           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                    FOURTH DISTRICT

                                 DAVID WEINGRAD,
                                     Appellant,

                                               v.

                                STATE OF FLORIDA,
                                     Appellee.

                                    No. 4D16-0446

                                 [September 27, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven J. Levin, Judge; L.T. Case No. 562013CF003008A.

  Carey Haughwout, Public Defender, and Kai Li Aloe Fouts, Special
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   Appellant, David Weingrad, appeals his conviction and life sentence
entered below for first degree murder. He argues that: (1) the trial court
erred in denying his motion to suppress his recorded confession, asserting
that his Miranda 1 warnings failed to convey his right to have counsel
present during questioning; and (2) the prosecutor’s comment in closing
argument that this was not a death penalty case improperly minimized the
State’s burden of proof. However, for the reasons discussed below, we find
no merit in Weingrad’s arguments, and therefore affirm.

                                      Background

   Weingrad was charged with first degree murder with a weapon.
Pretrial, he filed a motion to suppress his statement to police in which he
confessed to murdering the victim. Weingrad argued his statement should
be suppressed because the Miranda warnings were insufficient to inform


1   Miranda v. Arizona, 384 U.S. 436 (1966).
him of his right to have counsel present during questioning.

   At the hearing on Weingrad’s motion to suppress, the evidence reflected
that he was advised of his Miranda rights as follows:

      DETECTIVE: Okay. You have the right to remain silent.
      Anything you say can and will be used against you in a court
      of law. You have the right to speak to an attorney and to
      have him or her with you before any questioning. Okay?
      If you can’t afford an attorney, one will be appointed for you
      before I ask you any questions. If you - if you decide to
      answer questions now without an attorney present, you
      still have the right to stop answering at any time. Okay, do you
      understand that?

      ....

      Okay. Knowing and understanding the rights as I’ve explained
      them to you, do - do you want to talk to me today?

      APPELLANT: Yeah.

(emphases added). The trial court denied the motion to suppress, finding
that the words used by the detective adequately and reasonably conveyed
to Weingrad that he could have a lawyer before and during questioning.
The recorded statement was later admitted into evidence at trial.

   Prior to the start of jury selection, the trial court advised the parties
that it would read the indictment charging Weingrad with first degree
murder, and asked the parties if it should further advise the jury pool that
the State was not seeking the death penalty, to which both parties agreed
that it should do so. The jury was advised that the State was not seeking
the death penalty.

   Throughout the trial, the defense conceded that Weingrad had
committed second degree murder, but disputed the first degree murder
charge by arguing that this was not a “planned premeditated crime,” and
that he had “snapped,” and had acted with a depraved mind.

    During the State’s closing argument, the State advised the jury that the
trial court would instruct them on the law and that if the State made any
changes to the meaning of the instructions in its argument, then to
disregard same, reiterating that only the trial judge instructs on the law,
not the State. The prosecutor then noted that as the defense conceded to
the murder, the issue was whether this was a first or second degree

                                     2
murder, but more specifically, whether the State proved beyond a
reasonable doubt the elements of first degree murder. The prosecutor
specifically noted that the standard of proof for first degree murder was
beyond a reasonable doubt, the same standard for all other crimes. In
discussing the difference between first and second degree murder, the
prosecutor stated:

      STATE: [T]o believe that a person has to plan a murder for it
      to be first degree premeditated murder is not the law. You’re
      not, this is not a death penalty case. If it were a death penalty
      case we might discuss planning, heightened premeditation,
      cold, calculated and premeditated, but it’s not, there doesn’t
      have to be planning.

(emphasis added). Defense counsel did not object to this comment. The
State then listed the elements required to prove first degree murder, and
in discussing the element of premeditation, stated: “A premeditated intent
to kill must be . . . formed before the killing. We talked about this briefly,
this is not a death penalty case, we don’t have to show that this was a
plan.” (emphasis added). At this, defense counsel objected, stating that
the repeated references to the death penalty in the State’s closing was not
relevant and therefore improper. At side bar, the trial court indicated that
the standard of proof was not different in a death penalty case, but the
prosecutor argued that he was addressing the defense’s remarks about
“planning” in its opening statement and distinguishing the “heightened
premeditation” required for death penalty cases. The trial court sustained
the objection. However, the defense did not request a curative instruction,
nor did it move for a mistrial. Upon resuming his closing argument, the
prosecutor stated multiple times that the standard of proof as to each
element was for the jury to find beyond a reasonable doubt.

