       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 18, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2418
                         Lower Tribunal No. 09-33121
                            ________________


                                Tyler Darnell,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo,
Judge.

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant
Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant
Attorney General, for appellee.


Before ROTHENBERG, SALTER, and SCALES, JJ.

      ROTHENBERG, J.
      The defendant, Tyler Darnell, appeals his convictions and sentences for

second degree murder and attempted second degree murder by challenging the

denial of his motion to suppress his videotaped statement to law enforcement, the

admission of the surviving victim’s hearsay statement, and the denial of his motion

for judgment of acquittal. Because we find no reversible error, we affirm.

      The defendant was charged with the second degree murder of Adan Castillo-

Moreno and the attempted first degree murder of Frederico Hernandez, who were

stabbed in the side alley of a shopping center where Lili’s Cafeteria is located.

Prior to trial, the defendant moved to suppress the videotaped statement he gave to

law enforcement following his arrest in which he confessed to stabbing both

victims in self-defense. In moving to suppress his statement, the defendant argued

that his arrest was based on his “mere presence” in the area of Lili’s Cafeteria both

prior to and after the stabbings, which did not constitute probable cause, and

therefore, his videotaped statement must be suppressed.

      The testimony presented at the suppression hearing reflects that the manager

of Lili’s Cafeteria, Juan Peralta, saw a man wearing a camouflage shirt walking

very slowly and peering inside the business with an angry look on his face. He

watched this man pass by the cafeteria’s walk-up window heading in the direction

of the shopping center’s side alley. Approximately five to ten minutes later, Mr.

Hernandez, the surviving victim, staggered into the cafeteria bleeding, muttering


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unintelligibly, and pointing to the alleyway.    Mr. Peralta told a coworker to call

911 and followed Mr. Hernandez outside, at which point, Mr. Hernandez told him,

“behind, behind.” Believing that Mr. Hernandez was referring to the back of the

shopping center, Mr. Peralta checked that area but did not see anything. However,

as Mr. Peralta was walking back to the front of the cafeteria, he saw the man

wearing the camouflage shirt, who he later identified as the defendant, leaving the

alleyway.

Mr. Peralta realized that when Mr. Hernandez said “behind, behind,” he was

referring to the alley, not the back of shopping center. Mr. Peralta went to the alley

and found the second victim, Mr. Castillo-Moreno, lying on the ground. At this

time, Mr. Castillo-Moreno, who had also been stabbed, was still alive, but he later

died.

            Detective Segovia interviewed Mr. Peralta on the evening of the stabbing.

Mr. Peralta told Detective Segovia that he saw a man wearing a camouflage T-shirt

“fleeing” from the alley where the stabbings occurred, and that he would be able to

identify the man wearing the camouflage shirt. Almost two months later, Detective

Segovia presented Mr. Peralta with a photographic lineup consisting of six men.

Mr. Peralta pointed to the defendant’s photograph, stating that the photograph

“looks just like the guy” he saw wearing the camouflage shirt, but he would feel

more comfortable making a positive identification if he could see the man in the


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photograph in person. Thereafter, Detective Sabel, the lead detective investigating

the stabbings, obtained a search warrant compelling the defendant to appear at a

live lineup. During the live lineup, Mr. Peralta identified the defendant as the

person he saw wearing the camouflage T-shirt. Thereafter, the defendant was

arrested and after being read his Miranda1 rights, he gave a videotaped statement to

the police, in which he admitted that he had stabbed the two victims. Following

the evidentiary hearing, the trial court denied the defendant’s motion to suppress.

        At trial, in addition to presenting the jury with the defendant’s videotaped

statement, the State played two DVDs of the perpetuated testimony of Maria Ruiz,

a waitress at Lili’s Cafeteria. Over objection, the trial court permitted the State to

play the portion of her testimony where Ms. Ruiz testified that when she was

outside with Mr. Hernandez after he had been stabbed, she saw a man wearing a

camouflage shirt exiting the alley where a number of dumpsters are located. While

Mr. Hernandez was looking in the direction of these dumpsters, he pointed at the

man in the camouflage shirt and said, “That’s him.”

