       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 29, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-318
                         Lower Tribunal No. 10-23519
                             ________________


                               Daniel Maxwell,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.

     Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant
Attorney General, for appellee.


Before ROTHENBERG, LOGUE, and SCALES, JJ.

      ROTHENBERG, J.

      The defendant, Daniel Maxwell, was tried and convicted for the second
degree murder beating death of Mark Branthoover (“the victim”). During the

investigation, the defendant made various statements to law enforcement regarding

the murder: (1) pre-Miranda1 exculpatory statements made on August 7, 2010, to

Officer Orlando Fleites, the officer who initially responded to the scene of the

homicide; (2) subsequent post-Miranda exculpatory statements to Detective Raul

Godoy on August 7, 2010, at the homicide office; and (3) post-Miranda

incriminating statements made on August 11, 2010. The defendant sought to

suppress only the post-Miranda exculpatory statements made to Detective Godoy

on August 7, 2010, and the only issue raised in this appeal is the trial court’s denial

of the defendant’s motion to suppress these statements. We affirm.

        The facts relied on by the trial court are as follows. On the morning of

August 7, 2010, Officer Fleites was dispatched to a bus-way on U.S. 1 and 104th

Street in reference to a dead body. Upon Officer Fleites’ arrival, he observed the

defendant, who he knew from prior interactions, drinking a beer while seated on a

bus bench near the body. Officer Fleites asked the defendant what happened to his

friend. The defendant immediately responded that he had seen “the whole thing”

and that he was the one who had called the police. When Officer Fleites asked the

defendant what he saw, the defendant explained that he had been sleeping and was

awakened by a noise. He then saw two black males attacking the victim, at which


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

                                          2
point he grabbed a stick he found on the ground and scared the attackers away.

The defendant then called 911.2

      Believing the defendant was a material witness to the homicide, Officer

Fleites told the defendant that he needed to remain on the scene to speak with the

homicide investigators, who were on their way. The defendant, who said he was

tired and did not want to stay, became belligerent, irate, agitated, and disruptive.

He began screaming at Officer Fleites and tried to leave the scene. When Officer

Fleites continued to try to talk to him, the defendant walked aggressively towards

the officer with his hands balled into fists. Officer Fleites told the defendant that

he needed to calm down, explained that the homicide detectives would be there

soon, handcuffed the defendant for officer safety, and placed the defendant in the

backseat of his police car. Officer Fleites further explained that the defendant is “a

tall man,” while he is only 5’6”, and in his prior encounters with the defendant,

which were in response to reports of disorderly conduct, the defendant was not

easy to deal with. Officer Fleites told the defendant that he would remove the

defendant’s handcuffs when he calmed down, and apparently the defendant did

calm down, because shortly thereafter, when Detective Godoy arrived, the

defendant was no longer handcuffed.


2 The defendant apparently provided a subsequent conflicting version of the events
to Officer Fleites, but Officer Fleites did not provide the details of that statement
during the motion to suppress.

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      Detective Godoy testified that when he approached the defendant it was his

understanding that the defendant was a witness to the homicide. The defendant

was calm and he was not in handcuffs. When Detective Godoy began speaking

with the defendant, he noticed that the defendant had blood on his shirt and on his

forehead, which aroused his suspicions. He asked the defendant if he was hurt,

and the defendant stated that he was not, which further heightened his suspicion

because he noticed a fresh abrasion or cut on the defendant’s knuckles, which

Detective Godoy testified appeared to him as though the defendant had hit

something with his fists. Detective Godoy told the defendant that he needed to

speak with him and that he would like to conduct the interview at the homicide

office. The defendant, who was homeless, was initially concerned about the safety

of his property (he had a metal kiosk nearby which contained some of his property

and a book bag), but after Detective Godoy assured the defendant that the

uniformed officers had secured the scene and would protect his property until they

returned, the defendant agreed to go with Detective Godoy to the homicide office.

      Upon arriving at the homicide office, the defendant was advised of his

Miranda rights in a printed form, and the defendant executed the rights waiver

form agreeing to speak with Detective Godoy without an attorney being present.

The defendant did not and does not contest the voluntariness of his waiver or that

he was properly advised of his rights. Thereafter, the defendant gave Detective



                                        4
Godoy various conflicting accounts of what he allegedly witnessed in regard to the

murder, and he eventually provided a taped statement. While these statements

varied from the statements the defendant gave earlier to Officer Fleites on the

scene, these statements, like his earlier statements, were all exculpatory.

