Petition for Writ of Certiorari — Florida v. Belcher

Cy

88-3 45

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

THE STATE OF FLORIDA,

Petitioner,

vs.

OLIVER WENDALL BELCHER,

Respondent.

ON WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

ROBERT A. BUTTERWORTH

Attorney General

Tallahassee, Florida

STEVEN T. SCOTT

Assistant Attorney General

Department of Legal Affairs

401 N. W. 2nd Avenue,

Suite N921

Miami, Florida, 33128

(305) 377-5441

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QUESTION PRESENTED

If a suspect in a criminal case

a.) has been advised of his rights under

Miranda, b.) answers some questions put

to him and then c.) expresses his desire

to cut off questioning, do the police

fail to "scrupulously honor" his Fifth

Amendment rights by later asking him

threshold questions directed solely to

whether or not he would consent to any

further questioning without first re-

advising him pursuant to Miranda?

ii

TABLE OF CONTENTS

Page

QUESTION ee ee a a a seb i

TABLE OF AUTHORITIES..........222- ii

OPINION Dine ds 066666 06606600066 l

STATEMENT OF JURISDICTION......... 2

CONSTITUTIONAL PROVISIONS

Cnt be db ab eee eceeesecoccecere 3

STATEMENT OF THE | ee a 4-6

Ds / ete es 6 onde 6 0660600006 0668 7-13

Din - sec Geneeeceeeeeeoseeess 14

PE RE eT ee ea ee

iii

TABLE OF AUTHORITIES

Cases Page

Michigan v. Mosley,

423 UsOi BSB (1978) ccscdecvccive 6,7,

Miranda v. Arizona,

ee Was ee BE ce ecctseséese 7

Rhode Island v. Innis,

CO ss Be Seb dectsesees 12

State v. Belcher,

520 So.2d 303

(Fla. 3 DCA Ses a CdS bh ct ae 1

CONSTITUTIONAL PROVISIONS

Fifth Amendment MitttiteadHaseneeeeeces 3

Fourteenth Amendment U.S.C......e.6-. 3

28 U.S.C. §$1257(3) ..ccccccccccccces 2

OPINION BELOW

The opinion of the Third District

Court of Appeal of Florida affirming the

trial court's suppression order can be

found at State v. Belcher, 520 So.2d 303

(Fla. 3 DCA 1988). It is reproduced in

the appendix. (App. 1-11).

The Florida Supreme Court's denial

of discretionary review is also part of

the appendix. (App. 12, 13).

2

STATEMENT OF JURISDICTION

The opinion of the Third District

Court of Appeal of Florida was entered

on February 2, 1988. Rehearing was

denied on March 17, 1988. The Florida

Supreme Court declined to accept the

case on June 30, 1988. This petition

was filed within 60 days of that

denial. The jurisdiction of this Court

is invoked under 28 U.S.C. §1257(3).

3

CONSTITUTIONAL PROVISIONS INVOLVED

The pertinent part of the Fifth

Amendment to the United States Constitu-

tion provides:

[NJor shall [any person]

be compelled in any crimi-

nal case to be a witness

against himself...

The pertinent part of the Four-

teenth Amendment to the United States

Constitution provides:

[NjJor shall any State

deprive any person of

life, liberty, or pro-

perty, without due process

of law...

4

STATEMENT OF THE CASE

Respondent was arrested and charged

in a double homicide. He made incrimi-

nating statements to the police. The

trial court suppressed those state-

ments. The Florida appellate courts

have affirmed. This petition follows.

Respondent was first questioned by

a Detective Conley concerning his con-

nection to a double homicide. Miranda

warnings were duly given. Respondent

signed a rights waiver form. Conley

questioned respondent for several hours,

during which time respondent’ twice

requested permission to examine his

rights waiver form. He was allowed to

do so. Respondent decided to cut off

police questioning following his second

5

examination of the form. Questioning

ceased.

Detective Blocker, not present

during this round of questioning but

aware that respondent had invoked his

right to remain silent, entered the

interrogation room approximately ‘one

hour after Conley had finished. Without

first re-advising respondent of his

Miranda rights, this officer proceeded

to explain the difference between first

and second degree murder to respon-

dent. He also informed respondent that

all the evidence at hand pointed to

first degree murders having been commit-

ted. Blocker then asked respondent if

he would like to tell his side of the

story. Respondent asked to be left

alone for a few moments to think things

6

over. His wishes were again respected,

and Blocker left. When Blocker returned

five minutes later, he asked if respon-

dent wished to talk, and respondent

said, “Just get your pad and pencil.”

