SCHWARTZ, Senior Judge.
Charles E. White appeals his convictions for two counts of first-degree murder (Count 1 and 2), burglary with an assault or battery while armed (Count 3), robbery while armed with a firearm or deadly weapon (Count 4), two counts of kidnapping with a weapon (Count 5 and 6), use or display of a firearm in the commission of a felony (Count 7), and possession of a short-barreled rifle (Count 8). White says a number of issues mandate reversal. On the following analysis, we affirm.
On February 22, 1999, police were called to the home of Leonard Mayers. In the northeast bedroom of the home, police found the bodies of Mayers and Leon Gray. The home's back door and door jamb were damaged. A pickax was found on the ground near the back stoop, a sawed off shotgun in a neighboring yard, and a black bandana in another backyard.
On December 29, 1999, investigating the double homicide, and following a lead from a fellow officer, Detectives Chris Stroze and Steven Paar went to White's home. White gave a detailed, innocent account of his actions some ten months earlier. This story of his activities did not include anything involving his friend Armond Davis (later to be his co-defendant) or going to Leonard Mayers' house. To the contrary, White said that he had never been to Mayers' home and had never worked for him. Stroze asked White if he would be willing to take a polygraph test, but White refused saying that the test proved nothing. Stroze then recounted to White certain information told to him by Davis, to which White gave the incongruous response, "You mean the person I was in the house with was a killer?" Stroze ended the forty-five-minute interview at that point, but did not arrest White.
The next day, after receiving an additional lead pointing to White's involvement in the crimes, Stroze put a notification into police computers asking that he be alerted if any officer came into contact with White. A year later, on December 30, 2000, at 2:00 p.m., White was arrested for possession of marijuana.
White moved to suppress his statements. Among other arguments, he contended, as he does here, that because he was questioned for an extended period time rather than taken directly before a judicial officer, Florida Rule of Criminal Procedure 3.130 mandates suppression. The trial judge rejected this argument, as do we.
Rule 3.130, provides:
On numerous occasions, our courts have concluded that suppression was not required notwithstanding the fact that a defendant was not brought before a judicial officer within twenty-four hours of the arrest. Rather, "when a defendant has been advised of his rights and makes an otherwise voluntary statement, the delay in following the strictures of [Rule 3.130] must be shown to have induced the confession." Globe v. State, 877 So.2d 663, 671-72 (Fla. 2004) (quoting Chavez v. State, 832 So.2d 730, 752 (Fla.2002); Keen v. State, 504 So.2d 396, 400 (Fla.1987), disapproved in part on other grounds by Owen v. State, 596 So.2d 985, 990 (Fla.1992)); Woods v. State, 755 So.2d 810, 813 (Fla. 3d DCA 2000).
As Conde v. State, 860 So.2d 930, 951-53 (Fla.2003), instructs, any prejudice due to the delay "must be proven on a case-by-case basis." See Globe, 877 So.2d at 671-72 (same); Keen, 504 So.2d at 400, disapproved in part on other grounds by Owen, 596 So.2d at 990 ("[E]ach case must be examined upon its own facts to determine whether a violation of the rule has induced an otherwise voluntary confession."). This approach is in keeping with the majority view nationwide. See Commonwealth v. Rosario, 422 Mass. 48, 661 N.E.2d 71, 76 n. 4 (1996) ("Most States that have addressed the admissibility of a confession obtained during an unlawful prearraignment delay do not have a rule of automatic exclusion. See, e.g., People v. Kendrick, 56 Cal.2d 71, 85, 14 Cal.Rptr. 13, 363 P.2d 13 (1961); State v. Franklin, 463 A.2d 749, 753 (Me.1983); People v. Cipriano, 431 Mich. 315, 333-334, 429 N.W.2d 781 (1988); State v. Mendacino, 288 Or. 231, 236, 603 P.2d 1376 (1979)."); see generally Romualdo P. Eclavea, Annotation, "Admissibility of confession or other statement made by
Acceptance of White's position would, in effect, require the addition of language to Rule 3.130 to require that he should have been taken `directly' or `without unnecessary delay' to a magistrate, as required in a number of other states. However, that is not what Rule 3.130 provides and we are simply not at liberty to add language to the rule as written. See Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637, 651 (Fla. 2d DCA 2007) ("When the legislature has described the particular situation in which a set of procedures should apply, an inference must be drawn that what is not included by specific reference was intended to be excluded."),
As part of this analysis, it is appropriate to consider whether the claimed fact that White's presentation to the magistrate was delayed for the quite obvious, perhaps improper purpose of obtaining information on unrelated crimes mandates a different result. Essentially because the resolution of these issues turns on whether the officers' actions are objectively lawful and subjective motivations are irrelevant, we conclude that it does not.