   Ultimately, the jury found Weingrad guilty of first degree murder as
charged, and he was sentenced to life in prison. He gave notice of appeal.

                                  Analysis

Motion to Suppress

    In reviewing an order on a motion to suppress, we defer to the trial
court’s findings of fact so long as they are supported by competent,
substantial evidence, but review de novo the trial court’s application of law
to the facts. Peterson v. State, 94 So. 3d 514, 528 (Fla. 2012) (citing Ross
v. State, 45 So. 3d 403, 414 (Fla. 2010).

   Weingrad contends that the trial court erred in denying the motion to

                                      3
suppress his recorded confession because the Miranda warnings he was
given failed to convey that he had a right to have counsel present during
questioning. Instead, he argues that the warnings he was given only
advised him of his right to speak with counsel before questioning.
However, Weingrad’s argument lacks merit. Rather, as the State argues
and as the trial court properly found, the rights read to Weingrad
reasonably conveyed that he had the right to the presence of an attorney
during any questioning.

   In Florida v. Powell (Powell II), 559 U.S. 50 (2010), the Supreme Court
considered the sufficiency of a Miranda warning advising a suspect that
he had “the right to talk to a lawyer before answering any of [the law
enforcement officers’] questions,” and that he can invoke this right “at any
time.” Id. at 53 (emphasis added). The Court held that the warning was
adequate and that the two warnings in combination reasonably conveyed
“the right to have an attorney present not only at the outset of the
interrogation, but at all times.” Id. at 62. In reaching this conclusion, the
Court reasoned that:

      In determining whether police officers adequately conveyed
      the four warnings, we have said, reviewing courts are not
      required to examine the words employed “as if construing a
      will or defining the terms of an easement. The inquiry is simply
      whether the warnings reasonably ‘conve[y] to [a suspect] his
      rights as required by Miranda.’” Duckworth, 492 U.S., at 203,
      109 S.Ct. 2875 (quoting Prysock, 453 U.S., at 361, 101 S.Ct.
      2806).

Id. at 60 (alteration in original and emphasis added).

    Similarly, in Rigterink v. State, 66 So. 3d 866 (Fla. 2011), our supreme
court reviewed the sufficiency of a Miranda warning to determine whether
it reasonably conveyed the right to counsel before and during a custodial
interrogation. Id. at 870. The warnings in that case advised the suspect
that he had “the right to have an attorney present prior to questioning.”
Id. at 892 (emphasis added and emphasis in original). The supreme court
applied the reasoning in Powell II, as follows:

      As with the synonymous warning in Powell II, when Rigterink’s
      warning is given a commonsense reading, it reasonably
      conveys to a suspect that he or she has the right to the presence
      of counsel both before and during an interrogation. This is
      because the use of the word “present,” along with the
      “before” and “prior to,” convey to a suspect that his or


                                     4
      her right to counsel begins before the custodial
      interrogation and, as a result, will logically continue
      during the interrogation. The use of “prior to,” like the
      use of “before” in Powell II, is a mere temporal
      requirement providing when the right to counsel begins.
      As with the term “before,” nothing in the use of the
      phrase “prior to” indicates that the right to counsel's
      presence ends when questioning begins.

Id. (emphases added). The court further explained that the warning in
Rigterink reasonably conveyed the right to counsel with more clarity than
in Powell II because Rigterink was advised he may have counsel “present”
prior to questioning, indicating that if Rigterink wanted, an attorney would
have been “present” with him both before and during the interrogation. Id.
at 893. Thus, the court concluded that the right to counsel warning was
sufficient under Miranda. Id.

