        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                               GREG SENSER,
                                 Appellant,

                                       v.

                            STATE OF FLORIDA,
                                 Appellee.

                               No. 4D16-2893

                                [May 9, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Sandra K. McSorley and Samantha Schosberg Feuer,
Judges; L.T. Case No. 50-2010-CF-009781-AXXX-MB.

  Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

   Appellant, Greg Senser, appeals his judgment and ensuing life sentence
for the second-degree murder of Jason Barnett (the “Victim”). Because a
statement taken from Appellant in violation of Miranda 1 was admitted
against Appellant at trial, we reverse and remand for a new trial.

    Factual Background

   Responding to a disturbance call at an apartment building at around
two in the morning, police encountered Appellant running away from the
building and found the Victim bleeding profusely from a large cut to his
neck. The Victim died from his injuries and Appellant was charged with
second-degree murder. Before trial, Appellant moved to suppress certain
statements outlined below, arguing that they were taken in violation of
Miranda.


1   Miranda v. Arizona, 384 U.S. 436 (1966).
    At the suppression hearing, the officers who reported to the call testified
regarding the circumstances in which Appellant made the challenged
statements. The two officers who pursued Appellant on foot testified that
upon seeing Appellant running away from the apartment building, they
yelled “stop, police!” However, Appellant continued to run and lost the
officers by hiding in some nearby hedges. When Appellant emerged from
the hedges about ten minutes later, the officers pulled their weapons and
ordered Appellant to the ground. The officers then approached Appellant,
who was soaking wet and bleeding from a cut to the head, and handcuffed
him. Without notifying Appellant of his Miranda rights, one of the officers
asked Appellant “why are you running, why are you running” to which
Appellant responded that he “was being followed by a black male and that
he was shooting at him and he was scared for his life.” Both officers
involved testified that at the time this exchange occurred, they did not
know whether Appellant was a suspect, a victim, a witness, or whether
there was even a crime.

    While the two officers were pursuing Appellant, the remaining officers
reporting to the call encountered the Victim in the apartment building’s
breezeway lying face down and hemorrhaging from his neck. The officers
called for a medic and began rendering aid to the Victim. A few minutes
later, the officers who apprehended Appellant returned to the scene with
Appellant and had him sit (still cuffed but not yet Mirandized) in the near
vicinity. At this point, one of the officers rendering aid overheard Appellant
say “it was just a fight, I didn’t mean to kill him.”

    Considering the foregoing, the court denied Appellant’s motion to
suppress as it pertained to Appellant’s response to the “why are were you
running” question and his “it was just a fight, I didn’t mean to kill him”
utterance. The court reasoned that the officer was not required to inform
Appellant of his Miranda rights before asking why he was running because,
from the officer’s point of view, he was “maintaining the status quo” and
“identifying what was going on.” With respect to Appellant’s “it was just a
fight, I didn’t mean to kill him” utterance, the court ruled that the
statement was admissible because it was not made in response to a law
enforcement question and was, therefore, a “spontaneous statement.”

   The case proceeded to trial wherein the State introduced evidence of
the circumstances surrounding the disturbance call, Appellant’s
relationship with the Victim, law enforcement’s pursuit of Appellant,
Appellant’s non-suppressed statements to law enforcement, and the
physical evidence collected from the scene. The officers who reported to
the disturbance call each offered testimony mirroring their testimony at
the suppression hearing. Pursuant to the court’s suppression ruling, the

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officers who pursued Appellant testified that after being asked why he was
running upon apprehension, Appellant stated that he had been shot at by
a black male and was scared for his life. Likewise, the officer who was
rendering aid testified that upon seeing the Victim, Appellant stated
something to the effect of “it was just a fight, I didn’t mean to kill him.”

   The Victim had injuries consistent with significant blunt force trauma
to the face, mouth, and nose, and his throat was cut from ear to ear all
the way down to the cervical spine. The medical examiner opined that the
Victim’s neck wound was the result of several cuts with a sharp
instrument. The Victim also had an abrasion on the back of his head and
on his elbows, but did not have any defensive knife wounds. Appellant, in
turn, had a minor cut on his head, some scratches on his neck and
shoulder, a bruise on his left knee, and cuts on the knuckles of his right
hand. His hands were also swollen.

