          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                               RODNEY SQUIRE,
                                  Appellant,

                                        v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D12-3320

                              [February 24, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 09-
19699CF10A.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.

WARNER, J.

   Rodney Squire appeals his convictions for attempted felony murder and
attempted robbery of one victim, and aggravated battery of another. He
contends that the trial court made three evidentiary errors, in (1) denying
the suppression of his statement to police where it was induced by
promises of leniency, (2) admitting the battery victim’s statement to police
at the time of the incident because it was a Crawford1 violation; and (3)
permitting a detective to testify to a hearsay description contained in a
BOLO (“be on the lookout”). We agree with each of these contentions and
reverse for a new trial.

   The charges against appellant, whom the State and defense both
stipulated was “mentally retarded,” arose out of the attempted robbery of
one of the victims, Thompson, as he was handing out CDs at night in a

1   Crawford v. Washington, 541 U.S. 36 (2004).
parking lot as part of his employment. Thompson testified that someone
pulled out a gun and shot. He did not see the shooter and ran away. He
could not identify appellant as the shooter. At trial, he testified that when
he was shown a photo lineup by police, he identified the person the
detective told him to pick.

   A worker in an emergency shelter for girls across the street heard the
gunshots. She opened the door and saw victim Seymore, one of the girls
from the shelter, running to the house, holding her head and screaming,
“I got shot, I got shot.” The worker called 911 and, over objection, a
recording of the call was played for the jury, during which the worker was
heard saying, “She’s saying it’s a boy named J.R.” The worker testified
that Seymore was taken to the hospital where she received stitches, and
returned to the shelter a few hours later. Seymore did not testify at trial.

   A detective, who happened to be in the area and heard the shots, was
dispatched to the shelter to determine whether anyone was injured. The
detective saw Seymore, who was frantic, bleeding, and crying. Over
objection, the detective was allowed to testify that he asked Seymore who
shot her and she responded, “J.R.” Seymore then gave the detective a
description of J.R. Based on this description, the detective sent out a
BOLO.

    Another officer testified that earlier in the evening, before the shooting,
he saw a person known to him as “J.R.” several blocks from where the
shooting later occurred. Subsequently, when he heard that there had been
a shooting, he responded to the area. Over objection, the officer was
allowed to testify that he heard a BOLO describing the person and stating
that his name was “J.R.” He relayed to other officers, and testified at trial,
that he knew appellant was J.R.

   After interviewing Seymore several days after the incident, the
investigating detective met with appellant at the police station and gave
him Miranda warnings.2 Over objection and after the denial of his motion
to suppress, appellant’s statement was played for the jury.

   Initially, appellant denied involvement in the shooting. The detective
then laid out what had actually happened and repeatedly told appellant
that he wanted to give him a chance to truthfully tell his side of the
incident. Appellant continued to deny shooting anyone. The detective
stated that he knew this was untrue, and that witnesses had already
identified appellant in a photo lineup. The detective told appellant that he

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

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wanted appellant to leave the interview room saying that the detective “did
everything he could to help me.” Then the detective said to him,

      But listen, what’s a better charge here, a robbery attempt,
      where nothing was even taken, or two attempted murders. I
      want you to think about that for a minute . . . ’cause if you
      tell me the truth, that that was accidental, which is what I
      think it was, that’s a big difference than you trying to hit her,
      that’s a big difference.

The detective also told appellant, “Now, you got to think about an
attempted robbery or two attempted murders. Which one do you want to
face?” Further, the detective said, “[Appellant], you’re going to [go] down
on this one if you don’t play your cards right.” The detective told appellant
that he wanted to know if appellant shot the female victim on purpose or
whether it was an accident, because the detective was trying to figure out
what charge to bring. Appellant claimed that he could beat attempted
murder charges, and to go ahead and charge him.

   The detective then left appellant in the interview room and allowed him
to call his grandmother, to whom he also proclaimed his innocence.
Appellant was then brought down to the jail. He asked the detective if he
was sure it would be a lesser charge. The detective asked appellant if he
was ready to talk and tell the truth. Appellant gave a confession to the
detective. Afterwards, he commented to the detective, “You told me I could
get a lesser charge if I tell you the truth instead of lying to you.” The
detective denied that he had promised appellant anything and told him
that he would not charge him with attempted murder when he didn’t
intend to kill anyone.

   Nevertheless, appellant was charged with, and found guilty of,
attempted felony murder and attempted robbery of Thompson, and
aggravated battery of Seymore. On the attempted felony murder charge,
he was sentenced to the mandatory minimum of twenty-five years in
prison, followed by ten years of probation. He also received the mandatory
minimum of twenty-five years in prison for aggravated battery, and twenty
years for attempted robbery, with all of the prison terms to run
concurrently.

   On appeal, appellant argues that the court made three errors in
admitting evidence at trial. Our standard of review regarding the
admissibility of evidence is abuse of discretion; however, a trial court’s
discretion is limited by the rules of evidence. Nardone v. State, 798 So. 2d


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870, 874 (Fla. 4th DCA 2001).      We find that the court erred in these
evidentiary rulings.