      Initially, the defendant told Detective Godoy that he was awakened by loud

screams, and when he opened his eyes, he saw the victim being attacked by three

black males, not two as he had stated earlier. The defendant said he located a pipe

usually carried by the victim and used the pipe to fight off the assailants. During

the fight, the defendant was struck in the back of the head. After the assailants

fled, the defendant checked the victim, who appeared to have been badly injured,

and then the defendant went to sleep. When the defendant awoke the following

morning, he tried to wake the victim, but when the victim did not respond, the

defendant called the police because he was unable to detect a heartbeat.

      After additional questioning, the defendant’s story changed again. In this

later version of the events, the defendant stated that one of the black males actually

had the pipe, and after the defendant disarmed him, the assailants ran away. The

defendant also told Detective Godoy that the victim owed some black males

money for some crack cocaine they had given the victim on credit.

      The defendant was given coffee and lunch, and although the defendant’s

story continued to change, he consistently claimed that the victim had been



                                          5
attacked by black male assailants and that the defendant fought with the assailants

and was struck in the back of the head during the fight. After Detective Godoy

interviewed the defendant, the defendant was driven back to 104th Street as

promised by Detective Godoy.

      The police continued with their investigation. Several days later, on August

11, Detective Godoy asked the defendant if he would come back to the police

station, and the defendant agreed to go. After the defendant was readvised of and

again voluntarily waived his Miranda rights, Detective Godoy told the defendant

that the physical evidence was inconsistent with his account of the events. In

response, the defendant told Detective Godoy that while he was sleeping that night,

the victim began hitting his legs with a pipe. The defendant also said that when he

tried to get up, the victim hit him in the head, so the defendant tackled the victim,

the victim fell into the bushes, and the defendant punched the victim in the face

until the victim lost consciousness.     After the victim lost consciousness, the

defendant picked up the pipe and struck the victim several times in the head and

then he placed the pipe in the victim’s hand. After providing this statement, the

defendant was arrested and charged with second degree murder.

      The defendant does not dispute that he was properly advised of his rights per

Miranda and that he freely and voluntarily waived his rights. He does not allege

any infringement of his constitutional rights as to his first pre-Miranda, on-the-



                                         6
scene exculpatory statements to Officer Fleites on August 7, or his final post-

Miranda inculpatory statements to Detective Godoy on August 11.            His sole

argument below and on appeal is that the post-Miranda exculpatory statements he

gave to Detective Godoy at the homicide station on August 7 were tainted by his

illegal detention and/or arrest by Officer Fleites on the scene. Essentially, the

defendant contends that when Officer Fleites did not allow him to leave the scene

and placed him in handcuffs without probable cause to believe he was involved in

the victim’s murder, he was illegally arrested or detained.

      We begin our analysis by recognizing that both the Fourth Amendment to

the United States Constitution and Article I, Section 12 of the Florida Constitution

protect people only against unreasonable searches and seizures. Based on the

totality of the circumstances, we do not find that the temporary handcuffing and

detention of the defendant by Officer Fleites was unreasonable within the meaning

of the Fourth Amendment. See Keeton v. State, 427 So. 2d 231, 232 (Fla. 3d DCA

1983) (“It was not unreasonable for police, responding immediately to the scene of

a felony-murder, to detain appellant, who was confronted in a closed park, adjacent

to the parking lot where the crime occurred shortly before midnight, after appellant

told police officers that he had witnessed the flight of persons fitting the

description of the alleged perpetrators.”).

      The reasonableness of the defendant’s temporary restraint is, however, not



                                              7
dispositive.   That is because when Detective Godoy began speaking with the

defendant, the defendant was no longer being restrained; while speaking with the

defendant, Detective Godoy developed reasonable suspicion that the defendant

was involved in the beating death of the victim; the defendant freely and

voluntarily agreed to provide Detective Godoy with his statement at the homicide

office after being assured that his property would be safe in his absence; the

statements he provided to Detective Godoy on August 7 were made after being

fully advised of his rights (and specifically that he did not have to speak with

Detective Godoy if he did not want to); these statements were exculpatory, and

they were simply modified versions of the statements the defendant voluntarily

gave to Officer Fleites on the scene; and after providing these statements to

Detective Godoy, the defendant was returned to his neighborhood3 as promised.

      When Detective Godoy arrived, the defendant had already calmed down and

was no longer in handcuffs. Detective Godoy testified that the defendant was

actually “chatty,” and he seemed eager to tell him what had happened. However,

as soon as Detective Godoy introduced himself to the defendant, Detective Godoy

noticed that the defendant had blood on his shirt, a cut on his forehead, and bruised

knuckles. But when he asked the defendant if he was injured, the defendant said

“no.” The victim had been brutally beaten to death and was covered with blood.

