       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                        MICHAEL ROUNDTREE,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-498

                           [ August 27, 2014 ]


  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Joseph Marx, Judge; L.T. Case No. 2010CF014859AMB.

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

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   Appellant, Michael Roundtree, challenges his convictions for armed
robbery and two counts of false imprisonment. We reverse, concluding
that the trial court erred in admitting an interrogation of appellant which
primarily consisted of the officer expressing his personal opinion as to
appellant’s guilt.

   The relevant facts are as follows. On the morning of December 12,
2010, a man robbed a store in West Palm Beach. The incident was
captured on the store’s surveillance video. The robber was wearing a cloth
rag on his head and a mask that covered his face from the nose down.

   The robber showed the two store clerks an object that appeared to be a
gun. The robber grabbed money, MP3 players, and deodorants. He told
the two store employees to go inside a storage room and to wait there while
he took some things. He then shut the door behind them. The employees
waited in the room for about twenty minutes and then called the police.
Neither store employee could identify the robber.

   The robber was not wearing gloves when he handled the deodorant
containers. Before exiting the store, the robber left some deodorants on
the counter. A certified print examiner went to the store after the robbery
and processed the scene for fingerprints. There were several latent
fingerprints of value found on the deodorants that the robber handled. All
of the identifiable fingerprints on the deodorants matched appellant’s
fingerprints.

   In January 2011, an officer interrogated appellant. Most of the
interview was played to the jury, but the trial court excluded a portion of
the interview containing a reference to appellant having been in jail.

   In the interview, the officer repeatedly accused appellant of committing
the robbery and appellant repeatedly denied committing the robbery.
Appellant told the officer that he shopped at the store “a couple of weeks
ago,” but appellant could not give an exact date.

    When appellant continued to maintain his innocence, the officer stated:
“I’m not going to believe you, I’m not going to change my mind. I’ve seen
it on video and I have your fingerprints, okay? That’s how I got you here
today.”

  The back-and-forth between appellant and the officer continued for a
while. The officer reiterated his opinion as to appellant’s guilt and
appellant continued to deny that he robbed the store.

   Appellant again stated: “I didn’t rob anybody.” The officer replied: “You
did.” Appellant then said: “You keep saying that. You ain’t going to believe
me regardless.” The officer replied: “I’m not – I’ve got video and scientific
proof, okay?”

   Later, the officer showed appellant the surveillance video of the robbery
and said: “You start talking to her and I guess just forgot about the
deodorants. That’s all we have. That’s all I need to (unintelligible) and the
deodorants are right there. (Unintelligible.)”       Appellant responded,
“(Unintelligible) I’m guilty regardless.”

    Appellant’s wife testified for the defense, claiming that appellant was at
home with her on the morning of December 12, 2010. She also testified
that about two weeks before Christmas in 2010, she and appellant were
at the store in question to pick up a few items, including deodorants. The
deodorants were for each member of the family. Appellant’s wife had

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grabbed three or four deodorants. When she met appellant at the front of
the store, she saw that he had also grabbed several deodorants, so she
told him to place the deodorants back on the shelf.

   The jury found appellant guilty of robbery with a firearm and two
counts of false imprisonment. This appeal ensued.

   A trial court’s decision on the admissibility of evidence is reviewed
under an abuse of discretion standard. Hudson v. State, 992 So. 2d 96,
107 (Fla. 2008). But the trial court’s discretion is limited by the rules of
evidence. Id.

   Because a witness’s opinion as to the credibility, guilt or innocence of
the accused is generally inadmissible, “it is especially troublesome when a
jury is repeatedly exposed to an interrogating officer’s opinion regarding
the guilt or innocence of the accused.” Jackson v. State, 107 So. 3d 328,
339-40 (Fla. 2012). Nonetheless, “a police officer’s statements during an
interrogation are admissible if they provoke a relevant response or provide
context to the interview such that a rational jury could recognize the
questions are interrogation techniques used to secure confessions.” Id. at
340.