   First, appellant argues that his confession was involuntary because the
detective repeatedly told him that if he confessed, he would be charged
with attempted robbery instead of attempted murder, thus negating the
voluntariness of his confession. We agree that the detective’s comments
created an implied promise of leniency and an agreement to lessen the
charges in return for cooperation. Therefore, the confession was induced
by impermissible conduct.

   To be admissible in evidence, a confession must be voluntary—the
product of a “free and rational choice.” Johnson v. State, 696 So. 2d 326,
329 (Fla. 1997). The court must look at the totality of the circumstances
surrounding the confession to determine whether it was the product of a
free choice. Id.

   Recently, in Day v. State, 29 So. 3d 1178 (Fla. 4th DCA 2010), we
explained that a confession must not be induced by any threat or promise,
however slight:

         “A confession or inculpatory statement is not freely and
      voluntarily given if it has been elicited by direct or implied
      promises, however slight.” “If the interrogator induces the
      accused to confess by using language which amounts to a
      threat or promise of benefit, then the confession may be
      untrustworthy and should be excluded.”

Id. at 1181 (citations omitted) (quoting Telfort v. State, 978 So. 2d 225,
227-28 (Fla. 4th DCA 2008), and Fillinger v. State, 349 So. 2d 714, 716
(Fla. 2d DCA 1977)). We further noted that there must be a “causal nexus”
between the promises and the confession. Id. at 1181 (quoting Nelson v.
State, 688 So. 2d 971, 974 (Fla. 4th DCA 1997)).

    Based upon Day, appellant’s confession was the product of promises of
leniency, which negated a voluntary choice. Throughout the interview, the
detective told appellant that he wanted to help him and that he was trying
to figure out whether the shooting was an accident or intentional, so as to
determine the proper charge. Similarly to Day, the detective never clarified
his authority as to charging decisions. In fact, he led appellant to believe
that he was the one deciding on the charges and would not charge
appellant with attempted murder if the shooting was an accident.
Appellant even tried to clarify that the charges would be lessened if he told
the truth. These facts, even more than the facts in Day, show that the

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confession was the result of the detective’s promise to lessen the charges
if appellant told the truth. As such, it was the product of coercive police
conduct and must be suppressed. See Day, 29 So. 3d at 1182; see also
Ramirez v. State, 15 So. 3d 852 (Fla. 1st DCA 2009). The trial court erred
in admitting the confession into evidence.

    Second, appellant argues that the court erred in overruling his
objection to the detective’s testimony that Seymore, who did not testify,
told him that “J.R.” shot her. We agree. This statement could qualify as
an excited utterance, since it was made immediately after the shooting
when Seymore was bleeding and crying. However, it was inadmissible
because it was a testimonial statement made to assist the detective in the
investigation, and thus it was a violation of the Sixth Amendment to admit
it. See Crawford v. Washington, 541 U.S. 36, 68 (2004).

    In Hayward v. State, 24 So. 3d 17, 28-29 (Fla. 2009), the victim of a
robbery, who was shot during the crime and later died, described for police
his assailant and told them he had fired a shot at the robber. The Florida
Supreme Court held that, while the out-of-court statement was an excited
utterance, it still was a violation of the defendant’s rights under the
Confrontation Clause to admit it because the victim’s statements about
past events was made only for purposes of investigation and to assist the
officer in locating and prosecuting the perpetrator. Id. at 31-33. It was
not meant to help the officer respond to an emergency. Id. at 32.

   Similarly, in the present case, Seymore’s statement to the detective was
made for purposes of assisting in the investigation and thus it was a
violation of the Confrontation Clause to admit it. For the same reason, we
also hold that it was error to admit that portion of the 911 call from the
shelter in which the caller relayed Seymore’s statement that the person
who shot her was “J.R.” That information was given after the incident was
over, and for the purposes of investigation3 and assisting the police in
identifying and locating the perpetrator. Under Hayward, it too should
not have been admitted.

    Third, appellant argues that the court reversibly erred in allowing the
officer to testify to the contents of the BOLO. The officer testified, over
objection, to the contents of the BOLO that described the assailant and
named him as “J.R.” The officer stated upon hearing the BOLO, he knew
that it was describing appellant because he had seen appellant nearby

3 The caller, who was not a witness to the shooting or a trial witness, was
responding to a police dispatcher’s questions of “who shot her?” and “can she
give you any type of information?”

                                     5
earlier in the evening and knew that he went by the name “J.R.” We agree
that the trial court erred in admitting the hearsay description in the BOLO,
in particular the identity of the individual. Courts have held, time and
time again, that the contents of a BOLO are inadmissible hearsay as being
offered for the truth of the matter asserted, in this case the identity of the
assailant. See Saintilus v. State, 869 So. 2d 1280, 1282 (Fla. 4th DCA
2004); see also Tillman v. State, 964 So. 2d 785, 788 (Fla. 4th DCA 2007)
(reversing where the contents of two BOLOs were improperly admitted into
evidence to show the state of mind of the police where their state of mind
was not a material issue of any offense charged).

    Clearly, this erroneously admitted evidence was central to appellant’s
conviction. It cannot be said beyond a reasonable doubt that the wrongful
admission of these three types of evidence was harmless under State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). We thus reverse and remand
for a new trial.

   Reversed and remanded.

TAYLOR and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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