       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           JASON D. ALLEN,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-4459

                             [May 18, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No.
10007738CF10A.

  Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

    The defendant appeals his conviction for second degree murder in a
case where the victim’s body never was found. The defendant argues the
trial court erred in: (1) denying his motion for judgment of acquittal; and
(2) denying his motion in limine to prohibit evidence of his pre-arrest
refusal to submit to a DNA swab. We conclude without further discussion
that the first argument lacks merit. However, on the second argument, we
agree with the defendant and reverse for a new trial.

    Although the state presented a great deal of evidence to prove the
defendant’s guilt, we present in this opinion only the evidence necessary
to frame the second argument.

   The defendant and the victim had been living together in an apartment.
They were not getting along, and they eventually broke up a few days
before the victim moved into her own apartment in the same complex. Two
days after the victim moved into her own apartment, she disappeared.
   After the victim’s co-workers reported her missing, detectives went to
her new apartment. Her car was in the parking lot. Her purse, passport,
and cell phone were in the apartment. The master bedroom’s door handle
was damaged, and the master bathroom’s shower curtain was missing.
The detectives saw stains in the master bathroom. They collected swabs
from the stains and sent the swabs to the evidence unit for analysis.

   The detectives interviewed the defendant. He denied doing anything to
harm the victim. During the interview, the following exchange occurred
regarding whether the defendant would submit to a DNA swab:

      DETECTIVE #1: . . . We have been to the apartment today.
      And what we want to do is collect your DNA to compare to
      anything we find. And we will know who is who. And what is
      what. Do you have a problem doing that?

      DEFENDANT: No – um.

      DETECTIVE #2: It is just a mouth swab.

      DEFENDANT: Um –

      DETECTIVE #2: All we do is swab your mouth.

      DEFENDANT: Yeah.

      DETECTIVE #1: You don’t have a problem?

      DEFENDANT: No. I mean. I am sorry. What is it?

      DETECTIVE #1: DNA. You know so –

      DETECTIVE #2: In other words, if somebody else was in the
      apartment besides you and [the victim], you will be able to
      prove that that was not you. That it was somebody else. Let’s
      say that there was a third person in the apartment. We know
      you have been there. And we know [the victim] has been in
      there. If we could find that a third person or someone else
      was in there that may give us a clue as to who she might be
      with[.]

      THE DEFENDANT: What happens if I say no? . . .

      DETECTIVE #1: It is your right.

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      DETECTIVE #2: That’s your right. You don’t have to. We are
      just asking you to help us with the case. . . .

      DEFENDANT: So then I will say no.

(emphasis added).

   DNA analysis later showed it was the victim’s blood in her master
bathroom on the toilet’s outer surface, the shower curtain rod, the ceiling
vent, and four spots on the ceiling.

   After the defendant was charged with second degree murder, he was
compelled to submit to a DNA swab. His DNA was not present in the
victim’s apartment.

   The defendant moved in limine to prohibit evidence of his pre-arrest
refusal to submit to a DNA swab. He argued the detectives told him he
had a right to refuse the DNA swab, and the state was seeking to use that
refusal against him to show consciousness of guilt.

   The state responded that the defendant’s pre-arrest refusal to submit
to a DNA swab was relevant to show consciousness of guilt. Specifically,
the state argued that because the detectives had given the defendant an
“innocent” reason for their request – to help the investigation – the only
explanation for the defendant’s refusal was consciousness of guilt.

   The trial court denied the defendant’s motion in limine, finding that the
defendant’s pre-arrest refusal to submit to a DNA swab was relevant and
was not substantially outweighed by the danger of unfair prejudice.

  During the trial, the defendant’s pre-arrest refusal to submit to a DNA
swab was admitted over the defendant’s renewed objection.

   In closing arguments, the state contended, among other things, that
the defendant’s pre-arrest refusal to submit to a DNA swab was proof of
his guilt:

         [The defendant] does not want [the victim’s disappearance]
      to be solved because he is the problem. . . .

         [The detectives] . . . talk to him about what is going on in
      the investigation.


