DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JONAVON D. GAINES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-686

[February 11, 2015]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Indian River County; Robert L. Pegg, Judge; L.T. Case No. 

312012CF001036.

Carey Haughwout, Public Defender, and John M. Conway, 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.

TAYLOR, J.

Jonavon D. Gaines appeals his conviction for robbery with a firearm. 

He argues that the trial court erred in (1) denying his motion to suppress 

because the police lacked reasonable suspicion of criminal activity to stop 

and detain him, (2) allowing the jury to hear an unredacted version of his 

taped statement, which contained the detective’s opinion as to appellant’s 

guilt and improper evidence of a collateral offense, and (3) denying his 

motion for a new trial based on the bailiff’s improper communications with 

the jury during deliberations. We reverse and remand for a new trial based 

on the first two points on appeal.

The robbery victim worked at a convenience store in Vero Beach. After 

closing the store one night around midnight, the victim got into his car 

and sat there with the windows down. A man approached him with a gun 

and demanded the store’s money bag. He gave the man the money bag, 

his eyeglasses, and his wallet, which contained his identification, money 

cards, and $14. Then the man fled towards the back of the store. The 

victim called 911.
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The victim testified that he told the dispatcher that he was robbed by a 

“tall black guy.” He said he also told the dispatcher that the robber was 

sixteen or seventeen years old and was wearing a dark colored garment 

with a hood, like the kind typically worn in winter. The victim testified 

that he saw the robber’s face and that he had seen him before when he 

came into the store.

After a proffer by the defense, the 911 call was played for the jury.

During the 911 call, the following exchange occurred when the dispatcher 

asked for a description of the suspect:

[DISPATCHER]: What, what kind of clothes did he wear?

[THE VICTIM]: Huh?

[DISPATCHER]: His clothes, like his shirt, what color was 

his shirt?

[THE VICTIM]: He was a black guy (inaudible).

The victim also told the dispatcher that the man fled on foot. After the 

tape was played, he agreed with defense counsel that he never told the 

dispatcher that the suspect was tall. But, despite evidence to the contrary 

in the 911 transcript and tape, the victim insisted that he told the 

dispatcher that the suspect was sixteen or seventeen years old.

Vero Beach Police Officer DeAcetis responded to the crime scene. He 

testified that the first BOLO sent out merely identified the perpetrator as 

a black male. A short time later, however, the officer obtained additional 

information about the suspect from the victim and he relayed it by radio 

to other police officers. The second BOLO described the perpetrator as a 

black male, sixteen to seventeen years old, with short cropped hair, 

wearing a long-sleeved dark T-shirt. The BOLO did not include any 

information about a vehicle.

Corporal Dominguez and other police officers set up a perimeter around 

the crime scene. Within about ten minutes of establishing a perimeter, 

but a half hour or more after the robbery occurred, Corporal Dominguez 

stopped appellant’s gray van about two blocks from the store. He did not 

see appellant commit any traffic infractions or engage in any suspicious 

behavior. He stopped appellant because he matched the BOLO description 

of a young black male with short cropped hair. Although appellant was 

wearing a white T-shirt instead of a long-sleeved dark shirt, Officer 

DeAcetis had explained that, based on his experience, people who commit 

crimes will sometimes change their clothes before they are caught. After 
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stopping appellant, Corporal Dominguez stood him behind his van until 

the victim could arrive for a show-up identification.

Before Officer DeAcetis escorted the victim to view appellant, he took 

him to another show-up. At this first show-up, the suspect was a black 

man, approximately thirty years old, with curly hair and a beard. During 

the second show-up, the victim identified appellant as the person who 

robbed him.

After appellant was arrested, officers found a backpack behind the front 

passenger seat of his vehicle. The backpack contained an eyeglass case, 

a handgun, and three articles of dark-colored clothes. The backpack also 

contained a wallet with the victim’s identification and money cards.

