               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


ASAD KHAN,                                   )
                                             )
              Appellant,                     )
                                             )
v.                                           )       Case No. 2D16-5288
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed April 6, 2018.

Appeal from the Circuit Court for Lee
County; Thomas Reese, Judge.

Spencer Cordell of Law Office of Spencer
Cordell, Fort Myers, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee; Cornelius C. Demps,
Assistant Attorney General; and Jason M.
Miller, Assistant Attorney General, Tampa,
for Appellee.


LUCAS, Judge.

              Asad Khan appeals his judgment and sentence for robbery with a deadly

weapon. § 812.13, Fla. Stat. (2015). He raises two issues on appeal. Finding merit in
his arguments, we reverse the circuit court's judgment and sentence and remand his

case for a new trial.

              Shortly after midnight, on March 2, 2015, a man with some kind of a black

cloth around his face entered a 7-Eleven convenience store in Fort Myers, held a knife

to the clerk's neck, and robbed the store of all the cash in the registers. The clerk,

although unhurt, was obviously distraught. When first interviewed by Lee County

Sheriff's Office detectives, she could only identify the robber as a man with "medium

brown" skin who stood about six feet, two inches in height and spoke with an "Indian" or

"Middle Eastern" accent.

              Utilizing surveillance video footage obtained from both the 7-Eleven and a

Speedway convenience store across the street, and with the assistance of a

knowledgeable employee at a local Car Max auto dealership, detectives were able to

identify the make and model of the vehicle that the robber had driven to and from the

scene. Its license tag was indecipherable (because of where the vehicle was parked),

but it was determined that the vehicle was a Volkswagen Routan van. Lee County

Sheriff's Detective Sean Mukaddam then reviewed the State Driver and Vehicle

Identification Database (DAVID) to cross-reference Lee County registrations for

Routans that might reflect a Middle Eastern family surname. The only match, he

concluded, was a Routan registered to one Attia Mobeen—who, as it turned out, was

Mr. Khan's wife.1

              While detectives developed their investigation, a local television station

began airing a brief clip of the robbery taken from the 7-Eleven surveillance video. Two



              1Both     Mr. Khan and Ms. Mobeen are of Pakistani descent.

                                             -2-
former coworkers of Mr. Khan's, Messrs. Harris and Soperak, believed they recognized

Mr. Khan as the robber depicted in the video based upon what could be seen of the

man in the footage—and on what they described as the man's peculiar gait.2 They

contacted the television station's "Crime Stoppers" phone number and were put in touch

with the sheriff's office's investigators. In addition to identifying Mr. Khan in the video,

both Mr. Harris and Mr. Soperak corroborated Mr. Khan's general, physical description,

his manner of speech (which was described as an "Indian" or "Middle Eastern" accent),

that Mr. Khan sometimes drove a Volkswagen Routan van, and that he had stopped at

this particular 7-Eleven in the past.

              Armed with this information, detectives obtained search warrants for Mr.

Khan's home, his DNA, and Ms. Mobeen's Routan. They found nothing of interest in

the house and were unable to match Mr. Khan's DNA or fingerprints to anything

meaningful in the case. They seized the van from a repair shop. In it, they discovered

a black hijab headscarf as well as a bag of cash.3 Mr. Khan was then taken into

custody and interviewed by Detective Mukaddam. The interview was video recorded,

but the recording abruptly ceased, apparently the moment before Mr. Khan was given a

Miranda4 warning. From what we can glean of this brief interchange between Mr. Khan

and Detective Mukaddam, it appears that Mr. Khan was in custody for the entire




              2A  copy of the surveillance video was not included in our record, but at
trial, Mr. Khan's walk was described by these witnesses as a unique kind of "swagger"
with his "feet landing outwards when he walks."
              3Ms. Mobeen would later testify at her husband's trial that the cash was
from tips she had received at her job and the hijab belonged to the couple's daughter.
              4Miranda   v. Arizona, 384 U.S. 436 (1966).

                                             -3-
duration of the interview and had exercised his right to remain silent within a few

minutes of its commencement.