   Appellant’s truck was found parked in the parking lot in front of the
apartment building. A post-arrest inspection of the area where Appellant
disappeared into the hedges revealed that there was blood on the top of
the fence behind the hedges and on a spigot on the other side of the fence.
This evidence led law enforcement to conclude that Appellant jumped the
fence and rinsed himself off before jumping back over and emerging from
the hedges. However, despite a search of the apartment building, the
surrounding area, and Appellant’s vehicle, law enforcement did not find
any evidence that a firearm was used or fired on the night of the murder
and likewise did not recover the instrument used to cut the Victim.

     At trial, Appellant argued that he acted in self-defense and that law
enforcement botched the investigation by not fully exploring the possibility
that another person attacked the Victim and Appellant. To support this
theory of defense, during its cross-examination of the testifying officers,
Appellant’s counsel highlighted the fact that law enforcement failed to set
up a perimeter of the scene and, therefore, could not ensure that a third
person was there and ran away. Further, when defense counsel cross-
examined the medical examiner, it emphasized the lack of defensive
wounds on the Victim. Defense counsel also asked the medical examiner
if it was “possible that [the Victim’s neck] wound could be consistent with
one person holding his hands or arms behind his back preventing him
from putting his hands up to defend himself while the other individual
slashed his throat.” The medical examiner answered that it was “one
scenario.”

  At the conclusion of the case, based on the theories suggested by
Appellant, the State asked the court to provide the jury the following

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principals instruction in the event that the jury accepted Appellant’s
suggestion that a third party was involved in the altercation which led to
the Victim’s death:
                                PRINCIPALS

   If the defendant helped another person or persons commit a
   crime, the defendant is a principal and must be treated as if he
   had done all the things the other person or persons did if

      1. The defendant had a conscious intent that the criminal act
         be done; and

      2. The defendant did some act or said some word which was
         intended to and which did incite, cause, encourage, assist
         or advise the other person or persons to actually commit
         the crime.

      To be a principal, the defendant does not have to be present
      when the crime is committed.

The court agreed to provide the instruction.

   The jury found Appellant guilty of second-degree murder and the
matter proceeded to sentencing where family members from both the
Victim’s and Appellant’s families testified. During the sentencing hearing,
the prosecutor argued that Appellant should “be held to a higher standard”
because Appellant “has been afforded and given every valuable
opportunity in this world. He comes from a very nice family, a very
hardworking family, we’re venturing to say a wealthy family, a very good-
looking family, a white family, an affluent family, a wealthy family, a loving
family most importantly.” Defense counsel objected to this argument,
contending that the argument that someone should “be treated different
because they’re white, black or whatever color” was improper. The court
noted the defense’s objection and proceeded to sentence Appellant to life
in prison based on the court’s consideration of Appellant’s prior criminal
history and the violent nature of the crime.

   On appeal, Appellant challenges the admission of his pre-Miranda
statements. Additionally, he challenges the court’s decision to give the
principals instruction. Finally, Appellant argues that his sentence was
based on improper considerations, namely his race. We hold that the
admission of the “I was shot at by a black male and am scared for my life”
statement was improperly admitted and requires reversal. Although this


                                      4
resolves the appeal, we also briefly write to address the remaining issues
raised by Appellant.

   Analysis

      1) The Suppression Rulings

   “The standard of review applicable to a motion to suppress evidence
requires that this Court defer to the trial court’s factual findings but review
legal conclusions de novo.” Backus v. State, 864 So. 2d 1158, 1159 (Fla.
4th DCA 2003). Whether an officer’s action “constitutes [an] ‘interrogation’
for Miranda purposes, is a legal conclusion reviewed de novo.” State v.
Lantz, 43 Fla. L. Weekly D449, D449 (Fla. 1st DCA Feb. 23, 2018).

   The Florida and United States Constitutions protect those arrested for
committing crimes against being compelled to become witnesses against
themselves in their own criminal cases. U.S. Const. amend. V; Fla. Const.
art. I, § 9; Ramirez v. State, 739 So. 2d 568, 572–73 (Fla. 1999). In
Miranda, the United States Supreme Court held that in order to safeguard
these constitutional protections, suspects arrested for crimes must be
notified of their “right to remain silent, that any statement [made] may be
used as evidence against [them], and [of the] right to the presence of an
attorney, either retained or appointed.” 384 U.S. at 444. However, “[t]he
safeguards provided by Miranda apply only if an individual is in custody
and subject to interrogation.” Timmons v. State, 961 So. 2d 378, 379 (Fla.
4th DCA 2007) (emphasis added).

