Petition — Florida v. Deconingh

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is DE I ae Se i ee

Office-Supreme Court, U.S.

Pw oO FILED

83 “oC e

SFP 6 1983

ALEXANDER L. STEVAS,

NO. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

THE STATE OF FLORIDA,

Petitioner,

vs.

SUZANNE DECONINGH,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

AND APPENDIX

JIM SMITH

Attorney General

PAUL MENDELSON

Assistant Attorney General

Department of Legal Affairs

401 N. W. 2nd Avenue (820)

Miami, Florida 33128

(305) 377-5441

QUESTION PRESENTED

WHETHER THE FLORIDA SUPREME COURT

MISAPPREHENDED THE SCOPE OF BLACK-

BURN V. ALABAMA, 361 U.S. 199, 80

S.CT. 274, 4 L.ED.2D 242 AND BRADY

V. UNITED STATES, 397 U.S. 742, 90

S.CT. 1463, 25 L.ED.2D 747 (1970)

WHEN IT HELD THAT THE STATEMENT

MADE BY THE DEFENDANT WAS INVOLUN-

TARY EVEN THOUGH THE EVIDENCE CON-

CLUSIVELY ESTABLISHED THAT AL-

THOUGH THE DEFENDANT WAS UNABLE TO

UNDERSTAND THE CONSEQUENCES OF HER

STATEMENT SHE NEVERTHELESS WANTED

TO MAKE ONE AND HER DESIRE IN THIS

REGARD WAS NOT INDUCED BY ANY IM-

PROPER POLICE ACTION?

TABLE OF CONTENTS

QUESTIONS PRESENTED...

TABLE OF CITATIONS... ..cccccccees

PREFACE o *e . 7 . . . . . .

OPINIONS BELOW..... ceeeces covcces

JURISDICTION.... ere . . @eeese#e? .

CONSTITUTIONAL PROVISIONS........

STATEMENT OF THE CASE. .... wee.

SUMMARY OF ARGUMENT..... coeccccce

ARGUMENT.... ee *evre . . . ee ee

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iii

TABLE OF AUTHORITIES

CASES PAGE

Blackburn v. Alabama,

361 U.S. 199, OO $.Ce. 274, 4

Ls 86.26 B62 CVS60) « sess see 17

1S, 19, gaye

Brady v. United States,

397 U.S. 742, 90 S.Ct. 1436,

25 L.Ed.2d 747 (1970)... woos 17

18, 19, 23, 24

>, a0, oe

DeConingh v. State,

433 So.2d 501 (Fla. 1983).... Zz

17 Bee ae

Hutto v. Ross,

429 U.S. 28, 97 S.Ct. 202,

SO &.BGsad 194 CUSTS) onc weds 23

Lego v. Twomey,

404 U.S. 477, 92 S.Ct. 619, 30

L.Ed.2d 618 (1972).-. «© see 24

Mincey v. Arizona,

437 U.S. 385, 98 S.Ct.

2408, 57 L.Ed.2d 290 (1978).. 23

Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602

16 L.Ed.2d 694 (1966)... ... 12

Bek.

TABLE OF AUTHORITIES

CONTINUED

CASES PAGE

Procunier v. Atchley,

400 U.S. 446, 91 S.Ct. 485,

aa bate ae ore. CUSTT2 «ear 60 “s 22

Schlude v. Commissioner of

Internal Revenue,

Sy2:9.8.. t2e, 63 §.Ct.: 601,

S EL. Be. 28 GSS C963) .ccsasecce 19

State v. DeConingh,

400 So.2d 998 (Fla. 3d DCA

1981) ..cccccccccccccce cccccce ys

Stroble v. California,

243 0.8. 081,-72 $.Ct. 3,

56 1.86.28 O72: (U9SzZ) cee cece 30

CONSTITUTIONAL PROVISIONS:

28 U.S.C. $1257(3). 22 weee see-ee 3

Fifth Amendment, United States

CURR ECOLEOR acc cbiccoccets dee cwe's 4

Fourteenth Amendment, United

States Cometieution. .. cee asve % 4

PREFACE

The Petitioner, The State of Florida

was the Respondent in the Supreme Court

of Florida, the Appellant in the District

Court of Appeal of Florida, Third

District and the prosecution in the

Florida trial court. The Respondent,

Suzanne DeConingh, was the Petitioner in

the Supreme Court of Florida, the Appel-

lee in the District Court and the Defen-

dant in the trial court. In this brief,

the parties will be referred to as the

State and the defendant.

The following reference is made in

this brief:

(A) For the portions of the record

below sufficient to show jurisdiction in

this Court, which are contained in the

Petitioner's Appendix and consists of

pages A1l-A206.

ine

OPINIONS BELOW

The decision of the Florida Supreme

Court quashing the decision of the

District Court of Florida, Third District

and reinstating the trial ruling is

reported at DeConingh v. State, 433 So.2d

501 (Fla. 1983). The opinion of the

District Court reversing the trial

court's ruling is reported at State v.

DeConingh, 400 So.2d 998 (Fla. 3d DCA

1981).

JURISDICTION

On July 8, 1983, the Supreme Court

of Florida denied the State's timely

motion for rehearing of its decision an-

nounced on April 21, 1983. This petition

for certiorari was filed within the ap-

plicable time period. This Court's ju-

risdiction is invoked under 28 U.S.C.

$1257(3).

III

CONSTITUTIONAL PROVISIONS

Amendment V of the Constitution of

the United States provides that:

No person shall be held to answer

for a capital, or otherwise infa-

mous crime, unless on a presentment

or indictment of a Grand Jury, ex-

cept in cases arising in the land

or naval forces, or in the militia,

when in actual service in time of

war or public danger; nor shall any

person be subject for the same of-

fense to be twice put in jeopardy

of life or limb; nor shall be com-

pelled in any criminal case to be a

witness against himself, nor be de-

prived of life, liberty, or proper-

ty. without due process of law; nor

shall private property be taken for

public use, without just compensa-

tion.

Amendment XIV, Section 1 of the Con-

stitution of the United States provides

that:

All persons born or naturalized in

the United States, and subject to

the jurisdiction thereof, are citi-

zens of the United States and of

the State wherein they reside. No

State shall make or enforce any law

which shall abridge the privileges

or immunities of citizxens of the

United States; nor shall any State

deprive any person of life, liber-

ty, or property without due process

of law; nor deny to any person

within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

The defendant was charged by infor-

mation with second degree murder. The

defendant filed a motion to suppress

statements, which resulted in a hearing

on May 8, 1980. The following testimony

was produced at the hearing.

Following the alleged homicide of

her husband, the defendant was admitted

to the hospital on September 30, 1978, by

her personal doctor because of hysteria.

(A. 63, 128). She was not under arrest

or a prisoner of the police department

while in the hospital. (A. 85, 86).

While in the hospital, the defendant

stayed in a comfortable, semi-private,

well lit air conditioned room. (A. 87,

88).

Police Officer Richard Roth, a

friend of the defendant's, visited her in

the hospital around lunchtime on October

2, 1978, in the hope of ascertaining what

happened. (A. 62, 64, 65). Officer Roth

went to see the defendant in his capacity

as a police officer, and not as a friend.

(A. 93, 172). Also present in the

defendant's room at this time were

Sergeant Gregory, Joe Pierce and Dr.

Rice. (A. 63). Officer Roth found the

defendant to be visibly upset, and

somewhat incoherent but not to the point

where she didn't realize what she was

saying. (A. 65, 73, 74).

Officer Roth told the defendant he

wanted to know what happened, and probab-

ly that things will work out, and gave

her an advise of rights form. (A. 66, 67,

99). The defendant did not ask to have

any of her rights explained. (A. 68) She

read the form, signed it, and when asked

by Officer Roth if she understood it, she

replied that she did. (A. 68, 69). Offi-

cer Roth felt that the defendant was able

to carry on an intelligent conversation,

and was able to understand what he was

saying, and what was happening around

her. (A. 73, 76). The defendant said

that she wanted to get this over with.

(A.74).

The defendant started to give a tape

recorded statement when Joe Pierce sug-

gested that she wait for an attorney. (A.

71). Although the defendant did not

think that she needed an attorney,

Officer Roth stopped the statement, and

waited for the defendant's attorneys to

arrive. (A. 71, 72). When the defen-

dant's attorneys, Ralph Cunningham and

Pete Lenzi, arrived they said that they

would like to speak to the defendant

alone, so Officer Roth and Sergeant

Gregory left the room. (A. 77). Although

her attorneys then advised her that she

should not say anything, the defendant

insisted that she wanted to tell Officer

Roth what happened because she did not

want him to think bad of her. (A. 156-158

169). At this point the defendant was so

upset that her attorneys arranged to have

her sedated. (A. 157). The defendant's

attorneys then told Officer Roth that the

defendant could not give a statement at

that time, but that he could come back at

later date and take her statement.(A. 77,

169). Officer Roth said fine, and left.

(A. 77). His entire visit with the

defendant on October 2 lasted for sbout

fifteen minutes. (A. 64).

Officer Roth came back to the hospi-

tal room at 11:10 a.m. on October 4,

1978. (A. 77, 78). Also present were

Sergeant Gregory, Robert Gregory, Joe

Pierce, Dr. Mankowitz and the defen-

dant's attorneys. (A. 78). Prior to

Officer Roth's arrival, the defendant's

attorneys has ascertained that the defen-

dant could not understand the conse-

quences of making a statement, and had

accordingly advised her not to make one.

(A. 160-162, 175). The defendant, how-

ever, overrode her attorneys advice, and

insisted on making a statement. (A. 158,

161, 164, 171).

Officer Roth showed the defendant

the waiver of rights form, which she had

signed two days previously, and ascer-

tained that she knew that it was still in

effect. (A. 78, 79). He then told her

that he was there to take a statement

about what happened. (A. 78, 79). The

defendant replied, "I want to get this

over with. I want to give a statement.

I want to get it finished with." (A. 89).

The defendant's attorneys told Officer

Roth that he should let the defendant

give a narrative and not ask any ques-

tions, and Officer Roth agreed. (A. 89).

With her attorneys present, the defendant

then gave the narrative tape recorded

statement, which is the subject of her

motion to suppress. (A. 90, 91, 169-172).

While making the statement, the defendant

would stop and cry on several occasions.

(A. 97, 151, 170) At one point Officer

Roth asked her if she wanted to postpone

the statement to a later date, but she

refused. (A. 170). The defendant was not

promised anything or threatened in anyway

in order to get her to make a statement.

(A. 92, 94).

In addition to Officer Roth, Mr.

Cunningham and Mr. Lenzi, the only other

witness to testify at the suppression

hearing was Sema McAninch, who has a

masters in counseling. (A. 101, 125).

According to Ms. McAninch, who treated

the defendant while she was in the

hospital, the defendant from the time she

shot her husband on September 30, 1978,

through at least October 4, 1978, was

disoriented, irrational, unable to think

logically, sometimes would lose touch

with herself and her environment, and was

being treated with thorazine, a major

tranquilizer, which would make her very

sleepy and groggy. (A. 103-111, 120, 121,

124). Ms. McAninch was not present when

the defendant gave her statement to

Officer Roth. (A. 138).

