ORIGINA L

IN THE SUPREME COURT OF FLORIDA

RAYMOND WELDON MARSTON,

Petitioner,

v. Case No. SC12-357

STATE OF FLORIDA,

Respondent.

ON PETITION FOR REVIEW FROMTHE SECOND DISTRICT COURT OF APPEAL

STATE OF FLORIDA

MERITS BRIEF OF RESPONDENT

PAMELA JO BONDIATTORNEY GENERAL

ROBERT J. KRAUSSChief-Assistant Attorney GeneralBureau Chief, Tampa Criminal AppealsFlorida Bar No. 238538

SONYA ROEBUCK HORBELTAssistant Attorney GeneralFlorida Bar No. 0937363Concourse Center 43507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013(813)287-7900Fax (813)281-5500Sonya.horbelt@myfloridalegal.com

COUNSEL FOR RESPONDENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ISSUE IWHETHER THE SECOND DISTRICT APPLIED THE PROPER HARMLESSERROR TEST TO COMMENTS ON THE DEFENDANT'S RIGHT TO REMAINSILENT? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ISSUE IIWHETHER THE TRIAL COURT PROPERLY DENIED PETITIONER'SMOTION TO SUPPRESS EVIDENCE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF FONT COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TABLE OF AUTHORITIES

CASES

Andrews v. State,443 So. 2d 78 (Fla. 1983) ....................................13

Cargle v. State,770 So. 2d 1151 (Fla. 2000). . . . . . . . . . . . . . . . . . 19

Crooks v. State,710 So. 2d 1041 (Fla. 2d DCA 1998) ...........................22

Cuervo v. State,967 So. 2d 155 (Fla. 2007) ...................................19

Fitzpatrick v. State,900 So. 2d 495 (Fla. 2005) ...................................23

Geralds v. State,35 Fla. L. Weekly S503 (Fla. 2010) ...........................11

Glock v. Moore,776 So. 2d 243 (Fla. 2001) ...................................21

Hilton v. State,961 So. 2d 284 (Fla. 2007) ...................................22

Holland v. State,696 So. 2d 757 (Fla. 1997).he ................................21

Marston v. State,36 Fla. L. Weekly D2672 (Fla. 2d DCA December 7, 2011) ........9

Milks v. State,894 So. 2d 924 (Fla. 2005). . . . . . . . . . . . . . . . . . 19

Pagan v. State,830 So. 2d 792 (Fla. 2002) ...................................20

State v. DiGuilio,491 So..2d 1129 (Fla. 1986) ..........................9,14,16-18

State v. Hernandez,718 So. 2d 833 (Fla. 3d DCA 1998) ............................22

State v. Ratner,948 So. 2d 700 (Fla. 2007). . . . . . . . . . . . . . . . . . 19

11

State v. Riley,638 So. 2d 507 (Fla. 1994) ...................................22

State v. Rodriguez,904 So. 2d 594 (Fla. 5th DCA 2005) ...........................21

Varona v. State,674 So. 2d 823 (Fla. 4th DCA 1996) ................... 9,12,13,16

Ventura v. State,29 So. 3d 1086 (Fla..2010) ....................................9

Whren v. United States,517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) .......21

STATUTES

Chapter 316, Florida Statutes ................................20

Section 316.003(75), Florida Statutes ........................20

Section 316.072(1), Florida Statutes .........................20

Section 316.090(2), Florida Statutes .......................21,22

Section 316.125(2), Florida Statutes ......................21,22

Section 316.2065(1), Florida Statutes ........................20

111

STAT m NT OF THE CASE AND FACTS

Respondent accepts petitioner's statement of the case and

statement of the facts with the following additions, corrections,

and clarifications:

MOTION TO EXCLUDE MENTION OF CODIS DATABASE

Prior to trial, petitioner filed a "motion in limine to

exclude mention of the CODIS database." (V1: R 70-71) . In this

motion, petitioner asserted that "[o]n May 29, 2008 the saliva

swabbed from the alleged victim's body was crossed checked against

the convicted of fender data base and was reported as a "match" for

Raymond Marston." (V1: R 70) . The State agreed not to mention the

database and the motion was granted. (V2: R 3-5) .

