MATTHEW DUCHATELIER

v.

STATE OF FLORIDA

Before: TRAWICK, WALSH and SANTOVENIA. PER CURIAM. Filing # 116496371 E-Filed 11/11/2020 12:29:10 State, 73 So. 3d [*3] Page 3 of 12 902, 904 (Fla. 4th DCA 2011). However, the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review. K.V. v. State, 832 So. 2d 264, 265-66 (Fla. 4th DCA 2002). The standard of review in admitting collateral crimes evidence is also abuse of discretion. See Kulling v. State, 827 So. 2d 311, 315 (Fla. 2d DCA 2002). Testimony Regarding the BOLO Appellant argues that the trial court erred in allowing the first witness, Miami- Dade Police Officer Eric Garcia, to tell the jury that he had received a BOLO (Be on the Lookout) regarding a car matching the description of Appellant’s car that had been used in a recent robbery. Appellant contends that this statement constituted impermissible hearsay and was improperly admitted as collateral evidence of a crime. Testimony about the contents of a BOLO is permissible during trial despite a hearsay objection where the report merely offers a description of an automobile and is not offered for the truth of the matter asserted. Collier v. State, 701 So. 2d 1197, 1998 (Fla. 3d DCA 1997). In Collier, the Third District Court of Appeal emphasized that the contents of a BOLO elicited by the State “merely contained a description of a particular car and contained no accusatory information whatsoever.” Id. at 1198. See Payne v. State, 980 So. 2d 1195 (Fla. 3d DCA 2008) (affirmed conviction and sentence, finding no abuse of discretion in permitting testimony that [*4] Page 4 of 12 the police were responding to a dispatch call involving the same vehicle driven by appellant) (citing Collier v. State, 701 So. 2d 1197 (Fla. 3d DCA 1997). The extent of Officer Garcia’s testimony on direct examination regarding the BOLO was that “[t]here was a BOLO that was given our [sic] regarding a red Mustang that was used in a robbery that same month…Two black males involved in the robbery”.¹ (T. 281, line 25- T. 282 line 7). Defense counsel on cross examination of Officer Garcia then elicited additional testimony regarding the BOLO. Defense counsel asked the officer: “there was a be on the lookout for this Mustang, correct”, to which the officer responded “yes”. Reference to the BOLO was relevant to the reason for Officer Garcia’s initial focus on and ensuing observation of Duchatelier’s car and to prove an element of the crime of resisting without violence- that the officer was engaged in the lawful execution of a legal duty. See C.E.L. v. State, 24 So. 3d 1181, 1185-86 (Fla. 2009); Florida Standard Criminal Jury Instruction 21.2. However, the contents of the BOLO impermissibly go beyond the description of the car in Collier by including references to a robbery and two black males. See Conley v. State, 620 So. 2d 180 (Fla. 1993) (“[T]he inherently prejudicial effect of admitting into evidence an outof-court statement relating accusatory information to establish the logical sequence [*5] Page 5 of 12 of events outweighs the probative value of such evidence. Such practice must be avoided.”) (citing State v. Baird, 572 So. 2d 904 (Fla. 1990). Notwithstanding the trial court’s error below in allowing the officer’s references to a robbery and two black males in his testimony regarding the contents of the BOLO, the State cites English v. State, 43 So. 3d 871 (Fla. 5th DCA 2010) for the proposition that even if the contents of the BOLO were inadmissible hearsay, the testimony regarding the BOLO constituted harmless error because an overwhelming amount of evidence existed of Duchatelier’s guilt. In English, the court stated that “courts have considered the admission of the contents of a BOLO harmless error when an overwhelming amount of evidence of the defendant's guilt existed as it did here. See Presley v. State, 839 So. 2d 813, 813-14 (Fla. 4th DCA 2003) (determining that erroneous introduction of victim's out-of-court description harmless when suspect was found carrying bag containing items stolen from victim's refrigerator)”. Id. at 872-73. We agree that the admission of testimony regarding the contents of the BOLO was harmless error. Here, there was evidence of Duchatelier’s