FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-2639

LT Case No. 2019-CF-048418-A

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PAUL JAMES NEWMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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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, Assistant Attorney General, Daytona Beach, for Appellee.

July 26, 2024

JAY, 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.
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I.

The victim, a fourteen-year-old female, 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 open. 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 parents 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 she 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.
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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 for 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 denied 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, 

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

new trial.

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 penalty 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-Miranda1 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 “even 

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).
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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 police 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 murders, 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 questions, 

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 claimed 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 (quoting 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 

various forms of governmental coercion prevented defendants from 
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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]ithout 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 cooperation 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 questions. 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 officer 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 any 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). 
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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 selfincrimination 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 selfincrimination.2

C.

Even if Appellant 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 

error 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 hesitancy 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 searches 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.”).
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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 constitutional 

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.

AFFIRMED. 

EDWARDS, C.J., and MACIVER, J., concur.

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Not final until disposition of any timely and 

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

9.331.

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