SUPPRESSION HEARING

At the suppression hearing, Detective Harris testified that

the description of the suspect was a white male, with long,

stringy, straight hair and a scab or some type of injury on the

front part of his head. (V2: T 12-13) . On May 27, 2008, Harris

went to a 7-11 near the scene of the attack to review surveillance

video. While there, he saw petitioner on a bicycle at the gas

pumps, speaking to a female. Harris and petitioner made eye

contact and petitioner immediately ended his conversation and took

off. (V2: T 15, 20). When petitioner got to the exit area of the

parking lot, he "failed to come to a stop and darted directly - -

basically in a northeastern direction across Sheldon Road, across

1

the median and onto the east side of Sheldon Road." (V2: T 15) .

Harris then stopped petitioner and requested identification, which

petitioner provided. At that time, Harris noticed that petitioner

had a scab on the front of his head. (V2: T 16) . After checking

for wants and warrants, Harris again made contact with petitioner,

at which time petitioner stated that he was leaving the area

because he had been given a trespass warning for the 7-Eleven eight

months ago. Based on that information, Harris returned to his

vehicle and contacted dispatch to determine whether there was a

valid trespass warning in effect. There was, so Harris placed

petitioner under arrest for trespass. (V2: T 16-17) . On May 30,

2008, Harris was informed of the database hit indicating that DNA

from the victim's sexual battery kit matched petitioner. (V2: T

18).

The prosecutor argued that the stop was a valid traffic stop,

and that the evidence would inevitably have been discovered based

on the match of petitioner's DNA from the CODIS database. (V2: T

25-26).

The trial court denied the motion to suppress, finding that

the stop was a valid traffic stop, that the length of the detention

was reasonable, and that the evidence would inevitably have been

discovered. (V2: T 26-28) .

DISCUSSION OF THE RIGHT TO REMAIN SILENT

During voir dire, the prosecutor informed the prospective

2

jurors that petitioner had the right to remain silent and that they

could not use it against him if he chose to exercise that right,

and attempted to determine the prospective jurors' understanding of

the right and opinions on the subject. (V2 T 56-61). The

prosecutor began the discussion by explaining the burden of proof .

(V2 T 56) . The prosecutor then explained petitioner's right to

remain silent and that any exercise of that right could not be held

against him, stating:

[Prosecutor] : . . . like I said, Mr. Marstoncan sit there and not say a word. He can readmagazines. He could bring in a laptop andplay on Facebook all day long if he wanted to,and you cannot hold that against him. Do youunderstand? Does everyone understand that?

(V2 T 57) (emphasis added) . The prosecutor then further explained

the State's burden of proof and asked several of the potential

jurors if they understood that burden. (V2: T 58) . After

receiving an affirmative reply, the prosecutor continued:

[Prosecutor]: Ms. Maldonado, you understandthat he has the absolute right to remainsilent?

PROSPECTIVE JUROR MALDONADO : Yes .

[Prosecutor] : You can't go back into the Juryroom when you deliberate and think, you knowwhat, I wonder what he would have said? Doyou understand that?

PROSPECTIVE JUROR MALDONADO: Yes .

3

(V2 T 60) . The following then occurred:

PROSPECTIVE JUROR NAKEN: So he doesn't have tobe here?

[Prosecutor] : And that would be Mr. Naken forpurposes of the record?

PROSPECTIVE JUROR NAKEN: Yeah.

[Prosecutor] : He has a right to staycompletely quiet. It's my job to prove thiscase.

PROSPECTIVE JUROR NAKEN: But he can talk?

[Prosecutor]: He can if he wants to.

PROSPECTIVE JUROR NAKEN: His people, they cantalk for him?

[Prosecutor] : They can do whatever they feelis appropriate . Like I said, they may want toput him on the stand. Do you have a problemwith that, Mr. Naken?

PROSPECTIVE JUROR NAKEN: No.

[Prosecutor]: You could judge the evidencefairly and impartially?

PROSPECTIVE JUROR NAKEN: Correct.

[Prosecutor]: You would hold me to my burdenand make sure it is only to this table thatyou look to for the evidence; do youunderstand that?