   Here, both Appellant and the State agree that Appellant was forcibly
handcuffed and detained. Therefore, Appellant was in custody at the time
he gave both of the challenged statements. They also agree that Appellant
was not advised of his Miranda rights before he made either statement.
Thus, the pertinent question is whether Appellant was subject to
interrogation when he made either statement.

    The Supreme Court examined the concept of interrogation in the
context of Miranda in Rhode Island v. Innis, 446 U.S. 291, 299−302 (1980).
The Innis court explained that under Miranda, an interrogation occurs
“whenever a person in custody is subjected to either express questioning
or its functional equivalent.” Id. at 300–01. The “functional equivalent” of
express questioning is “any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from
the suspect.” Id. at 301 (footnotes omitted). “The focus of the inquiry is
‘primarily upon the perceptions of the suspect, rather than the intent of

                                      5
the police[,]’ as ‘the Miranda safeguards were designed to vest a suspect in
custody with an added measure of protection against coercive police
practices, without regard to objective proof of the underlying intent of the
police.’” Timmons, 961 So. 2d at 380 (quoting Innis, 446 U.S. at 301).
Citing Innis, the Florida Supreme Court reiterated that an “[i]nterrogation
takes place . . . when a person [in custody] is subjected to express
questions, or other words or actions, by a state agent, that a reasonable
person would conclude are designed to lead to an incriminating response.”
Traylor v. State, 596 So. 2d 957, 966 n.17 (Fla. 1992). “Thus, the standard
as to whether a custodial interrogation has occurred is an objective one.”
Moore v. State, 798 So. 2d 50, 53 (Fla. 1st DCA 2001).

   Interpreting Innis, Florida courts have held that questions regarding
basic identification information are not interrogation questions subject to
Miranda because they are designed to garner essential biographical data
rather than an incriminating response. See Allred v. State, 622 So. 2d
984, 987 n.9 (Fla. 1993) (routine booking questions, such as “[n]ame,
address, height, weight, eye color, date of birth, and current age,” are not
subject to Miranda); Tobiassen v. State, 213 So. 3d 1045, 1050 (Fla. 4th
DCA 2017) (employment related question asked during the booking
process was not subject to Miranda); Timmons, 961 So. 2d at 380 (asking
a suspect if he was staying at the hotel where the police were performing
a sweep was not an interrogation question subject to Miranda).

   Likewise, innocuous conversational questions on unrelated topics do
not constitute interrogation questions subject to Miranda. For example,
in State v. Koltay, 659 So. 2d 1224, 1225 (Fla. 2d DCA 1995), while
transporting an arrested but un-Mirandized suspect to a police station,
the transporting officer engaged in small talk with the suspect. As the
conversation progressed, the officer asked the suspect why he recently left
an emergency mental health shelter. Id. In response, the defendant
became irate and said, “I’m not crazy just because I f––––d a little girl.” Id.
Although the suspect was in custody and his response was incriminating,
the court held there was no custodial interrogation because the “question
was not reasonably likely to elicit an incriminating response.” Id. at 1226.

   However, when an officer’s questions or actions extend beyond requests
for basic biographical information and could reasonably be viewed as
designed to secure potential incriminating evidence, the questions or
actions constitute an interrogation. For example, asking a suspected
drunk driver to recite the alphabet is an interrogation because the
suspect’s response could foreseeably be used against him. Allred, 622 So.
2d at 987. Additionally, confronting a custodial suspect with a reference
to the underlying crime or evidence of the crime amounts to an

                                      6
interrogation because such actions could reasonably prompt an
incriminating response. Origi v. State, 912 So. 2d 69, 73 (Fla. 4th DCA
2005) (officer’s act of grabbing suspect by the hand, holding out a cooler
full of drugs, and stating “that’s a lot of drugs you had” constituted an
interrogation); State v. Lebron, 979 So. 2d 1093, 1095 (Fla. 3d DCA 2008)
(officer’s statement “I hope you know what kind of trouble you are in,”
amounted to an interrogation requiring administration of Miranda); Larson
v. State, 753 So. 2d 733, 734–35 (Fla. 2d DCA 2000) (where law
enforcement officer mentioned to the suspect that he was “looking at
twenty-five years” for his involvement in the case, the officer’s statements
were an interrogation because they “were reasonably likely to elicit an
incriminating response from [the defendant]”).