Detective Jason Jones interviewed appellant after reading him his 

Miranda rights. When the state offered the taped interview into evidence, 

defense counsel objected to introducing certain portions of the interview. 

Appellant moved in limine to redact those portions of the tape in which the 

detective expressed his opinion that appellant was guilty and untruthful, 

and that there was more than sufficient evidence to convict him of the 

robbery.

The prosecutor agreed to mute the portion of the video where the 

detective asked appellant about driving with a suspended license. But the 

trial court ruled that the remainder of the interrogation would be permitted 

because it is not uncommon for detectives to tell suspects that they are 

lying when they believe that the suspect is not being forthright with them.

The taped interview was played for the jury. At one point, Detective 

Jones stated:

You’re lying out your mouth. If your mouth is opening, 

you’re lying me. This is (inaudible) bull I think I’ve ever 

heard. You’re caught with everything at a crime scene. 

The victim identified you. He got you on video going 

around [the] damn building.

Appellant responded, “I don’t know what you’re talking about, sir.”

The interrogation continued and appellant repeatedly denied 

committing the robbery while the detective insisted he was lying. The 

detective told appellant, “There ain’t no judge, jury in this land that’s going 

to believe otherwise.”
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The following exchange occurred when Detective Jones attempted to 

collect appellant’s DNA:

(Detective Jones): Yes, you are giving me a hard time. All 

right?

(Appellant): I just want –

(Detective Jones): This, this stuff –

(Appellant): -- (audible)

(Detective Jones): -- here is to try to clear you –

(Appellant): (Inaudible)

(Detective Jones): -- and you’re doing just the opposite. 

You’re making everything you do guilty, guilty, guilty.

(Appellant): I ain’t guilty, though. That’s the point.

(Detective Jones): You are guilty. You’re as guilty as, the 

most guiltiest person I’ve seen. 

(Appellant): All right.

(Detective Jones): All right?

(Appellant): Yes, sir.

When appellant asserted his right to wait for a court order before giving 

a DNA sample, the detective told appellant that the DNA sample did not 

matter, stating: “I don’t, it makes no difference to me because I got you 

dead to rights on everything.”

The jury found appellant guilty as charged. The trial court sentenced 

him to fifteen years in prison with a mandatory minimum of ten years.

Unlawful Stop and Detention Based on BOLO

In his first point on appeal, appellant argues that the trial court erred 

in denying his motion to suppress evidence, because the police officers 

lacked a well-founded, articulable suspicion of criminal activity to stop and 

detain him. He contends that the BOLO description of the robbery suspect 

as a teenaged black male with short cropped hair was too vague and 

general to warrant his stop and detention. We agree.

“A trial court’s ruling on a motion to suppress comes to the appellate 

court clothed with a presumption of correctness and the court must 

interpret the evidence and reasonable inferences and deductions derived 

therefrom in a manner most favorable to sustaining the trial court’s 

ruling.” Jackson v. State, 18 So. 3d 1016, 1027 (Fla. 2009) (citations 

omitted) (internal quotation marks omitted). The appellate court will 

accept the trial court’s factual findings if they are supported by competent 

substantial evidence. State v. Triplett, 82 So. 3d 860, 863 (Fla. 4th DCA 
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2011). However, the trial court’s application of the law to the historical 

facts is reviewed de novo. Id.

To conduct an investigatory stop, a police officer must have “a wellfounded, articulable suspicion of criminal activity. Mere suspicion is not 

enough to support a stop.” Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).

In this case, appellant was stopped in his vehicle solely based on a 

BOLO description. “Several factors are relevant in assessing the legitimacy 

of a vehicle stop pursuant to a BOLO: (1) the length of time and distance 

from the offense; (2) route of flight; (3) specificity of the description of the 

vehicle and its occupants; and (4) the source of the BOLO information.” 

Hunter v. State, 660 So. 2d 244, 249 (Fla. 1995). “Other information which 

is relevant to determine the validity of the stop includes the time of day, 

the absence of other persons or vehicle in the vicinity of the sighting, any 

other suspicious conduct, and other activity consistent with guilt.” Sapp 

v. State, 763 So. 2d 1257, 1259 (Fla. 4th DCA 2000).