He then volunteered an incriminating

statement. This oral statement was

followed by a formal written one which

contained the standard Miranda warnings

in the text.

The trial court ruled that respon-

dent's right to have questioning cease

was not “scrupulously honored “ by

Blocker and it suppressed all state-

ments. Tne Third District Court of

Appeals affirmed, citing this Court's

decision in Michigan v. Mosley, 423 U.S.

96 (1975).

Why Review Should Be Granted

Review should be granted because

the Florida courts have not construed

this Court's Miranda! decision in a

common sense fashion. Miranda should

not be used in a manner which prevents

mere inquiry into the threshold question

of a suspect's desire to allow further

contact with the police. The Florida

court's have done just that, and Miranda

has been misapplied.

In Michigan v. Mosley, supra, this

Court recognized that:

1 Miranda v. Arizona, 384 U.S. 436 (1966).

8

"CA) blanket prohibition

against the taking of

voluntary statements or a

permanent immunity § from

further interrogation,

regardless of the circum-

stances, would transform

the Miranda safeguards

into wholly irrational

obstacles to legitimate

police investigative acti-

vity, and deprive suspects

of an opportunity to make

informed and intelligent

assessments of their in-

terests." Mosley, at 102.

The Court went on to state that

Miranda's goal was to prevent the crea-

tion of a coercive atmosphere, and that

this goal is met if the police respect a

suspect's wishes to break off question-

ing.

Mosley addressed the issue of

renewed police interrogation of a sus-

pect once that suspect had invoked his

9

right to break off questioning. This

Court found that police may properly

submit a suspect to continued interroga-

tion, and it listed several factors

which would indicate that the police had

indeed “scrupulously honored" the Fifth

Amendment rights of the accused. Among

these factors were the re-advising per

Miranda before questioning re-commenced

and the passage of time between interro-

gation sessions.

In this case, respondent signed a

rights waiver form and submitted himself

to questioning by Detective Conley. He

twice read over that form during his

time with Conley, and finally invoked

his right to break off questioning. His

wishes were honored by Conley.

a i i |

10

One hour later, Detective Blocker

arrived and merely inquired if respon-

dent would agree to resume question-

ing. He did not subject respondent to

interrogation. Respondent asked for a

few minutes to think it over, and again

his wishes were respected. Blocker

left. When Blocker returned, respondent

had changed his mind about wanting to

talk to the detectives, and he then

volunteered an incriminating

statement. Blocker had never directed

any questions to respondent.

This case must be distinguished

from Mosley's "double interrogation"

scenario. It should be viewed as one

which goes more to the question of how

police may inquire if a suspect wishes

to resume contact after invoking

1l

Miranda. Are the police constitu-

tionally required to repeat’ their

Miranda warnings as a condition prece-

dent to even asking if a suspect would

consent to further contact? The Florida

courts have answered in the affirma-

tive. Logic dictates that the answer

should be "no."

According to Miranda and Mosley,

the analysis of this issue should be

directed to the overall goal of the

warnings, the degree of police compli-

ance with a suspect's wishes, and the

scope of a policeman's right to have

further contact with that suspect.

These considerations must be examined

alongside the particular facts of the

case. If that is done, it is clear

that:

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a.) A coercive atmosphere did not

exist below. Respondent was fully aware

of his rights, having read and signed a

waiver form and having twice re-read

that form.

b.) The police respected respon-

dent's requests to break off questioning

each time he asked them to do so.

Detective Conley left respondent alone

immediately. Blocker came in one hour

later and left as soon as_ respondent

told him to let him think over whether

he wanted to resume talking.

c.) Finally, Blocker's contact with

respondent was not tantamount to a

second round of interrogation. Rhode

Island v. Innis, 446 U.S. 291 (1980).

All respondent was left with was the

13

issue of whether or not he would allow a

resumption of questioning. Blocker did

not question him on any aspect of the

crimes. Respondent volunteered his

statement to Blocker. This scenario is

therefore subject to less criticism than

that of Mosley, where two interrogation

sessions were involved.

The Florida courts have misinter-

preted Miranda and Mosley to require a

re-advising by Detective Blocker prior

to his inquiring into’ respondent's

desire to renew questioning. What

Blocker did was merely prefatory to

questioning. The Constitution did not

require him to repeat Miranda warnings.