        The defendant’s defense at trial was that he was not present when these

crimes were committed. In support of his defense, the defendant presented alibi

witnesses who claimed that the defendant was with them at the time of the




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

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stabbings, and therefore, he was misidentified as being the man in the camouflage

shirt seen at

Lili’s Cafeteria both prior to and after the stabbings. The defendant additionally

asserted that the law enforcement officers coerced him to provide the videotaped

statement by threatening him with the removal of his daughter by the Department

of Children and Families, and he claimed that the officers told him exactly what to

say in the videotaped statement.

       The jury found the defendant guilty of the second degree murder of Mr.

Castillo-Moreno and the attempted second degree murder of Mr. Hernandez. He

was later sentenced, and the defendant’s appeal followed.

       The defendant contends on appeal that the trial court erred by denying his

motion to suppress his videotaped statement because “mere presence” at Lili’s

Cafeteria does not provide the requisite probable cause for his arrest. We disagree.

The defendant’s mere presence at Lili’s Cafeteria was not the basis for his arrest.

He was not only seen in the vicinity of the cafeteria, but was also seen exiting the

alleyway where the second victim was found after the first victim, Mr. Hernandez,

told Mr. Peralta “behind, behind.” Further, when the defendant was seen leaving

the alley, he was “not walking normally,” he was walking “hurriedly” or “fleeing.”

We therefore conclude that there was probable cause to arrest the defendant.




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       “Probable cause for arrest exists where an officer has reasonable grounds to

believe that the suspect has committed a felony. The standard of conclusiveness

and probability is less than that required to support a conviction.” Chavez v. State,

832

So. 2d 730, 747 (Fla. 2002) (quoting Walker v. State, 707 So. 2d 300, 312 (Fla.

1997)) (internal quotation and citation omitted); see State v. Cortez, 705 So. 2d

676,

678 (Fla. 3d DCA 1998) (quoting State v. Russell, 659 So. 2d 465, 468 (Fla. 3d
DCA

1995)) (“Probable cause to arrest exists when the totality of the facts and

circumstances within the officer’s knowledge would cause a reasonable person to

believe that an offense has been committed and that the defendant is the one who

committed it.”).

       In the instant case, the evidence adduced at the suppression hearing indicates

that the defendant was much more than merely present at Lili’s Cafeteria at the

time of the stabbings. Rather, the evidence showed that the defendant was actually

seen leaving the crime scene—the alley—shortly before one of the stab victims

was discovered. Further, the evidence also demonstrated that when the defendant

was leaving the alley, he was either “not walking normally” or was fleeing. Based

on this evidence, we find that probable cause existed to arrest the defendant.



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Accordingly, we conclude that the trial court properly denied the defendant’s

motion to suppress his videotaped statement.

      Next, the defendant contends that the trial court erred by admitting the

portion of Ms. Ruiz’s perpetuated testimony in which she testified that Mr.

Hernandez pointed at the man wearing the camouflage shirt and said, “That’s him.”

Section 90.803(1), Florida Statutes (2014), defines a “spontaneous statement” as

“[a] spontaneous statement describing or explaining an event or condition made

while the declarant was perceiving the event or condition, or immediately

thereafter, except when such statement is made under circumstances that indicate

its lack of trustworthiness.”   The statement made by Mr. Hernandez clearly

qualifies as a “spontaneous statement” because he made the statement—“That’s

him”—as he was perceiving and pointing at the man in the camouflage shirt.

Further, the statement was not made under circumstances that indicate its lack of

trustworthiness.   We therefore conclude that the trial court did not abuse its

discretion by admitting the portion of Ms. Ruiz’s perpetuated testimony where she

testified that she saw Mr.

Hernandez point at the defendant and say “That’s him.”

      Lastly, the defendant claims that the trial court fundamentally erred by

denying his motion for a judgment of acquittal at the close of the State’s case-in-

chief where the State introduced his videotaped statement, which established a


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prima facie case of self-defense, which the State failed to disprove beyond a

reasonable doubt.    We disagree because the defendant’s defense at trial was

misidentification, not self-defense, and in support of his defense, the defendant

presented the testimony of alibi witnesses to establish that he was not present when

the crimes were committed and asserted that the law enforcement officers had

coerced him into falsely stating that he had stabbed the victims in self-defense.

Therefore, this argument is without merit.

      Accordingly, we affirm the defendant’s convictions and sentences for

second degree murder and attempted second degree murder.

      Affirmed.




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