After the testimony was concluded,

defense counsel argued that the defen-

dant's statement should be suppressed be-

cause they were taken in violation of

Miranda v. Arizona, 384 U.S. 436, 86S.

Ct. 1602, 16 L.Ed.2d 694 (1966). (A. 176-

187), and because the defendant lacked _

the mental capacity to make a voluntary

statement. ! (A. 192-195)

In his written order granting the

motion to suppress, the trial judge made

the following legal and factual conclu-

sions:

1. The death of the victim occured

on September 30, 1978, and the de-

fendant herein, the victim's wife,

was hospitalized soon thereafter. A

deputy sheriff of the Monroe County

Sheriff's Department, hereinafter

referred to as deputy, not in uni-

form and who was personally ac-

quainted with the defendant, went

to see the defendant at the hospi-

tal on October 2nd, and upon ap-

proaching her, addressed the defen-

dant by her first name. The deputy

testified that he did not read her

her rights from his Miranda card,

nor did he verbally advise her of

her Miranda rights; but, instead,

he gave her a so-called "advise of

rights" form; he testified that she

read it, signed it, and said she

understood it. Admittedly, the

deputy made no attempt whatsoever

to ascertain if the defendant did

in fact understand what she read,

did in fact understand what she

1 During argument, defense counsel made

it clear that the only statement in issue

was the one made on October 4. (A. 177-

183).

signed, or whether she understood

the consequences of giving a

statement. No statement was taken

at this time. The said "advice of

rights" form was not of- fered in

evidence and this Court is unaware

of its contents.

2. On October 4, 1978, the same

deputy again went to the hospital

to interrogate the defendant, and

this time her attorneys were pre-

sent. Defendant's attorneys ad-

mitted they did not advise her of

her rights or the consequences of

giving a statement, but merely told

her that she did not have to give a

statement and that she should not.

Again, the deputy testified that he

did not advise her of her rights;

but, instead, he indicated to her

the “advice of rights" form signed

by her two days previously, and

stated did she know it was still in

effect, to which she replied yes.

Again the deputy did not advise the

defendant of her rights, neither

from the Miranda card, nor verbal-

ly, nor by reading her the "advice

of rights" form; again no effort

was made to ascertain whether or

not she even remembered what was on

the "advice of rights" form and

whether or not she understood the

consequences of giving the deputy a

statement. A statement was taken

from the defendant on this

occasion.

3. The testimony of the witnesses

indicates that on both October 2nd

and October 4th, as well as at

other times, the defendant's

condition was described as upset,

crying, confused, disoriented, at

times catatonic, not rational,

under medications of thorazine and

valium, and hysterical.

4. On October 2, 1978 and on

October 4, 1978, the defendant was

not properly advised of her consti-

tutional rights; the defendant did

not understand her constitutional

rights; the defendant did not waive

her constitutional rights; and,

that the defendant was so emotional

ly upset or distressed, and of such

an irrational state of mind that

any statements given or made on

either of those two occasions were

not made voluntarily or know-

ledgably or with a full understand-

ing of the consequences of making

any such statement. Such state-

ments, therefore, must be suppress-

ed. (A. 55-58).

On direct appeal the District Court

of Appeal, Third District, with Judge

Henry dissenting first held that there

was no Miranda violation since the

defendant had not been subjected to

custodial interrogation. The court then

turned its attention to the ". . .ques-

tion of voluntariness which on the facts

of this case must be considered on

general due process grounds as distinct

from the issue of waiver". State v.

DeConingh, 400 So.2d 998, 1001 (Fla. 3d

DCA 1981). The court noted that this

inquiry raises a federal question under

the Fifth and Fourteenth Amendments to

the United States Constitution. The

court held that since the defendant's

statements were not obtained through

coercion, they were voluntary, despite

the defendant's diminished mental state,

and should not have been suppressed.

In its opinion reversing the dis-

trict court, the Florida Supreme Court,

with Justices Alderman and Ehrlich dis-

senting, initially noted that its

decision was not based on the Miranda

issve but rather on the voluntariness

issue. In finding that the defendant's

statement was not voluntary, the court

relied mostheavily on this Court's

decision in Blackburn v. Alabama, 361

U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242

(1960). The court quoted from Brady v.

United States, 397 U.S. 742, 748, 90

S.Ct. 1436, 1468, 25 L.Ed.2d 747 (1970)

the proposition that "Waivers of consti-

tutional rights not only must be volun-

tary but must be knowing, intelligent

acts done with sufficient awareness of

the relevant circumstances and likely

consequences." DeConingh v. State, 433

So.2d 501, 503 (Fla. 1983). The court

held that the testimony at the suppres-

sion hearing shows that the defendant"...

did not meet this test regarding her

right under the state and federal consti-

tutions to remain silent. Id. at 503.

SUMMARY OF ARGUMENT

The Florida Supreme Court's holding

that the defendant's statement was invol-

untary is based upon a misapprehension of

the scope of Blackburn v. Alabama, 361

U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242

(1960) and Brady v. United States, 397

U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747

(1970). Contrary to the Florida Supreme

Court's apparent reading of these cases,

they do not require as a sine qua non to

a voluntary statement that it be given by

a person capable of understanding the

consequences of her statement. Rather,

they as well as other cases from this

Court, recognize that a statement is vol-

untary unless produced by coercion, which

is not present in this case.

ARGUMENT

As the Florida Supreme Court makes

clear, its decision to reinstate the

ruling granting the defendant's motion to

suppress it based on its finding that the

defendant's statement was involuntary,

and does not turn on whether the defen-

dant was able to understand her Miranda

rights. In finding that the statement

was voluntary, the court placed its pri-

mary reliance on Blackburn v. Alabama,

361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242

(1960) and Brady v. United States, 397

U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747

(1970). The State submits that the court

misapprehended the scope of Blackburn and

Brady, and this Court should accordingly

grant certiorari. See Schlude v. Commis-

sioner of Internal Revenue, 372 U.S. 128,

83 S.Ct. 601, 9 L.Ed.2d 633 (1963).

In its opinion, the Florida Supreme

Court quotes the following three passages

from Blackburn v. Alabama, supra at 361

U.S. 206, 207.

As important as it is that persons

who have committed crimes be con-

victed, there are considerations

which transcend the question of

guilt or innocence. Thus, in cases

involving involuntary confessions,

this Court enforces the strongly

felt attitude of our society that

important human values are sacri-

fied where an agency of the govern-

ment, in the course of securing a

conviction, wrings a confession out

of an accused against his will.

* * *

"The abhorrence of society to the

use of involuntary confessions. . .

also turns on the deep-rooted feel-

ing that the police must obey the

law while enforcing the law; that

in the end life and liberty can be

as much endangered from illegal

methods used to convict those

thought to be criminals as from the

actual criminals themselves."

* * *

[Sjurely in the present stage of

our civilization a most basic sense

of justice is affronted by the

spectacle of incarcerating a human

being upon the basis of a statement

he made while insane; and this

judgment can without difficulty be

articulated in terms of the

unreliability of the confession,

the lack of rational choice of the

accused, or simply a strong convic-

tion that our system of law enforce

ment should not operate so as to

take advantage of a person in this

fashion.

DeConingh v. State, 433 So.2d 501, 502

(Fla. 1983).

When these passages are taken out of

context, as the Florida Supreme Court has

done, they arguably support the proposi-

tion that an insane person is incapable

of making a voluntary statement. 2 When,

however, the entire opinion in Blackburn,

as well as subsequent cases from this

2The State would concede at this point

that there was testimony to support the

trial court's factual finding that the

defendant on the day she made the

statement was "upset, crying, confused,

disoriented, at times catatonic, not

rational, under medication of thorazine

and valium and hysterical, (A.57,58), and

that she could not understand the conse-

= ay of making statement. (A.160-162,

Court are analyzed, it becomes apparent

that such a proposition is incorrect, and

that the Florida Supreme Court misapplied

Blackburn.

As recognized in Blackburn, a confes-

sion is involuntary only if obtained

through coercion. The significance of

Blackburn's insanity is that it estab-

lished a setting in which his will could

be easily overcome. Procunier v. Atchley,

400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d

524 (1971). Therefore, in Blackburn the

eight-to-nine hour sustained interroga-

tion in a tiny room which was upon occa-

sion literally filled with police offi-

cers; the absence of Blackburn's friends,

relatives or legal counsel; and the con-

position of the confession by a Deputy

Sheriff rather than by Blackburn, were

sufficiently coercive circumstances to

wring a confession out of an insane

suspect against his will.

As this Court has often stated, a

confession is voluntary unless "extracted

by any sort of threats or violence, or

obtained by any direct or implied pro-

mises, however slight, or by the exertion

of any improper influence." Hutto v.

Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203,

50 L.Ed.2d 194 (1976); Brady v. United

States, supra, (397 U.S. at 753). A sus-

pect's diminished mental state can never

therefore be the sole basis for finding

that a confession is involuntary, but

rather is "relevant only in establishing

a setting in which actual coercion might

have been expected to overcome the will

of the suspect." Procunier v. Atchley,

supra, (400 U.S. at 453, 454). cf. Mincey

v. Arizona, 437 U.S. 385, 98 S.Ct. 2408,

57 L.Ed.2d 290 (1978). These principles

are concisely summed up in the Court's

statement in Lego v. Twomey, 404 U.S.

477, 484 N. 12, 92 S.Ct. 619, 624, 30

L.Ed.2d 618 (1972) that "the sole issue

in such a hearing (voluntariness of a

confession) is whether a confession was

coerced."

When Blackburn is read in light of

this Court's other decisions on volun-

tariness of confessions its scope becomes

readily apparent. A police officer may

not take advantage of an insane person by

subjecting him to custodial interrogation

so as to obtain a confession which he

would not give on his own volition.

Blackburn cannot be read as support for

the proposition that a law enforcement

officer may not take the confession of an

insane person if the desire to confess is

not produced by police action; and in

citing Blackburn for support of such a

proposition, the Florida Supreme Court

has misapprehended the scope of that

opinion.

The Florida Supreme Court also mis-

applied Brady v. United States, supra

when it quoted from 397 U.S. at 748.

"Waiver of constitutional rights not only

must be voluntary but must be knowing,

intelligent acts done with sufficient

awareness of the relevant circumstances

and likely consequences. DeConingh v.

State, supra at 503. Since Miranda was

expressly inapplicable to its decisions,

this quotation of Brady by the Florida

Supreme Court could only mean that the

Court felt that for a confession to be

voluntary it must be made with a suffi-

cient awareness of the relevant circum-

stances and likely consequences. It is

manifest that Brady does not stand for

such a proposition.

