## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

Case No. 5 D 2 023

- 2639
LT Case No. 20 19

- CF

- 048418

- A

_____________________________

P AUL J AMES N EWMAN

,

Appellant,

v.

S TATE OF F LORIDA

,

Appellee.

_____________________________

On appeal from the Circuit Court for Brevard County

. Stephen G. Henderson , Judge

.

Matthew J. Metz, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Marissa V. Giles, Assi s tant Attorney General, Daytona Beach, for Appellee.

July 26 , 2024

J AY

, J.

A jury found Appellant guilty of lewd or lascivious battery. He seeks a new trial because in his view, a State witness improperly commented on his right to remain silent. The record shows otherwise. It also confirms there is no reasonable possibility that the jury’s verdict was influenced by the testimony that Appellant challenges.2 I.

The victim , a fourteen

- year

- old fema le, joined family and friends at a pool party at Appellant’s house. After swimming, she left the pool to use the bathroom. As she was washing her hands, she noticed Appellant peering at her through a crack in the door. Appellant pushed the bathroom door op en. He kissed the victim

, shoved her against the wall, pulled down her shorts, and forced her to have intercourse. When the attack ended, Appellant ran out of the bathroom without speaking. The victim used toilet paper and a towel to clean herself. She put the toilet paper in a wastebasket and the towel in a laundry hamper. When she returned to the pool, she told her mother that she felt poorly and wanted to go home. The family left a few minutes later.

At home later that night, the victim informed her par ents and boyfriend about Appellant’s actions. Her father called the police. When the police arrived, the victim told them what happened and described where in Appellant’s house the toilet paper and towel were located. She then went to the hospital, where s he completed
a sexual assault kit.

Detective Caswell, who worked for the Palm Bay Police Department’s Special Victims Unit, went to Appellant’s house. Appellant and his wife invited Detective Caswell inside. Detective
Caswell notified them of the victim’s allegations and asked Appellant for his version of the events. Appellant and his wife then escorted Detective Caswell to the bathroom and laundry room, where Detective Caswell found the toilet paper and towel in the places that the victim had described.

Detective Caswell asked Appellant if he would provide a buccal swab for DNA testing. Detective Caswell testified that Appellant “was hesitant at first” to agree to this request:

Q [Mr. DeMuro, for the State]: Did you ask [Appellant]
for his consent to

– for you to obtain a buccal swab from
him?

A [Detective Caswell]: Yes, sir.3 Q: And a buccal swab would be DNA, correct?

A: Yes, sir.

Q: Okay. Did he agree to that?

A: Yes, sir.

Q: Okay. Did he initially agree to it?

A: He was hesitant at first, sir.

Defense Counsel raised a speculation objection, which the court overruled. When questioning resumed, Detective Caswell once more indicated that Appellant was hesitant to give a DNA sample. Defense Counsel asked for permission to approach the bench, which the court granted. At the sidebar conference, Defense Counsel argued that Detective Caswell’s testimony about Appellant’s hesitation was “an improper comment on his right to remain silent.” The court disagreed, explaining that while “it
would be different” if Appellant “didn’t consent,” his agreement to provide the DNA sample made Defense Counsel’s argument “a moot point.”

Detective Caswell submitted the toilet paper, towel, buccal swab, and sexual assault kit to the Florida Department of Law
Enforcement f

or analysis. That analysis indicated the presence of Appellant’s DNA inside the victim’s vagina and found that it was 700 billion times more likely that Appellant was the DNA contributor rather than some other person.

In his trial testimony, Appellant den ied having sex with the

victim. He was thirty

- four years old on the date of the pool party.

He knew that the victim was fourteen.

The jury found Appellant guilty as charged, and the court sentenced him to fifteen years in prison. As he did at trial, Appel lant argues on appeal that the court should not have allowed Detective Caswell to testify that Appellant hesitated before providing a DNA sample. He maintains that this testimony was an4

improper comment on his right to remain silent, which warrants a

new t rial.

II.