3The defendant was homeless. He was therefore returned to the area where he
kept his belongings.

                                         8
Detective Godoy testified that based on the defendant’s injuries, the defendant’s

earlier demeanor (which was belligerent and aggressive), and the defendant’s

initial conflicting accounts of the events to Officer Fleites, he became suspicious.

We conclude Detective Godoy’s suspicions were reasonable, and thus, based on

his reasonable suspicion, he was legally authorized to detain the defendant for

further investigation. See § 901.151(2), Fla. Stat. (2010) (“Whenever any law

enforcement officer of this state encounters any person under circumstances which

reasonably indicate that such person has committed, is committing, or is about to

commit a violation of the criminal laws of this state . . . the officer may

temporarily detain such person . . .”); Baptise v. State, 995 So. 2d 285, 290 (Fla.

2008) (holding that “the existence of a reasonable suspicion is based upon specific

and articulable facts, and the rational inferences that may be drawn from those

facts”); State v. Lennon, 963 So. 2d 765, 768 (Fla. 3d DCA 2007) (“[I]n

determining whether a police officer possesses reasonable suspicion to justify an

investigatory stop, the court must consider the totality of the circumstances viewed

in light of a police officer’s experience and background.”); Hernandez v. State, 784

So. 2d 1124, 1126 (Fla. 3d DCA 1999).

      Thus, although the defendant was no longer being restrained when Detective

Godoy began speaking to him, to the extent the defendant may not have felt free to

terminate his encounter with law enforcement (there is no evidence in the record



                                         9
that at this point the defendant was not free to leave), Detective Godoy possessed

the reasonable suspicion necessary under the Fourth Amendment to temporarily

detain the defendant. We also note that the unrefuted evidence was that when

Detective Godoy arrived, the defendant was “chatty” and very eager to speak with

the Detective, he agreed to speak with Detective Godoy at the homicide office, and

he freely and voluntarily waived his rights in writing and provided the statements

under review.

      Additionally, and importantly, Detective Godoy told the defendant he would

return the defendant to his “home,” and Detective Godoy kept his promise. The

record also reflects that after this August 7 contact with the police, the defendant

continued to assist Detective Godoy with his investigation. On a later date he

accompanied Detective Godoy to help him try to locate the individuals he had told

Detective Godoy about on August 7, and he voluntarily returned to the homicide

office on August 11 to speak further with Detective Godoy. It was only after the

August 11 statements, which the defendant does not claim were unconstitutionally

obtained, that the defendant admitted his involvement in the homicide and was

arrested. We therefore find that based on the totality of the circumstances, the trial

court did not err by denying the defendant’s motion to suppress his August 7

exculpatory statements made to Detective Godoy at the homicide office.

      We also find that any error in denying the defendant’s motion to suppress



                                         10
the August 7 exculpatory statements to Detective Godoy is harmless beyond a

reasonable doubt. As stated earlier, the defendant does not dispute that his initial

exculpatory statements to Officer Fleites on August 7 were constitutionally

obtained. The defendant’s subsequent exculpatory statements to Detective Godoy

on August 7, after the defendant had been briefly detained, were simply varying

versions of the exculpatory statements the defendant made to Officer Fleites: that

when he was awakened by a commotion, he discovered the victim being attacked

by black male assailants, he then assisted the victim and chased the assailants

away. The statement that resulted in his arrest and conviction was the

incriminating statement he made four days later on August 11.

      The recorded statement the defendant made on August 11, which the

defendant did not seek to suppress, reflects the following. While the defendant

was asleep the victim began hitting his legs with a pipe, and when he tried to get

up, the victim swung at him and hit him in the head. The defendant tackled the

victim and punched him in the face until the victim lost consciousness. The

defendant admitted that while the victim lay unconscious in the bushes where he

had fallen, the defendant picked up the pipe and struck the victim several times on

the head with the pipe because he was “really mad” at the victim. After he realized

what he had done, he placed the pipe in the victim’s hand.           Based on the

defendant’s admissions that he struck the victim several times on the head with a



                                        11
pipe after the victim was unconscious and clearly incapacitated, killing the victim,

there is no reasonable possibility that any error in admitting the August 7

exculpatory statements to Detective Godoy contributed to the jury’s verdict. See

Stein v. State, 632 So. 2d 1361, 1365 (Fla. 1994) (finding that any error in the

admission of Stein’s statements was harmless given the incriminating evidence

against him); Taylor v. State, 596 So. 2d 957, 973 (Fla. 1992).

      Affirmed.




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