PROSPECTIVE JUROR NAKEN: They can't give anyevidence?

[PROSECUTOR] : I'm sure the defense willprobably go into that a little more.

[Defense Counsel]: Judge, I object. May weapproach? (T 61) .

4

(V2: T 61) . A bench conference was held, at which the following

occurred:

[Defense Counsel] : Basically, Judge, I think Isee where Ms. Peters is going with this, butthis guy is getting confused, and he's going toask us to address his right to remain silent.Can the Court gives some kind of curative thathe has a right to remain silent because thisguy is getting the wrong idea?

THE COURT: You will have an opportunity toquestion him if you don't think that Ms . Petershas done an adequate job. Make clear to himthat they have no obligation.

[Prosecutor] : Absolutely.

(V2: T 61-62) (emphasis added) .

Defense counsel spent approximately thirty transcript pages

discussing petitioner's right to remain silent. (V2: T 143-168,

170-173). After defense counsel stated that petitioner had the

right to remain silent, prospective juror Naken asked: "I know he

can remain silent. He can do whatever he wants, but is he allowed

to speak?" (V2: T 143) .

At the beginning of the trial, before the presentation of any

evidence, the jury was instructed as follows on petitioner's right

to remain silent:

In every criminal proceeding thedefendant has the absolute right to remainsilent. At no time is it the duty of adefendant to prove his innocence. From theexercise of a defendant's right to remain

5

silent, a jury is not permitted to draw anyinference of guilt, and the fact that adefendant did not take the witness stand mustnot influence your verdict in any mannerwhatsoever.

(V3: T 213) (emphasis added). During the final instructions, the

jury was instructed that it must not be influenced in any way by

petitioner's decision not to testify. (V1: R 111; V6: T 713-714).

TRIAL TESTIMONY

The victim, E.C., was twenty-one years old and was walking

home from working at Starbucks when petitioner attacked her. (V3: T

234, 236). During the attack, E.C. was punched in the head at

least nine times. (V3: T 247, 297). When she tried to use her

cell phone to call 911, petitioner grabbed her arm and tried to

twist the phone away. E.C. described the pain of being hit as

"excruciating." (V3: T 245-246). By the time the punching stopped,

her left eye was so swollen that she could not see out of it, and

it felt like her nose was broken. Her hand felt very stiff and she

had to keep it curled to lessen the pain. (V3: T 247). She was

dragged by her neck and was forced to crawl on her hands and knees.

(V3: T 251) . She was pulled by her arm down an embankment. (V3:

T 253). She was pleading to go home. (V3: T 255). Petitioner

told her that if she tried to get away he would kill her. (V3: T

257).

During the attack, petitioner kissed and fondled the victim's

breasts. (V3: T 258). He also placed his mouth on the victim's

6

vagina. (V3: T 258-259, 261) . At some point, the victim felt a

scab on the top of her attacker's head. (V3: T 264) . After walking

home, the victim was taken to the hospital by ambulance. (V3: T

275). She identified photographs of herself taken at the hospital

and testified that the injuries depicted in the photos were

inflicted by her attacker. (V3: T 277) .

Deputy Lyonelle De Veaux, of the Hillsborough County Sheriff's

Office, testified that he responded to the sexual battery call in

the early morning hours of May 27, 2008. (V4: T 333) . When he

arrived, the victim was crying. (V4: T 334) . Her left eye was

swollen shut, there was a cut on her lip, and her face was swollen

and had dried blood on it. (V4: T 336) .

Detective Robert Der testified that he was dispatched to the

bridge on Sheldon Road just after 1:00 a.m. on May 27, 2008. (V4:

T 344). Blood was discovered at various locations on and around

the bridge. (V4: T 354-359, 363) . The victim's eyeliner, glasses,

earrings, and deodorant were found at the scene. (V3: T 272-273;

V4: 354, 359, 362).

Mollie Rae Jerman, a nurse practitioner, testified that she

spoke to the victim at Tampa General Hospital at about 3:00 a.m. on

May 27, 2008. (V4: T 396, 402-403) . The victim had obvious

injuries and was unable to open her eyes. (V4: T 397-398) . The

victim indicated that she had been vaginally penetrated by a

tongue, a penis, and a finger. (V4: T 404) . Jerman took swabs of

7

the victim's vaginal area, face, and breasts to be examined for DNA.