“A trial court’s ruling on the admissibility of evidence is subject to an abuse of discretion standard of review, but the court’s discretion is limited by the rules of evidence and the applicable
case law.” Poole v. State , 284 So. 3d 604, 607 (Fla. 5th DCA 2019) (quoting Horwitz v. State , 189 So. 3d 800, 802 (Fla. 4th DCA 2015)).

A.

“The privilege against self

- incrimination ‘is an exception to the general principle that the Government has the right to everyone’s testimony.’” Salinas v. Texas , 570 U.S. 178 , 183 (2013) (quoting Garner v. United States , 424 U.S. 648, 658 n.11 (1976)). It “is given effect through a person’s right to remain silent” when facing police questioning, Joe v. State , 66 So. 3d 423, 425 (Fla. 4th DCA 2011), and “guarantees that no pena lty will follow from remaining silent.” McRoberts v. State , 333 So. 3d 240, 242 (Fla. 4th DCA 2022). The State violates this privilege when, at trial, it cites a defendant’s pre

- arrest, pre

- Miranda 1 silence as substantive
evidence of his consciousness of guilt. State v. Horwitz , 191 So. 3d 429, 442 (Fla. 2016).

However, the privilege does not apply when a witness voluntarily cooperates with police inquiries. See Salinas , 570 U.S.

at 185

– 86. “Voluntary statements ‘remain a proper element in law
enforcement .’” Oregon v. Elstad , 470 U.S. 298, 305 (1985) (quoting

Miranda , 384 U.S. at 478). “Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable,” and the privilege will not protect “eve n the most damning [of voluntary] admissions.” Id. (quoting United States v. Washington , 431 U.S. 181, 187 (1977)).

1 Miranda v. Arizona , 384 U.S. 436 (1966).5 B.

The problem with Appellant’s “right to remain silent” claim is

that he chose not to remain silent. See O’Brien v. State , 367 So. 3d

528 , 535 (Fla. 4th DCA 2023) (agreeing that a prosecutor did not improperly comment on a defendant’s right to remain silent since
the defendant “ did not actually remain silent ”). Instead, he agreed to supply a DNA sample while in a voluntary conversation with a detective whom he invited into his home.

In this respect, Salinas is instructive. There, two victims were

shot to death. Salinas , 570 U.S. at 181. Police found shotgun shell casings at the scene, and their subsequent investigation led them
to Mr. Salinas. Id. Officers visited him at his home. Id. at 182. “He agreed to hand over his shotgun for ballistics testing and to

accompany po lice to the station for questioning. ” Id. In the noncustodial interview that ensued, Mr. Salinas answered the investigating officer’s questions. Id. But when the officer asked Mr. Salinas if his shotgun would match the shell casings from the scene
of the m urders, he declined to answer. Id. He “ [l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” Id. (alterations in original). “After a few moments of silence,” the officer asked more q uestions,
which Mr. Salinas answered. Id.

When Mr. Salinas was later tried for the murders, the prosecution cited “his reaction to the officer’s question” about the shotgun “as evidence of his guilt.” Id. The jury found him guilty.
Id. On appeal, he claim ed that the prosecution violated his privilege against self

- incrimination. Id. In Justice Alito’s plurality opinion, the self

- incrimination argument was soundly rejected. Id. at 183. While a “witness need not expressly invoke the privilege
where some form of official compulsion denies him ‘a free choice to admit, to deny, or to refuse to answer,’” the court found that Mr. Salinas could not “benefit from th[is] principle because it [was] undisputed that his interview with police was voluntary.” Id. at 185 ( q uoting Garner

, 424 U.S. at 657). Mr. Salinas “agreed to accompany the officers to the station and ‘was free to leave at any time[.]’” Id. “That place[d] [Mr. Salinas’s] situation outside the scope of Miranda and other cases in which [the Court] held that

v arious forms of governmental coercion prevented defendants from6

voluntarily invoking the privilege. ” Id.