Brady is concerned with the require-

ments for the acceptance of a guilty

plea, and holds that since a guilty plea

is foremost an admission of guilt it must

be a voluntary expression of a defen-

dant's own choice under the Fifth Amend-

ment. The Court then holds that since a

guilty plea, in addition to being an

admission of guilt, is also a waiver of

constitutional rights, it must be made

knowingly. Later when the Court dis-

cusses the requirements of a voluntary

confession it reiterates the aforemention

view that a voluntary confession must not

by extracted by any improper influences,

but omits any requirement that it be made

knowingly, i.e. with an awareness of the

consequences. It is thus clear that the

Florida Supreme Court, in relying upon

Brady, has misapprehended its scope.

A review of the evidence in this case

demonstrates that the Florida Supreme

Court must have felt that a statement

given by a suspect incapable of under-

standing the consequences of her state-

ment is involuntary in and of itself,

since there is no evidence that the de-

fendant was coerced; but rather the evi-

dence conclusively establishes that the

defendant wanted to make a statement.

When Officer Roth first met with the

defendant on October 2, 1978, another of-

ficer, a doctor and the defendant's

friend were also present. (A. 63). The

defendant was advised of her rights,

which she said she understood. (A.67-69)

She then agreed to give a statement to

Officer Roth. (A.74). When she began her

statement, she was stopped by Joe Pierce,

her friend, who suggested that she wait

for her attorneys. (A. 71). Although the

defendant replied that she didn't think

she needed an attorney, Officer Roth

nevertheless stopped the statement and

waited for the defendant's attorneys to

arrive. (A. 71, 72) When the defendant's

attorneys arrived, they spoke to the

defendant outside Officer Roth's

presence; and she told them that she

wanted to tell Officer Roth what happened

because she did not want him to think bad

of her, despite their advice not to say

anything. (A. 156-158, 169) Officer Roth

was then advised that he could come back

at a later date and take the defendant's

statment, and he left. (A. 77,169).

Prior to making her statement in

issue to Officer Roth two days later, the

defendant had numerous discussions with

her attorneys in which she persistently

and emphatically maintained that she

wanted to make a statement despite her

attorneys advice to the contrary. (A.158-

164, 171, 175) Thus, when Officer Roth

returned to the hospital, he was advised

by the defendant's attorneys that the

defendant would give a narrative and he

was not to ask any question. (A. 89).

Officer Roth agreed, and the defendant,

with her attorneys present, gave a nar-

rative tape recorded statement. (A. 90,

91, 169-172). While making the statement,

the defendant would stop and cry on

several occasions, but she refused to

postpone the statement despite Officer

Roth's offer to do so. (A. 97,151,170).

In this case it was conclusively

established that the defendant wanted to

make a statement, and this desire was not

induced by any improper police action.

In the absence of any police action

amounting to coercion the confession was

voluntary. Stroble v. California, 343

U.S. 181, 72 S.Ct. 599, 96 L.Ed.2d 872

(1952).

The State submits that this case is

of sufficient importance to warrant the

granting of certiorari. As the six to

four split among appellate judges indi-

cates it obviously involves a question

for which there is no definitive gui-

dance. If the Florida Supreme Court's

decision is allowed to stand, law enforce

ment authorities in Florida would be

under the erroneous impression that this

Court forbids the taking of a confession

from a mentally deficient suspect even

though the suspect clearly wants to con-

fess. Moreover, courtz in other juris-

diction might well take the denial of

certiorari in this case as an indication

that the Florida Supreme Court has not

misapplied this Court's decisions and

therefore reach the same erroneous

holding. In order to guard against the

unjustified erosion of a law enforcement

officer's authority to effectively

investigate crimes, this Court should

take jurisdiction and correct the Florida

Supreme Court's erroneous opinion.

VII

CONCLUSION

In finding that the defendant's

statement was involuntary under the

federal constitution, the Florida Supreme

Court misapplied this Court's decisions

in Blackburn v. Alabama, 361 U.S. 199, 80

S.Ct. 274, 4 L.Ed.2d 242 (1960) and Brady

v. United States, 397 U.S. 742, 90 S.Ct.

1463, 25 L.Ed.2d 747 (1970). These deci-

sions, as well as other decisions from

this Court, require that a confession be

held voluntary, unless obtained through

coercion. Since there was no coercion

exerted on the defendant to make her give

a statement, her statement was voluntary.

The likelihood that the question pre-

sented by this case will be confronted by

law enforcement authorities and judges

not only in Florida, but throughout the

country, justifies the granting of

certiorari.

Respectfully submitted,

JIM SMITH

Attorney General

PAUL MENDELSON

Assistant Attorney General

Department of Legal Affair

401 N.W. 2nd Avenue (820)

Miami, Florida 33128

(305) 377-5441

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

THE STATE OF FLORIDA,

Petitioner,

vs.

SUZANNE DECONINGH,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

APPENDIX

JIM SMITH

Attorney General

PAUL MENDELSON

Assistant Attorney General

Department of Legal Affairs

401 N. W. 2nd Avenue (820)

Miami, Florida 33128

(305) 377-5441

INDEX

Opinion, Supreme Court of

PLOCIGS. wece & 0 0 8

Opinion, Florida District

Court of Appeal, Third

EERO Gs 6 060.060 64 02 244% sia

Transcript of Proceedings..

18-59

60-206

SUZANNE DeCONINGH, Petitioncr,

vs.

STATE OF FLORIDA, Respondent.

No. 61008

SUPREME COURT OF FLORIDA

April 21, 1983

Rehearing Denied July 8, 1983.

State appealed from ruling of the

Circuit Court, Monroe County, Helio

Gomez, J., granting motion of defendant

to suppress statements made by defendant

when she was hospitalized shortly after

shooting death of her husband. The

District Court of Appeal, 400 So.2d 998

reversed and remanded, and defendant

applied for review. The Supreme Court,

McDonald, J. held that statement defen-

dant made while in hospital to deputy who

was personal friend was neither knowing

nor voluntary.

District court's opinion quashed

with directions to reinstate trial

court's ruling.

Alderman, C.J., dissented with

opinion in which Ehrlich, J., concurred.

1. Criminal Law - 517.1(2)

To be admissible, state must show

confession to have been voluntary.

2. Criminal Law - 531(3)

Standard for admissibility of con-

fession is establishing by preponderance

of evidence that confession was freely

and voluntarily made.

3. Criminal Law - 517.2(3)

Where deputy gave defendant advice

of rights form without reading it to her

and without making any effort to deter-

mine if she understood it, came into her

room with another deputy prepared with

tape recorder, and defendant had obvious

respect for deputy, who was personal

friend, and was concerned over what he

thought of her, defendant's statement

made to deputy was neither knowing nor

voluntary.

4. Criminal Law - 1141(1)

Trial court ruling comes to review-

ing court with the same presumption of

correctness that attaches to jury ver-

dicts and final judgments.

5. Criminal Law - 1158(1)

Reviewing court should defer to fact

finding authority of trial court and

should not substitute its judgment for

that of trial court.

Kurt Marmar, Coral Gables, for petition-

er. Jim Smith, Atty.Gen. and Paul

Mendelson, Asst.Atty.Gen., Miami, for

respondent.

McDONALD, Justice.

We granted review of State v.

DeConingh, 400 So.2d 998 (Fla. 3d DCA

1981), because of conflict with Reddish

v. State, 167 So.2d 858 (Fla. 1964). We

have jurisdiction, article V, section

3(b) (3), Florida Constitution, and quash

DeConingh.

A prive physician hospitalized

DeConingh shortly after she shot and

killed her husband. The doctor diag-

nosed her as having lost touch with

herself and with reality and treated her

with thorazine and valium. A deputy

sheriff, who happened to be a friend,

visited her in the hospital, asked her to

sign an "advice of rights" form, and then

asked her what had happened. When her

attorneys arrived, the deputy agreed to

leave and come back another time. He

returned two days later, and against her

attorneys' advice, DeConingh, insisting

that the deputy was her friend and that

she could not let him think badly of her,

gave a narrative statement of what had

happened.

The trial court suppressed the

statement, finding that: 1) the deputy

did not inform DeConingh of her rights

under Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),

and made no attempt to ascertain if she

understood the "advice of rights" form on

either of his visits; 2) witnesses

described DeConingh as upset, crying,

confused, disoriented, under medication,

and hysterical; and 3) DeConingh had not

been properly advised of her rights, did

not understand her rights, did not waive

her rights, and did not make the state-

ment voluntarily or knowingly. The dis-

trict court reversed the suppression

ruling, holding that Miranda did not

apply because DeConingh had not been in

custody and that the statement had been

given voluntarily anyway. We base our

decision not on the Miranda issue but on

the voluntariness issue. We therefore

refrain from discussing the disputed

issue of whether there was a duty to give

DeConingh the standard Miranda

warnings. !

[1,2] The United States Supreme Court

discussed involuntary confessions at some

length in Blackburn v. Alabama, 361 U.S.

199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960),

and made the following observation:

As important as it is that persons

who have committed crimes be con-

victed, there are considerations

which transcend the question of

guilt or innocence. Thus, in cases

involving involuntary confessions,

this Court enforces the strongly

felt attitude of our society that

important human values are sacri-

fied whee an agency of the govern-

ment, in the course of securing a

conviction, wrings a confession out

of an accused against his will.

\cases discussing whether in-hospital

questioning is custodial or noncustodial

for Miranda purposes have been collected

at Annot. 31 A.L.R.3d 565 §13 (1970).

Id. at 206-07, 80 S.Ct. at 279-80. The

Court went on to quote from Spano v. New

York, 360 U.S. 315, 320-21, 79 S.Ct.

1202, 1205-06, 3 L.Ed.2d 1265 (1959):

"The abhorrence of society to the

use of involuntary confessions.

also turns on the deep-rooted feel-

ing that the polie must obey the

law while enforcing the law; that

in the end life and liberty can be

as much endangered from illegal

methods used to convict those

thought to be criminals as from the

actual criminals themselves."

361 U.S. at 207, 80 S.Ct. at 280. The

Court found that the evidence showed, to

a high probability, Blackburn's insanity

and incompetency and commented that

[sJurely in the present stage of

our civilization a most basic sense

of justice is affronted by the

spectacle of incarcerating a human

being upon the basis of a statement

he made while insane; and this

judgment can without difficulty be

articulated in terms of the unreli-

ability of the confession, the lack

of rational choice of the accused,

or simply a strong conviction that

our system of law enforcement

should not operate so as to take

advantage of a person in this

fashion.

Id. This Court echoed Blackburn in

Reddish and stated:

If for any reason a suspect is phy-

sically or mentally incapacitated

to exercise a free will or to fully

appreciate the significance of his

admissions, his self-condemning

statements should not be employed

against him.

167 So.2d at 863 (emphasis added). To be

admissible, the state must show a confes-

sion to have been voluntary. The state

was required to establish voluntariness

by a preponderance of the evidence.

Brewer v. State, 386 So.2d 232 (Fla.

1980).

[3] The circumstances of this case--the

deputy's giving DeConingh the advice of

rights form without reading it to her and

without making any effort to determine if

she understood it, coming into her room

with another deputy and prepared with a

tape recorder, and DeConingh's obvious

respect for the deputy personally and

concern over what he thought of her, when

coupled with her incapacity due to the

administration of powerful tranquili-

zers2 and her distraught condition-add

up to more than a mere admission to a

disinterested party. The deputy here

took impermissible advantage of the

situation, resulting in psychological

coercion.

