       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       MICHAEL SCOTT LUCIER,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-1834

                           [ January 27, 2016 ]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven Levin, Judge; L.T. Case No. 562013CF000616A.

  Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant
Public Defender, West Palm Beach, for appellant.

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

TAYLOR, J.

    Michael Scott Lucier appeals his convictions and sentences for fleeing
or eluding, resisting an officer without violence, possession of cocaine, and
attempted tampering with evidence. Appellant argues that the trial court
erred by permitting the state to: (1) introduce evidence that appellant
engaged in a hand-to-hand transaction at a fence outside a house known
for drug activity; and (2) present evidence and argument on appellant’s
failure to produce a witness. We reverse on both issues.

   On the day of appellant’s arrest, Detective Dini was patrolling Avenue
D in Fort Pierce in an unmarked vehicle. Detective Cunzo was in the
passenger seat. As they passed Wilson’s Grocery Store near the corner of
Avenue D and 11th Street, Detective Dini saw appellant standing near a
chain-linked fence at the back of the store parking lot. He also noticed a
vehicle parked in the lot. Appellant was interacting with another person
on the other side of the fence.

   Detective Dini made a U-turn and headed back towards the store. He
saw appellant get into the parked car and drive away. As appellant
approached the intersection of 11th Street and Avenue D, he rolled
through a stop sign and made a right turn onto Avenue D. At that point,
Detective Dini activated his lights and sirens.

   Appellant continued to drive from 11th Street to 7th Street. Detective
Dini followed a car length behind appellant as appellant drove past several
areas where he could have pulled over safely. When appellant approached
7th Street, he signaled to make a right turn.

    Detective Dini tried to pull alongside appellant and told appellant to
pull over. Appellant asked him “why?” but continued driving. Detective
Dini was able to maneuver his vehicle so as cut off appellant’s car, and
appellant eventually stopped.        Detective Dini exited his car and
approached appellant’s. He saw appellant throw a small white square
object in his direction. The object hit Detective Dini’s vehicle. Detective
Dini explained that he did not stop to pick up the object because he
intended to arrest appellant for fleeing, and he would have placed himself
in jeopardy by bending down to pick up the object while appellant was still
behind the wheel.

   Detective Cunzo went around to the passenger side of appellant’s
vehicle while Detective Dini remained on the driver’s side. Detective Dini
told appellant to step out of the vehicle. Appellant remained in his vehicle
and asked the detectives why they pulled him over. Detective Dini
responded that appellant should step out of the vehicle because he was
under arrest. Detective Cunzo reached inside the passenger side of the
car, put the car in park, and unlocked appellant’s seatbelt. When
appellant did not comply with his third command, Detective Dini removed
him from the vehicle.

   After Detective Dini placed appellant in handcuffs, he went to retrieve
the object that appellant threw out of the car. He took pictures of the
substance on the ground. Although the object had been pulverized into a
powder, Detective Dini collected what he could. There were no other
objects or debris, such as gum or cigarettes, on the ground.

   Detective Dini field tested the substance, which tested positive for
cocaine. A chemist from the Indian River Crime Lab confirmed that the
substance was cocaine.

   At the beginning of trial, defense counsel moved in limine to prohibit
the state from offering any evidence that Detective Dini saw appellant
conducting a hand-to-hand transaction in the parking lot of the grocery
store. The court permitted the state to present evidence that Detective

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Dini saw appellant near a closed business talking to someone on the other
side of fence, but ruled that the prosecutor could not elicit testimony about
appellant engaging in a hand-to-hand transaction near a drug house.

  During direct examination, Detective Dini testified that he saw
appellant standing in the parking lot of a closed business talking to
someone on the other side of a fence.

   During cross-examination of the detective, the following exchange took
place:

      [Defense counsel]: Let me ask you now, you observed Mr.
      Lucier’s car in this parking area around 2:00 o’clock in the
      afternoon?
      [Detective Dini]: Yes.
      [Defense counsel]: All right, is it – is it illegal for him to be in
      this parking (sic) in the afternoon of a closed business?
      [Detective Dini]: No.

      ....

      [Defense counsel]: And when he rolled through the stop sign,
      did he cut off any traffic?
      [Detective Dini]: No, he didn’t cut off any traffic.

      ....

      [Defense counsel]: You were concerned this day because you
      – you testified that Mr. Lucier was fleeing and eluding.
      [Detective Dini]: Yes.
      [Defense counsel]: And that gives you a heightened sense of
      awareness?
      [Detective Dini]: Yes.
      [Defense counsel]: Was it also now the day after another officer
      unfortunately was killed –
      [Detective Dini]: Yes.
      [Defense counsel]: - after a high speed pursuit or fleeing?
      [Detective Dini]: Uh, yes.
      [Defense counsel]: Okay. Did that also contribute to your
      heightened sense of awareness?
      [Detective Dini]: Yes.

      ....


