          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-759
                  _____________________________

CHRISTOPHER ALLEN TEACHMAN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________

On appeal from the Circuit Court for Suwannee County.
David W. Fina, Judge.

                          January 2, 2019

B.L. THOMAS, C.J.

     Appellant was convicted of sexual battery and lewd and
lascivious molestation of a child. Before trial, Appellant provided
a confession during an interview with a police investigator. At
trial, the victim testified in detail about the molestation and forced
sexual activity, which began when she was eight years old and
continued until she was fifteen years old. Appellant now argues
on appeal that the trial court erred in denying a motion to suppress
his confession to law enforcement. In addition, he asserts that
reversible error occurred when the trial court excluded evidence of
the victim’s consensual sexual relationship with her boyfriend.
                         I. The Confession

     “‘A trial court’s ruling on a motion to suppress comes to the
appellate court clothed with a presumption of correctness and the
[reviewing] court must interpret the evidence and reasonable
inferences and deductions derived therefrom in a manner most
favorable to sustaining the trial court’s ruling.’” Rodriguez v.
State, 187 So. 3d 841, 845 (Fla. 2015) (quoting Terry v. State, 668
So. 2d 954, 958 (Fla. 1996)). Where there is no dispute over the
statements made, we must “review de novo the trial court’s
conclusion that the officer’s statements did not render Appellant’s
statements involuntary.” Ramirez v. State, 15 So. 3d 852, 855 (Fla.
1st DCA 2009); see also State v. Teamer, 151 So. 3d 421, 425 (Fla.
2014) (holding that the trial court’s application of law to the facts
is reviewed de novo).

     Appellant came to the police interview voluntarily, and his
confession was taken in a non-custodial setting. Before the
interview began, the investigator told Appellant that he was not
under arrest, did not have to answer questions, could leave at any
time, and could request an attorney at any time. Appellant was
never threatened with harm, and the interview lasted less than
thirty minutes. Although the investigator told Appellant that
things would be easier for him if he told the truth, and the
investigator would tell the prosecutor if Appellant was cooperative,
these comments were neither improper nor coercive. See Caraballo
v. State, 39 So. 3d 1234, 1247 (Fla. 2010).

     Although “[i]t is well-settled that statements obtained
through direct or implied promises are involuntary and, thus,
inadmissible at trial,” there must be “a causal connection between
the improper conduct and the statement.” Ramirez, 15 So. 3d
at 855-56. Moreover, although some promises may require
suppression, “an interrogating officer may, without rendering a
confession involuntary, promise to make a suspect’s cooperation
known to the prosecutor or advise the suspect that ‘it would be
easier on him’ if he cooperated.” Id. at 856 (quoting Blake v. State,
972 So. 2d 839, 844 (Fla. 2007)); see Caraballo, 39 So. 3d at 1247.
In Caraballo, the supreme court noted that the facts of Ramirez
regarding the offers of help by law enforcement were “much more
excessive” than the facts surrounding Caraballo’s confession and

                                 2
did not require reversal of the trial court’s ruling admitting the
statements. 39 So. 3d at 1247. Here, the investigator’s offers to
inform the prosecutor that Appellant cooperated were not
excessive and not similar to the “unique circumstances” this court
described in Ramirez. 15 So. 3d at 857.

     Appellant also argues that his confession was involuntary,
because he had met the investigator years earlier, when Appellant
was himself a victim of sexual abuse. Appellant asserts that the
bond of trust established by that encounter lowered his resistance
to threats, promises, and misrepresentations of law.

     In Spano v. New York, 360 U.S. 315, 319 (1959), law
enforcement officers ordered a defendant’s close childhood friend
to use false pretenses to encourage the defendant to confess. The
officers kept sending the friend in to “play on [the defendant]’s
sympathies” until the defendant finally confessed after eight
straight hours of questioning. Id. The Supreme Court held that
the use of the friend was a factor in determining that the
confession was involuntary, observing that “[t]here was a bond of
friendship between them going back a decade into adolescence. It
was with this material that the officers felt that they could
overcome [the defendant]’s will.” Id. at 323.