"Any questioning by police officers

which in fact produces a confession which

2Intoxication at the time of confessing

will not bar admitting a confession into

evidence unless the confessor is intoxi-

cated to the degree of mania or is unable

to understand the meaning of his state-

ments. Lindsey v. State, 66 Fla. 341, 63

So. 832 (1913); Annot. 69 A.L.R.2d 361

(1960). Such is not the case here, how-

ever, where the drug intoxication was not

self-induced but was prescribed by her

doctor.

31f DeConingh had been under arrest and

if events had occurred exactly as they

did in the hospital, the trial court

would have had to make the primary deter-

mination as to voluntariness. McDole v.

State, 283 So.2d 553 (Fla. 1973).

is not the product of a free intellect

renders that confession inadmissible."

Townsend v. Sain, 372 U.S. 293, 308, 83

S.Ct. 745, 754, 9 L.Ed.2d 770 (1963)

(emphasis in original). There was a

factual basis for the trial court to

conclude that DeConingh's mental and

emotional distress prevented her from

effectively waiving her rights and that

she did not make the statement volun-

tarily or knowingly. "Waivers of con-

stitutional rights not only must be

voluntary but must be knowing, intelli-

gent acts done with sufficient awareness

of the relevant circumstances and likely

consequences." Brady v. United States,

397 U.S. 742, 748, 90 S.Ct. 1463, 1468,

25 L.Ed.2d 747 (1970)(footnote omitted).

Testimony of the witnesses at the sup-

pression hearing shows that DeConingh did

not meet this test regarding her right

under the state and federal constitutions

to remain silent. The strongest support

finding a knowing, voluntary confession

is the deputy's statement that, although

she was crying and visibly upset, he

thought that DeConingh understood her

rights. This conclusion appears to be

mere unsupported speculation when con-

trasted with the deputy's conduct and

with the other witnesses' testimony.

The district court correctly con-

cluded that, ordinarily, a confession

which is the product of a confused mind

presents an issue of credibility for the

jury to determine rather than voluntari-

ness which the court must rule on. The

instant case, however, is not the

ordinary case.4 The trial court, in

41f this were the ordinary case, the

district court's conclusion would proba-

bly be correct. As stated in Myles v.

State, 399 So.2d 481, 482 (Fla. 3d DCA

spite of the actions of both the deputy

and DeConingh, preserved her right not to

be compelled to be a witness against

Although mental capacity may be

considered in determining whether

under the totality of circumstances

a confession is voluntary, State v.

Chorpenning, 294 So.2d 54 (Fla. 2d

DCA TTY, the lack of mental capa-

city is generally considered only

as it relates to credibility and

not admissibility, see e.g., Palmes

v. State, 397 So.2d 648 (Pia.

1981) ; Reddish v. State, 167 So.2d

858 (Fla. 1964), and a confession

will not be excluded on these

grounds where it is shown that the

defendant understands his rights,

see e.g., Ashley v. State, 370

So.2d 1191 (Fla. 3d DCA 1979); Lane

v. State, 353 So.2d 194 (Fla. 3d

DCA 1977).

(Emphasis supplied) In the instant case,

however, the State has failed to show

that DeConingh really understood any-

thing. The knowingly and voluntarily re-

quirements for confessions are similar to

the requirements for accepting a guilty

plea. A guilty plea must be voluntary to

ensure that that the plea is made of the

herself. Article I, §9, Fla.Const. We

agree with Judge Hendry? that on the

totality of the circumstances the trial

court had a proper factual basis to find

that DeConingh had made her statement

neither knowingly nor voluntarily.®

[4,5] A trial court ruling comes to a

reviewing court with the same presump-

tion of correctness that attaches to jury

verdicts and final judgments. Stone v.

State, 378 So.2d 765 (Fla. 1979), cert.

denied, 449 U.S. 986, 101 S.Ct. 407, 66

L.Ed.2d 250 (1980); Ebert v. State, 140

So.2d 63 (Fla. 2d DCA 1962). "The ques-

tion of the admissibility in evidence of

defendant's own free will without any

kind of threats or coercion. Williams v.

State, 316 So.2d 267 (Fla. 1975).

5SState v. DeConingh, 400 So.2d at 1005

(Hendry, J. dissenting).

6Voluntariness must be determined from

the totality of the circumstances. Brewer

v. State, 386 So.2d 232 (Fla. 1980).

an extra-judicial confession is for the

court to decide, based on all the circum-

stances of the confession." Palmes v.

State, 397 So.2d 648, 653 (Fla.), cert.

denied, 454 U.S. 882, 102 S.Ct. 369, 70

L.Ed.2d 195 (1981). A reviewing court

should defer to the fact-finding autho-

rity of the trial court and should not

substitute its judgment for that of the

trial court. State v. Melendez, 392

So.2d 587 (Fla. 4th DCA 1981). Because

the record supports the trial court's

ruling, the district court impermissi-

bly substituted its judgment for that of

the trial court. The district court's

opinion is quashed with directions to

reinstate the trial court's ruling.

It is so ordered.

ADKINS, BOYD, OVERTON and SHAW, JJ.,

concur,

ALDERMAN, C.J., dissents with an

opinion, in which EHRLICH, J., concurs.

ALDERMAN, Chief Justice, dissent-

ing.

Initially, I dissent on the basis

that we are without jurisdiction to

review the decision of the Third

District. The district court correctly

determined that Reddish v. State is both

of limited significance and inapplicable

to the present case. I therefore would

deny the petition for review.

Moreover, even if we had jurisdic-

tion to review the district court's deci-

sion, I dissent from this Court's quash-

ing of that decision.

The district court correctly held

that Miranda v. Arizona, does not apply

here because DeConingh was not in custody

when she made her statements and that the

statements sought to be suppressed were

given voluntarily. DeConingh had not

been arrested and her questioning did not

take place at a police station. She had

been hospitalized on her personal physi-

cian's advice, and there is nothing in

the record evidencing that her hospitali-

zation amounted to a custodial situation.

The district court accurately points out

that her statements did not result from

police interrogation but rather were

blurted out in the form of a narrative

and were voluntary. They were not the

result of any threats, promises, or other

physical or mental coercion caused by

police procedure and, in fact, were given

in the presence and against the advice of

her attorney. She wanted to speak and in

no way was she induced to do so.

I particularly object to the state-

ment in the majority opinion that "[t]Jhe

deputy here took impermissible advantage

of the situation, resulting in psycholo-

gical coercion." The deputy to whom

DeConingh blurted out her statements did

not employ any improper police procedure.

In fact, this case represents an example

of good police work, and the deputy

should be commended for his actions.

The Third District Court properly

reversed the trial court's order which

grantaed DeConingh's motion to suppress,

and I would approve its decision holding

that DeConingh’s statements were not the

product of a coercive custodial interro-

gation and that the record establishes

that the statements were voluntary.

EHRLICH, J., concurs.

THE STATE OF FLORIDA, Appellant,

vs.

SUZANNE DeCONINGH, Appellee.

No. 80-1061

District Court of Appeal of Florida,

Third District

June 16, 1981

Rehearing Denied July 23, 1981.

State appealed from ruling of the

Circuit Court, Monroe County, Helio

Gomez, J., granting motion of defendant

to suppress statements made by defendant

when she was hospitalized shortly after

shooting death of her husband. The

District Court of Appeal, Ferguson, J.,

held that: (1) defendant, who was hospi-

talized on advice of her personal physi-

cian and who made statements to police

officers in narrataive form, and not in

response to interrogation, was not in

custody and was not a person deprived of

freedom in a significant way; thus, there

was no necessity for adhering to specific

requirements of Miranda, and (2) defen-

dant's statements to police officer,

given in presence and against advice of

her attorney and in a narrative form

absent any threats, promises or other

physical or mental coercion caused by

police procedure, were voluntary.

Reversed and remanded.

Hendry, J., dissented and filed

opinion.

1. Criminal Law - 412.1(3)

In determining whether statements of

a defendant should be suppressed under

Miranda, issues are whether there was

custody, whether there was interrogation,

whether warnings were given, and whether

there was a waiver; a negative finding at

any step makes proceeding to next step

unnecessary. U.S.C.A. Const. Amend. 5.

2. Criminal Law - 412.2(2)

It is custodial nature and not focus

of interrogation that triggers necessity

for adhering to specific requirements of

Miranda. U.S.C.A. Const. Amend. 5.

3. Fact that sheriff gave defendant,

who had been hospitalized on the advice

of her personal physician, an "advice of

rights" form to read and sign while de-

fendant was still in hospital did not

convert an otherwise noncustodial situa-

tion into a custodial one. U.S.C.A.Const.

Amend. 5.

4. Criminal Law - 412.2(2)

Where defendant, who was hospita-

lized on advice of her personal physi-

cian, gave statement to police officer,

while in hospital, in narrative form and

not in response to police interrogation,

defendant was not in custody and it was

not necessary to adhere to specific

requirements of Miranda U.S.C.A.Const.

Amend. 5.

5. Criminal Law - 519(4)

Test of "voluntariness" of confes-

sion given to police is whether under

totality of circumstances confession was

product of mental or physical coercion,

brutality or some other improper police

procedure which caused confession to be

involuntary. U.S.C.A. Const. Amend 5;

West's F.S.A. Const. Art. 1, §9.

6. Criminal Law - 525, 526

Cenerally, a confession which is

product of a mind confused by intoxica-

tion, excitement or mental disturbance

not induced by extraneous pressure,

raises question of credibility to be

determined by jury and not a question of

admissibility as a matter of law.

7. Criminal Law - 531(2)

Absent evidence of threats or pro-

mises or other improper police procedures

testimony about state of mind is irrele-

vant at pretrial hearing on motion to

suppress confession.

8. Criminal Law - 519(4)

Confession given by defendant, who

gave statements to deputy sheriff in pre-

sence of and against advice of her attor-

ney and in a narrative form absent any

threats, promises or other physical or

mental coercion caused by police proce-

dures, was voluntary. U.S.C.A. Const.

Amends. 5, 14; West's F.S.A.Const. Art.

1, 89.

Jim Smith, Atty.Gen. and Paul Men-

delson, Asst.Atty Gen., David H. Blud-

worth, State's Atty, West Palm Beach, for

appellant.

Kurt Marmar, Miami, For appellee.

Before HENDRY, SCHWARTZ and

FERGUSON, JJ.

FERGUSON, Judge.

The State appeals from a ruling of

the trial court which granted the motion

of Suzanne DeConingh to suppress

statements made by her when she was

hospitalized shortly after the shooting

death of her husband. DeConingh was sub-

sequently charged with second degree

murder. !