            a. The “A Black Man Was Shooting at Me and I’m Scared for
               my Life” Statement

   The first statement at issue, “a black man was shooting at me and I’m
scared for my life,” was made by Appellant in response to an officer asking
“why were you running?” The trial court ruled that the question was not
subject to Miranda because, from the officer’s perspective based on the
information available to him at the time, it was meant to garner
background information rather than an incriminatory response. As
discussed above, this was not the correct legal standard. Instead of
examining the question from the officer’s subjective point of view, the court
was required to look at the question objectively and consider whether a
reasonable person in the suspect’s position would conclude that the
question was designed to lead to an incriminating response. Traylor, 596
So. 2d at 966 n.17.

    Looking at the scenario from a reasonable person in Appellant’s
position, Appellant was chased by law enforcement while running away
from a crime scene, ordered to the ground at gun point, handcuffed, then
asked “why were you running?” Under these circumstances, although law
enforcement may not have been aware that there was a crime or that
Appellant was the suspect, from the perspective of a reasonable person in
Appellant’s position, the question “why are you running” was reasonably
designed to elicit inculpatory information. As opposed to simple questions
calling for one word safety related responses, such as “are you okay” or
“are you in danger,” the question “why are you running” required
an explanation as to why Appellant was actively fleeing law enforcement.
In this context, virtually any information given in response to the question
could be incriminating. Indeed, even though Appellant responded by
indicating that he was a victim, this statement was nonetheless used
against him at trial as proof that the defendant lied about the nature of

                                     7
the encounter. Accordingly, Appellant’s statement was the result of a
custodial interrogation and, therefore, was subject to the protection of
Miranda. As Appellant was not advised of his Miranda rights, the
statement should have been suppressed. Based on the foregoing, the
court’s admission of the “a black man was shooting at me and I’m scared
for my life” statement requires reversal for a new trial. 2

             b. The “It Was Just a Fight, I Didn’t Mean to Kill Him”
                Statement

   With respect to Appellant’s “it was just a fight, I didn’t mean to kill him”
statement, the evidence surrounding this statement establishes that it was
uttered spontaneously by Appellant. Furthermore, the statement was not
the result of any law enforcement question or confrontation. Therefore,
the statement was not subject to Miranda. See Gordon v. State, 213 So.
3d 1050, 1054 (Fla. 4th DCA 2017) (defendant’s unprovoked statements
to deputy who was watching defendant in a holding cell while defendant
was awaiting transportation were not the result of an interrogation and,
therefore, were not subject to the requirements of Miranda); Drout v. State,
99 So. 3d 549, 549 (Fla. 3d DCA 2011) (“Because the record fully supports
the trial court's finding that the statements were spontaneously uttered
and not the product of the functional equivalent of a police interrogation,
we affirm.”). Accordingly, we hold that the trial court correctly ruled that
Appellant’s “it was just a fight, I didn’t mean to kill him” statement was
admissible at trial.

      2. The Principals Jury Instruction

   Appellant next argues that the court abused its discretion when it
granted the State’s request to provide the jury with a principals instruction
because “the record facts did not support an inference that [Appellant]
acted in concert with another to accomplish his objective.” We disagree.

   “Trial judges have wide discretion in decisions regarding jury
instructions, and the appellate courts will not reverse a decision regarding
an instruction in the absence of a prejudicial error that would result in a
miscarriage of justice.” Lewis v. State, 693 So. 2d 1055, 1058 (Fla. 4th
DCA 1997). “Jury instructions requested by the State ‘must relate to

2   Based on the manner the statement was used, the State concedes that in the
event the statement was improperly admitted, the error could not be harmless.
Deviney v. State, 112 So. 3d 57, 79 (Fla. 2013) (“Miranda violations are subject
to a harmless error analysis.”) (citing State v. DiGuilio, 491 So. 2d 1129, 1135
(Fla. 1986)).

                                       8
issues concerning evidence received at trial.’” Id. at 1057 (quoting Butler
v. State, 493 So. 2d 451, 452 (Fla. 1986)).