14

CONCLUSION

This Court should grant review

because an important question of law has

been raised. Miranda should not be

interpreted to place an impenetrable

wall between police and the accused once

that person has invoked his right to

remain silent. Police should be allowed

to inquire of a suspect if he or she

wishes to re-commence contact without

first re-advising that suspect of his

Miranda rights, and any volunteered

statement which emerges should be admis-

sible in evidence.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

STEVEN T. SCOTT

Assistant Attorney General

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

THE STATE OF FLORIDA,

Petitioner,

vs.

OLIVER WENDALL BELCHER,

Respondent.

ON WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

APPENDIX

ROBERT A. BUTTERWORTH

Attorney General

Tallahassee, Florida

STEVEN T. SCOTT

Assistant Attorney General

Department of Legal Affairs

401 N. W. 2nd Avenue

Suite N921

Miami, Florida 33128

(305) 377-5441

nr ee, CORO OI rs ere ee ee a oe

A-1

The STATE of Florida, Appellant,

Vv.

Oliver Wendall BELCHER, Appellee.

No .87-7.

District Court of Appeal of Florida,

Third District.

Feb. 2, 1988.

Rehearing Denied March 17, 1988.

Robert A. Butterworth, Atty. Gen.,

and Margarita M. Febres, Asst. Atty.

Gen., for appellant.

Bennett H. Brummer, Public

Defender, and Marti Rothenberg = and

Harvey J. Sepler, Asst. Public

Defenders, for appeilee.

Before HENDRY, BASKIN and FERGUSON,

JJ.

PER CURIAM.

The State appeals from an order

granting the defendant's motion to sup-

press his confession.

A-2

Ann DeMuro and Charles Woods were

robbed and murdered as they opened a

builders’ supply company in the early

morning of January 30, 1985. Oliver

Belcher, a former employee of the com-

pany, was taken into custody three days

later at 12:30 a.m. and charged with the

murders. At approximately 1:55 ak.nm.,

Detective Conley approached Belcher in

the interview room and informed him of

the charges and read him his Miranda

rights. Stating that he understood his

rights and was willing to speak without

an attorney present, Belcher signed a

rights waiver form. In response to

questioning, the defendant admitted that

he had taken a car belonging to one of

the murder victims, but denied that he

had committed the murders. Conley con-

tinued to question Belcher until 4:50

ee

A-3

a.m., at which time the defendant said

to Conley, "I don't want to talk to you

any more." Conley stopped questioning

the defendant and left the room.

A short time later Conley placed a

telephone call to another detective on

the case, Blocker. Conley informed

Blocker that the police had arrested

Belcher and that Belcher denied any

involvement in the murders and no longer

wanted to talk to him. When Blocker

arrived at the police station at appro-

ximately 6:00 a.m., the defendant was

still sitting in the interview roon.

Blocker entered the interview room,

introduced himself to the defendant, and

told the defendant that he wanted to

hear his side of the story. At no time

did Blocker reinform the defendant of

A-4

his Miranda _ rights. The defendant

responded that he wanted to think about

it and would like to be left alone.

Blocker left the room for five

minutes. He then returned to the

interview room and again asked the

defendant if he wanted to talk to him.

The defendant replied, "Just get your

pad and pencil,” and then gave a

confession.

Prior to trial, the defendant moved

to suppress his confession on grounds

that the police had violated his Miranda

rights and his privilege against self-

incrimination. At the suppression hear-

ing Detective Blocker testified that it

was his impression that, when the defen-

dant told Conley that he no _ longer

wanted to talk, the defendant intended

A-5

that statement to apply only to Conley,

and not to other police officers.

Blocker admitted, however, that he never

asked the defendant to clarify the

statement. The trial court granted the

defendant's motion to suppress the con-

fession, ruling that once the defendant

had exercised his option to. remain

silent, his right to terminate question-

ing was not scrupulously honored.

The State contends that the trial

court erred in concluding that’ the

defendant's rights were not scrupulously

honored, and argues that the confession

is admissible because it was obtained

pursuant to reasonable police conduct.

We disagree and affirm.

A-6

In Michigan v. Mosley, 423 U.S. 96,

96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the

Supreme Court held that the admissi-

bility of statements obtained after a

suspect has cut off questioning depends

on whether the suspect's “right to cut

off questioning" was “scrupulously

honored." Id. at 104, 96 S.Ct. at 326,

46 L.Ed.2d at 321. The critical factors

in a determination whether a suspect's

rights were scrupulously honored in-

clude:(1) whether the police ceased the

interrogation immediately upon defen-

dant's request; (2) whether the ques-

tioning was resumed only after a signi-

ficant amount of time had passed; (3)

whether fresh Miranda warnings were

provided; and (4) whether the later

questioning was restricted to a crime

that had not been the subject of the

A-7

initial interrogation for which the

right to silence had been invoked.