(V4: T 409) . She also conducted a physical examination. The victim

had friction burns on both knees, several bruises around her knees,

the back of her left hand was tender and swollen, and she had a

bump on her head. There was debris or dirt, as well as swelling,

redness, and tenderness, at the vaginal entrance. Nurse Jerman was

unable to use a speculum because it was too painful. (V4: T 413) .

Detective Dirks testified that petitioner was not cooperative

when Harris and Dirks tried to execute a search warrant for a

buccal swab. (V4 : T 501-502) .

Referring to the vaginal swab, the analyst testified that she

could not say that Michael Luna "cannot be excluded or he is

included . . . . It is so low that I can't make a determination."

(V4: T 572-573) . With regard to the vulva swab, she testified that

she could say that Michael Luna cannot be excluded. (V4: T 574) .

A foreign DNA prof ile was found on the face swabs . (V4 : T

577) . Michael Luna was not a possible source of that DNA. (V4: T

579) . Foreign DNA which matched petitioner's DNA was found on the

breast swabs. (V4: T 581-582) . The DNA types from the face swab

were consistent with those from the breast swab. (V4: T 582) .

Blood found on the bridge and the bridge railing matched

petitioner's DNA. (V4: T 615-616, 620-624) .

APPEAL

In district court case number 2D10-305, petitioner sought

8

appellate review of his convictions for aggravated battery with

great bodily harm, kidnapping, three counts of sexual battery using

force causing injury, and attempted robbery. On appeal, petitioner

asserted that the trial court had abused its discretion by failing

to give a curative instruction after the prosecutor improperly

commented on petitioner's right to remain silent . On December 7,

2011, the district court issued an opinion affirming petitioner's

convictions and sentences. Marston v. State, 36 Fla. L. Weekly

D2672 (Fla. 2d DCA December 7, 2011) . In affirming petitioner's

convictions, the district court found that the prosecutor had

improperly commented on petitioner's right to remain silent, but

that there was "no reasonable possibility that the failure to give

a curative instruction affected the verdict."

Petitioner sought this Court's discretionary review on the

ground that the district court's application of the harmless error

test conflicts with the decisions in Varona v. State, 674 So. 2d

823 (Fla. 4th DCA 1996) , Ventura v. State, 29 So. 3d 1086 (Fla.

2010), and State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). This

Court granted review on November 11, 2012.

9

SUMMARY OF THE ARGUMENT

ISSUE I.

The prosecutor's discussion, during voir dire, of petitioner's

right to remain silent was not improper. Moreover, if there were

any improper comments by the prosecutor, they were harmless. The

Second District applied the correct harmless error test and its

decision should be affirmed.

ISSUE II.

The trial court properly denied petitioner's motion to suppress

evidence. Florida's traffic laws do apply to bicycles and the stop

of petitioner was reasonable based either on his failure to stop

before entering a public roadway from a private driveway or on his

riding over the median. Moreover, even if the stop was improper,

the evidence was admissible because it ultimately would have been

discovered by legal means.

10

ARGUMENT

ISSUE I

WHETHER THE SECOND DISTRICT APPLIED THE PROPERHARMLESS ERROR TEST TO COMMENTS ON THEDEFENDANT'S RIGHT TO REMAIN SILENT?

The State maintains, as it did below, that the prosecutor's

discussion during voir dire of petitioner's right to remain silent

was not improper. The prosecutor was attempting to determine the

prospective jurors' understanding of the right and opinions on the

subject and specifically informed them that they could not hold it

against petitioner if he chose to exercise his right to remain

silent. This was not improper.

"[W]here a juror's attitude about a particular legal doctrine

. . . is essential to a determination of whether challenges for cause

or peremptory challenges are to be made, it is well settled that

the scope of the voir dire properly includes questions about and

references to that legal doctrine . . . ." Geralds v. State, 35

Fla. L. Weekly S503 (Fla. 2010) (quoting Walker v. State, 724 So. 2d

1232, 1233 (Fla. 4th DCA 1999) ) . A juror's attitude about a

defendant's right to remain silent is essential to a determination

of whether challenges for cause or peremptory challenges are to be

made and it is not improper to discuss the issue during voir dire

as long as the jurors are informed that they cannot hold the

exercise of the right against the defendant.