   In this case, the warning given to Weingrad mirrors that in Rigterink.
Wengrad was advised he could speak to an attorney and “have him or her
with [him] before any questioning.” (emphasis added). Weingrad was also
advised he could “decide to answer questions now without an attorney
present,” and that he could stop at any time (emphasis added). As the
State argues, a common sense reading of these warnings indicates that
Weingrad was advised that he had the right to have an attorney with him
before speaking with the police, and that such right would logically
continue during the interrogation. See Rigterink, 66 So. 3d at 893 (“It is
indefensible that Rigterink believed that the warnings stood for the
proposition that he could have counsel present before questioning began
and that, once questioning began, counsel must leave.”).

   Weingrad’s contention that his warnings were deficient because they
did not include a “catch-all” phrase indicating the right would continue
through the interrogation “as was the case in Powell II,” fails. In fact, the
Rigterink rejected this very argument, stating:

      [T]he sufficiency of the warning in Powell II did not hinge on
      the catch-all phrase. Rather, the catch-all phrase merely
      confirmed that the defendant in Powell II could exercise his
      right to counsel during the custodial interrogation. See id.
      (stating that the catch-all phrase “confirmed that [the
      defendant] could exercise [the right to counsel] while the
      interrogation was underway”). The statement that the
      defendant had the right to counsel before the custodial
      interrogation, when taken alone in context, was sufficient

                                     5
      to satisfy Miranda, as it, in and of itself, reasonably
      conveyed to the defendant that his right to counsel began
      before the custodial interrogation and logically continued
      throughout the interrogation. See id. (“In context, however,
      the term ‘before’ merely conveyed when Powell’s right to an
      attorney became effective—namely, before he answered any
      questions at all. Nothing in the words used indicated that
      counsel’s presence would be restricted after the questioning
      commenced. Instead, the warning communicated that the
      right to counsel carried forward to and through the
      interrogation. . . .”).

Id. at 892. (emphases added).

    Therefore, as in Powell II and Rigterink, we conclude that the warnings
given to Weingrad were sufficient to convey to him that he could have a
lawyer both before and during questioning. As such, the trial court did
not err in denying Weingrad’s motion to suppress and the ruling is
affirmed.

   We note that, even had Weingrad’s recorded statement been obtained
in violation of Miranda, any error in admitting the statement at trial was
harmless where Weingrad did not contest committing the murder, but
rather only contested premeditation. Additionally, as the State points out,
witness testimony was admitted at trial from Weingrad’s co-defendant that
he woke her, with a sledgehammer in his hands, and told her “I did it. I
did it,” and that she then discovered the victim dead laying on her bed with
her head misshapen and blood and tissue everywhere. There was also
ample testimony of premeditation from multiple witnesses testifying to the
nature of the strained relationship between Weingrad and the victim and
that he had told them that he was trying to find a way to kill the victim
and make it look like an accident.

Closing Argument

   The trial court’s rulings regarding comments made during closing
arguments are reviewed for an abuse of discretion. Jackson v. State, 89
So. 3d 1011, 1018 (Fla. 4th DCA 2012). “In order to preserve the issue for
appellate review, a party must have made the same argument to the trial
court that it raises on appeal.” Morrison v. State, 818 So. 2d 432, 446 (Fla.
2002); see also Archer v. State, 613 So. 2d 446, 448 (Fla. 1993) (stating
the issue “must be presented to the lower court and the specific legal
argument or ground to be argued on appeal must be part of that
presentation if it is to be considered preserved” (emphasis added) (quoting


                                     6
Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)). Notably, where a
contemporaneous objection to a prosecutor’s improper closing argument
is sustained, it should be followed by a motion for mistrial in order to be
properly preserved for appeal. Holton v. State, 573 So. 2d 284, 288 (Fla.
1990).

    Weingrad argues on appeal that reversible error occurred because the
prosecutor minimized the burden of proof in closing argument by stating
that “this is not a death penalty case.” Notably, Weingrad acknowledges
he did not object to the comments the first time the State made it and that
he failed to request a curative instruction or move for a mistrial after the
trial court sustained his later objection, as required to properly preserve
the argument for appeal. However, he argues on appeal that a curative
instruction would not have been sufficient to cure the damage done,
asserting that the “cat had been let out of the bag.” This assertion lacks
merit. This is not the case where some prejudicial fact was supposed to
be kept from the jury and was blurted out so that the bell could not have
been “unrung.” Rather, to the extent the State’s comment was arguably a
misstatement of the law, a simple curative instruction directing the jury to
disregard such and instead to apply the correct standard would have been
sufficient to cure the comment. See Jackson v. State, 599 So. 2d 103, 104
(Fla. 1992) (curative instruction was sufficient to dispel any harm done by
erroneous instruction).