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      [Defense counsel]: Do you know who Mr. Lucier was talking to
      at the, uh, at the Avenue D lo-location?
      [Detective Dini]: No.
      [Defense counsel]: Male or female?
      [Detective Dini]: I couldn’t tell, but I’m assuming a male?
      [Defense counsel]: Assuming?
      [Detective Dini]: Yes.
      [Defense counsel]: So you don’t know?
      [Detective Dini]: I don’t know.
      [Defense counsel]: Were you aware of what conversation they
      were having?
      [Detective Dini]: No, I do not.
      [Defense counsel]: Were you aware as to why Mr. Lucier was
      there?
      [Detective Dini]: No idea why.

   Before the state’s re-direct examination of the detective, and outside
the presence of the jury, the state argued that defense counsel opened the
door to testimony about the hand-to-hand transaction. The trial court
agreed and permitted the prosecutor to elicit testimony that Detective Dini
saw appellant conduct a hand-to-hand transaction by a drug house.

   During re-direct, Detective Dini testified that he observed appellant
conduct a hand-to-hand transaction by a house known for drugs, and that
based on this observation, he focused on appellant and followed him with
a heightened awareness to look for drugs. Later during re-cross-
examination, he clarified that he did not actually see anything exchange
hands.

   Appellant testified that on the afternoon of his arrest he was on his way
to Publix with his girlfriend. Another friend called him and asked for a
ride. Appellant left his girlfriend at Publix and went to Wilson’s grocery
store to meet his friend. When he arrived at the grocery store, he did not
see his friend. Appellant asked the people on the other side of the fence if
they had seen his friend. They told him that they saw her walking down
Avenue D. One of the men asked appellant for a cigarette and appellant
gave him one. After that exchange, appellant got back into his car and
went looking for his friend. He denied buying or using drugs.

   Appellant admitted that he drove through the stop sign at the
intersection of Avenue D and 11th Street. He saw the flashing lights
behind him, but he did not realize that the emergency vehicle was following
him and trying to pull him over. As he turned on 7th Street and pulled
over, he tossed a cigarette out the window. When the police tried to stop

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him, he asked them “why.” The detectives pulled him out of the car and
kneed him in the back while they handcuffed him. They did not identify
themselves or tell him why they pulled him over.

    On cross-examination of appellant, the prosecutor asked for the name
of the friend appellant had planned on meeting. Appellant responded with
her name. The prosecutor asked appellant whether he told the detectives
the name of his friend when they arrested him. Appellant testified that
the detectives never asked him. Appellant explained that he did not
disclose the name of his friend to the state before trial, because she did
not witness the arrest or the events directly before the arrest. However,
he acknowledged that she could corroborate why he was at the grocery
store. During redirect, he testified that he did not know her current
location and he did not have her new phone number.

    During closing, the prosecutor argued, without objection, that
appellant had to provide an innocent explanation for his presence in the
grocery store parking lot and that appellant prevented the jury from
hearing that from his friend because he did not provide her name until
trial.

   The jury found appellant guilty on all counts.

    Appellant first argues that the trial court erred in permitting the state
to introduce evidence that he was conducting a hand-to-hand transaction
near a house known for drug activity. Through the testimony of Detective
Dini and several comments during closing arguments, the state
emphasized appellant’s presence at a known drug house.

   Appellant disagrees that defense counsel opened the door to testimony
regarding the character of appellant’s location near the time of his arrest.
The state argues that defense counsel opened the door to this testimony
by his cross-examination of the detective, which was misleading in
suggesting that appellant’s actions in the parking lot were entirely
innocent and that the detective acted unreasonably in following appellant’s
vehicle. We conclude that while the door may have been opened to allow
testimony that the detective observed appellant in a hand-to-hand
transaction, it was not opened wide enough to allow prejudicial references
to appellant’s presence near a drug house.

   It is well settled that it is error to allow references to the character of
the location of a suspect’s arrest. See Fleurimond v. State, 10 So. 3d 1140,
1146 (Fla. 3d DCA 2009) (“Florida law disapproves references to the area
in which a defendant is observed as a location known to be a place where

                                      5
drugs are sold because such evidence is irrelevant to the issue of guilt.”);
Latimore v. State, 819 So. 2d 956, 958 (Fla. 4th DCA 2002) (“[E]vidence
that a criminal defendant was arrested in a high crime area is generally
inadmissible [because] [s]uch evidence is usually considered irrelevant to
the issue of guilt and unduly prejudicial . . . .”); Jordan v. State, 104 So.
3d 1291, 1293-94 (Fla. 4th DCA 2013) (reversing because the court
permitted the state to elicit and emphasize testimony that defendant was
arrested in an area where the police were on surveillance for drug sales);
Lowder v. State, 589 So. 2d 933, 935 (Fla. 3d DCA 1991) (“In a prosecution
for possession of illegal drugs, the fact that a police officer knows that an
arrest scene is a reputed narcotics area does not prove anything in issue
and is ‘patently prejudicial’.” (citing Gillion v. State, 573 So. 2d 810 (Fla.
1991)).