     Here, the investigator, who was not Appellant’s close
childhood friend, informed Appellant that the purpose of the
interview was to investigate the alleged sexual offenses. It was
Appellant, not the investigator, who first brought up the past
encounter, stating that he regretted refusing the investigator’s
offer of psychological counseling years ago. The investigator then
essentially minimized that past encounter and returned to the
instant allegations, telling Appellant, “Well, we’re all
indestructible when we’re young, and then we have to grow up, and
we have to mature. So [the victim] is not telling lies; is she?”

    The investigator did not manipulate the encounter to exploit
Appellant or diminish his ability to decline to answer questions.
While later in the interview the investigator offered to help
Appellant get counseling assistance, he did so only after Appellant
confessed: When Appellant finished describing the incidents of
molestation, the investigator said, “All right. I want to get you that
help, but I do have to arrest you. Okay?” The investigator never
                                  3
suggested that this post-confession offer was contingent on getting
anything in return from Appellant. Thus, the offer did not induce
the confession. *

     Appellant also asserts that the investigator’s remarks
regarding allegations that Appellant’s wife told the victim to lie to
police improperly induced his confession. After describing the
seriousness of the allegations against Appellant’s wife, the
investigator told Appellant, “It’s very damaging that three people
heard, two people heard and [the victim] confirms that [your wife]
said to lie to the investigator.” The investigator then told
Appellant:

    That’s what you and [your wife] are facing, because y’all
    are not telling me the truth. You’re telling part of the
    truth, but you’re not telling the whole truth. And I think
    you can tell me the truth to keep her out of trouble. I’m
    not after her. I want to leave her out. The kids [have] got
    to have somebody. . . .

         So what I’m throwing out to you and [your wife] is we
    can continue with this lie, but . . . [i]f y’all don’t tell me
    the truth today I have no choice but to type my paperwork
    and file charges on both of y’all.

(Emphasis added.) Shortly thereafter, Appellant stopped denying
the allegations against him.

     Although the State argues that these comments were merely
asking for information that might exonerate Appellant’s wife, a
plain reading of the transcript indicates an implied promise:
Confess to the allegations and the charges against Appellant’s wife

    *  At the end of the interview, the investigator did ask
Appellant if anything had been promised “to make you tell these
statements---” and Appellant replied “No, sir. . . . Other than
getting me help.” The investigator then acknowledged Appellant’s
assertion. Without context, this acknowledgement suggests that a
quid pro quo promise was made. The transcript itself, however,
refutes that interpretation, as the offer was made after Appellant
confessed.

                                  4
will go away and one parent will remain home. But the record does
not support a conclusion that these statements rendered
Appellant’s confession involuntary. Johnson v. State, 696 So. 2d
326, 331 (Fla. 1997) (finding preponderance of evidence sufficient
to demonstrate voluntariness of confession). Appellant never
expressed any fear or concern about what would happen to his wife
or children if he did not admit to the sexual acts with his
stepdaughter.

     At the end of the interview, when the investigator asked if any
promises were made in exchange for the confession, Appellant
made no mention of leniency for his wife. Appellant was given an
opportunity to say that he confessed in hopes of protecting his wife,
but instead, he only asked for counseling help. Accordingly, we
reject Appellant’s arguments that his confession was involuntarily
obtained.

                    II. The Excluded Evidence

     Appellant argues that the trial court erred in granting the
State’s motion in limine to exclude evidence of the victim’s sexual
relationship with her boyfriend. A proffer of the evidence being
excluded is necessary to preserve a claim of improperly excluded
evidence “because an appellate court will not otherwise speculate
about the admissibility of such evidence.” Lucas v. State, 568
So. 2d 18, 22 (Fla. 1990); see also Goodwin v. State, 751 So. 2d 537,
544 (Fla. 1999) (“if it is alleged that evidence has been improperly
excluded and the appellate record does not establish that a proffer
has been made, the lack of an adequate record will be grounds to
affirm.”).