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         Now, they have been in the apartment . . . there is some
      blood. . . . .

         And they ask him for a DNA swab. And they explain it to
      him. And initially, he says yes. And oh, oh, Why?

          [Detective #2] says It would help us with the investigation.
      If you would give us this DNA swab. It would help us. . . .

         And what does [the defendant] do? I am not going to do
      that. No.

         They get it anyway later on.

         But . . . when he has an opportunity to help, . . . [h]e opts
      not to help.

         It would help us with the investigation.

         No thanks.

  The jury found the defendant guilty as charged of second degree
murder. This appeal followed.

    The defendant argues the trial court erred in denying his motion in
limine to prohibit evidence of his pre-arrest refusal to submit to a DNA
swab. According to the defendant, any probative value of consciousness
of guilt arising from his refusal to submit to a DNA swab was substantially
outweighed by the danger of unfair prejudice because the detectives told
him that he had a right to refuse the DNA swab, and did not advise him of
any adverse consequences of refusing the DNA swab.

   We review the trial court’s decision for an abuse of discretion, limited
by the rules of evidence. See Evans v. State, 177 So. 3d 1219, 1229 (Fla.
2015) (“A trial court’s decision to admit evidence is reviewed under the
abuse of discretion standard. That discretion, however, is limited by the
rules of evidence.”) (internal citation and quotation marks omitted).

   The rule of evidence applicable here is section 90.403, Florida Statutes
(2013), which provides, in pertinent part:           “Relevant evidence is
inadmissible if its probative value is substantially outweighed by the
danger of unfair prejudice . . . .” § 90.403, Fla. Stat. (2013).



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   Applying the foregoing standard of review and rule of evidence, we
conclude the defendant’s argument has merit. We base our conclusion on
our review of a similar Third District case, Herring v. State, 501 So. 2d 19
(Fla. 3d DCA 1986), a similar Florida Supreme Court case, Menna v. State,
846 So. 2d 502 (Fla. 2003), and a distinguishable Second District case,
State v. Esperti, 220 So. 2d 416 (Fla. 2d DCA 1969). We address each in
turn.

   In Herring, the Third District held that a defendant’s post-arrest refusal
to submit to a hand swab gunshot residue test was inadmissible where
the police did not tell the defendant that he was required to take the test
or that his refusal could be used against him. 501 So. 2d at 20-21. We
quote the Third District’s reasoning at length because the Florida Supreme
Court, in Menna, later quoted this reasoning with approval:

         [A] defendant who is told he may refuse and is told of no
      consequences which would attach to his refusal may quite
      plausibly refuse so as to disengage himself from further
      interaction with the police or simply decide not to volunteer to
      do anything he is not compelled to do. In contrast, if a
      defendant knows that his refusal carries with it adverse
      consequences, the hypothesis that the refusal was an
      innocent act is far less plausible. Thus, in South Dakota v.
      Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L.Ed.2d 748 (1983),
      the Court, holding admissible the defendant’s refusal to take
      a blood alcohol test, pointed out that, although the defendant
      was not told that the refusal could be used against him in
      court, he was told that he could lose his driver’s license if he
      refused. This latter warning made it “clear that refusing the
      test was not a ‘safe harbor,’ free of adverse consequences.” Id.
      at 566, 103 S. Ct. at 924, 74 L.Ed.2d at 760. While the court
      in Neville held the refusal admissible because the defendant
      had good reason not to refuse, it noted, in comparison, that
      in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45
      L.Ed.2d 99 (1975), the Court had prohibited the impeachment
      use of the defendant’s post-Miranda-warning silence because
      his “silence during police interrogation lacked significant
      probative value and . . . any reference to his silence under
      such circumstances carried with it an intolerably prejudicial
      impact.” Id. at 180, 95 S. Ct. at 2138, 45 L.Ed.2d at 107. . . .
      Thus, while Neville stands for the proposition that evidence of
      the defendant’s behavior (refusal to take the blood test) is
      admissible where the defendant had substantial motivation
      not to behave as he did, Hale stands for the corollary

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      proposition that evidence of a defendant’s behavior (remaining
      silent) is inadmissible, because [it is] not probative, where the
      defendant had no substantial motivation not to behave as he
      did.

