Opposition Brief — Florida v. Belcher

Supreme Court. U.S.

rab &

IN THE SUPREME COURT OF THE UNITED STATES SEP 23 1988

JOSEPH F. SPAN!OL, JR.

OCTOBER TERM, ad CLERK

NO. 88-345

THE STATE OF FLORIDA,

Petitioner,

vs.

OLIVER WENDALL BELCHER,

Respondent.

ON PETITION FOR WRIT OF CERIIORARI TO THE

DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

BRIEF OF RESPONDENT IN OPPOSITION

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit

of Florida

1351 N.W. 12th Street

Miami, Florida 33125

(305) 545-3009

BETH C. WEITZNER

Assistant Public Defender

MARTI ROTHENBERG

Assistant Public Defender

Counsel for Respondent

TABLE OF CONTENTS

PAGE

INDEX OF AUTHORITIES... ccccccccccccccveccvcscecs 66eedweke st 4eee eee

COUNTERSTATEMENT OF THE CASE AND FACTS..... cocees rere ee Tee tan ow

REASONS FOR DENYING THE WRIT... ceecesees LAA ES ADE EME SSES OAS.O SS 4

CONCLUSION..... ELMS EEG E SE DESCDEDE ENDOCR SO 0 O'k Dd ONS MOS Oke Oe BD 6 9

INDEX OF AUTHORITIES

PAGE

DECONINGH v. STATE

433 So.2d 501 (Fla. 1983), cart. denied, 465 U.S. 1005,

EOS Spec Cee Te Wee eOs B20 CLOUS 5.6 066055 5.40 4548 200066 64K 9

JACKSON v. WYRICK

$a0 Fiae 2277 (GCN Cit. 1984) .6.0%. SOMEVADERMENWCRCCDR CER EDOSS OS 8

MICHIGAN v. MOSLEY

E26 Ueps sO, Se Sst. 3224 46° sBO. 20 SES (2975) 0 6 hstcecesewsnn 7; 8

MIRANDA v. ARIZONA

gue Uses S204 Bo &.Cts 1602, 16 L.cBds24 694 (1966) ic cvviccccscvcs 7

SHAFFER v. CLUSEN

Bho Fcotgos SOS CED. WiSG. TSSL)sccacccscessedacssrvccosssececses 8

SPRADLEY v. STATE

eee eee Bose tet 2 DCR LIC Sikh 80 cs eee O SOO OES C HSE 8

STONE v. STATE

378 So.2d 765 (Fla. 1979), cert. denied, 449 U.S. 986,

MOE Sits Srp ee ewes 220 CLUES as 60k 50066 bes ca sseseseceese 9

UNITED STATES v. CLAYTON

UF Wome BO es Es SITS) 60 ic oo 60 0040006604404 446 040d O SS 8

UNITED STATES v. FINCH

at Oe ce UE Es LOT 65.6606 6646 Cee S SPAR CD RCR EME E BOOS MOG 8

UNITED STATES v. HERNANDEZ

ee ee ee ee 5 EO Dias as 664.006 60:4 4545 000685 60S HbR CES OHS 8

UNITED STATES v. MORRIS

O92 Pimdeee £260 CHsUs GCGbs USCS) cc cccnnceccscccssrressessseseoess 8

UNITED STATES v. OLOF

OP ae SS ee Ge 0 i ok Re | a Pa ee Pee are eee 8

UNITED STATES v. UDEY

gE SS Re Re Te a ok aa |) a rae arm Se rear we 8

WASKO v. STATE

Bus SOcae 2ate CELE. T9567) cicencacscess verre e $bebs Ce neeam mad ore 9

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SITES AA SC SLT SR NS EEN SAR

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NO: 88-345

THE STATE OF FLORIDA,

Petitioner,

vs.

OLIVER WENDALL BELCHER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

BRIEF OF RESPONDENT IN OPPOSITION

The respondent, Oliver Wendall Belcher, files this brief in

opposition to the petition for writ of certiorari filed by the

State of Florida in this cause.

£

COUNTERSTATEMENT OF THE CASE AND FACTS

Respondent's counterstatement of the case and facts will be

limited to a recitation of pertinent aspects of the proceedings

below which are omitted from the statement of the case in the

state's petition.

On February 2, 1985, the respondent Belcher was arrested for

a double homicide and transported to an interview room at the

Metro Dade homicide office in Miami. A Detective Conley began to

interrogate Belcher at 1:55 a.m. Detective Conley read Belcher

his Miranda rights; Belcher indicated he understood his rights

and was willing to speak without an attorney being present.

Belcher then gave the detective certain information regarding the

crime. Detective Conley interviewed Belcher until approximately

4:50 a.m.

At 4:50 a.m., Belcher told Detective Conley, "I don't want

to talk to you any more." Detective Conley stopped questioning

Belcher and left him alone in the interview room. Shortly

thereafter, Detective Conley telephoned Detective Blocker,

another detective working on the case. Conley told Blocker that

Belcher was under arrest for the crimes but that Belcher did not

want to talk to him anymore. Conley told Blocker he had not been

able to get Belcher to confess and asked Blocker to respond to

attempt to talk to Belcher to get a statement implicating him in

the crime.