Regarding the first factor, appellant was stopped in his van about thirty 

minutes after the robbery and within two blocks of the robbery location. 

However, the BOLO did not give any basis for believing that there was a 

vehicle involved in the robbery. The only information given was that the 

perpetrator fled the scene on foot; nothing was said about a vehicle or his 

route of travel.

As to the third and fourth factors, the robbery victim provided only a 

vague, general description of the suspect as a black male between sixteen 

and seventeen years old with short cropped hair and wearing a long darksleeved shirt. Although appellant was a young black male with short 

cropped hair, that description could have fit many young black men. See 

M.M. v. State, 80 So. 3d 1125, 1126-27 (Fla. 4th DCA 2012) (holding that 

BOLO stating that “two white males had just robbed the victim at gunpoint

and fled the area on foot” lacked sufficient specificity to provide the officer

with reasonable suspicion to stop the juvenile); L.O. v. State, 44 So. 3d 

1290, 1293-94 (Fla. 4th DCA 2010) (holding that BOLO description of two 

black males, one wearing a black shirt and black pants and one wearing

a red shirt and black pants, did not provide the requisite founded 

suspicion for the juvenile’s detention); Sanders v. State, 666 So. 2d 1035, 

1036-37 (Fla. 1st DCA 1996) (BOLO describing robbers of a Wendy’s 

restaurant as “two black males, black shirt and pants and one had a white 

t-shirt on” did not provide deputy with founded suspicion to stop 

defendant’s automobile); Strong v. State, 495 So. 2d 191, 192 (Fla. 2d DCA 

1986) (holding that description of a black man wearing dark clothing was 

too vague to justify a stop); Sumlin v. State, 433 So. 2d 1303, 1303-04 (Fla. 
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2d DCA 1983) (stating that a BOLO description of a young black male in 

his twenties was too vague to justify a stop); Ross v. State, 419 So. 2d 

1170, 1170 (Fla. 2d DCA 1982) (holding that a BOLO description of a 

“black male with short cropped hair, wearing a white tee shirt and wearing 

blue jeans” could have fit many people in the area and therefore was too 

general to give officers a founded suspicion to justify the stop). Moreover, 

appellant’s clothing at the time of the stop, a white T-shirt, was 

inconsistent with the BOLO information.

The facts in this case are similar to those in Rodriguez v. State, 948 So. 

2d 912 (Fla. 4th DCA 2007). There, we held that a BOLO containing a 

description of a robbery suspect’s race, sex, height and clothing but 

lacking any mention of a vehicle in which the suspect was traveling or 

information concerning the suspect’s direction of travel did not provide 

reasonable suspicion to stop the car in which Rodriguez was riding. Id. at 

914-15. A BOLO had been issued for a black male, approximately 5’9” 

tall, wearing a black hooded shirt, black baggy pants, black sneakers, and 

carrying a silver revolver. The arresting officer stopped a vehicle in which 

the defendant was a passenger. As the defendant alighted from the 

vehicle, a gun fell out of his pocket. The officer testified that at the time of 

the stop he could not determine whether the defendant fit the description 

in the BOLO. He said that “the only thing [he] had” was a black male, 

sweating profusely and staring at him. Id. at 914. The vehicle was stopped 

because the passenger was a black male within a quarter mile of the 

robbery. Id. at 915.

In James v. State, 556 So. 2d 791, 793 (Fla. 1st DCA 1990), the First 

District held that officers did not have reasonable suspicion to stop a man, 

who did not match the BOLO description, merely because he was a black 

male traveling in a pickup truck in the general area toward which the 

suspect had traveled, on foot, several minutes earlier.

