          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                               RODNEY SQUIRE,
                                  Appellant,

                                        v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D12-3320

                                 [May 25, 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.

                           ON MOTION FOR REHEARING

WARNER, J.

   We grant in part and deny in part appellee’s motion for rehearing,
withdraw our previously issued opinion and substitute the following
opinion in its place.

    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: (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 Crawford violation; 1 and (3)
permitting a detective to testify to a hearsay description contained in a

1   Crawford v. Washington, 541 U.S. 36 (2004).
BOLO (“be on the lookout”). We reverse as to the first and third issues but
affirm as to the second issue.

   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
parking lot as part of his employment. Thompson testified that someone
pulled out a gun and fired. 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.


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

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   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
wanted appellant to be able 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[.]

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 down [sic]
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 appellant 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 then 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.

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   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
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. Day, 29 So. 3d 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

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that he was the one deciding which charges were to be filed 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
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. This statement qualifies as an excited
utterance, since it was made immediately after the shooting when Seymore
was bleeding and crying.        However, appellant claims that 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.

   As the facts of Hayward are similar, were we to apply it, we would
conclude that admission of Seymore’s statement would be a Crawford
violation. However, after Hayward was decided, the United States
Supreme Court decided Michigan v. Bryant, 562 U.S. 344 (2011), a
factually similar case. In Bryant, the Court further differentiated between
testimonial statements under Crawford and statements made to law
enforcement which have a primary purpose to assist the police in an
ongoing emergency. Id. at 363-65. The Court explained:

      An assessment of whether an emergency that threatens the
      police and public is ongoing cannot narrowly focus on whether
      the threat solely to the first victim has been neutralized
      because the threat to the first responders and public may


                                     5
      continue. . . . [T]he duration and scope of an emergency may
      depend in part on the type of weapon employed.

Id. at 363-64. The victim’s medical condition factors into whether
statements made in the course of police action were nontestimonial, as, in
part, it provides context for first responders to judge whether there is a
continuing threat to the victim or the public at large. Id. at 364-65. The
nature of the interrogation and its formality are also considered to be
aspects of whether the statement is testimonial. Id. at 366. Ultimately, in
Bryant, the Court concluded that the questioning of a dying victim shortly
after he was shot, in which the victim identified his assailant, did not
violate Crawford because the victim’s statement was not testimonial and
in questioning the victim police had a primary purpose to meet an ongoing
emergency. Id. at 377-78.

    The Florida Supreme Court adopted the analysis of Bryant in Delhall v.
State, 95 So. 3d 134 (Fla. 2012). In Delhall, police responded to a 911 call
to find the victim shot and bleeding. Id. at 143. He was asked by the
officer if he had any idea who had shot him. Id. The victim identified a
specific individual and also gave a description of the getaway vehicle. Id.
The victim died at the scene. Id. The court held that the victim’s statement
to the officer constituted an excited utterance which was not a testimonial
statement under Crawford in light of the Supreme Court’s analysis in
Bryant, noting the factual similarity of the conditions surrounding the
victim’s statement in both cases. Id. at 158.

   Although the court in Delhall did not mention Hayward v. State, 24 So.
3d 17 (Fla. 2009), the factual circumstances of the statement in Hayward
are likewise similar to both Bryant and Delhall. Each of these cases
involved an officer arriving shortly after the commission of a crime where
the victim was shot and in substantial distress. The perpetrator was still
on the loose and a gun was involved. Thus, in these cases an ongoing
emergency was occurring, and the public at large could be in danger
because of the presence of a gun. As noted by the court in Delhall in
reviewing Bryant, “the question to the victim in Bryant asking ‘what had
happened’ was precisely the type of question that would allow police to
assess the situation, including the threat to their own safety and possible
danger to the victim and to the public.” Delhall, 95 So. 3d at 158.

   Due to the factual similarities, it would appear that the court in Delhall
sub silentio overruled Hayward. Although our Supreme Court has held
that it does not intentionally overrule itself sub silentio, Puryear v. State,
810 So. 2d 901, 905 (Fla. 2002), we think in this case that we should follow
Delhall rather than Hayward. The two cases have conflicting express

                                      6
holdings, but because Bryant intervened between the two decisions, it
clarified the criteria for determining when the primary purpose of the
statement is testimonial in nature for purposes of Crawford.

   For this reason, we now apply Bryant and Delhall to the facts in this
case. The victim’s statement, made shortly after the incident occurred
when she was injured and hysterical, was clearly an excited utterance.
The officer who responded to the scene was responding to an emergency.
As part of his assessment, he asked the victim who shot her. This was to
determine the possibility of an on-going threat to the victim, the police,
and the general public, just as in Bryant and Delhall. We conclude that
the statement was made for the primary purpose of assisting the police in
responding to an emergency. It was not testimonial. Therefore, as an
excited utterance, it was admissible.

   We come to the same conclusion regarding the 911 call placed by the
worker at the shelter where the victim fled. The call was for the purpose
of reporting an emergency as it was occurring and to help the police in
responding. It too was not testimonial under Crawford/Bryant.

    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, that the BOLO 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 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).

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

   Affirmed in part, reversed in part and remanded.

TAYLOR and FORST, JJ., concur.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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