A juror's understanding of , and opinions on, a defendant's

11

right to remain silent are important considerations in determining

whether the juror can be fair and impartial and follow the law, and

it benefits both the defense and the prosecution to be aware of a

potential juror's views on the issue. A misunderstanding of the

right could be detrimental to either side, and either side should

be permitted to address the issue to determine whether potential

jurors have a proper understanding of the issue.

In this case, it appears that prospective Juror Naken may have

been under the impression that although petitioner had the right to

remain silent, he did not have the right to testify. Not allowing

the prosecutor to address the issue in voir dire would prevent the

State from discovering and correcting such an impression, and it

would be unfair to the State for a juror to believe that a

defendant was prevented from testifying and telling his side of the

story. The prosecutor said nothing which would devalue the right

to remain silent. The prosecutor did not know whether petitioner

would choose to testify and made no insinuation that a failure to

testify would indicate guilt in any manner. And both the

prosecutor during voir dire and the court after the jury was

selected specifically told the jurors that they could not hold a

defendant's exercise of his right to remain silent against him.

Under these circumstances, there was no error.

Varona v. State, 674 So. 2d 823 (Fla. 4th DCA 1996), relied on

by petitioner, is distinguishable because there is no indication in

12

that case that the jury was informed that they could not use the

defendant's exercise of his right not to testify against him. The

Varona court, in finding the prosecutor's comments improper, relied

on Andrews v. State, 443 So. 2d 78 (Fla. 1983) . In Andrews, this

Court found it improper for the trial court to inform the jury of

the defendant's right not to testify without also informing them

that they could not use the exercise of that right against the

defendant. The Court indicated that a trial court can inform the

jury of a defendant's right not to testify, even over a defense

objection, as long as the jury is also informed that they cannot

use the exercise of that right against the defendant. The same

should apply to a prosecutor's discussion of the subject during voir

dire. There are legitimate reasons for discussing the right to

remain silent during voir dire. As long as the jury is informed

that they cannot use the defendant's exercise of that right against

him, such a discussion is not improper. The jury in this case was

so informed and this Court should find that the prosecutor's

discussion of petitioner's right to remain silent did not constitute

improper comments on that right.

Moreover, if the prosecutor's comments were improper, the

Second District properly found any error to be harmless. Upon

objecting, defense counsel requested a curative instruction

informing the jury that petitioner had an absolute right not to

testify. (V2 T 61) . This is exactly what the jury had already been

13

told. Moreover, although the trial court did not give a curative

instruction at the time one was requested, once a jury was

selected, and before any evidence was presented, the court did

instruct the jury on petitioner's right riot to testify, including

instructing the jury that they could not use petitioner's exercise

of that right against him. (V3 213) . Under these circumstances,

there is no reasonable possibility that the discussion of

petitioner's right to remain silent af fected the verdict and any

error in not giving such an instruction was harmless under the test

set forth in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) .

Petitioner contends that the Second District failed to

properly apply DiGuilio. Petitioner asserts that the district

court failed to consider all of the evidence and that the factors

relied on by that court did not support its conclusion that any

error was harmless. Petitioner is wrong. The Second District

explained its finding of harmless error as follows:

. . . we find no reasonable possibility thatthe failure to give a curative instructionaffected the verdict. See Hitchcock v. State,755 So.2d 638, 643 (Fla.2000) ("Any error inprosecutorial comments is harmless if there isno reasonable probability that those commentsaffected the verdict." (citing King v. State,623 So.2d 486, 487 (Fla.1993)). Comment on adefendant's right to remain silent, inferringthat he has any burden to prove his innocence,potentially can affect a verdict in two ways.First, the jury may infer guilt because thedefendant did not take the stand. Second, thecomment on silence may have a coercive effect

14

on the defendant, who decides he had bettertestify, when otherwise he may have chosen toremain silent .