Here, the victim initially described the suspect only as a “black male,” 

who fled the scene on foot. After speaking to the responding officer at the 

scene, the victim added that the suspect was a teenager with short hair, 

wearing a long-sleeved black shirt. The record shows that the officers did 

not have a description of the suspect’s height until after the show-up.

This case is very similar to Rodriguez and James in that there was no 

vehicle description. Moreover, like the defendant in James, the suspect in 

this case fled on foot; appellant was stopped in a vehicle. At the time of 

the stop, officers had a description of the suspect’s race, age and clothes. 

Appellant met the BOLO description of a teenaged black male but he was 

not wearing the clothing described by the victim. In any case, “[a] vague 
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description simply will not justify a law enforcement officer in stopping 

every individual or vehicle which might possibly meet that description.” 

Sumlin, 433 So. 2d at 1304. Based on the case law, the description of a 

teenage black male with short hair wearing a long dark-sleeved shirt was 

too vague to justify an investigatory stop. Accordingly, the trial court erred 

in denying appellant’s motion to suppress the evidence obtained as a 

result of the stop.

Inadmissible Police Opinion Testimony

In his second point on appeal, appellant argues that the trial court 

erred in allowing the jury to hear an unredacted version of appellant’s 

taped interview because it contained the detective’s improper opinions 

concerning appellant’s guilt and truthfulness.

When the state offered the taped interview for evidence, defense counsel 

objected to the introduction of certain portions of the interview wherein 

the detective repeatedly expressed his opinion that appellant was guilty, 

that he knew appellant was lying, and that there was more than sufficient 

evidence to convict him. She argued that these comments by the detective 

were inadmissible and invaded the province of the jury.

The state responds that the trial court did not abuse its discretion in 

admitting these police statements because when placed in “their proper 

context,” such statements to a suspect during interrogation could be

understood by a “rational jury” to be “techniques” used by law enforcement 

officers to secure confessions. See McWatters v. State, 36 So. 3d 613, 638

(Fla. 2010) (quoting Worden v. State, 603 So.2d 581, 583 (Fla. 2d DCA 

1992)); Jackson v. State, 18 So. 3d 1016, 1031-32 (Fla. 2009). The state 

posits that the statements were not offered for their truth but to provoke 

appellant and to observe his reaction and test the credibility of his defense. 

The state further relies on Derival v. State, 58 So. 3d 357 (Fla. 4th DCA 

2011), in pointing out that appellant made no equivocal responses that the 

jury could have misconstrued as an incriminating statement. See id. at 

360 (finding that there was no substantial danger of unfair prejudice in 

allowing jury to hear detective’s statements where, among other things, 

the defendant made no equivocal responses to the officer’s questions that 

the jury might have misconstrued).

The standard of review for a trial court’s admission of evidence is abuse 

of discretion. Padgett v. State, 73 So. 3d 902, 904 (Fla. 4th DCA 2011). 

The trial court’s discretion is limited by the rules of evidence. Id.
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A jury may hear an interrogating detective’s statements about a crime 

when the statements provoke a relevant response from the defendant 

being questioned. Eugene v. State, 53 So. 3d 1104, 1112 (Fla. 4th DCA 

2011) (citing Jackson, 18 So. 3d at 1031-32). “When placed in ‘their proper 

context,’ an interrogating detective’s statements to a suspect could be 

understood by a ‘rational jury’ to be ‘techniques’ used by law enforcement 

officers to secure confessions.” Id. (quoting McWatters, 36 So. 3d at 637). 

However, “a witness’s opinion as to the credibility, guilt or innocence of 

the accused is generally inadmissible, [and] ‘it is especially troublesome 

when a jury is repeatedly exposed to an interrogating officer’s opinion 

regarding the guilt or innocence of the accused.’” Roundtree v. State, 145 

So. 3d 963, 965 (Fla. 4th DCA 2014) (quoting Jackson v. State, 107 So. 3d 

328, 339-40 (Fla. 2012)); see also Page v. State, 733 So. 2d 1079, 1081 

(Fla. 4th DCA 1999) (“It is especially harmful for a police witness to give 

his opinion of a [witness’s] credibility because of the great weight afforded 

an officer’s testimony.”).

