# Opposition Brief — Florida v. Belcher

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0038%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 912

## Text

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

wile

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

-4-

jane
ete
e

te er

Mu x

€
e
nfe
tnat
mr

attor

room

talk

shes that Belcher wa arrested and transported to an
iew r nm at the Metr ade hor Je office in Miami at 1
eor ary 4 i 3c where ‘ - nterr 74a°*ec Ct erec* ‘
P erect é ey re 4 . 4 Miranca . . a
er state ne _ t , a wa * . < spea
e detect e w : . 2 a € be > prese Re the
the dete e certa nat 4 4 ~ e« |
aime nave we ¢ o é c >
stitutional p re act
wever 2 4 a.f Re re , > € é . € r
want > ta « > ¥ any= re é. ind ed tha
e ey toppe est 5 se he a lef the
ew fr wever ere e -oniey immediately piacec :
2 : . (3 ae . - ‘re ca De - r
e anc asxe r r me ;0W t tne statior t speas t
er ete . iS xer acmitte n ure that etect .
nhac inftormec nim he had bee ao.e t get 3e _ t
: > the . mi ide and Dete > e I ker f rther adr tted
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

?
0
7
;

© 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

to nim

itroduced himself to Belcher and told him he “wanted to

about the investigation which was going on.” He told

~e re
- .- .
4 -
, -

>

&
va)
®
al
‘

The
e stat
oy . |

at e 3 ere 2 betwee Fir ar ~ > Jecree
“xe | « “é - ere ~a a > > e °
aga t Mim fOr wt he w be ‘ s+ what
« be Ff . Sepencec wha Re é e- ar
. -=<«é . - v2 2 at : he
=e . , - e . ~ .. “@ = é x
a’ _ 3 Le De e- > ~ . . . ..
mere Pe oDe i. : + . -
Det e rer nso anc as« ng ~e her es . ‘ale
“2 a tr c ae - - .
and fesced + the . be that
. - .. : - ; . ‘ . ne
:
‘ ‘ c ‘
. rate = oe ~ a re > - e°*
ie her . starteneé - . el T »
S statement ¢c apr to him a t wa
e . . ‘oe re . e ? rs
. - t ear that ertect e 5 xe@r est t
vere not n an way jirectec s » whe t ne
é any further guestior 5 a aime tne
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
which he would be charged and that he wanted t hear

if

if

>
peti

U s

scner
that
her

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0038%3A2. Public record. Not legal advice.