We know that in the context of "pretextual stop" cases, "the subjective knowledge, motivation, or intention of the individual officer involved [is] wholly irrelevant [to the determination of the legality of the stop]." Dep't of Highway Safety & Motor Vehicles v. Jones, 935 So.2d 532, 534 (Fla. 3d DCA 2006) ("The constitutional validity
It is true that a number of state cases have in fact concluded that a confession secured as the result of a delay should be suppressed.
In sum, as observed in Keen,
While White cites computer records showing a first appearance hearing on January 1, 2001, nothing was said at the suppression hearing as to the availability of a magistrate that holiday weekend.
For these reasons, White's detailed account of the crimes committed, including, his admission to his prior robbery of Mayers' home, his admission to having written on the mirror in Mayers' home the threat "I want wartime, next time someone will die," his admission to entering the home with co-defendant Davis for the purpose of stealing drugs and money, his possession of a shotgun in the home, his admitted confrontation with the two victims, and his claim that as he searched for drugs in another room he heard two shots and found Davis fleeing the residence with the shotgun and a duffle bag, were all properly admitted into evidence.
Largely on the basis of these admissions, in turn (as well as other record evidence), we find that White cannot prevail on either of the other two substantial issues raised.
First, White complains that the prosecutor's elicitation of evidence that the source of the investigative lead that caused the detectives to first question him was co-defendant Davis, constituted inferential hearsay that should not have been admitted.
"An officer may say what he did pursuant to information but he may not relate the information itself for such is hearsay." Collins v. State, 65 So.2d 61, 67 (Fla.1953). Where "the inescapable inference from testimony [concerning a tip received by police] is that a non-testifying witness has furnished the police with evidence of the defendant's guilt, the testimony is hearsay, and the defendant's right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated." Wilding v. State, 674 So.2d 114, 119 (Fla. 1996), receded from on other grounds, Devoney v. State, 717 So.2d 501 (Fla.1998) (quoting Postell, 398 So.2d at 854). Here, the evidence was all the more damaging as it identified as the source White's co-defendant. Indeed the legal assumption that this fact is uncommonly prejudicial and therefore must be kept from the jury is the very reason that Davis was tried separately. See Smith v. State, 699 So.2d 629, 643 (Fla.1997) (observing that severance rule provides trial court with discretion to grant severance and is designed to ensure fair determination of each defendant's guilt or innocence by enabling presentation of evidence in such a manner that jury can distinguish evidence properly admitted against each defendant); see also Ramirez v. State, 739 So.2d 568, 579 (Fla.1999) (explaining that it is error to admit the details of a non-testifying co-defendant's confession and that a co-defendant's statements "are especially suspect because he has a strong motive to implicate another"). Neither the facts that, as the State points out, White was not arrested until a year later nor that Stroze testified that police were then following a number of leads, change the conclusion that the testimony should not have been admitted.
Nonetheless, considering the substantial evidence establishing White's guilt, including his detailed admissions,
Second, while we agree that it was also error to admit evidence initially that White refused to take a polygraph, an error corrected during the course of the trial, we do not agree that this error deprived White of a fair trial.
There is a "derivative prohibition against inquiry as to the willingness or reluctance of a party or witness to be the subject of a lie detector examination ... to prove consciousness of innocence or of guilt." Johnson v. State, 166 So.2d 798, 801-02 (Fla. 2d DCA 1964); see also McFadden v. State, 540 So.2d 844, 846 (Fla. 3d DCA 1989) ("Florida cases have taken a more conservative approach to the admission of such testimony.").
In this regard the context of the statement is critical. See Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 401.5, at 172 (2011 ed.) ("Although the mention of polygraph results of a criminal defendant is grounds for a mistrial, not every improper reference to polygraphs is a basis
Even if this were not so, the same kind of analysis applied to White's Postell claim leads us to the conclusion that the polygraph evidence beyond a reasonable doubt could not have contributed to the verdict and thus was legally harmless. See Cooper v. State, 43 So.3d 42, 43 (Fla.2010) ("[T]he test is `whether there is a reasonable possibility that the error affected the verdict.'" (quoting State v. DiGuilio, 491 So.2d 1129 (Fla.1986))). Thus, any error on this issue as well was harmless.
Affirmed.