resisting without violence through the police officers’ testimony and their body-worn camera videos. Officer Garcia testified that he saw the occupants of the car bail out and run behind a house. Officer Garcia’s body-worn camera video shows Duchatelier and the other person in the car running and that they were the only people in the video running [*6] Page 6 of 12 while a helicopter was searching overhead. Sergeant Segovia testified that as Duchatelier was running and attempting to break the perimeter that had been set up by the police after Duchatelier bailed out of the car, Sergeant Segovia said “police, stop”, but Duchatelier totally disregarded the officer’s command. Sergeant Segovia was wearing his full police uniform while he was chasing Duchatelier. Further, he testified that Duchatelier was trying to conceal himself from Segovia and other officers. Duchatelier jumped fences to evade the police and also was ordered more than once not to put his hands in front of him while he was being handcuffed. Both officers’ body-worn camera videos were admitted into evidence and played for the jury at the trial. The State clarified during voir dire that this was not a robbery case, and both officers testified that they were not investigating a robbery when Duchatelier was arrested. There was no testimony presented at trial that Duchatelier was involved in a prior robbery, nor was Duchatelier charged with robbery in this case. As such, admission of the BOLO testimony was harmless error. Testimony Regarding Duchatelier’s Multiple License Suspensions Prior to jury selection, the defense offered to stipulate to the facts that Appellant’s license was suspended and that he knew that his license was suspended, in order to avoid having his driving record be introduced into evidence. Notwithstanding, the State elicited testimony that Appellant’s driving record [*7] Page 7 of 12 contained multiple suspensions. Officer Garcia testified that as a result of a records check, he determined that Duchatelier had “multiple suspensions on the driver’s license.” As with the BOLO testimony, Appellant contends that this statement constituted impermissible hearsay and was improperly admitted as collateral evidence of a crime. With Duchatelier’s stipulation, the only element for the crime of driving with a suspended license which the State would have been required to prove was that Duchatelier drove a motor vehicle upon a highway in the State of Florida. The trial judge stated that he would instruct the jury on the remaining element which the State would be required to prove. However, the stipulation was not published to the jury. The trial court correctly noted below that Officer Garcia’s statement about Duchatelier’s multiple license suspensions addressed the State’s burden to prove that Duchatelier’s license was suspended and that he knew about it. Had the State not addressed all the elements it was required to prove on the charge of driving with a suspended license in its case in chief, it would have been susceptible to a judgment of acquittal being entered on that charge. The State relies on Section 322.201, Florida Statutes (2017), which states that the driving record of any person “shall be received as evidence in all courts of this [*8] Page 8 of 12 state without further authentication if the same is otherwise admissible.” The State argues that the testimony mentioning the multiple suspensions would be admissible as Appellant’s driving record would have been admissible. We agree. Moreover, any error regarding admission of prior suspensions was harmless. The statement that Duchatelier had multiple license suspensions was not relevant to the resisting without violence charge, the only crime of which he was found guilty. The statement was only relevant to the charge of driving with a suspended license, of which Duchatelier was acquitted. Accordingly, we find no error in admission of the statement of Duchatelier’s driver’s license suspensions. Special Jury Instruction Requested by the Defense The statute outlining the crime of resisting an officer without violence, Section 843.02, Fla. Stat., provides: Whoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree....

