        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             KEITH LONDON,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D16-2211

                              [March 7, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Paul L. Backman, Judge; L.T. Case No. 14-16905 CF10A.

  Cullin O'Brien of Cullin O'Brien Law, P.A., Fort Lauderdale, for
appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Appellant, who was convicted of multiple charges related to an armed
burglary, raises nine issues in his brief, seeking reversal of his convictions
and sentences. Taken in context of the proceedings, we conclude that any
errors established by appellant were harmless beyond a reasonable doubt.
We therefore affirm.

   The state charged appellant with multiple counts related to a burglary
which he committed with a co-defendant, including armed burglary with
a mask; burglary with a battery on the victim husband; attempted robbery
with a firearm and mask on the victim wife; armed false imprisonment
with a mask of the victim wife; aggravated battery with a deadly weapon
and mask on the victim wife; possession of a firearm by a convicted felon;
attempted strong arm robbery of the victim husband; and burglary of a
conveyance owned by the victim husband. We briefly set forth the salient
facts of the incident reflected in the trial testimony.
   The co-defendant, Eric Mobley, was an employee of the victims, who
were husband and wife. The victims lived in a concrete, house-like
structure in a high-end RV park. They parked their RV in their driveway.
At trial, the victims testified that on the night of the burglary, the wife was
accosted outside her RV by two men, one of whom she recognized as
Mobley. She did not recognize the second man. The second man hit her
a few times in the head with a gun and demanded to know where her
money and jewelry were hidden. The victim wife told the men that the
valuables were in the RV. She walked with them towards the RV, unlocked
the door, and then ran away towards the community’s entrance. The
second man caught her and made her lie on the ground. He then
instructed Mobley to go back for the jewelry.

   Mobley went back to the victims’ property, and he attacked the victim
husband inside his house. They fought, and the husband chased Mobley
to the gate of the community. There, he saw his wife covered in blood.
Both men fled the scene. While the RV was ransacked, no jewelry was
taken. Mobley was arrested the same night.

   Surveillance cameras on the property showed Mobley and a second
man attacking the wife. The wife assumed that another fired employee
named Robert was involved in the crime. However, she testified at trial
that the man with the gun who accosted her was not Robert. She could
not identify the second man on the video. The husband testified that he
never saw the second man at the scene. He only saw the second person
involved when he viewed the surveillance video.

   After he entered a plea to his own charges from the burglary, Mobley
testified at appellant’s trial. He explained that he went to the victims’
residence with appellant thinking he was going to steal their Segway. He
did not know that appellant had a gun until appellant pulled it out and
told Mobley that they were going to take the victims’ jewelry and money.
He then testified about appellant’s actions, including appellant’s pistol-
whipping of the wife. He made an in-court identification of appellant as
his accomplice.

   Following this testimony, the State introduced a video recording of a
conversation between the appellant and a confidential informant (CI).
According to the probable cause affidavit, the CI had met appellant and
Mobley while they were in the county jail on other charges. The CI was
not placed in the jail to work in his capacity as a CI. After learning that
appellant was a suspect in the burglary, the CI approached the police
about appellant. The police arranged to install a video in the CI’s vehicle.



                                      2
While both appellant and the CI were sitting in the car using drugs and
being videotaped, appellant described many of the specific details of the
crime which were identical to the testimony of the victims and Mobley. The
jury viewed the video.

    After the State rested, appellant unsuccessfully moved for judgment of
acquittal on all counts. The appellant chose not to testify, and he renewed
all of his prior motions. During closing argument, the State made a
number of comments which the appellant now argues amounted to
cumulative, fundamental error. The jury found the appellant guilty of all
counts, except for possession of a firearm by a convicted felon, which was
nolle prossed. Appellant, a habitual felony offender, was sentenced to life
in prison. He now appeals.

     Appellant claims that the court should have suppressed the video of his
statement to the CI, arguing that his constitutional rights under the First,
Fourth, Fifth, Sixth, and Fourteenth Amendments were violated because
the CI neither told him that he worked for law enforcement nor read him
his Miranda rights. In particular, appellant claims he was deprived of his
right to counsel prior to his statement to the CI. He relies on Malone v.
State, 390 So. 2d 338 (Fla. 1980), in which the supreme court held that
statements made by a defendant in the absence of counsel to a cellmate
informant, while the defendant was in custody on the charges and where
law enforcement directly orchestrated the conditions leading to the
statement, should have been suppressed.              However, Malone is
inapplicable, because in this case, appellant was not in custody nor had
he even been arrested for the charges when he confessed. He was not
entitled to Sixth Amendment protection under these circumstances. See
Illinois v. Perkins, 496 U.S. 292, 298-99 (1990) (holding admission of
appellant’s statements did not violate his Sixth Amendment right to
counsel, where officer posed as appellant’s cellmate and asked him
questions designed to elicit an incriminating response, because suspect
was not yet charged with the crime at issue); see also Jones v. State, 756
So. 2d 243 (Fla. 5th DCA 2000) (holding appellant’s due process rights and
right to counsel were not violated by the admission of his incriminating
statements to his fiancé, who was wearing a police wire, because he was
in jail on unrelated charges).