Like Mr. Salinas, Appellant “voluntarily answered the questions of a police officer who was investigating” a crime. See id. at 181. He did so “[w]itho ut being placed in custody” or otherwise facing “some form of official compulsion.” See id. at 181, 185. While he may have initially “balked” in response to one question

— in the context of consenting to the buccal swab

— that did not transform his willing coo peration with Detective Caswell into the exercise of his right to remain silent. See id. at 181.

Appellant’s case is also like State v. Johnson , 157 P.3d 198 (Or. 2007). There, an officer testified that the defendant “hesitated” before answering certain q uestions. Id. at 204. The defendant argued that this testimony infringed on his right to remain silent. The Supreme Court of Oregon did not buy that

claim:

One difficulty with defendant’s argument is the factual premise that underlies it. The officer did not testify at trial that defendant remained silent in response to his questions. Rather, he testified that defendant
hesitated and then answered. The office r told the jury
that defendant “would be non

- responsive to some statements and questions, so I’d have to repeat them to get him to respond to me.” The officer went on and set out defendant’s responses to his questions

— responses in
which defendant denied an y knowledge of the events to which the officer referred. Far from testifying that defendant remained silent in the face of questions, the officer testified only that defendant paused before responding.



### . . . [B]ecause the officer did not testify that defendant remained silent in response to his questions, his testimony was not a comment on defendant’s silence,
much less a comment on defendant’s exercise of his constitutional right to remain silent.

Id. at 204

– 05 (footnote omitted).7 This reasoning is sound, as it captures the obvious truth that hesitating before speaking is not the same as staying quiet. See

McRoberts , 333 So. 3d at 242 (“The privilege against self

incrimination guarantees that no penalty will follow from remaining silent .” (emphasis added)). Having freely decided to cooperate with Detective Caswell’s investigation

— including the request for a DNA swab

— Appellant cannot sanitize that decision by trying to assert ex post facto his privilege against self

incrimination. 2

C.

Even if Appel lant could show a constitutional violation, it
would still not entitle him to the new trial he seeks. “ Comments on a defendant’s silence are one class of errors subject to the harmless error analysis.” Davis v. State , 347 So. 3d 315, 323 (Fla. 2022). An

er ror is harmless when “there is no reasonable possibility” that it
“contributed to the conviction.” State v. DiGuilio , 491 So. 2d 1129, 1135 (Fla. 1986).

Appellant makes much of Detective Caswell’s brief comments about Appellant’s initial hesitancy to give a DNA sample. The far more pressing problem for Appellant was what his DNA sample ultimately revealed, which was the presence of his DNA

— consistent with semen

— inside a fourteen

- year

- old victim. Had the court sustained Appellant’s objection to the hesitanc y comments, there is no reasonable possibility that the jury would have reached
a different verdict. See Jackson v. State , 301 So. 3d 477, 480 (Fla. 1st DCA 2020) (holding that while it was error to allow a witness

2 See also Braddy v. State , 111 So. 3d 810, 840 (Fla. 2012) (“Braddy challenges the State ’ s comment describing Braddy ’ s hesitation before he signed the form consenting to let police search the Town Car. Braddy . . . claims that it constitutes an improper comment on his decision to exercise his Fourth Amendment right
to be free from unreasonable s earches and seizures. Braddy ’ s argument is contradicted by the evidence, which shows that Braddy did in fact consent to the search. The challenged comment merely recounted evidence relevant to the context of that consent. It was not improper.”).8

to testify that she found a fifteen

- year

- old victim of lewd and lascivious battery to be credible based on demeanor, the error was
harmless in a case where the defendant’s semen was “found in the crotch area” of the victim’s clothing).

III.

Appellant’s pursuit of a new trial rests on a constitu tional privilege that the State did not violate. And even if the State had done so in the manner Appellant claims, it would not have changed the outcome of this case. Having failed to identify a reason to disturb the jury’s conclusion that he is guilty of the lewd or lascivious battery of the victim , Appellant is not entitled to a new
trial.

A FFIRMED

.

E DWARDS

, C.J., and M AC I VER

, J., concur

.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331

.

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