              The focal point of Mr. Khan's jury trial revolved around the identity of the

robber. The State maintained it was Mr. Khan; Mr. Khan argued it was someone else.

In presenting its case, the State introduced the evidence described above, including a

detailed description by Detective Mukaddam of the DAVID research that led his

investigation to Mr. Khan's wife's van. When the defense objected on hearsay grounds

to Detective Mukaddam relaying his investigative inquiries and what he had read in

DAVID to the jury, the State responded, alternatively, that the information was not being

offered for its truth, but rather to explain the progression of the robbery's investigation,

and that the information in DAVID was simply "data" (which, presumably, made it

admissible, according to the State). The circuit court expressed misgivings, but allowed

the testimony. The State also played a portion of the videotaped interview between Mr.

Khan and Detective Mukaddam for the jury, representing to the court that it was for the

limited purpose of identifying Mr. Khan's voice and accent.

              Mr. Khan elected to testify in his defense. During direct examination, he

denied having even entered that 7-Eleven on the night of the robbery. He explained

that he had driven his wife's van to the Speedway convenience store across the street

from the 7-Eleven to buy cigarettes that night. Before he could reach that store, though,

he recalled accidentally driving his wife's van into a ditch (because, he claimed, he had

been drinking at an earlier birthday party). According to Mr. Khan, some passersby

stopped to help him pull his van out of this ditch, whereupon Mr. Khan continued on to

the Speedway to purchase his cigarettes before returning home. While at the




                                             -4-
Speedway, Mr. Khan recalled that that store's clerk and some patrons expressed

concern to Mr. Khan about his now-smoking automobile. When the State cross-

examined Mr. Khan on this testimony, the following exchange ensued:

              Q.     So these are people who saw you at the Speedway
              very shortly before midnight on the night of the robbery with
              the wrecked car?

              A.     They seen me on the night of my daughter's birthday
              at the Speedway gas station with a car that was smoking,
              and had front end damage.

              Q.    Why didn't you tell Detective Mukaddam to go talk to
              them, why not?

              A.     He never came and asked me.

              Defense counsel immediately moved for a mistrial on the ground that the

State's last question constituted an impermissible comment on Mr. Khan's right to

remain silent. In response, the State pointed out that Mr. Khan had spoken, albeit

briefly, to Detective Mukaddam during the prior investigatory interview. The assistant

state attorney appeared to acknowledge "it was an inadvertent question that was

asked," but since there had been a prior conversation between Detective Mukaddam

and Mr. Khan, the question's reference would not necessarily have been to Mr. Khan's

silence after he had been given his Miranda warning. The circuit court recognized that it

was a "close" question, but denied the defense's motion. The defense did not request,

nor did the court give, any curative instruction to the jury.

              At the conclusion of the trial, the jury returned a guilty verdict. The circuit

court adjudicated Mr. Khan guilty and sentenced him to five years in prison, followed by

five years of probation. This is Mr. Khan's appeal of that judgment and sentence.




                                             -5-
              Mr. Khan raises two issues for our consideration. First, he contends that

the circuit court reversibly erred when it allowed the State to introduce, over his hearsay

objection, the details of Detective Mukaddam's investigation, including his statements

about what the DAVID database revealed. "A trial judge's ruling on the admissibility of

evidence will not be disturbed absent an abuse of discretion." Hayward v. State, 24 So.

3d 17, 29 (Fla. 2009). That discretion, however, must be exercised within the

constraints of the rules of evidence and principles of stare decises. Id. Second, Mr.

Khan argues that the court should have granted his motion for mistrial following the

State's improper reference to Mr. Khan's Fifth Amendment right to remain silent. With

respect to Mr. Khan's second issue, the Florida Supreme Court has explained that "any

comment which is 'fairly susceptible' of being interpreted as a comment on silence will

be treated as such." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). An appellate

court must then apply a harmless error analysis to the "fairly susceptible comment" at

issue. Id. at 1136. Thus, regardless of whether there was "overwhelming evidence of

guilt," an impermissible comment on a defendant's right to remain silent can only be

affirmed if the State can "prove beyond a reasonable doubt that the error complained of

did not contribute to the verdict." Ventura v. State, 29 So. 3d 1086, 1089 (Fla. 2010)

(emphasis omitted) (quoting DiGuilio, 491 So. 2d at 1136, 1138-39).