    In this case, testimony about appellant’s proximity to a drug house was
irrelevant and unduly prejudicial by implying guilt through association.
See Latimore, 819 So. 2d at 959; see also Fleurimond, 10 So. 3d at 1146
(“[T]he police detective’s testimony that the house where he observed
Fleurimond was a location that the detective knew to be selling narcotics
is exactly the type of testimony condemned as ‘patently prejudicial’ by
Florida courts.”). Defense counsel’s cross-examination of the detective did
not open the door wide enough to permit repeated inquiries about
appellant standing near a drug house. This error in allowing references to
the character of the location could not be harmless beyond a reasonable
doubt. See Beneby v. State, 354 So. 2d 98, 99 (Fla. 4th DCA 1978) (holding
that a police officer’s knowledge of a location as a “narcotics area doesn’t
tend to prove anything in issue and can only serve to prejudice the jury”);
State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (“The harmless error
test . . . places the burden on the state . . . to 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.”).

   The prosecutor unduly emphasized the fact that appellant was seen
near a drug house. He asked the detective three times on redirect whether
he saw appellant next to a drug house. During closing arguments, the
prosecutor compounded the error by mentioning several times that
appellant engaged in a hand-to-hand transaction by a drug house.
Although appellant confirmed that he exchanged something with someone,
he denied that it was drugs. Thus, contrary to the state’s position, his
testimony would not render the drug house testimony cumulative or
harmless.

   Appellant also argues that the trial court erred by allowing the state to

                                      6
comment on appellant’s failure to produce a witness to corroborate his
story. This issue of burden shifting arose during appellant’s testimony.
Appellant testified that he was in the parking lot of the grocery store to
meet a friend and give her a ride. On cross-examination, the prosecutor
asked appellant his friend’s name and where she was. The trial court
overruled defense counsel’s objection that the state’s inquiry would
constitute comments on appellant’s failure to call a witness. The court
also permitted the prosecutor to ask if appellant had ever disclosed this
witness’s name to the prosecutor or his counsel, and whether appellant
believed that the witness’s testimony would have been beneficial to his
case. Later, during closing argument, the prosecutor compounded the
error by continuing to emphasize that appellant had not produced the
witness and telling the jury that the defendant had to provide an “innocent
explanation” for his presence at the grocery store.

    “[T]he state cannot comment on a defendant’s failure to produce
evidence to refute an element of the crime, because doing so could
erroneously lead the jury to believe that the defendant carried the burden
of introducing evidence.” Gutierrez v. State, 798 So. 2d 893, 894 (Fla. 4th
DCA 2001) (quoting Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991)).
The exception to this rule occurs “when the defendant voluntarily assumes
some burden of proof by asserting the defense of alibi, self-defense, and
defense of others, relying on facts that could be elicited only from a witness
who is not equally available to the state.” Ramirez v. State, 1 So. 3d 383,
385 (Fla. 4th DCA 2009) (quoting Jackson, 575 So. 2d at 188). The Florida
Supreme Court has explained “that this exception is inapplicable where
the defendant ‘never assume[s] any responsibility for presenting [evidence]
to the jury as part of an affirmative defense.’” Warmington v. State, 149
So. 3d 648, 652 (Fla. 2014) (quoting Hayes v. State, 660 So. 2d 257, 266
(Fla. 1995)) (alteration in original).

   Here, appellant did not assert an affirmative defense; he was not
required to provide exculpatory evidence. When appellant took the stand,
he testified that he was in the parking lot to meet a friend. This testimony
was to rebut the state’s theory that appellant was in the parking lot to buy
drugs. Appellant did not create an issue for which he carried the burden
of proof; he simply asserted a defense to the state’s theory of the case.
Warmington, 149 So. 3d at 655 (“Simply asserting a defense to a crime
does not create any issue for which a defendant ‘carries [the] burden of
proof.’” (quoting Hayes, 600 So. 2d at 265)).

   Here, the prosecutor engaged in improper burden shifting, both during
the prosecutor’s cross-examination of appellant and during closing
argument.     The prosecutor asked not only about the witness’s

                                      7
whereabouts and appellant’s failure to disclose her name to either the
state or the defense, he also asked if the witness would corroborate
appellant’s story and then pointed out that she was not there at trial. This
line of inquiry was improper because it implied that appellant had a duty
to call her as a witness at trial.

    Contrary to the state’s contention that the prosecutor mentioned only
the absence of the witness, the record shows that the prosecutor suggested
that the defendant had the burden to produce the witness at his trial.
During closing argument, the prosecutor stated “now it is absolutely
critical that this defendant explain why he was behind Wilson’s . . . . He
has to explain that. So the way he explains it, because he has to have an
innocent explanation . . . . So how he explains that is, he’s picking up this
mysterious woman . . . .” The prosecutor told the jury that if appellant’s
argument were true “wouldn’t you have expected her to be there to back
up his story to corroborate?” These comments clearly shifted the burden
of proof to the defendant.

  On this record, we cannot conclude that the errors mentioned above
were harmless beyond a reasonable doubt. See DiGuilio, 491 So. 2d at
1138-39. Accordingly, we reverse appellant’s convictions and sentences
and remand for a new trial.

   Reversed and Remanded.

WARNER and FORST, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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