We cite verbatim the findings made

by the trial court in granting

DeConingh's motion to suppress:

1A second appeal was filed by the

state, seeking to overturn a separate

judicial ruling as to the admissibility

in evidence of certain blood samples

taken from the defendant and/or certain

physical evidence seized at the home of

the victim and defendant where the shoot-

ing allegedly occurred. In our opinion

in State v. DeConingh, 396 So.2d 858

(Fla. 3d DCA) (Case No. 80-1812, opinion

filed April 14, 1981), this court affirm-

ed the trial court's suppression of the

blood sample evidence and dismissed the

defendant's cross-appeal of the suppres-

sion of physical evidence seized in the

home.

1. The death of the victim occur-

red on September 30, 1978, and the

defendant herein, the victim's

wife, was hospitalized soon there-

after. A deputy sheriff of the

Monroe County Sheriff's Department,

hereinafter referred to as deputy,

not in uniform and who was person-

ally acquainted with the defendant,

went to see the defendant at the

hospital on October 2nd, and upon

approaching her, addressed the de-

fendant by her first name. The

deputy testifieds that he did not

read her her rights from his Miran-

da card, nor did he verbally ad-

vise her of her Miranda rights;

but, instead, he gave her a so

called "advice of rights" form; he

testified that she read it, signed

it, and said she understood it. Ad-

mittedly, the deputy made no at-

tempt whatsoever to ascertain if

the defendant did in fact under-

stood what she read, what she

signed, or whether she understood

the consequences of giving a state-

ment. No statement was taken at

this time. The said "advice of

rights" form was not offered in

evidence and this Court is unaware

of its contents.

2. On October 4, 1978, the same

deputy again went to the hospital

to interrogate the defendant, and

this time her attorneys were pre-

sent. Defendant's attorneys ad-

mitted they did not advise her of

her rights or the consequences of

giving a statement, but merely told

her that she did not have to give a

statement and that she should not.

Again, the deputy testified that he

did not advise her of her rights;

but, instead, he indicated to her

the "advice of rights" form signed

by her two days previously, and

stated did she know it was still in

effect, to which she replied yes.

Again the deputy did not advise the

defendant of her rights, neither

from the Miranda card, nor verbal-

ly, nor by reading her the "advice

of rights" form; again no effort

was made to ascertain whether or

not she even remembered what was on

the "advice of rights" form and

whether or not she understood the

consequences of giving the deputy a

Statement. A statement was taken

from the defendant on this occa-

sion.

3. The testimony of the witnesses

indicates that on both October 2nd

and October 4th, as well as at

other times, the defendant's condi-

tion was described as upset, cry-

ing, confused, disoriented, at

times catatonic, not rational,

under medications of thorazine and

valium, and hysterical.

4. On October 2, 1978 and on

October 4, 1978, the defendant was

not properly advised of her consti-

tutional rights; the defendant did

not understand her constitutional

rights; the defendant did not waive

her constitutional rights; and,

that the defendant was so emotion-

ally upset or distressed, and of

such an irrational state of mind

that any statements given or made

on either of those two occasions

were not made voluntarily or know-

ledgably or with a full understand-

ing of the consequences of making

any such statement. Such state-

a therefore, must be suppress-

e .

We must reverse on the grounds that

Miranda does not apply to non-custodial

situations and that the statements sought

to be suppressed were given voluntarily.

[1] Im Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the

Supreme Court held that statements

arising from the custodial interrogation

of a defendant are inadmissible at trial

unless the prosecution demonstrates that

the person giving the statements was in-

formed that any statement he makes may be

used against him and he has a right to

the presence of an attorney, either re-

tained or appointed. Custodial interro-

gation was defined as questioning initi-

ated by a law enforcement officer after a

person has been taken into custody or

otherwise deprived of his freedom in any

significant way. The court in Miranda,

supra, also stated that a party may waive

his right to remain silent, provided the

waiver is knowingly and intelligently

made. Miranda, supra, establishes a four

part test for determining whether state-

ments of a defendant should be suppress-

ed: (a) was there custody, (b) if so, was

there interrogation, (c) if so, were the

warnings given, and (d) if so, was there

a waiver. See, e.g., Cummings v. State,

27 Md.App. 361, A.2d 294 (1975). A nega-

tive finding at any step makes proceeding

to the next step unnecessary. See e.g..

R.A.B. v. State, 399 So.2d 16 (Fla. 3d

DCA 1981) (plaintiff failed to prove cus-

tody).

[2,3] DeConingh had been hospitalized on

the advice of her personal physician and

the record is devoid of facts establish-

ing that hospitalization or questioning

of DeConingh constituted a custodial

situation. It is well established that

Miranda does not apply outside the con-

text of inherently coercive custodial

interrogation (emphasis added), Roberts

v. United States, 445 U.S. 552, 100 S.Ct.

1358, 63 L.Ed.2d 622 (1980); Oregon v.

Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50

L.Ed.2d 714 (1977). See, e.g. In re

Beverly, 342 So.2d 481, 488 (Fla. 1977).

It is the custodial nature and not the

focus of the interrogation that triggers

the necessity for adhering to the speci-

fic requirements of Miranda, supra. See

e.g. Beckwith v. United States, 425 U.S.

341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976);

State v. Fields, 294 N.W.2d 404 (N.D.

1980); State v. Paschal, 358 So.2d 73

(Fla. 1st DCA 1978); Cummings v. State,

supra. The fact that Sheriff Roth gave

DeConingh the "advice of rights" form to

read does not convert an otherwise non-

custodial situation into custodial one.

United States v. Akin, 435 F.2d 1011 (5th

Cir. 1970); United States v. Owens, 431

F.2d 349 (5th Cir. 1976).

[4] It is widely held that a general

questioning by police officers in a hos-

pital room does not constitute custodial

questioning. See, e.g., State v. Fields,

< supra; State v. Alston, 295 N.C. 629, 247

S.E.2d 898 (1978); People v. Clark, 55

Ill.App. 3d 496, 13 Ill. Dec. 338, 371

2But see Johnson v. State, 252 Ark.

113, 482 S.W.2d 600 (1972).

N.E.2d 33 (1977); Bartram v. State, 33

Md.App. 115, 364 A.2d 1119 (1976), aff'd,

280 Md. 616, 374 A.2d 1144 (1977);

Cummings v. State, supra; State v. Ryan,

113 R.I. 343, 321 A.2d 92 (1974); State

v. Brunner, 211 Kan. 596, 507 P.2d 233

(1973); Johnson v. State, supra; State

v. Hoskins, 292 Minn. 111, 193 N.W. 2d

802 (1972); State v. Sandoval, 92 Idaho

853, 452 P.2d 350 (1969); People v.

Phinney, 22 N.Y.2d 288, 292 N.Y.S.2d 632,

239 N.E.2d 515 (1968); State v. District

Court of Thirteenth Judicial District,

150 Mont. 128, 432 P.2d 93 (1967); State

v. Zucconi, 50 N.J. 361, 235 A.2d 193

(1967).

Further there was no interrogation.

DeConingh's statements were not made in

response to police interrogation, see,

e.g., Reddish v. State, 167 So.2d 858

(Fla. 1964),3 but were blurted out in

the form of a narrative. See, e.g.,

Cummings, supra, Bartram, supra. Miranda,

supra does not apply where there is no

custody or a person has not been deprived

of his freedom in a significant way, and

there is no interrogation. When Miranda

does not apply, the issue of whether

there was a knowing and intelligent

waiver of Miranda rights never arises,

see Cummings, supra.

[5] We turn next to the question of vo-

luntariness which on the facts of this

case must be considered on general due

process grounds as distinct from the

issue of waiver. U.S. Const. Arts. V,

XIV; Art. I, §9, Fla.Const. (1968). See,

3Reddish, supra, was decided before

Miranda and the court never addressed the

iossue of custody. Reddish, however had

been served with an arrest warrant prior

to hospital admission and his statements

were the product of police interrogation.

e.g. Malloy v. Hogan, 378 U.S. 1, 84

S.Ct. 1489, 12 L.Ed 2d 653 (1964); Brown

v. Mississippi, 297 U.S. 278, 56 S.Ct.

461, 80 L.Ed. 682 (1936); DeCastro v.

State, 359 So.2d 551 (Fla. 3d DCA 1978).

The record establishes that DeConingh

gave the statements in the presence and

against the advice of her attorney and in

a narrative form absent any threats,

promises or other physical or mental co-

ercion caused by police procedure. Al-

though the question of whether the state-

ment itself was voluntary does not usual-

ly arise as an issue separate from that

of whether the waiver of Miranda rights

was voluntary, the test of

"voluntariness" in either situation is

the same, i.e., whether under the

totality of the circumstances the

confession was the product of mental or

physical coercion, brutality or some

other improper police procedure which

caused the confession to be

involuntary. See, e.g. Palmes v. State,

397 So.2d 648 (Fla. 1981); Wilson v.

State, 304 So.2d 119 (Fla. 1974); McDole

v. State, 283 So.2d 553 (Fla. 1973);

State v. Beck, 390 So.2d 748 (Fla. 3d DCA

1980); State v. Williams, 386 So.2d 27

(Fla. 2d DCA 1980); Barnason v. State,

371 So.2d 680 (Fla. 3d DCA 1979), cert.

denied, 381 So.2d 764 (Fla. 1980);

DeCastro v. State, supra; Lane v. State,

353 So.2d 194 (Fla. 3d DCA 1977); Melero

v. State, 306 So.2d 603 (Fla. 3d DCA

1975); Paulk v. State, 211 So.2d 591

(Fla. 2d DCA 1968). This court was held

that where there is no evidence of coer-

cion or other improper police procedure,

a finding of whether a confession was

knowingly or voluntarily made as a result

of a medical condition is not mandatory,

Melero, supra.

[6-8] Generally a confession which is the

product of a mind confused by intoxica-

tion, excitement or mental disturbance

not induced by extraneous pressure,

raises a question of admissibility as a

matter of law. Absent evidence of

threats or promises or other improper

police procedures, testimony about state

of mind is irrelevant at pretrial hear-

ing. See, e.g., Palmes, supra; Reddish

v. State, supra; State v. Caballero, 396

So.2d 1210 (Fla. 3d DCA 1981); Melero,

supra. In Reddish, supra, the court made

an express and singular exception to this

general rule in finding that Reddish's

statements were inadmissible because his

confused mental state prevented his

answers to police interrogation from

being voluntary. We find Reddish of

limited significance and inapplicable to

DeConingh's situation. Not only had

Reddish been served with an arrest

warrant prior to hospital admittance, he

was interrogated by the police. Under

Miranda, Reddish would have been

considered «s in custody, but he was

without the benefit of the subsequently

decided Miranda case. Moreover, none of

the five factors4 carefully established

4The court in Reddish, supra, estab-

lished that:

1. The court had before it a precise

record of the di: ugs administered to

Reddish by name, date, and hour.

2. The record before the court

related the time significance of the

narcotic dosages to the obtaining of the

confessions.

3. The initial confession was

obtained from Reddish the same day he

entered the hospital. Reddish was suf-

ferring from an almost fatal pistol

wound, had bled profusely and had re-

ceived three transfasions of blood. He

was in a condition of great physical

shock.

4. There was testimony of a medical

doctor as to the effect of the drugs ad-

ministered to Reddish.