      Therefore, it is generally error to instruct the jury on
      principals where there is no evidence to support an aiding and
      abetting theory of guilt because the jury may be confused by
      the instruction. However, in order for the unnecessary
      instruction to constitute reversible error, it must, under the
      circumstances of the case, be capable of misleading the jury
      in such a way as to prejudice the defendant’s right to a fair
      trial.

Id.

    In Lewis, this Court held that the trial court did not abuse its discretion
in granting the State’s request for a principals instruction in a case where
the defendant was accused of throwing a Molotov cocktail through his ex-
girlfriend’s window. Id. at 1056. There, during trial, the State asked the
court for the instruction in the event that the jury assumed someone else
actually threw the Molotov cocktail, although there was no evidence of any
such third party involvement. Id. We affirmed on appeal, reasoning that
the State’s argument to the jury that the defendant “either knew what was
going to happen, played an active role in making it happen, or he threw it
through that bedroom window” was sufficient to support the instruction.
Id. at 1058.

    In the instant case, through his evidence and questioning of various
witnesses, Appellant advanced a theory that there was another person
involved in the Victim’s death. Specifically, in opening arguments, defense
counsel argued that law enforcement botched the investigation by not fully
exploring the possibility that another person attacked the Victim and
Appellant. To support this theory of defense, during its cross-examination
of the testifying officers, Appellant’s counsel highlighted the fact that law
enforcement failed to set up a perimeter of the scene and, therefore, could
not ensure that a third person was there and ran away. Further, when
counsel cross-examined the medical examiner, he asked the medical
examiner if it was “possible that [the Victim’s neck] wound could be
consistent with one person holding his hands or arms behind his back
preventing him from putting his hands up to defend himself while the
other individual slashed his throat”. The medical examiner answered that
it was “one scenario.” Accordingly, since the defense presented evidence
that there may have been another individual involved, there was evidence
supporting the instruction.


                                      9
      3. Improper Sentencing Considerations

    Lastly, Appellant argues that his life sentence was based on
impermissible sentencing factors. It is more than well established that a
court’s reliance on constitutionally impermissible factors, such as race
and national origin, when imposing a sentencing is a violation of a
defendant’s due process rights. Santisteban v. State, 72 So. 3d 187, 197
(Fla. 4th DCA 2011); Nawaz v. State, 28 So. 3d 122, 124−25 (Fla. 1st DCA
2010).     However, when determining whether a court relied on
impermissible sentencing factors, it is primarily the court’s express
rationale, not the evidence or arguments presented at sentencing, which
controls. Compare Nusspickel v. State, 966 So. 2d 441, 446 (Fla. 2d DCA
2007) (fact that evidence of improper sentencing factor was presented at
sentencing did not merit resentencing when the court expressly wrote that
its sentence was not based on that evidence), with Santisteban, 72 So. 3d
at 197 (holding that court based sentence on impermissible factor of
religion when it expressly stated that it was being mindful of Jewish
tradition in “imposing a sentence over the loss of life of four Jewish
people”), and Soto v. State, 874 So. 2d 1215, 1216 (Fla. 3d DCA 2004)
(appellate court was “compelled by the judge’s own statements” that it was
considering defendant’s unwillingness to admit guilt in sentencing).

   In the instant case, the prosecutor argued that Appellant should be
held to a “higher standard” in part because of the privilege afforded by his
race. Although the court’s express rationale for imposing its sentence does
not suggest that it relied on the prosecutor’s race argument when it
rendered its sentence, we are nonetheless compelled to comment on this
situation. The prosecutor’s race-based argument was highly improper
under any view and should not have been made. Yet, when Appellant
objected, the court merely noted the objection for the record. We urge
courts faced with similar situations in the future to admonish any lawyer
advocating for an improper sentencing consideration and make it clear on
the record that such an improper factor is not a basis for the imposed
sentence.

   In conclusion, we hold that Appellant is entitled to a new trial based on
the admission of his statement to the effect of “a black man was shooting
at me and I’m scared for my life” because the statement was the result of
a custodial interrogation and Appellant was not advised of his Miranda
rights.

   Reversed and remanded.

GERBER, C.J., and KLINGENSMITH, J., concur.

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                       *       *        *

Not final until disposition of timely filed motion for rehearing.




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