              We begin with the evidentiary issue. Allowing Detective Mukaddam to

relay at length his entire investigative process and everything he had read in DAVID that

eventually led him to Mr. Khan was erroneous in this case. Plainly, this line of

testimony, including the recital to the jury that the driver registration information in

DAVID reflected only one "Middle Eastern" sounding owner of a Volkswagen Routan in




                                             -6-
Lee County—who was Mr. Khan's wife—was hearsay offered to buttress the State's

claim that Mr. Khan was the robber who had driven a vehicle of the same make and

model near the 7-Eleven. See § 90.801(1)(c), Fla. Stat. (2015); Keen v. State, 775 So.

2d 263, 274 (Fla. 2000) (holding that detective's testimony about the "sequence of

events" in his investigation that led to the defendant's arrest was impermissible hearsay,

and noting that "[w]hen the only possible relevance of an out-of-court statement is

directed to the truth of the matters stated by a declarant, the subject matter is classic

hearsay even though the proponent of such evidence seeks to clothe such hearsay

under a nonhearsay label"). And it was a particularly pernicious kind of hearsay in the

context of a criminal prosecution. As the Fourth District observed:

              In spite of substantial authority condemning this attempt to
              adduce prejudicial hearsay, the [S]tate often persists in
              offering this kind of hearsay to explain the "state of mind" of
              the officer, or to explain a logical sequence of events during
              the investigation leading up to an arrest. This type of
              testimony occurs with the persistence of venial sin. The
              [S]tate's insistence on attempting to adduce this particular
              brand of hearsay requires trial judges to be constantly on
              their guard against it. . . . [A] "police officer's state of mind is
              generally not a material issue in a criminal prosecution."

Saintilus v. State, 869 So. 2d 1280, 1282 (Fla. 4th DCA 2004) (quoting State v. Baird,

572 So. 2d 904, 907 (Fla. 1990)). Because the State failed to establish an applicable

hearsay exception, the State should not have been allowed to elicit this hearsay through

the detective's testimony.5



              5In its answer brief, the State also urges us to consider the applicability of
sections 90.803(6) or (8), Florida Statutes (2015), granting hearsay exceptions for
business records or public records respectively, to the detective's testimony about his
investigation with DAVID. We are not persuaded that the DAVID records in this case
could qualify as a hearsay exception under section 90.803(6) because nothing in the
record before this court would permit us to conclude that the business records hearsay

                                              -7-
              More troubling is the question the State posed to Mr. Khan during his

cross-examination. The State challenged Mr. Khan as to why he never relayed to

Detective Mukaddam—the detective who arrested Mr. Khan—any details about the

people Mr. Khan claimed would have seen him at the Speedway on the night of the

robbery. The question that was posed to Mr. Khan by the State was more than "fairly

susceptible" to being construed as a comment on Mr. Khan's prior silence while in

custody; the whole point of the question was to highlight the fact that Mr. Khan had

remained silent following his arrest and brief interview with Detective Mukaddam.

              We find the supreme court's decision in State v. Hoggins, 718 So. 2d 761

(Fla. 1998), controlling here. In Hoggins, a man armed with a gun entered a

convenience store, threatened to kill the clerks who were working, and stole a cash

register drawer and cigar box filled with lottery tickets. Id. at 762. Later that same

evening, police officers found and pursued a suspect they observed carrying a cash