5. The suppressed statements were in

the form of questions propounded by the

state attorney and answered by Reddish.

There is no evidence in the record of

the exact medication that DeConingh

received while in the hospital by name,

hour or dosage.

by the court in Reddish, supra, as justi-

fying the exception are present in

DeConingh's case.

We hold that because DeConingh's

statements are not the product of a

coercive custodial interrogation, and the

record establishes that te statements

were voluntary, the trial court erred in

granting the motion to suppress those

statements.

The most that DeConingh can point to is

testimony of Sema McAninch, who has a

degree in psychology, that she knew ap-

pellee had been prescribed 50 milligrams

of thorazine and 10 milligrams of valium

because she had discussed DeConingh's

medical plan with DeConingh's doctor.

McAninch did not kn ow how many times a

day DeConingh received medication. The

record is devoid of any hospital record

or testimony by a medical doctor as to

whether DeConingh had actually received

any medication. There is no testimony by

a medically trained expert as to the ef-

fects of the drugs allegedly administer-

ed to DeConingh and there is no evidence

that DeConingh was in a weakened physical

condition.

Reversed and remanded to the circuit

court for proceedings consistent with

this opinion.

HENDRY, Judge, dissenting.

I respectfully dissent from the ma-

jority opinion. The circumstances sur-

rounding the making of the inculpatory

statements by the appellee present an in-

teresting variation on the case law re-

lating to the standards to be applied in

determining whether a confession May con-

stitutionally be admitted in evidence

against its maker. Let us consider first

whether an application of the require-

ments of Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), is warranted and if not, whether

the trial court's exclusion of the con-

fession may be sustained on the basis of

safeguarding appellee's Fifth Amendment

privilege against self-incrimination

which the Miranda procedure also serves

to protect.

It is my view based upon my review

of the record that the trial court's

ruling is supported by competent, sub-

stantial evidence and was a proper exer-

cise of the court's function of hearing

the evidence, resolving evidentiary con-

flicts and ruling on the admissibility of

a confession which is sought to be sup-

pressed on the ground that its taking was

in violation of the defendant's privilege

against compelled self-incrimination.! I

further find the trial court to have

specifically delineated its factual find-

ings that based on appellee's mental con-

dition and the circumstances under which

the confession was taken, the voluntari-

ness constitutionally required to allow

'Peterson v. State, 372 So.2d 1017

(Fla. 2d DCA 1979); Lane v. State, 353

So.2d 194 (Fla. 3d DCA 1977); Melero v.

State, 306 So.2d 603 (Fla. 3d DCA 1975).

admission of the self-condemning

statements into evidence could not

reasonably be said to have existed at the

time the statements were made.

Moreover, my conclusion as to the

correctness of the ruling on a constitu-

tional basis appears to be at odds with

the majority's view that the question of

voluntariness presented here did not

raise a constitutional violation which

would prevent its admissibility, and thus

the confession should have been allowed

to go the jury.

I find inapplicable the line of

cases typified by State v. Williams, 386

So.2d 27 (Fla. 2d DCA 1980), holding that

a defendant's anxious or distressed men-

tal state arising form his own apprehen-

sion of the situation in which he finds

himself, as opposed to being the result

of external, improper police influences,

presents a question not of admissibility,

but of evidentiary weight to be given the

confession, and so is properly to be con-

sidered by the jury. As is noted in the

discussion of the facts, the trial court

properly considered of the facts, the

trial court properly considered other

factors bearing on appellee's mental

state which serve to distinguish this

case from those cited by the majority,

(for example, the severity of appellee's

mental condition, the psychologist's

testimony that the mental disorder arose

just prior to the shooting, and the pro-

bability of influence on appellee's mind

arising from her friendship with the de-

puty). I therefore would affirm the cor-

rectness of the suppression ruling.

The uncontroverted facts establish

that appellee was hospitalized by her

personal physician, due to hysteria, soon

after the shooting death of her husband

which occurred on September 30, 1978.

While in the hospital and on the dates in

question herein, appellee was diagnosed

by a psychologist as having a "dissocia-

tive reaction," a severe mental distur-

bance characterized by depersonalization

and loss of touch with self and the ex-

ternal environment, and was regularly and

continuously receiving medical adminis-

tration of the drugs Thorazine and

Valium. 2

2The Physicians' Desk Reference, 35th

ed., (1981), provides the following in-

formation as to the nature and effects of

these drugs:

Thorazine is the brand name for chlor-

promazine, a strong central nervous sys-

tem depressant used in treatment of psy-

chotic disorders. It also has sedative

effects, may impair mental and/or pone

cal abilities, especially during the

first few days of therapy, and may cause

adverse reactions such as drowsiness.

Valium is the brand name for diazepam,

a central nervous system depressant used

in treatment of anxiety disorders. Its

side effects may include drowsiness,

fatigue and infrequently, confusion or

depression. It is also a controlled sub-

stance pursuant to section 893.03,

Florida Statutes (1980).

On October 2, 1978, appellee was

visited in her hospital room by Deputy

Sheriff Rick Roth of the Monroe County

Sheriff's Department and an other offi-

cer. Deputy Roth was a friend of appel-

lee. He used her first name in address-

ing her, said something like ‘things will

work,' and then told her he wanted to

know what had happened. He showed her an

"advice of rights" form, which he gave

her to read and asked her if she under-

stood, which she said she did, and

signed. The deputy did not read appel-

lee's rights to her, nor did he attempt

to determine if she had in fact under-

stood what she had been given to read and

had signed. Appellee began to make a

statement, but was stopped when a friend

who was also present in the room suggest-

ed she wait for her attorneys to be pre-

sent. Her attorneys arrived and after

speaking to her privately, suggested to

Roth that the taking of the statement be

delayed until the following day as she

was in no condition to testify, at which

point both officers left.

On October 4, 1978, Roth and another

officer returned to appellee's hospital

room. Her two attorneys were also pre-

sent. Again Roth did not advise appel-

lee of her rights, but indicated to her

the "advice of rights" form she had

signed two days before and asked if she

knew it was still in effect, to which she

responded yes. Although her attorneys

advised her against doing so, appellee

insisted on making a statement. She said

repeatedly that Rick Roth was a friend

and she wanted and had to tell him what

happened; she could not let him think bad

of her. The statement, given in the form

of a narrative at her attorney's sugges-

tion, was recorded and later transcribed

and is the chief subject of appellee's

) 44

motion to suppres which is the basis of

this appeal.

Deputy Roth testified that appellee

was visibly upset during the meetings,

but could carry on an intelligent conver-

sation and understood what was happening;

however, this testimony is controverted

oy that of her two attorneys, the state's

own witnesses, that she was not able to

understand what was said to her, nor was

she aware of the consequences of making a

statement, nor was she in any condition

to testify while in the hospital, being

"hysterical" and "uncontrollable" and

breaking down on many occasions while

giving her statement to the deputy. The

latter testimony, taken together with

that of the psychologist who testified on

behalf of appellee to the effect that she

was suffering from a severe mental dis-

turbance which probably arose just prior

to the alleged shooting, and was

"definitely not rational" during the time

frame in which the statements were made,

is, I believe, sufficient to outweigh the

testimony of the deputy and provide com-

petent and substantial evidence to sup-

port the trial court's ruling.3

Let us next consider the relevant

legal authorities, beginning with Miranda

v. Arizona, supra, and then take up other

decisions which I find applicable to the

facts before us. The state has urged and

the majority opinion has similarly held

that the trial court's application of the

Miranda doctrine was not warranted by the

facts in that they do not comprise the

3I note that the standard to be applied

in appellate review of a trial court's

determination of fact questions in a sup-

pression hearing is a deferential one;

such determination will not be reversed

unless clearly shown to be without basis

in evidence or predicated upon an incor-

rect application of law. State v.

Riocabo, 372 So.2d 126 (Fla. 3d DCA

e° dismissed, 378 So.2d 348 (Fla.

979).

type of in-custody interrogation contem-

plated by Miranda. I agree that this

case does not fall squarely within the

well defined pattern of circumstances

which would require the exclusion of a

confession based on noncompliance with

Miranda.4 For example, the essential

element of "custody," or the officers'

intent to hold appellee, is lacking in

that she had been privately admitted to

the hospital by her own physician and her

freedom of movement was not restricted by

the officers. I thus find that a review

of this case based on the standards set

forth in Miranda is not appropriate.

In support of its holding that

Miranda is not applicable, the majority

has cited numerous cases from other ju-

risdictions -for the rule of law that

4For a discussion of the relevant

Miranda factors, see page 1000 of the

majority opinion.

police interrogation of a hospital pa-

tient concerning a criminal episode of

which he may have knowledge does not

amount to in-custodial interrogation so

as to trigger Miranda. A review of these

cases discloses that, while their main

concern is the question of applicability

of Miranda, they do not preclude a

finding that under some circumstances, a

confession given by a hospital patient to

a police officer may be so lacking in

voluntariness that it may not be used

against its maker. See, e.g., People v.

Phinney, 22 N.Y.2d 288, 292 N.Y.S.2d 632,

239 N.E.2d 515 (N.Y. 1968), stating the

rule that if the circumstances under

which the questioning occurred are likely

to substantially affect the individual's

will to resist and compel him to speak

where he would otherwise not do so freely

it could constitute an in-custodial in-

terrogation so as to invoke Miranda, but

finding it inapplicable to the facts of

that case.

While I would hold that the instant

case is not directly controlled by

Miranda, and thus the trial court's

ruling, if it were based solely on that

ostensible violation might require rever-

sal, I find, however, that the trial

court's suppression ruling may be

sustained upon the basis that its exten-

sive factual findings relative to appel-

lee's mental condition, the influence of

drugs and the surrounding circumstances

under which the confessions were made,

could be said to have reasonably led it

to the conclusion that suppression of the

confession was necessary to safeguard the

appellee's constitutional rights. >

SMy review is limited to considering

the record evidence on this point in the

light most favorable to the successful

movant and resolving evidentiary con-

flicts in her favor. State v. Williams,

371 So.2d 1074 (Fla. 3d DCA 1979), cert.

denied, 381 So.2d 771 (Fla. 1980).

My view in this regard is, I think,

supported by the leading Florida case of

Reddish v. State, 167 So.2d 858 (Fla.

1964), which was decided before Miranda,

and which continues to be applicable in

those situations, such as in the case at

bar, where in-custodial interrogation

sufficient to invoke Miranda is not pre-

sent. The Florida Supreme Court in

Reddish applied a test of the "totality

of circumstances" to reach its determina-

tion that the defendant's incriminating

responses to the questioning of a state

attorney at the hospital were unconsti-

tutionally obtained in violation of Arti-

cle I, Section 12 [now Section 9] of the

Florida Constitution. Factors explored

by the court as bases for its decision

were the defendant's serious physical

condition caused by a self-inflicted

gunshot wound in the chest and heavy loss

of blood, combined with the impact of

several pain-killing narcotics, the lack

of clearcut testimony regarding his

mental condition, and the court's view

that the taking of the confession under

these circumstances constituted an ele-

ment of psychological or physical coer-

cion. The court stated the rule that:

If for any reason a suspect is phy-

sically or mentally incapacited to

exercise a free will or to peg

appreciate the significance of his

admissions, his self-condemning

statements should not be employed

against him.