     Florida’s rape shield law bars the admission of evidence of
consensual sexual activity between a victim and any person other
than the accused, unless it is established in camera that the
evidence is relevant to consent by a similar pattern of conduct, or
that the accused is not the source of semen, pregnancy, injury, or
disease. § 794.022, Fla. Stat.; Gomez v. State, 245 So. 3d 950, 953
(Fla. 4th DCA 2018). The rape shield law does not exclude
evidence that would otherwise be admissible under the Florida
Evidence Code; instead, section 794.022 is a codification of
Florida’s relevance rules as applied to the sexual behavior of
victims of sexual crimes. Carlyle v. State, 945 So. 3d 540, 546 (Fla.
                                 5
2d DCA 2006); Kaplan v. State, 451 So. 2d 1386, 1387 (Fla. 4th
DCA 1984); see also § 90.403, Fla. Stat.

     A defendant’s “right to full and fair cross-examination,
guaranteed by the Sixth Amendment, may limit [section 794.022]’s
application when evidence of the victim’s prior sexual conduct is
relevant to show bias or motive to lie.” Kaplan, 451 So. 2d at 1387;
see also Lewis v. State, 591 So. 2d 922, 923 (Fla. 1991) (holding that
the defendant’s right to a full and fair defense was infringed where
the victim’s consensual sexual relationship with a third person was
relevant). In Lewis, 591 So. 2d at 923, the defense proffered
evidence that the minor victim was concealing her consensual
sexual activity from her mother, and that a scheduled medical
examination would have revealed the concealment. The supreme
court held that this proffered evidence was admissible as highly
probative to the defense theory that the victim fabricated rape
charges against the defendant in order to avoid being caught in a
lie about having sex with her boyfriend. Id.

    Here, there was no proffer of evidence at trial, so the question
is whether there is an adequate record of the excluded evidence to
put the trial court on notice of the potential error. See Goodwin,
751 So. 2d at 544.

     At the hearing on the State’s motion in limine, defense counsel
mentioned that a family member believed the victim “made the
allegations up because [she] and her boyfriend got caught doing
what they weren’t supposed to be doing” and he “might want to go
into that” at trial. Defense counsel generally agreed that the
victim’s chastity should not be discussed, but asserted:

    [A]t the same time we need to explore the motive of
    possibly of why – again, why [the victim] is making these
    allegations and it might have something to do with her
    boyfriend. So again, I haven’t deposed [the victim] yet, so
    I’m going to address some of this in depositions and flesh
    it out.

        But I think that – right, attacking her chastity, that’s
    improper, but the nature of the relationship with her
    boyfriend, [Appellant’s] approval of it, I think that could


                                  6
    explain as part of a possible motive for her making these
    accusations.

No mention was made of the victim hiding her sexual relationship
or that an upcoming medical examination would uncover such; the
excluded evidence was that Appellant caught the victim with her
boyfriend in an inappropriate behavior. But without additional
facts such as those in Lewis, where the sexual nature of the
victim’s relationship with her boyfriend was critical to the theory
of defense, here the probative value of the minor victim’s sexual
activity is substantially outweighed by the risk of unfair prejudice
and is precluded from admission under section 794.022, Florida
Statutes. Therefore, the trial court did not abuse its discretion in
excluding the evidence.

     We note that our review is limited to the facts presented at
the motion in limine hearing. Although defense counsel surmised
at the hearing that upcoming depositions might produce additional
relevant information, this does not constitute an “adequate record”
sufficient to put the trial court on notice that the as-yet-unknown
evidence would be admissible at trial. See Goodwin, 751 So. 2d at
544; Lucas, 568 So. 2d at 22.

    AFFIRMED.

KELSEY, J., concurs; WINOKUR, J., concurs with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


WINOKUR, J., concurring.

    While I agree with the majority that we should affirm the
conviction below, I write to expand upon the effect that “promises”
from police to a suspect during an interrogation have on a
confession’s admissibility. I believe we should emphasize that a
promise only renders a confession involuntary and inadmissible

                                 7
when the promise overbears the free will of a suspect to choose
whether to confess. “The test to determine whether a confession is
voluntary—in other words, not coerced—is whether it was the
product of free will and rational choice.” Martin v. State, 107 So.
3d 281, 298, 315 (Fla. 2012) (deciding whether officers’
interrogation tactics “overbore [the suspect’s] free will such that he
was unable to make a rationale choice with regard to confessing”).
The mere existence of a promise by the officer or a “quid pro quo”
agreement between the officer and suspect does not, in itself,
render the confession involuntary. I question the continuing
viability of cases suggesting that it does.

