

Shermer v. State, 935 So. 2d 74, 76 (Fla. 4th DCA 2006) (internal
quotations and citations omitted). The trial court found that Appellant’s
flight from officers eight days after the murder was episodically related to
the prior crimes. We agree.

    Appellant’s flight from the traffic stop reasonably could be construed as
an attempt to prevent the officers from discovering the stolen items in his
car that would link him to the murder scene. The commission of one crime
in an attempt to avoid conviction for another is a sufficient connection to
link the two crimes. See Sule v. State, 968 So. 2d 99 (Fla. 4th DCA 2007)
(holding the trial court did not abuse its discretion by denying a motion to
sever counts where defendant, charged with murder and arson, solicited
other inmates to murder his neighbor to hinder the prosecution of the
initial crimes). Therefore, the trial court did not abuse its discretion in
this case by denying Appellant’s motion to sever the high speed or wanton
fleeing count.

   4. Evidence of 10 mm Ammunition



                                     7
    Finally, Appellant challenges the admission of evidence pertaining to
the 10 mm ammunition. “A trial court’s decision to admit evidence is
reviewed using an abuse of discretion standard of review, as limited by the
rules of evidence.” Lopez v. State, 97 So. 3d 301, 304 (Fla. 4th DCA 2012).
The admission of evidence relating to the ammunition was clearly relevant
to the trial, as Appellant was charged with possession of ammunition by a
felon. Furthermore, the ammunition was relevant as bullets of this caliber
were used in the murder. See Holloway v. State, 114 So. 3d 296 (Fla. 4th
DCA 2013). Finally, the record does not support Appellant’s argument on
appeal that “the state’s evidence that the ammunition was unique or rare
was woefully inadequate.” Therefore, the trial court did not abuse its
discretion in admitting this evidence.

                                  Conclusion

   In sum, we hold that any error in the admission of Appellant’s
statements and their use in applying for a search warrant was not
reversible error. No other reversible error exists to allow his convictions to
be reversed. Therefore, we affirm Appellant’s convictions on all counts.

   Affirmed.

CIKLIN and CONNER, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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