167 So.2d at 863.

Applying these standards enunciated

in Reddish to the facts of the present

case, I find in the “totality of the cir-

cumstances" which the record presents, an

individual who was seriously mentally in-

capacitated and under the influence of

two sedative drugs at the time she made

the challenged confessions. The record

further supports the conclusion that the

appellee, in her impaired state of mind,

was influenced by her friendship with

Deputy Roth and apparently felt some

compulsion to make a statement to him

because of this.® Additionally, I note

that defendant disregarded her attorneys'

advice not to give any statement, and

persisted in so doing. This clear,

record evidence, together with the pre-

sence of testimony as to the appellee's

mental state at the time the confessions

were given, provides ample: support for

the trial court's suppression ruling and,

I think, requires its affirmance. I also

note, and give due deference to, the fact

that a trial court's ruling against the

6although this factor alone would not

be determinative, see, e.g., Halliwell v.

State, 323 So.2d 557 (Fla. 1975), holding

that in a situation ge apse. Miranda

warnings, the giving of those warnings by

a friend of defendant does not vitiate

their effectiveness, I believe it may

properly te considered on review as part

of the totality of circumstances.

state on a motion to suppress necessarily

implies a finding that the state did not

meet its burden is that of proving by a

preponderance of the evidence that the

confession was freely and voluntarily

given, McDole v. State, 283 So.2d 553

(Fla. 1973).)

I find it appropriate to note at

this point a strand of legal authority

which lends additional support to the

suppression ruling, to-wit: the confes-

sion of a person who is mentally or phy-

sically incapable at the time is consi-

dered inadmissible against him, as invo-

luntarily given, 3 Wharton's Criminal

Evidence §672 (13th ed. 1973); Blackburn

v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4

L.Ed.2d 242 (1960); Harvey v. State, 207

So.2d 108 (Miss. 1968), and the degree of

insanity which would render a confession

incompetent is that which would be suffi-

cient to render the defendant incompetent

to testify. People v. Lambersky, 410 Ill.

451, 102 N.E.2d 326 (1951). While the in-

sanity issue was not directly raised be-

fore the trial court, the record facts

could conceivably support such a theory,

which further demonstrates the correct-

ness of the court's ruling.

For the foregoing reasons, and based

upon the authorities cited, I would af-

firm the order of the trial court.

IN THE CIRCUIT COURT OF THE

16th JUDICIAL CIRCUIT OF

THE STATE OF FLORIDA IN AND

FOR MONROE COUNTY

CRIMINAL DIVISION

CASE NO. 78-988-CF-A-31

STATE OF FLORIDA,

Plaintiff,

SUZANNE deCONINGH,

Defendant.

)

vs. )

)

ORDER GRANTING DEFENDANT'S

~~ MOTION TO SUPPRESS

THIS CAUSE came on to be heard upon

the defendant's Motion to Suppress State-

ments, and the Court having heard the

testimony of the witnesses, the arguments

of counsel, and being otherwise advised

in the premises, it is, therefore

ORDERED AND ADJUDGED that the defen-

dant's Motion to Suppress Statements be,

and the same is hereby, granted.

In support of this Order, the Court

makes the following findings:

1. The death of the victim occurred

on September 30, 1978, and the defendant

herein, the victim's wife, was hospital-

ized soon thereafter. A deputy sheriff

of the Monroe County Sheriff's Department

hereinafter referred to as deputy, not in

uniform and who was personally acquainted

with the defendant, went to see the de-

fendant at the hospital on October 2nd,

and upon approaching her, addressed the

defendant by her first name. The deputy

testified that he did not read her her

rights from his Miranda card, nor did he

verbally advise her of her Miranda

rights; but, instead, he gave her a so-

called "advise of rights" form; he testi-

fied that she read it, signed it, and

said she understood it. Admittedly, the

deputy made no attempt whatsoever to

ascertain if the defendant did in fact

understand what she read, what she

signed, or whether she understood the

consequences of giving a statement. No

statement was taken at this time. The

said "advice of rights" form was not of-

fered in evidence and this Court is un-

aware of its contents.

2. On October 4, 1978, the same

deputy again went to the hospital to

interrogate the defendant, and this time

her attorneys were present. Defendant's

attorneys admitted they did not advise

her of her rights or the consequences of

giving a statement, but merely told her

that she did not have to give a statement

and that she should not. Again, the de-

puty testified that he did not advise her

of her rights; but, instead, he indicated

to her the "advice of rights" form signed

by her two days previously, and stated

did she know it was still in effect, to

which she replied yes. Again the deputy

did not advise the defendant of her

rights, neither from the Miranda card,

nor verbally, nor by reading her the

“advice of rights" form; again no effort

was made to ascertain whether or not she

even remembered what was on the "advice

of rights" form and whether or not she

understood the consequences of giving the

deputy a statement. A statement was taken

from the defendant on this occasion.

3. The testimony of the witnesses

indicates that on both October 2nd and

October 4th, as well as at other times,

the defendant's condition was described

as upset, crying, confused, disoriented,

at times catatonic, not rational, under

medications of thorazine and valium, and

hysterical.

4. On October 2, 1978 and on

October 4, 1978, the defendant was not

properly advised of her constitutional

rights; the defendant did not understand

her constitutional rights; the defendant

did not waive her constitutional rights;

and, that the defendant was so emotional-

ly upset or distressed, and of such an

irrational state of mind that any state-

ments given or made on either of those

two occasions were not made voluntarily

or kiowledgably or with a full under-

standing of the consequences of making

any such statement. Such statements,

therefore, must be suppressed.

It should be noted here after the

evidentiary portion of the hearing, after

the arguments of counsel, and after the

Court verbally rendered its decision to-

gether with its reasons therefor, the

State then attempted to introduce the

"advice of rights" form in evidence. The

defendant objected. The Court sustained

the objection on the grounds that the

matter had been heard, argued, a decision

rendered, and the matter, in effect,

concluded.

DONE AND ORDERED at Key West, Monroe

County, Florida, this day of June,

1980, as of May 8, 1980.

CIRCUIT JUDGE

Copies to:

David H. Bludworth, Esq.,

Jack Denaro, Esq.

Mitchell Denker, Esq.

IN THE CIRCUIT COURT THE 16TH

JUDICIAL CIRCUIT IN AND FOR

MONROE COUNTY, FLORIDA

CASE NO. 79-788

STATE OF FLORIDA, )

Plaintiff, )

vs. ) MOTION TO

SUPPRESS

SUZANNE DeCONINGH, )

Defendant. )

)

TRANSCRIPT OF PROCEEDINGS

TESTIMONY AND PROCEEDINGS BEFORE the

Honorable Helio Gomez, Circuit Judge, at

the Monroe County Courthouse, Key West, |

Florida, on the 8th day of May 1980, com-

mencing at 1:00 p.m. as reported by

Christine B. Smith, Official Court Repor-

ter, 16th Judicial Circuit of Florida.

RICHARD ROTH,

a witness called at the instance of the

defendant, being first duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MR. DENARO:

Q: Would you state your name and

your official capacity, please.

A: Richard Roth, Deputy Sheriff,

Monroe County Sheriff's Department.

Q: How long have you been so

employed, Officer?

A: 15 years.

Q: I direct you attention to the

name of Suzanne DeConingh and ask you if

you have ever met an individual by that

name?

A: Yes, I have.

Q: Do you see her in the courtroom

today.

A: Yes.

Q: Indicating for the record, the

defendant. Did you have occasion to in-

vestigate the alleged homicide of George

DeConingh that took place on approximate-

ly the 30th of September 1978?

A: Yes. I was investigating--

Q: (Interposing) When did you first

become involved in the investigation.

A: On the first, I believe, on the

following day. I was out of town when

this incident happened.

Q: When was the first time you met

Mrs. DeConingh, the defendant that stands

before the Court?

A: This would have to be some years

ago.

Q: With reference to the case, I'm

sorry.

A: On the 2nd.

Q: On the 2nd, the 2nd of October

1978.

A: Yes.

Q: When you met her, with whom were

you?

A: At that time it was at Fisher-

man's Hospital. She was hospitalized and

I was with--at that time it was Sergeant

Gregory, and also in the room was Joe

Pierce. He came in the room. I believe

that Dr. Rice was also in the room.

THE COURT: Whom did you say?

THE WITNESS: Dr. Rice.

A: Joe Pierce came in the room

during a brief interview I had with Mrs.

DeConingh.

Q: Do you know why Mrs. DeConingh

was in the hospital at that particular

time rather than at home?

A: Yes. She was admitted because

she was upset. I believe she was admit-

ted because of hysteria, sort of depres-

sion.

Q: Had you conferred with doctors

to determine what state of affairs

existed within her before you talked to

her on the 2nd of October 1978?

A: No, I didn't.

Q: Do you know who her treating

physicians were at the time?

A: I believe it was Dr. Mankowitz,

yes.

Q: Approximately what time did you

see her on the 2nd of October 1978?

A: It seems to me that was shortly

after lunch on the first time.

Q: How long did you stay with her

the first time?

A: Very briefly, about 15 minutes.

Q: Did you know or do you know what

medication she was under at the time you

saw her on the 2nd of October 1978?

A: No, I did not.

Q: Did you say she was not under

the influence of medication at that time?

A: No, I couldn't say that.

Q: Why could you not say?

A: 1 don't know what she had been

given. She was in the hospital. She ap-

parently could have been given some medi-

cation.

She did not act--she was upset and

crying, visibly upset. In our conversa-

tion she would pause and reach for words

and cry.

However, she was not incoherent to a

point where she didn't realize what she

was saying.

Q: There was a certain incoherence,

but it wasn't to the point where it was

completely unintelligible. Would that be

a correct statement?

A: That's correct.

Q: You indicated you were a friend

of hers. How long had you been a friend

of Mrs. DeConingh?

A: 1 don't know. Probably since, I

would guess, since the late sixties,

probably.

Q: Were you a close friend of hers

or just in passing?

A: Oh, we met frequesntly. We knew

the same people. We had been to some

parties, not together, but we had some

mutual acquaintances.

Q: Would you say that your associa-

tion with her was such she considered you

to be a friend and she could trust you?

A: Yes.

Q: Now, what did you say to her

when you went into the hospital on the

2nd of October '78 before she gave the

statement?

A: 1 told her I wanted to take a

statement of what happened. I wanted the

information, the facts, about what had

happened.

Q: Yes, go ahead.

A: I advised her of her rights and

asked her to sign a waive of rights,

which she did. She was going to give me

a statement.

Q: Was her attorney present or was

any attorney preent when you advised her

of her rights?

A: No, not at that time.

Q: How did you advise her of her

rights on the 2nd of October '78?

A: We have a standard form that we

are supplied with. I used that form.

Q: Did you read it to her?

A: No. I handed it to her. She

read it herself.

Q: Do you recall how long she

looked at it before she signed it?