   Nevertheless, Weingrad contends that the prosecutor’s comment
enunciated an erroneous and misleading statement of the State’s burden
on proof, improperly suggesting that the burden was less in a case where
the death penalty was not being sought. Weingrad argues that the
standard for a conviction was the same either way, and that there was no
purpose for the State to even mention the death penalty in this case.
Rather, he argues that the State’s comments constituted fundamental
error by minimizing its burden to prove every element beyond a reasonable
doubt. We disagree.

   As the State argues, the comments Weingrad challenges on appeal do
not appear to have been impermissible, nor do they rise to the level of
fundamental error. As discussed above, throughout the trial, the defense
conceded to second degree murder, challenging instead the premeditation
element required for first degree murder by arguing that this was not a
“planned premeditated crime” in its opening statement. Notably, any
purported “[p]rosecutorial improprieties must be viewed in the context of
the record as a whole to determine if a new trial is warranted.” Martinez v.
State, 761 So. 2d 1074, 1082 (Fla. 2000) (quoting Sireci v. State, 587 So.
2d 450, 452 (Fla. 1991)).

                                     7
    Here, read in context, it is evident that in making the challenged
comments during its closing argument, the State was countering the
defense’s opening remarks that suggested that first degree murder
required planning. In so doing, the prosecutor commented that this was
not a death penalty case and that the State was not required to show
planning in order to prove premeditation. This was an accurate statement.
See Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990) (“The Court has
adopted the phrase ‘heightened premeditation’ to distinguish this
aggravating circumstance from the premeditation element of first-degree
murder. Heightened premeditation can be demonstrated by the manner
of the killing, but the evidence must prove beyond a reasonable doubt that
the defendant planned or arranged to commit murder before the crime
began.”) (emphasis added and internal citations omitted). Indeed, the
remarks did not minimize the State’s burden of proof as to first degree
murder. Instead, read in context, it is evident that the purpose of the
comments was to clarify that premeditation did not require “planning” as
suggested by the defense. Therefore, under the circumstances of this case,
the State’s comment appears to have been fair comment on the defense’s
opening remarks. See Pagan v. State, 830 So. 2d 792, 809 (Fla. 2002).

    Furthermore, in making this comment, the State did not argue that the
reasonable doubt standard was inapplicable to the element of
premeditation. On the contrary, the State repeatedly advised the jury that
it bore the burden of proof and that the standard was beyond a reasonable
doubt. Additionally, the prosecutor noted that the standard of proof for
first degree murder was the same standard for proving other crimes and
that any interpretation of its argument indicating otherwise should be
disregarded and the jury should only follow the trial court’s instructions.
Moreover, to the extent Weingrad argues that there should have been no
mention of the “death penalty” in this case, such argument is waived to
the extent both parties agreed on the record that the trial court inform the
jury from the outset that this was not a death penalty case.

   Moreover, “[t]he law presumes that the jury has followed all of the trial
court’s instructions, in the absence of evidence to the contrary.” Garzon
v. State, 939 So. 2d 278, 285 (Fla. 4th DCA 2006). Here, as the State
points out, prior to closing arguments and several times during the
proceedings, the trial judge instructed the jury that the attorney’s
statements were not evidence and specifically stated that the attorneys’
statements were not the jury’s instructions on the law. Additionally, after
closing arguments, the trial court specifically instructed the jury as to the
State’s burden of proof. Therefore, as there is no evidence to the contrary,
we presume that the jury followed the judge’s instructions, and applied
the correct standards and considerations to the evidence.

                                     8
    Having found no error in the denial of Weingrad’s motion to suppress
or in the State’s comments in closing argument, we affirm.

   Affirmed.

TAYLOR, MAY and CONNER, JJ., concur.

                          *        *        *

   Not final until disposition of timely filed motion for rehearing.




                                   9