    In Jackson, the Florida Supreme Court held that the trial court abused
its discretion in admitting the defendant’s videotaped interrogation in
which the officers repeatedly expressed their opinions about the
defendant’s guilt. Id. at 330, 341-42. The supreme court explained that
while the detectives may have intended to secure a confession by
consistently expressing their conviction as to the defendant’s guilt, they
did not secure a confession throughout their dialogue. Id. at 341.
Moreover, although the detectives’ opinions about the defendant’s guilt
and the weight and sufficiency of the evidence were not expressed during
in-court testimony, admission of these statements essentially permitted
the State to improperly elicit police opinion testimony and invade the
province of the jury. Id. Even to the extent the detectives’ statements did
yield somewhat relevant responses, our supreme court explained that this
evidence should not have been admitted, as the statements had minimal
probative value when compared with the inappropriate statements by the
detectives. Id. at 341-42.

    The present case is governed by Jackson. During the interrogation, the
officer repeatedly expressed his personal belief that appellant was guilty.
Moreover, here, as in Jackson, the vast majority of the officer’s statements
did not provoke relevant responses from appellant. Indeed, the officer
never secured a confession from appellant. In addition to the officer’s

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repeated opinions about appellant’s guilt, the jury was also permitted to
hear a statement by the appellant which, because of its ambiguity, had
little or no evidentiary value. The quip—“(Unintelligible) I’m guilty
regardless”—cannot fairly be interpreted as an admission of guilt under
the circumstances of this case. Appellant’s statement must be examined
in the context of the entire interrogation. When appellant’s statement is
read in context, we interpret the statement as meaning that the officer
would consider him guilty regardless of his protestations of innocence.
This is the only interpretation that makes sense in light of appellant’s
repeated denials that he committed the robbery, the officer’s statements
to the effect that he was not going to believe appellant, and appellant’s
reply to the officer that “[y]ou ain’t going to believe me regardless.”
(Emphasis added.)           Any relevance of appellant’s statement—
“(Unintelligible) I’m guilty regardless”—was minimal in comparison to the
impropriety of admitting the officer’s opinions as to appellant’s guilt.

   Accordingly, we find that the trial court should have excluded the entire
interrogation at trial. See Pausch v. State, 596 So. 2d 1216, 1219 (Fla. 2d
DCA 1992) (finding that the jury “could not have reasonably been expected
to isolate and extract from the recording that which was admissible as
evidence of the crime while disregarding the aspersions of guilt created by
[the detective’s] words”).

    Although we conclude that the trial court committed error by admitting
the interrogation under the facts of this case, we take the opportunity to
acknowledge that situations may exist where “the prejudice of an
interrogating officer’s statements could be obviated or reduced by reading
a limiting instruction to the jury.” Jackson, 107 So. 3d at 341 n.15. In
Eugene v. State, 53 So. 3d 1104 (Fla. 4th DCA 2011), we gave an example
of an instruction that a trial judge might use to address the problem of
unfair prejudice when a defendant’s interrogation contains accusatory
non-hearsay statements by police officers:

      A recorded police interrogation of the defendant has been
      introduced into evidence in this trial.           During the
      interrogation, any statements made by the police interrogator
      are not to be considered by you jurors as evidence of the
      defendant’s guilt.    The statements made by the police
      interrogator during the interview of the defendant have not
      been introduced into evidence to prove the truth of the matters
      asserted in those statements. In fact, the statements made by
      the police interrogator during the interrogation of the
      defendant may be false and misleading. It is permissible for
      a police officer conducting an interrogation of a defendant to

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         make false and misleading statements to the defendant in
         order to further the aims of the interrogation. However, it is
         not permissible for you jurors to rely on such police
         interrogator’s statements as proof of the defendant’s guilt.

Id. at 1112 n.4. In cases where an interrogating detective’s statements
about a crime provoke relevant responses from the defendant, we would
encourage trial judges to “instruct the jury on the limited purpose for
which the jury has been allowed to hear the interrogator’s statements.” Id.

   In conclusion, we find that the admission of the officer’s statements
during the interrogation permitted the state to elicit a police officer’s
opinion as to appellant’s guilt, thereby invading the province of the jury.
In this contested identity case, we cannot conclude that the error was
harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d
1129, 1135 (Fla. 1986). We reverse and remand for a new trial.1

     Reversed and Remanded.

CIKLIN and GERBER, JJ., concur.

                               *         *         *

     Not final until disposition of timely filed motion for rehearing.




1   The remaining issues are either moot or without merit.

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