Senser v. State, 4D16–2893

243 So.3d 1003

Greg SENSER, Appellant,

v.STATE of Florida, Appellee.

No. 4D16–2893

District Court of Appeal of Florida, Fourth District.

[May 9, 2018]

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 Miranda¹ 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 .

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 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 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 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 , 237 So.3d 1168, 1170 (Fla. 1st DCA 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...