Mosley.

In this case, Detective Conley

stopped the interview when Belcher exer-

cised his right to cut off question-

ing. However, the other factors set

forth in Mosley support the _ trial

court's conclusion that the defendant's

right to cut off questioning was not

scrupulously honored.

After the defendant had invoked his

right to silence, the police continued

to detain him in the interrogation

room. The first detective placed a

telephone call to a second detective who

arrived at the station house and

attempted to renew questioning after a

A-8

passage of time approximating an hour.

When the defendant asked the _ second

detective to leave him alone to allow

him time to think things over, the

detective merely stepped outside the

interview room for five minutes.

Although the Supreme Court did not de-

fine in Mosley what’ constitutes a

“significant period of time," some

courts have found periods of time

ranging from minutes to several hours to

be insufficient under the Mosley stan-.

dard. United States v. Clayton, 407

F.Supp. 204, 206 (E.D.Wis.1976) (fifty

minutes insufficient even where

defendant was given new Miranda rights

and signed waiver); United States v.

Olof, 527 F.2d 752 (9th Cir.1975) (three

hours insufficient despite new warnings

where police sought to wear down

A-9

defendant). Other courts have found

periods of time ranging from less than

an hour to several hours to be

sufficient where the defendant was given

fresh Miranda warnings and the defendant

waived his rights. McNickles v. State,

505 So.2d 633 (Fla. 4th DCA) (forty-five

minutes sufficient where new warnings

were given and defendant waived his

rights), rev. denied, 515 So.2d 230

(Fla. 1987); State v. Issac, 465 So.2d

1384 (Fla. 2d DCA 1985) (one hour and

forty minutes sufficient where defendant

was advised of rights and _ waived

them). Here, however, Detective Blocker

neither advised Belcher of his rights

when he first attempted to question him

nor informed him of his rights when the

questioning resumed five minutes later.

A-10

Although requestioning a defendant

about the same crime following a invo-

cation of the right to silence is not

alone determinative of whether’ the

invocation was scrupulously honored,

Jackson v. Wyrick, 730 F.2d 1177, 1180

(8th Cir.) cert. denied, 469 U.S. 849,

105 S.Ct. 167, 83 L.Ed.2d 102 (1984), it

is a significant factor in determining

whether the right to cut off questioning

was respected and, when coupled with a

short passage of time and a failure to

give fresh warnings, has been held

fatal. United States v. Lopez-Diaz, 630

F.2d 661, 664 (9th Cir.1980); United

States v. Hernandez, 574 F.2d 1362, 1369

(5th Cir.1978).

The record supports the trial

court's ruling that the defendant's

A-11

right to cut-off questioning was not

scrupulously honored. A trial court's

ruling on a motion to suppress has a

presumption of correctness, and where

the record supports the trial court's

ruling, it is impermissible for the

district court to substitute its judg-

ment for that of the fact-finder. Wasko

Vv. State, 505 So.2d 1314, 1316

(Fla.1987); DeConingh v. State, 433

So.2d 501 (Fla.1983), cert. denied, 465

U.S. 1005, 104 S.Ct. 995, 79 L.Ed.2d 228

(1984).

Affirmed.

A-12

SUPREME COURT OF FLORIDA

Thursday, June 30, 1988.

STATE OF FLORIDA, )

Petitioner, )

Vv. ) Case No. 72,188

District Court

) of Appeal

OLIVER WENDELL BELCHER,) Third District

No. 87-7

Respondent. )

)

This cause having heretofore been

submitted to the Court on jurisdictional

briefs and portions of the record deemed

necessary to reflect jurisdiction under

Article V, Section 3(b), Florida Consti-

tution (1980), and the Court having

determined that it should decline to

accept jurisdiction, it is ordered that

the Petition for Review is denied.

A-13

No Motion for Rehearing will be

entertained by the Court. See

Fla.R.App.P. 9.330(d).

MCDONALD, C.J., EHRLICH, SHAW, BARKETT

AND GRIMES, JJ., concur.

A True Copy

TEST:

Sid J. White

Clerk Supreme Court

- eae Clerk

H

cc: Hon. Louis J. Spallone, Clerk

Hon. Richard P. Brinker, Clerk

Hon. Alfonso Sepe, Judge

Margarita Muina Febres, Esquire

Marti Rothenberg, Esquire