     The standard to determine whether a confession is voluntary
is well-settled: “In order for a confession to be voluntary, the
totality of the circumstances must indicate that such confession is
the result of free and rational choice.” Blake v. State, 972 So. 2d
839, 843–44 (Fla. 2007) (quoting Johnson v. State, 696 So. 2d 326,
329 (Fla. 1997)). This standard focuses on the suspect’s state of
mind, specifically on the effect that any particular police tactic
during interrogation has upon the suspect. 1 In other words, the
mere existence of a promise alone, even a “quid pro quo”

    1   Of course, Teachman never testified that his will was
overborne by officer promises. The Maryland Court of Appeals
addressed this point in Lee v. State, 12 A.3d 1238, 1253 (Md. 2011)
(citation omitted):

         To be sure, the State has the burden to prove
    voluntariness. We cannot help but note, nonetheless, that
    Petitioner did not testify at the suppression hearing.
    Therefore, we do not have even his word that [the
    officer’s] improper comment overbore his will and
    produced his confession. . . . [A] mere promise, whether it
    be of leniency or, as here, confidentiality, without more,
    will not render a confession involuntary, for federal (or
    state) constitutional purposes.

     The same is true here. Teachman details numerous
allegations of promises and threats issued by Detective Musgrove,
but presents only conjecture that these promises and threats
overbore his will to make a rational choice.

                                  8
agreement, should not render any confession involuntary. See
Miller v. Fenton, 796 F.2d 598, 608 (3d Cir. 1986) (holding that “it
does not matter that the accused confessed because of the promise,
so long as the promise did not overbear his will.”).

     A different line of cases suggests otherwise, holding that a
promise alone may render a confession involuntary. These cases
stem from Bram v. United States, 168 U.S. 532, 542–43 (1897),
which held that a confession “must not be extracted by any sort of
threats or violence, nor obtained by any direct or implied promises,
however slight, nor by the exertion of any improper influence.” The
United States Supreme Court has repudiated this rule from Bram,
see Arizona v. Fulminante, 499 U.S. 279, 285 (1991) (holding that
this statement from Bram “does not state the standard for
determining the voluntariness of a confession”), which the Florida
Supreme Court has acknowledged. See Martin, 107 So. 3d at 313–
14. Nonetheless, some Florida cases continue to follow the rejected
rule that a confession “obtained by any direct or implied promises”
is per se involuntary, including Ramirez v. State, 15 So. 3d 852
(Fla. 1st DCA 2009), cited in the majority opinion. See id. at 855
(“It is well-settled that statements obtained through direct or
implied promises are involuntary and, thus, inadmissible at
trial.”). See also Walker v. State, 771 So. 2d 573, 575 (Fla. 1st DCA
2000) (“A confession or inculpatory statement is not freely and
voluntarily given if it has been elicited by direct or implied
promises, however slight.”). To the contrary, a promise to a suspect
unaccompanied by a showing that the promise overbore the
suspect’s will does not render a confession involuntary. 2 The
suggestion that any promise that induces a confession


    2   This observation applies equally to the oft-stated rule that
any “quid pro quo” agreement between the police and the suspect
automatically renders a confession involuntary. See, e.g., Ramirez,
15 So. 3d at 856 (“the presence of an express ‘quid pro quo’ bargain
for a confession will render the confession involuntary as a matter
of law”). The “express quid pro quo” rule directly contradicts the
proper voluntariness rule, which looks at the totality of the
circumstances to determine whether police misconduct overbore
the suspect’s free will and made it impossible for the defendant to
make a rational choice as to whether to confess.

                                 9
automatically renders a confession involuntary, no matter how
inconsequential and no matter whether it deprived the defendant
of the ability to make a rational choice, should be finally and
explicitly rejected.

                _____________________________


Andy Thomas, Public Defender, Kathryn Lane, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




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