Under the statute, “the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, supra., 24 So. 3d at 1185-86. Appellant argues that the trial court erred when it refused to give a special jury [*9] Page 9 of 12 instruction to the effect that to be guilty of the charge of resisting without violence, the State must prove that Duchatelier knew of the officer’s intent to detain him. Appellant correctly points out that Brown v. State, 199 So. 3d 1010 (Fla. 4th DCA 2016) stands for the proposition that “[t]o be guilty of unlawfully resisting an officer, an individual who flees must know of the officer’s intent to detain him…” (quoting C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009)). Appellant now contends that while the trial court added the word “knowingly” to the standard jury instruction on resisting without violence, the instruction as given is incorrect. The standard jury instructions are “presumed to be correct and should be given unless such instructions are erroneous or inadequate.” Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015). Nonetheless, defense counsel argued below that the standard jury instruction was incorrect because the charge of resisting without violence includes a mens rea requirement “that the person knowingly resist the officer. So what I’m requesting is that the jury be properly instructed on that there is a knowledge requirement.” Accordingly, the trial judge stated that he would add the word “knowingly” to the first element of the standard jury instruction for resisting without violence to address the mens rea requirement2. The amended jury [*10] Page¹⁰ of 12 instruction provided that the State had to prove as the first element for resisting without violence that “Matthew Duchatelier, the Defendant knowingly resisted, obstructed, or opposed David Segovia”. We find no error in the jury instruction given by the court. Defense counsel requested during the charge conference that an additional instruction be given to the jury that flight alone is an insufficient basis to establish the charge of resisting without violence. Appellant’s brief acknowledges that a special jury instruction is appropriate where: the special instruction was supported by the evidence, the standard instruction did not adequately cover the theory of the defense, and the special instruction was a simple correct statement of the law and was not misleading or confusing. Appellant’s request below for a special jury instruction fails on all three considerations. Appellant cites Brown v. State, supra, in support of its request for a special instruction. However, Brown does not support Appellant’s position. In Brown, the court noted that “the state's evidence consisted of flight, standing alone. The state did not present any evidence that any officer directed the defendant to stop either before or during his flight.” 199 So. 3d at 1012. In contrast to Brown, the requested special instruction was not supported by the evidence here because the videotape from Sergeant Segovia’s body-worn camera did show the officer giving the [*11] Page 11 of 12 command to stop3 and other evidence supporting that Duchatelier knew of the police officers’ intent to detain him. Appellant argues that “the defense was essentially that Duchatelier was not the driver, and that there was no evidence that he ran knowing that the police sought to detain him.” The modified standard instruction for resisting without violence adequately covered this theory of the defense. Furthermore, the additional instruction requested by the defense is not an accurate instruction on the elements of the crime of resisting without violence. The requested additional instruction is based on the principle that “[a]s a general rule, flight, standing alone, is insufficient to form the basis of a resisting without violence charge.” C.E.L. v. State, supra., 24 So. 3d at 1186 (citing Mosley v. State, 739 So. 2d 672, 675 (Fla. 4th DCA 1999)). In C.E.L., the Supreme Court of Florida concluded: The plain language of section 843.02 makes it an offense for any person to resist, without violence, a law enforcement officer when the officer is engaged in a lawfully executed legal duty. Under Wardlow, the moment C.E.L. took flight in a high-crime area, the officers were provided with reasonable suspicion to warrant an investigatory stop. Therefore, the officers were engaged in the lawful execution of a legal duty. Thus, C.E.L.'s continued flight in defiance of the officers' lawful command constituted the offense of resisting an officer without violence under section 843.02.

3 The jury clearly understood the State’s burden to prove that Duchatelier was aware of the officer’s intent to detain him when it submitted a question asking to see the two body-worn camera videos again, noting that the jurors needed “to determine what Segovia said to the suspect while in pursuit”. (R. 45). [*12] Page 12 of 12 Id. at 1189. The additional instruction requested by Duchatelier was not a simple correct statement of the law. C.E.L. makes clear that flight is relevant to the issue of whether an officer has the reasonable suspicion to stop an individual in the first place. There was no evidence below that Officer Garcia stopped Duchatelier simply because he ran upon seeing a police officer. Rather, Officer Garcia first took note of Duchatelier because the car he was in matched the description of a car in a BOLO. Here, it would have been misleading or confusing for the jury to be given an instruction on the general rule regarding “flight alone” where the facts did not support the instruction and the jury was already being instructed correctly on the elements of the crime of resisting without violence. Accordingly, it was not an abuse of discretion for the trial judge to decline to give the additional instruction. Accordingly, for the foregoing reasons, the final judgment of conviction and sentence are AFFIRMED. TRAWICK, WALSH, and SANTOVENIA, JJ. concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

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