   Appellant also contends that the court erred in denying his motion to
disclose the identity of the CI. He cites no case law to support his position.
Under Florida Rule of Criminal Procedure 3.220(b)(1)(G), the State must
disclose “any material or information that has been provided by a
confidential informant.” Florida Rule of Criminal Procedure 3.220(g)(2)



                                      3
provides that the State does not have to disclose a CI’s identity unless the
“informant is to be produced at a hearing or trial or a failure to disclose
the informant’s identity will infringe the constitutional rights of the
defendant.” The State correctly notes that the appellant had the burden
to show that an exception to the rule of nondisclosure applied, and here
the appellant has provided none. The CI did not witness the burglary, and
appellant did not establish why the CI’s testimony would support a defense
of mistaken identity. See State v. Mashke, 577 So. 2d 610, 612 (Fla. 2d
DCA 1991) (finding bare allegations that appellant cannot prepare his case
without disclosure are insufficient); see Harris v. State, 939 So. 2d 338,
340-42 (Fla. 4th DCA 2006) (not cited) (finding appellant made insufficient
showing that CI could testify in support of an asserted defense). Thus, the
court did not err in denying the motion to disclose.

   During trial, Mobley identified appellant as the second burglar on the
surveillance video. Appellant objected on the ground that Mobley had
testified in deposition that he had not identified appellant in any crime
scene videos or photos. However, the State had not shown Mobley the
surveillance video at the time of his deposition. But he testified at his
deposition as well as at trial that appellant was his accomplice, and he
described appellant’s participation in the crimes. His testimony did not
directly contradict his deposition. If there was any error by the state failing
to notify appellant that Mobley would identify appellant on the surveillance
video at trial, it was harmless beyond a reasonable doubt, given Mobley’s
testimony at his deposition identifying appellant as his accomplice. See
State v. Schopp, 653 So. 2d 1016 (Fla. 1995).

   Appellant also contends that the court erred in denying his motion for
mistrial because the husband ostensibly identified him, after viewing the
surveillance tape, as the man who accompanied Mobley during the
commission of the crimes. Appellant argues this was improper and not
disclosed prior to trial. However, the trial court concluded that the
husband never said that it was appellant on the video; rather, the husband
clearly testified that he never saw appellant on the night of the burglary.
The court found that the husband was responding to questions by
appellant’s counsel in cross-examination, in which appellant was trying to
impeach the husband with his prior testimony that he had not seen his
wife’s attacker at the scene. At trial, the husband responded to the
impeachment questions that the “only way” that he saw someone else with
Mobley that night was by viewing the videotape. Although defense counsel
suggested to the court that the husband had pointed to appellant when
stating that he had seen the second man only on the video, the trial court
(who was in a far better position than we are to understand what occurred



                                      4
at trial) concluded that the husband had not made any identification of
appellant as the person with Mobley. Thus, the court denied the motion
for mistrial. A court’s ruling on a motion for mistrial is reviewed for an
abuse of discretion and granted only when necessary to ensure a fair trial.
Salazar v. State, 991 So. 2d 364, 371-72 (Fla. 2008). We cannot conclude
that the court abused its discretion in denying the motion for mistrial.

   Appellant makes several attacks on the prosecutor’s closing and
rebuttal arguments, none of which merit reversal. As to those which were
preserved, we agree with the trial court that the prosecutor’s arguments,
when read in context, were not improper. As to those which were not
preserved, no fundamental error occurred.

   Finally, appellant challenges his multiple sentences on double jeopardy
grounds. Appellant contends that his sentences for crimes against the
victim wife violated double jeopardy because the acts occurred during one
criminal episode. These charges included armed burglary with a mask,
attempted robbery with a firearm and a mask, armed false imprisonment
with a mask, and aggravated battery with a deadly weapon and a mask.
Appellant further argues that his sentences for crimes against the victim
husband violated double jeopardy. These counts included burglary with
a battery, attempted strong arm robbery, and burglary of a conveyance.

    We have reviewed the various charges and conclude that his sentences
do not violate double jeopardy. Here, there were two victims and
essentially two separate criminal episodes: 1) the wife was attacked and
detained outside the RV; and 2) the husband was attacked inside the
victims’ home after the wife attempted to flee and Mobley returned to the
scene. As to the charges involving the victim wife, the supreme court has
held that a defendant’s convictions for burglary of a dwelling, robbery with
a weapon, and false imprisonment do not violate double jeopardy, even
when those offenses were committed during one criminal episode. See
State v. Smith, 840 So. 2d 987 (Fla. 2003). Also, the burglary with a battery
and attempted robbery charges involving the husband did not violate
double jeopardy. McCloud v. State, 208 So. 3d 668 (Fla. 2016) (noting
“burglary and robbery both require proof of an element unique to each
offense”); see also McAllister v. State, 718 So. 2d 917, 918-19 (Fla. 5th DCA
1998) (conviction for robbery was not subsumed for double jeopardy
purposes within conviction for burglary with battery). Furthermore, as to
the charge of burglary with a battery on the husband, appellant was
charged as a principal in the first degree to Mobley’s battery of the
husband inside the victims’ home. See §§ 777.011, 810.02(2)(a), Fla. Stat.
(2015). Thus, the charge of burglary of a conveyance contained an element



                                     5
that the other burglary charges did not, namely entry into the unoccupied
RV. § 810.02(4)(b), Fla. Stat. (2015).

   We affirm as to any other issues not specifically addressed in this
opinion. For the foregoing reasons, we affirm both the convictions and
sentences.

   Affirmed.

MAY and DAMOORGIAN, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                   6