Id. (other internal citation and footnote omitted).

   In Menna, the Florida Supreme Court, after expressly approving
Herring’s reasoning, held that a defendant’s pre-arrest refusal to submit to
a hand swab gunshot residue test was inadmissible where the defendant
was not told of any adverse consequences of her refusal to take the test
and was given the impression that the test was optional. 846 So. 2d at
507. The Court reasoned:

          [A]s in Herring, the trial court here was entitled to conclude
      on the facts that it would be unfair where the police may have
      led the defendant to believe that [she] had a right to refuse to
      allow [the defendant’s] refusal to be used against her because
      her decision to refuse was “safe harbor.” Although neither
      [detective] recalled explicitly telling [the defendant] that the
      test was either compulsory or optional, [one detective] agreed
      that the nature of his questioning would have indicated to [the
      defendant] that she had the option to refuse to take the test.

Id. (internal quotation marks omitted).

   In Esperti, the Second District held that a defendant’s refusal to submit
to a hand swab gunshot residue test was admissible where the defendant
had been told that he had no choice but to submit to the test, and he
resisted the test by sitting on his hands, wiping his hands, and rubbing
tobacco ashes on his hands after learning that cigarette ashes could be
confused with gunpowder. 220 So. 2d at 417. The Second District
reasoned that those actions, “if given any probative force whatsoever, are
susceptible of no [p]rima facie explanation except consciousness of guilt;
and . . . [i]f the defendant is to avoid such an inference he would, of course
be free to offer a reasonable explanation.” Id. at 418.

   Here, as in Herring and Menna, the police did not tell the defendant
that he was required to submit to a DNA swab or that his refusal could be
used against him; instead, the defendant was given the impression that
the test was optional and that refusal did not carry any adverse
consequences. In fact, both detectives went so far as to tell the defendant
that it was his “right” to refuse to submit a DNA swab. Further, unlike in
Esperti and Neville, the defendant here was not told that he had no choice

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but to submit to the test, or that if he refused, he could lose some privilege.
Thus, we are compelled to follow Herring and Menna and hold that it was
error to admit the defendant’s pre-arrest refusal to submit to a DNA swab.

   The state argues that if the trial court erred in admitting the defendant’s
refusal to submit a DNA swab, then the error was harmless because: (1)
the defendant, after his arrest, provided a DNA sample; and (2) the
defendant’s DNA was not found at the victim’s apartment, a fact which the
defense emphasized in closing argument. See State v. DiGuilio, 491 So. 2d
1129, 1138 (Fla. 1986) (“The harmless error test . . . places the burden on
the state, as the beneficiary of the error, to prove beyond a reasonable
doubt that the error complained of did not contribute to the verdict or,
alternatively stated, that there is no reasonable possibility that the error
contributed to the conviction.”).

    We conclude a reasonable possibility exists that the error contributed
to the conviction and, therefore, was not harmless. The fact that the
defendant, after his arrest, provided a DNA sample which was not found
in the victim’s apartment does not negate the fact that his pre-arrest
refusal to submit to a DNA swab, after both detectives told him that it was
his “right” to refuse, was admitted to show his consciousness of guilt.
Further, the fact that the state emphasized this erroneously admitted
evidence in its closing argument also may have tainted the validity of the
jury’s verdict. See Donaldson v. State, 722 So. 2d 177, 185 (Fla. 1998)
(state’s emphasis during its closing argument of erroneously admitted
evidence “obviously tainted the validity of the jury’s recommendation and
cannot be said to be harmless error”).

  Based on the foregoing, we reverse the defendant’s second degree
murder conviction and remand for a new trial.

   Reversed and remanded for new trial.

STEVENSON and LEVINE, JJ., concur.

                              *           *       *

    Not final until disposition of timely filed motion for rehearing.




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