The former situation presented itself inVarona. The evidence as to the robbery was"strong, but not 'clearly conclusive,'" and thevictim did not identify the appellant in courtas her assailant. 674 So.2d at 825. Here,however, the evidence was stronger. Mr.Marston's DNA matched DNA found on thevictim's breast. The victim's description ofher assailant matched Mr. Marston, including aprotruding Adam's apple, a scabbed patch shehad felt on top of his head, long thinninghair, and facial scruff. She identified himfrom a photopack and said she was seventy-fivepercent sure he was her attacker.

Andrews v. State, 443 So.2d 78(Fla.1983), illustrates the second way thatcomment on a defendant's right to remainsilent can affect a verdict. In Andrews, thetrial court refused a cautionary instructionafter the prosecutor's comment on thedefendant's right to remain silent, and theappellant decided to testify on his ownbehalf. Id. at 83. The supreme court reversedand remanded for a new trial, concluding thatthe comment on silence may have had a coerciveeffect on the appellant. Id. at 85; see alsoHarrell v. State, 647 So.2d 1016, 1018 (Fla.4th DCA 1994) (same) . In contrast here, thepossibility of coercion to testify is absent;Mr. Marston remained silent.

Although the trial judge declined to givea formal curative instruction, he directed theprosecutor to make it clear to the jurors thatthe defense had no burden of proof . And, thetrial judge instructed the jury beforedeliberating that they must not be influencedin any way by Mr. Marston's decision not totestify. We must assume that the jury followedthese instructions. See Crain v. State, 894So.2d 59, 70 (Fla.2004) (citing Burnette v.State, 157 So.2d 65, 70 (Fla.1963)). Underthese circumstances, we cannot say that the

15

trial court abused its discretion in denying acurative instruction.

This discussion demonstrates that the Second District applied the

proper harmless error test, i.e., the DiGuilio test.

Petitioner contends that the district court did not properly

apply the DiGuilio test because it "cherry-picked facts from the

record to support its result; it did not evaluate all the

evidence ." (Petitioner's Merits Brief at page 21) . Petitioner bases

this claim on the fact that the district court pointed out facts

which distinguished the instant case from Varona and demonstrated

that the evidence of guilt in this case was stronger than that in

Varona. However, the fact that the court mentioned only those facts

which distinguished Varona ln no way indicates that it did not

consider all of the evidence.

Moreover, although the district court's opinion indicates that

the court considered the strength of the evidence in making its

determination, nothing in DiGuilio prohibits a court from

considering the strength of the evidence in performing a harmless

error analysis. In fact, in DiGuilio, in explaining why there

should not be a per se rule of reversal for impermissible comments

on silence, this Court stated:

. . . It would be possible to set forth aninfinite number of realistic hypotheticalcases where an analysis of the strength andnature of the permissible evidence of guiltand of the strength and nature of the

16

impermissible comment on silence would showbeyond any reasonable doubt that the juryverdict was not affected by the comment onsilence. Accordingly, it cannot be said thatcomment on silence always denies the accused afair trial and is thus subject to per sereversal.

DiGuilio, 429 So. 2d at 1137. Moreover, in explaining the test to

be applied in determining whether an error was harmless, this Court

stated:. . . Application of the [harmless error] testrequires not only a close examination of thepermissible evidence on which the jury couldhave legitimately relied, but an even closerexamination of the impermissible evidencewhich might have possibly influenced the juryverdict.

Id. at 1138. This Court then discussed the strength and nature of

the evidence at trial and the improper comments in DiGuilio and

determined that the error in that case was not harmless. Thus, it

is clear that the strength and nature of the evidence can and

should be considered in making a harmless error determination,

although the ultimate question is not how strong the evidence is,

but whether there is any reasonable possibility that the error

affected the verdict. Id.

It is clear from a review of the district court's entire

decision that it applied the correct harmless error test and that

the strength of the evidence was just one factor, and not even the

major factor, that the court considered in making its

determination. In addition to the strength of the evidence, the

17

court considered the manner in which comments on silence might

affect the verdict, and analyzed whether the comments in the

instant case might have af fected the verdicts in any such manner.