exception would have been applicable. See Butler v. Yusem, 44 So. 3d 102, 105 (Fla.
2010) ("Under the tipsy coachman doctrine, where the trial court 'reaches the right
result, but for the wrong reasons,' an appellate court can affirm the decision only if 'there
is any theory or principle of law in the record which would support the ruling.' " (first
emphasis added) (quoting Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002))). So,
too, we have significant reservations that the record before us would render this
testimony admissible under the public records hearsay exception. But even assuming
that the DAVID records could have qualified as a public records exception under section
90.803(8), Detective Mukaddam's testimony about the records' content would still
remain inadmissible hearsay for which there was no exception. See, e.g., Holborough
v. State, 103 So. 3d 221, 222–23 (Fla. 4th DCA 2012) (concluding that testimony from
the investigating officer that he identified the victim based on a Florida ID was
inadmissible hearsay because "[e]ven if the ID qualified as a public record for the
purpose of the section 90.803(8) exception to the hearsay rule for public records, the
officer's in-court testimony about what the ID said was hearsay falling under no
exception"); Tillman v. State, 964 So. 2d 785, 787-789 (Fla. 4th DCA 2007) (concluding
officers' testimony regarding the contents of BOLOs and that appellant and his vehicle
matched the description of the person suspected for the armed kidnapping described
therein was prejudicial and inadmissible hearsay).

                                            -8-
register drawer and cigar box on his bicycle. Id. Following a trail of lottery tickets and

food stamps, the officers eventually found the defendant hiding in an apartment where

they arrested him. Id. at 762-63. When his case went to trial, Mr. Hoggins testified that

he was neither the robber nor the man police had chased on the bicycle; instead, he

testified he had been sitting on the apartment porch when he saw "someone hide

something" in a nearby playground. Id. at 763. He went to investigate and found the

register drawer and cigar box, which he took back to the apartment—which, he claimed,

was why he had the store's stolen property. Id.

              At trial, Mr. Hoggins testified in his defense and relayed the foregoing

account about how he happened across a cash register drawer and cigar box in a

playground. Id. The State on re-cross examination put it to Mr. Hoggins: "[W]hen you

were in the upstairs bedroom and the police came up there, you never gave them the

version that you have just given us today?" Id. Mr. Hoggins admitted he had not and

was found guilty. Id. Approving the Fourth District's reversal of his judgment and

conviction and answering a certified question from that court, the Hoggins court

distinguished between a defendant's prearrest and postarrest silence with respect to

permissible cross-examination impeachment. Id. at 765-69. Using postarrest silence to

impeach a testifying defendant, the court held, violated article I, section 9 of the Florida

Constitution, "regardless of whether Miranda warnings [had] been given." Id. at 770.6




              6Infashioning this distinction, the court explained that Florida courts do not
recognize a defendant's election to testify in his or her defense as a waiver of a prior
exercise of postarrest, pre-Miranda silence. Hoggins, 718 So. 2d at 769. Moreover, the
court was troubled by the prospect of "treating differently defendants who are aware of
their Miranda rights and those who are not." Id. at 770.

                                            -9-
               Here, the only pertinent interaction Mr. Khan ever had with Detective

Mukaddam was when Mr. Khan was in custody and under arrest. The question—"why

didn't you tell Detective Mukaddam to go talk to" the clerk and patrons who, Mr. Khan

claimed, saw his smoking car on the night of the robbery—referenced the very

postarrest, pre-Miranda silence Hoggins held was constitutionally impermissible. And,

indeed, it appears that that reference may have been readily understood as a query into

Mr. Khan's silence, since at the conclusion of Mr. Khan's testimony, one juror sought to

pose the follow-up question: "Did the defense get written testimony from the clerk at

Speedway whom the defendant claimed witnessed the damage to the van and the

smoke coming from it? If not, why not?"

                      [C]omments on silence are high risk errors because
             there is a substantial likelihood that meaningful comments
             will vitiate the right to a fair trial by influencing the jury verdict
                            { "pageset": "S11
             and that an                   appellate court, or even the trial
             court, is likely to find that the comment is harmful under
             Chapman[ v. California, 386 U.S. 18 (1967)].

DiGuilio, 491 So. 2d at 1136-37. From our review of this record, we have no hesitation

concluding that the State's question to Mr. Khan about his silence while in custody was

both improper and harmful. Accordingly, we reverse his final judgment and sentence

and remand his case for a new trial.

             Reversed and remanded.




SILBERMAN and CRENSHAW, JJ., Concur.




                                                - 10 -
