       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         ANTOINE ROBINSON,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D13-1679

                           [November 4, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. 11015902
CF10A.

   Carey Haughwout, Public Defender, and Jeffrey L. Anderson,
Assistant Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

           ON MOTION FOR REHEARING AND REHEARING EN BANC

KLINGENSMITH, J.

   We grant, in part, Antoine Robinson’s motion for rehearing, deny
rehearing en banc, and withdraw our previous opinion. We hereby
substitute the following:

    Antoine Robinson (“Defendant”) appeals his conviction and sentence
for robbery with a firearm. Although Defendant presents several issues
on appeal, we confine our opinion to the following question: whether the
trial court erred in overruling Defendant’s objection to a detective’s
testimony at trial regarding the termination of an interview with
Defendant. We find no error in overruling Defendant’s objection, and we
affirm on all other issues raised.

   At trial, the State played a recording of Defendant’s initial interview
with the investigating detective. The end of the recording was redacted
because Defendant invoked his right to silence. After the recording was
played, the State asked the detective on direct examination:

     Q: You now, I know we touched upon this before, but we
     heard it in the tape. [Defendant], as he was – as you were
     going through the rights waiver form and acknowledging
     everything, he also confirms his ability to leave or stop the
     interview at any time?

     A:   That’s correct.

     Q: And of course you – if he was providing any pertinent
     information or continuing to provide you any pertinent
     information, you wouldn’t have terminated the interview,
     would you?

     A:   Correct.

  Thereafter Defendant made the following objection:

        But what you said, he is essentially leaving it hanging
     there that – putting information that’s being on – that
     pertinent information is being obtained and because
     pertinent information isn’t being obtained, he cut the
     interview off, or the detectives cut it off because they felt as
     though they weren’t getting any further pertinent
     information. I mean, it’s – the jury doesn’t know that. So I
     think that I have to bring out in my cross examination to get
     out from this witness that [Defendant] is the one that
     invoked his right to silence.

   The objection was whether this question improperly insinuated that
pertinent information was initially being obtained, and once Defendant
stopped sharing information, the detective ended the interview. Defense
counsel thought that he would have to cross-examine the witness on the
fact that it was Defendant invoking his right to silence. The prosecutor
suggested that he was asking about the interview only to establish
Defendant’s admission that he was in the vicinity of the robbery on the
date and time of the robbery. The court overruled the objection but
warned that if defense counsel wanted to cross examine the detective
about Defendant’s invocation of his rights in the interview, the court
would need to have a colloquy with Defendant as to this line of



                                    2
questioning. The defense did not elicit any questions in this regard on
cross-examination.

   During closing argument, defense counsel addressed the fact that
Defendant terminated the interview. Defendant claims he was forced to
address this issue in closing to mitigate the situation created when the
court overruled the prior objection. In closing, defense counsel also
advised the jury that there was nothing wrong with Defendant’s
termination of the interview, and that he should not be criticized for
exercising his rights. In response, without objection, the State asked the
jury in its closing to consider the fact that Defendant decided to
terminate the interview only when the detectives told him they had him
on the surveillance video.

   In asking the question the State insinuated (albeit wrongly) that the
detective -- not Defendant -- ended the interview. In the context of this
case, although the question was misleading, the issue of who ended the
interview was irrelevant to any material issue. It did not call for the
defense to explain in closing argument the termination of the interview
by Defendant as an exercise of his right to remain silent. For all the jury
knew the detective was not receiving pertinent information during the
interview, because Defendant was claiming innocence of the crime. The
harm, if any, to the defense came not from the State’s question but from
defense counsel’s attempt to mitigate it by directly addressing
Defendant’s right to remain silent.

   This case is not like Melendez v. State, 700 So. 2d 791 (Fla. 4th DCA
1997), relied on by Defendant.       There, our court found that the
admission of a letter written by the defendant to the police department
accusing the detective investigating the defendant’s case of criminal
activity was irrelevant and immaterial and could mislead the jury as to
the defendant’s motives, thus suggesting his involvement in the crime.
We conclude that the issue in this case of who terminated the interview
is not similar to suggesting involvement in the crime. In fact, suggesting
that the detective terminated the interview because he was not getting
material information would suggest that Defendant was not involved in
the crime.

   As to Defendant’s other issues involving the State’s use of allegedly
improper evidence at trial and improper arguments during closing, no
objections to such comments and evidence were made, nor do they rise
to the level of fundamental error requiring reversal of Defendant’s
conviction. See Thompson v. State, 88 So. 3d 322, 324 (Fla. 4th DCA


                                    3
2012) (holding that when allegedly improper prosecutorial comments are
“unobjected to by the defense, reversal is proper only if the prosecutor’s
statements constituted fundamental error”).

   Affirmed.

WARNER and MAY, JJ., concur.




                                    4