Moreover, it is clear that the court relied more on the fact that

the jury was instructed that it could not use petitioner's exercise

of his right not to testify against him than on the strength of the

evidence in determining that any error was harmless. The court

specifically found that there was no reasonable possibility that

the failure to give a curative instruction af fected the verdict and

explained its reasons for so finding. Those reasons included not

only the strength of the evidence but the nature of the

instructions to the jury. Petitioner's claim that the court below

failed to properly apply the harmless error test set forth in

DiGuilio is without merit.

The question before the district court in this case was

whether the trial court erred in failing to give a curative

instruction concerning petitioner's right not to testify. Because

both the prosecutor and the court instructed the jury that

petitioner had an absolute right not to testify and that his

exercise of that right could not be held against him, the district

court found that there was "no reasonable possibility that the

failure to give a curative instruction affected the verdict." This

was a proper application of DiGuilio and the Second District's

opinion should be affirmed.

18

E

ISSUE II

WHETHER THE TRIAL COURT PROPERLY DENIEDPETITIONER'S MOTION TO SUPPRESS EVIDENCE?

Petitioner contends that the trial court erred in denying his

motion to suppress. This Court should decline to review this issue

because it was not addressed by the district court. Although this

Court has discretion to review issues beyond the conflict issue, it

generally declines to do so when the issue has not been addressed

by the district court. See State v. Ratner, 948 So. 2d 700, 702

n.1 (Fla. 2007); Milks v. State, 894 So. 2d 924, 925 (Fla. 2005);

Cargle v. State, 770 So. 2d 1151, 1155 n.3 (Fla. 2000).

If this Court does review this issue, it should find that the

motion to suppress was properly denied. Petitioner asserts that

Detective Harris had no valid basis for stopping him and that

Florida's traf f ic laws do not apply to bicycles . Petitioner's

argument is without merit . Florida's traf f ic laws do apply to

bicycles and the stop of petitioner was reasonable based either on

his failure to stop before entering a public roadway from a private

drive or on his riding over the median. Furthermore, even if the

stop was improper, the evidence was admissible because it

ultimately would have been discovered by legal means . Thus, the

trial court properly denied petitioner's motion to suppress.

STANDARD OF REVIEW

On appeal from the denial of a motion to suppress, legal

questions are reviewed de novo. See Cuervo v. State, 967 So. 2d

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155, 160 (Fla. 2007). However, the trial court's ruling is

presumed correct and this court must interpret the evidence and

reasonable inferences therefrom in a manner most favorable to

sustaining that ruling. Pagan v. State, 830 So. 2d 792 (Fla.

2002) .

APPLICABILITY OF FLORIDA'S TRAFFIC LAWS TO BICYCLISTS

Florida's traf f ic laws are contained in Chapter 316, Florida

Statutes. Section 316.072(1) provides: "The provisions of this

chapter shall apply to the operation of vehicles and bicycles . . .

upon all state-maintained highways, county-maintained highways, and

municipal streets and alleys and wherever vehicles have the right

to travel." Section 316.003(75) defines a "vehicle" as "[e]very

device, in, upon, or by which any person or property is or may be

transported or drawn upon a highway, excepting devices used

exclusively upon stationary rails or tracks ." A bicycle clearly

fits this definition. Section 316.2065(1) provides: "Every person

propelling a vehicle by human power has all of the rights and all

of the duties applicable to the driver of any other vehicle under

this chapter, except as to special regulations in this chapter, and

except as to provisions of this chapter which by their nature can

have no application." Based on these statutes, it is clear that

Florida's traffic laws do in fact apply to bicycles, and

petitioner's argument to the contrary is without merit .

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VALIDITY OF THE TRAFFIC STOP

In determining the validity of a traffic stop, "generally the

only determination to be made is whether probable cause existed for

the stop in question. " Holland v. State, 696 So.2d 757, 759 (Fla.

1997) . " [T] he violation of a traff ic law provides suf f icient

probable cause to make a lawful stop . . . ." Glock v. Moore, 776

So. 2d 243 (Fla. 2001). Thus, if Detective Harris had probable

cause to believe that petitioner violated a traffic law, the stop

was reasonable under the fourth amendment and the trial court

properly denied the motion to suppress. See Whren v. United

States, 517 U.S. 806, 116 S. Ct. 1769, 1777, 135 L. Ed. 2d 89

(1996) . This is true regardless of Harris' subjective intentions.