Detective Blocker arrived at the homicide office about 6:00

a.m. and Conley showed him the original rights waiver form signed

by Belcher. Conley further advised him that Belcher had waived

his rights and had not requested an attorney, but that Belcher no

longer wanted to talk to him. Detective Blocker entered the

interview room, introduced himself to Belcher and told him he

worked in homicide and "wanted to talk to him about the

investigation which was going on." He told Belcher about the

differences between first and second degree murder. Detective

Blocker also told Belcher there was "an abundance of evidence"

against him and that he wanted to hear Belcher's "side of the

story" and further, that what Belcher told him "may weigh heavily

as to what charges would be filed against him." Belcher told the

detective he wanted "to think about it" and “would like to be

left alone." The detective left Belcher alone for five minutes,

then returned to the room and said to Belcher, "Do you want to

talk to me?" Belcher replied, "Just get your pad and pencil."

Detective Blocker got a pad and sat down with Belcher and Belcher

confessed to the crime. Blocker did not reread Belcher his

rights during either interview prior to taking this oral

confession. A stenographer then arrived and Detective Blocker

read Belcher his rights and took a formal written statement from

him.

Detective Blocker further stated in court that it was his

“impression” that when Belcher stated to Conley he no longer

wanted to talk to him, Belcher did not intend for that statement

to apply to all police officers, only to Conley. Detective

Blocker admitted, however, that he made no attempt to clarify the

statement. He further felt that if Belcher really did not want

to talk to him, Belcher would have reasserted his right not to

talk.

REASONS FOR DENYING THE WRIT

THE DECISION OF THE DISTRICT COURT OF APPEAL

OF FLORIDA CORRECTLY AFFIRMED THE TRIAL

COURT'S GRANTING OF BELCHER'S MOTION TO

SUPPRESS HIS CONFESSION WHERE THE CONFESSION

WAS OBTAINED AFTER AN UNCONSTITUTIONAL RE-

INTERROGATION AFTER BELCHER INVOKED HIS RIGHT

TO REMAIN SILENT, AND WHERE NO THRESHHOLD

QUESTIONS WERE ASKED OF BELCHER AS TO WHETHER

HE WISHED TO CONSENT TO A REQUESTIONING.

In its petition, the State of Florida has phrased the

question to this Court as follows:

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

threshhold questions directed solely to

whether or not he would consent to any further

questioning without first readvising him

pursuant to Miranda?

The issue as thus phrased by the state concerns whether a

defendant, who exercised his right to cut off questioning, must

be readvised of his Miranda warnings when the police merely ask

him threshhold questions as to whether he wished to consent to

any further questioning.

This issue, however, is simply not the issue in this case.

This was not the issue in the trial court, it was not the issue

in the Florida District Court of Appeal, and it is not the issue

before this Court. This is so because the undisputed facts of

this case establish the police did not intend to and did not in

fact ask Belcher any threshhold questions as to whether he wished

to consent to any further questioning. Instead, the facts show

that the police specifically did not ask any such threshold

questions because they did not think they were necessary. The

police felt they were free to continue interrogating Belcher

about the crime after he told one officer he no longer wanted to

talk so long as they changed the police officer conducting the

interrogation. Moreover, they thought it was up to Belcher to

sua sponte re-assert his right to silence upon requestioning by

the different officer.

A review of the record demonstrates this lack of factual

basis for the state's petition for writ of certiori. The record

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ey asked hig > C ~-e > +e tat a - tre exoress

e ‘ peak > with Belcher ¢t set him ¢t 5 e@ a statement

ating himself in the crime

Detect e B ker arrived at the hor je ffice about 6

ney, but that Belcher no longer wanted to talk

ey showed him the original rights waiver form signed

Detective Bl ker testified Conley further advised

had waived his richts and had not requested an

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© Detective Biocker, it was his “impression” that

not intend for that statement to apply to all police

ly to Conley. Detective Blocker admitted, however,

he made no attempt t Clarify the statement. Moreover, he

have r

Meanwhi

Belcher really did not want to talk to him, Belcher

easserted his right not ¢t talk.

le, Belcher was still sitting in the interrogation

where Conley had left him. Detective Blocker entered the

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itroduced himself to Belcher and told him he “wanted to

about the investigation which was going on.” He told

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Detective Biocker entered the interrogation room a mere

ter Beicher hac unequ caiiy asserted his right t

and immediate toid Beicher he wanted t¢t talk ¢t his

vestigation which was going or He described the

ce between (first anc se 2 Gegree murder He toic

there was ‘an abuncance f evidence” aga t his n this

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Belcher's “side of the story,” and further, that what charges

were filed would depend on what Belcher told hin. It strains

understanding to suggest, as the state has, that these questions

by Detective Blocker were mere “threshhold questions" seeking to

inguire into Belcher's “desire tc renew questioning" and that

what Blocker did “was merely prefatory to questioning.” (State's

petition, pg. 7, 13)

In deciding this case, the district court of appeal found

that Belcher's right to cut off questioning was not “scrupulously

honored” under Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46

L.Ed.2d 313 (1975). The appellate court found that Detective

Blocker's requestioning Belcher about the same crime following

Belcher's invocation of his right to silence coupled with the

passage of a mere hour between interviews and Blocker's failure

to give Belcher fresh Miranda warnings supported the trial

court's ruling that Belcher's right to cut off questioning was

not scrupulously honored. Thus, contrary to the state's claim in

its petition, the appellate court did not reguire that Detective

Blocker re-advise Belcher of his Miranda rights prior to talking

with him. The appellate court found the lack of fresh Miranda

warnings was only one factor to consider in determining that

Belcher's right to cut off questioning was not scrupulously

honored.