In Jackson v. State, 18 So. 3d 1016, 1032 (Fla. 2009), the Florida 

Supreme Court held that it was not abuse of discretion to admit a recorded 

interrogation in its entirety. In that case, the police probed the defendant 

for his response to statements allegedly made by a co-defendant, which 

statements revealed details of the criminal acts. Before publishing this 

interrogation to the jury, the court instructed the jury that the officer’s 

statements were only to be considered to establish the context of the 

defendant’s responses and reactions. The supreme court reasoned that 

redacting the officer’s statements would render the defendant’s responses 

incomprehensible. Id. at 1032.

Several years later, the Florida Supreme Court held that, where the 

probative value of the interrogation as a whole is outweighed by the 

prejudicial effect of the interrogating officer’s statements, it is an abuse of 

discretion to admit the interrogation. Jackson v. State, 107 So. 3d 328, 

344 (Fla. 2012). In Jackson, the interrogating detectives repeatedly 

expressed their opinion of the defendant’s guilt and veracity. However, the 

majority of the interrogation did not secure a confession or any relevant 

responses from the defendant. The interrogation thus had minimal 

probative value, while the detectives’ statements concerning their adamant 

belief in defendant’s guilt had a prejudicial impact on the defendant’s 

credibility and invaded the province of the jury. Id. at 341, 344.

In Roundtree, we addressed an interrogation similar to the one in this 

case. There, the interrogating officer repeatedly accused the defendant of 

committing a robbery and expressed his opinion of the defendant’s guilt. 

145 So. 3d at 965. The defendant maintained his innocence and, based 
9

on the context of the interrogation, we concluded that he did not make any 

statements that could fairly be interpreted as an admission of guilt under 

the circumstances. Id. at 966. We held that the admission of the officer’s 

opinions as to the defendant’s guilt improperly invaded the province of the 

jury. Id. at 967.

Similarly, appellant maintained his innocence throughout his 

interrogation. As in Jackson, 107 So. 3d at 341, the interrogating detective 

repeatedly expressed his opinion of appellant’s veracity. Detective Jones 

stated several times that appellant was lying and that he was guilty of the 

robbery charge. Indeed, he said appellant was as guilty “as the most

guiltiest person [he had] seen.”

As in Roundtree, the detective’s statements did not provoke any relevant 

responses because appellant maintained his innocence. Thus, the limited 

probative value of appellant’s statements was outweighed by the 

prejudicial effect of the detective’s opinion as to appellant’s guilt. 

Moreover, the opinion testimony invaded the province of the jury, and 

appellant’s equivocal responses of “All right,” when the detective said he 

was guilty, could be unfairly misconstrued as an admission of guilt.1

Because the state has not met its burden of proving beyond a 

reasonable doubt that the error in admitting the unredacted taped 

interview did not contribute to the verdict, we cannot say that the error 

was harmless. See Tripoli v. State, 50 So. 3d 776, 781 (Fla. 4th DCA 2010)

(stating that the harmless error analysis “places the burden on the [S]tate, 

as the beneficiary of the error, to prove beyond a reasonable doubt that 

the error complained of did not contribute to the verdict or, alternatively 

stated, that there is no reasonable possibility that the error contributed to 

the conviction.”) (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 

1986)). Accordingly, appellant is entitled to a new trial.

In light of our reversal and remand for a new trial, we need not address 

appellant’s final point on appeal regarding the bailiff’s improper 

communications with the jury during deliberations.

Reversed and Remanded for a new trial and with instructions to grant 

appellant’s motion to suppress.

WARNER and KLINGENSMITH, JJ., concur.

1 We do not address appellant’s argument that the unredacted taped statement 

also included collateral crimes evidence – i.e., that appellant had committed 

grand theft of his mother’s motor vehicle.
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* * *

Not final until disposition of timely filed motion for rehearing.