State v. Rodriguez, 904 So.2d 594, 598 (Fla. 5th DCA 2005) .

Detective Harris testified that petitioner failed to stop when

exiting the 7-11 and entering a public roadway. Section 316.125 (2)

Florida Statutes requires that a vehicle entering a road from a

private driveway in a business or residential district stop before

entering the roadway. Detective Harris had probable cause to

believe that petitioner had violated section 316.125(2). Thus, the

stop of petitioner was lawful, and the trial court properly denied

petitioner's motion to suppress .

Moreover, section 316.090(2), Florida Statutes prohibits any

vehicle being driven over, across, or within any median. Detective

21

Harris testified that petitioner drove his bicycle across the

median. Thus, Harris had probable cause to stop petitioner for a

violation of section 316.090(2). See State v. Hernandez, 718 So.

2d 833, 836 (Fla. 3d DCA 1998) ("The driver's undisputed act of

driving across the grassy median . . . was a civil traffic

violation for which he could have been cited by the police pursuant

to section 316.090(2). The driver's commission of this traffic

infraction thus provided the detectives with probable cause for the

lawful stop and detention of this vehicle, regardless of their

actual motives.")

Contrary to petitioner's assertions, it is irrelevant whether

petitioner's actions were unsafe or affected any other traffic.

Neither section 316.125(2) nor section 316.090(2) contain any

language suggesting that a violation requires a finding that the

driver's actions be unsafe or affect any other traffic. This

distinguishes this case from the cases relied on by petitioner such

as State v. Riley, 638 So. 2d 507 (Fla. 1994), Crooks v. State, 710

So. 2d 1041 (Fla. 2d DCA 1998) and Hilton v. State, 961 So. 2d 284

(Fla. 2007). In each of those cases, the statute at issue

indicated that a violation required the driver's conduct to affect

other drivers or create a reasonable safety concern.

Petitioner's assertion that the State failed to prove that the

stop was not unreasonably lengthy is also without merit. Detective

Harris testified that it took just a few minutes to obtain

22

petitioner's identification and run a wants and warrants check. (V2

T 16, 20-21) . He then returned petitioner's identification to him

and petitioner indicated that he had previously been trespassed

from the 7-11. Harris then checked to see if the trespass warning

was still active, determined that it was, and arrested petitioner.

Harris' testimony demonstrates that the length of the stop was

reasonable. He stopped petitioner, obtained ID, checked for

warrants, returned the ID to petitioner, learned about the previous

trespass, checked to see if the trespass warning was still active,

and arrested petitioner. There is no indication that there was any

unreasonable delay.

INEVITABLE DISCOVERY

Finally, even if the stop was unlawful, the motion to suppress

was properly denied because the DNA and identity evidence would

inevitably have been obtained by lawful means even if there had

been no stop of petitioner. See Fitzpatrick v. State, 900 So. 2d

495, 514 (Fla. 2005) (finding DNA evidence properly admitted even if

obtained by police misconduct because it "would ultimately have

been discovered.") Even before obtaining a buccal swab from

petitioner, the police had been advised that petitioner's DNA

matched DNA found on the victim based on a comparison with a

convicted offender database. Thus, the motion to suppress was

properly denied.

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CONCLUSION

The State respectfully requests that the district court's

decision be affirmed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

has been furnished by email to Karen M. Kinney, Assistant Public

Defender, at appealfilings@pd10.state.fl.us, this 21st day of

December, 2012.

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in this

brief is 12-point Courier New, in compliance with Fla. R. App. P.

9.210 (a) (2) .

Respectfully submitted,PAMELA JO BONDIATTORNEY GEN

OB RT J. KRAUSief-Assistant Attorney General

Bureau Chief, Tampa Criminal AppealsFlorida Bar No. 2385 8

SONYA ROEBUCK H EAssistant Attorney GeneralFlorida Bar No. 0937363Concourse Center 43507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013(813)287-7900Fax (813)281-5500CrimAppTpa@myfloridalegal . comsonya.horbelt@myfloridalegal. com

COUNSEL FOR RESPONDENT

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