“Consequently, the Florida court has not “misinterpreted

Miranda and Mosley to require a re-advising by Detective Blocker

prior to his inquiring into respondent's desire to renew

questioning.” (State's petition, pg. 13) The court's decision

is in full accord with the principles set forth by this Court in

Miranda and Mosley. In Miranda v. Arizona, 384 U.S. 436, 474, 86

S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966), this Court established

that one of the important procedural safeguards protecting the

constitutional rights of persons subject to custodial

interrogation is the “right to cut off questioning.” In order

"to assure that the exercise of the right will be scrupulously

honored,” Id., 384 U.S. at 478-479, Miranda requires the police

to immediately terminate their interrogation of an accused once

the accused “indicates in any manner, at any time prior to or

during questioning” that he wishes to remain silert and not speak

to the police anymore. In Michigan v. Mosley, 423 U.S. 96, 96

S.Ct. 321, 46 L.Ed.2d 313 (1975), this Court reaffirmed the

Miranda requirement and found the key inquiry was whether the

right to cut off questioning was “scrupulously honored." Id.,

423 U.S. at 103-104. The determination of whether a suspect's

right to cut off questioning was scrupulously honored and whether

the resumption of questioning was permissible depends upon the

circumstances of each case in light of several factors, including

whether the police immediately ceased the interrogation upon the

defendant's request, whether they resumed questioning only after

the passage of a significant period of time, whether they

provided fresh Miranda warnings, and whether they restricted

later interrogation to a crime that had not been the subject of

the first interrogation for which the right to silence had been

asserted. See Michigan v. Mosley, id.; Jackson v. Wyrick, 730

F.2d 1177, 1179 (8th Cir. 1984); United States v. Udey, 748 F.2d

1231, 1241 (8th Cir. 1984); United States v. Hernandez, 574 F.2d

1362, 1369 (Sth Cir. 1978); United States v. Finch, 557 F.2d

1234, 1236 (8th Cir. 1977).

The record here demonstrates Belcher was confronted with

requestioning in direct contravention of the principles and

spirit of Miranda and Mosley. When Detective Conley's interview

proved unsuccessful, Belcher was kept in continuous custody and

exposed to two additional attempts to get him to confess to the

same crime a mere hour after he invoked his right to remain

silent, all without fresh Miranda warnings or waiver of rights

and with no “threshhold questions” designed to clarify any

perceived ambiguity. Such circumstances required the suppression

of his confession, see Spradley v. State, 442 So.2d 1039 (Fla. 2d

DCA 1983); United States v. Hernandez, 574 F.2d 1362 (Sth Cir.

1978); United States v. Olof, 527 F.2d 752 (9th Cir. 1975);

Shaffer v. Clusen, 518 F.Supp. 963, 965 (E.D. Wisc. 1981);

United States v. Morris, 491 F. Supp. 226, 229 (S.D. Ga. 1980);

United States v. Clayton, 407 F.Supp. 204 (E.D. Wisc. 1976), and

the Florida appellate court properly affirmed the trial court's

suppression of the statements. such ruling by the court below

does not present any ground for this Court's granting a writ of

certiorari.

CONCLUSION

Based upon the foregoing, the respondent respectfully

requests this Court to deny the state's petition for writ of

certiorari.

Respectfully submitted,

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit

of Florida

1351 N.W. 12th Street

Miami, Florida 33125

(305) 545-3009

BY:

BETH C. WEITZNER

Assistant Public De der

MARTI ROTHENBERG

Assistant Public Defender

3 The district court of appeal further stated that 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, as it did here, the appellate court may not substitute

its judgment for that of the fact-finder.

The principle that a trial court's ruling on a motion to

suppress comes to a reviewing court with the same presumption of

correctness that attaches to jury verdicts and final judgments,

and that a reviewing court should defer to the factfinding

authority of the trial court, is firmly embedded in Florida

jurisprudence. See Wasko v. State, 505 So.2d 1314 (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); Stone v. State,

378 So.2d 765 (Fla. 1979), cert. denied, 449 U.S. 986, 191 S.Ct.

407, 66 L.Ed.2d 228 (1984). Of course, a prerequisite to the

application of a presumption of correctness under Florida law is

the presence in the record of substantial, competent evidence

supporting the decision of the trial court under the correct

analysis. The foregoing examination of the facts of this case

demonstrates that the appellate court below properly determined

that substantial, competent evidence supported the trial court's

finding, under the principles established by this Court, that

Belcher's right to cut off questioning was not scrupulously

honored.