A: Well, she didn't take it and

read it and hand it back. It wasn't a

one minute type of thing. She was cry-

ing. So, she would look at it. She

would put it down. She'd say things

site

about how she was upset. She'd say

things like, Oh, I'm sorry, or my mother

will never forgive me or stuff like this.

So, she didn't read it completely

through and then sign it and hand it to

me all at one time.

Q: From the time she first received

the document, the interrogation advice of

rights form that you've been talking

about until she finally signed it, appro-

ximately how long a period of time did it

take her to actually go through it after

she would break and cry?

A: Probably about three or four

minutes.

Q: At any time did she ever ask you

to explain any of the rights or state-

ments that were in the document?

A: No.

Q: At any time from the time you

first handed her the interrogation form

until she signed it, did you explain to

her what the rights meant?

A: When she concluded reading it

and signing it, I said, "Did you under-

stand it," and she said she did under-

stand it.

Q: Did you ask her what she under-

stood by it?

A: No, I didn't.

Q: What did she say right before

she signed it?

A: Right before she signed it?

Q: If you recall.

A: I don't recall anything speci-

fic, no.

Q: Did she appear to be steady at

this time when she signed it?

A: No, she was not steady, no.

Q: I'd like to show you a docu-

ment--if the Court would mark this,

please. There is one in the Court file,

I think.

MR. BLUDWORTH: I have no objection.

I have one that's not marked on. This is

just a copy. The other one was entered

in the last hearing.

MR. DENARO: As long as it's a true

copy.

MR. BLUDWORTH: You take mine. I'll

make a copy for the hearing.

BY MR. DENARO:

Q: I show you what's been marked--

if I have the liberty of marking it--

THE COURT: Let me mark that one for

identification, Defendant's A for the

purposes of this hearing. (The document

referred to above was marked as Defen-

dant's Exhibit A for identification.)

BY MR. DENARO:

Q: Lieutenant Roth, I show you what

has been marked for identification as De-

fendant's Exhibit A and ask you if you

can identify that document.

A: Yes, That's a Xeroxed copy of

the original she did sign.

Q: I direct your attention to the

signature in the lower left-hand corner.

Whose signature is that?

A: Lower right. Suzanne's signa-

ture.

Q: I'm sorry. Lower right. Is

that her normal signature?

A: In all fairness, I don't think

I've seen her normal signature, so I

couldn't answer that question.

Q: After she signed the rights

form, what took place?

A: She started to give me a state-

ment of what happened. During the state-

ment, during this discussion--we had a

tape recorder--during this discussion Joe

Pierce came in and Joe Pierce suggested

she wait for an attorney.

Suzanne didn't think she needed one,

but Joe felt she should have an attorney

present.

So, I agreed if she wanted an attor-

ney, there would be no problem. I would

leave until an attorney was present.

I left and then Mr. Lenzi and Mr.

Cunningham came to the hospital. I think

what happened is Joe came in and said he

had called an attorney and they'd be over

there shortly, that I should wait until

they got there.

I agreed. I stopped at that time

and they did arrive.

Q: From the time you went to the

room until she signed what has been

marked for identification as Defendant's

Exhibit A, did she ever become hysterical

from the time you entered the room until

she signed the rights form?

A: Uncontrollable, no. I wouldn't--

hysterical to my mind, I envision being

uncontrollable, throwing things, scream-

ing, no.

Q: To the best of your recollec-

tion, then, how would you describe the

way she acted and what her demeanor was

from the time you went there until she

signed the rights form?

A: She was crying, visibly upset.

She would have to pause to think what she

was going to say, to form her words, be-

cause she looked distraught.

She did not have any makeup on. She

could carry on an intelligent conver-

sation.

Q: Did you ever notice that her

mind would be wandering and her conversa-

tion would be in a different area or a

different subject as you were there

before she signed the rights form?

A: I don't recall that, no, sir.

Q: Did you notice whether she had

any difficulty understanding what you

were saying?

A: What I was saying?

Q: Yes.

A: No, I don't think so. She did

say she wanted to get this over with and

she just wanted to get finished with it.

Q: Was she completely coherent?

A: Not completely, no, sir.

Q: Did she ever have to ask you to

repeat a question?

A: Yes, I think she did.

Q: A number of times?

A: My impression was that she was--

if 1 was saying something--we didn't have

too much discussion that wasn't on the

tape prior to this, so there wasn't a

whole lot of conversation prior to the

tape.

But as I recall, she would be crying

and my impression was she didn't hear my

question rather than didn't understand

them because she was crying and sucking

her breath.

Q: You've known her for a long

period of time?

A: Yes.

Q: On the day that you saw her on

the 2nd of October 1978, did she appear

to you to be her normal person?

A: No.

Q: Did she appear to be completely

different from what you had normally

understood her to be or found her to be

in private affairs?

A: Yes.

Q: Did you find that at this parti-

cular time that she was of a solid and

complete state of mind, a normal state of

mind?

A: Not normal, no. She's usually

very cheerful, very friendly, a very

cheerful person. She was not that way in

this case.

Q: On the 2nd of October 1978 did

you formulate an opinion as to whether or

not she was of a completely stable mind

at the time you were talking to her?

A: She understood what I was saying

and what was happening around her, yes,

she did.

Q: Did you feel at that time she

was completely stable and rational when

you were talking to her?

A: She was upset and crying. If

that's perfectly stable, no, she wasn't.

Q: Did you find anything that she

had done on the 2nd of October 1978 until

the time she signed the rights form to be

irrational or out of character?

A: The fact that she was upset was

out of character and the fact she was

crying was out of character.

Q: Anything else besides that, the

way she was talking, the way she was lis-

tening to you, the things that she said?

A: She was as any other person who

is upset would have acted.

Then the attorneys came?

Yes.

Then what happened?

i. ae ek

They went in. I was in the

room. They came in. They said they'd

like to speak to her alone. Myself and

Gregory left.

Then they came out in the hall.

They said they would like to put this off

until tomorrow. They would like to talk

to Suzanne and have a chance to talk to

her and maybe she would calm down. I

could take the statement the following

day. I said fine and left.

Q: Did you come back the second

time to interrogate her?

A: Yes, I did.

Q: What date was that, Officer?

A: That was a day later. That was

on the 4th of October.

Q: Approximately what time?

A: That was 11:10, I believe is

what my report says.

Q: Who was present at the time you

saw her?

A: Myself, Sergeant Gregory, Robert

Gregory, Joe Pierce, Chris Mankowitz and

the attorneys Ralph Cummingham and Pete

Lenzi.

Q: On this occasion was a statement

taken from her?

A: Yes, it was.

Q: Now, before the statement com-

menced, that is, before she related to

you what she knew about the episode for

which she was arrested, did you communi-

cate with her while you were there at the

time?

A: My communication prior to that

statement was based on I was here to take

her statement and that did she realize

that her waiver of rights was still in

effect. She said yes and she--I told her

I was there to take a statement about

what had happened.

Q: At any time on the 4th of

October 1978 did you readvise her of what

her Constitutional rights were?

A: No. I had the form. I held a

form up. I said, "Suzanne, you signed

this. This is still in effect." She

said, "Yes."

Q: When you made reference to the

form, you're making reference to Defense

Exhibit A for identification, correct?

a Tes

Q: Now, what specifically did you

say when you produced the form?

A: I said, "You know, this is still

in effect."

Q: What did she say?

A: "Yes," she agreed.

Q: Did you read her that form or

have her re-sign it?

A: No, I didn't.

Q: When you held the form in you

hand, were you looking at the printed

part of it or did you show her the

printed part of it to her?

A: I just held it up. I was pro-

bably away too far for her to read. I

held it up so she could see the printed

parts. I don't feel like she read it

that time, no.

Q: What was her condition on this

particular day, the same as before?

A: Near the same. She was crying.

She wasn't quite as bad as she had been

two days prior, but nearly the same.

Q: But she still in your opinion

appeared to be a person different from

the person you normally have known?

A: Yes.

Q: Do you know what medication she

was given on this particular day?

A: No, I didn't.

Q: Up until the time you talked to

her on the 4th of October and took a

statement from her, did you confer with

her treating physician?

A: No, I didn't.

Q: At any time from the time you

first saw her until you iast saw her--,

oh, let me strike that--At any time on

the 2nd of October 1978 or on the 4th of

October 1978, did you ever advise her

that if she chose to remain silent, her

silence would not be used against her?

A: I didn't say those words, no.

MR. DENARO: I have no further

questions.

CROSS -EXAMINATION

BY MR. BLUDWORTH:

Q: I have just a few questions,

Lieutenant Roth. You previously testi-

fied before Judge Chappell?

A: Yes, sir, I have.

Q: You were questioned by Manny

James?

A: Yes, sir, that's correct.

Q: Did he ask you similar ques-

tions?

A: Yee, sir.

Q: Did you have the advise of

rights? You turned that in, the

original, at the time?

Yes.

Did you play the tape recording?

> DO PY

No, I did not.

Q: Did you have it with you and

deliver it to the Court?

A: The Court tape has been placed

in--I don't think the Court has heard it.

Q: There is a tape of this. The

question is did you have to repeat things

that would be on the tape?

A: Yes, sir.

Q: Have you had this transcribed by

someone and reduced to writing?

A: Yes, I have.

MR. BLUDWORTH: Judge, I had your

secretary make copies. You probably

don't have a copy.

MR. DENARO: Yes, I have.

MR. BLUDWORTH: You have? Okay. I'll

take it back.

BY MR. BLUDWORTH:

Q: Have you read that?

A: Yes, I have.

Q: Does that accurately reflect

what occurred?

A: Yes, it does.

Q: On the first date, how long

after the events of George DeConingh

having been shot to death do you go and

see the defendant?

A: Two days.

Q: You weren't at the home? You

didn't go to the scene, did you?

A: I had been to the scene. This

is the following--this is on the 31st or

the Ist, I believe.

Q: When did this killing occur?

A: Evening of the 30th.

Q: You didn't go there, did you?

No, sir, I was out of town.

Q: Let's go back to why you say you

understood how she was in the hospital.

Was she under arrest?

A: No, she wasn't.

Q: Was she there because the physi-

cian asked her to be in the hospital?

A: No, she wasn't.

Q: Was she there because the physi-

cian asked her to be in the hospital?

A: No, she wasn't.

Q: Your understanding was she was

there because she had a friend put her

into the hospital?

MR. DENARO: That calls for a hear-

say. That's speculation.

BY MR. BLUDWORTH:

Q: You don't know why she was

there, do you?

A: No.

Q: But she wasn't there as a pri-

soner of the police department, was she?

A: No, she wasn't.

Q: All right. Now, any tests that

had been done in normal medical circum-

stances by Dr. Mankowitz, those weren't

ordered by yourself, were they?

A: No, they weren't.

Q: In other words, you didn't order

them since she went in on the early

morning after the 30th, you didn't order

her to take a blood test, did you?

A: No.

Q: You didn't order her to be given

any kind of shot to calm her down, did

you?

A: No, sir.

Q: To your knowledge, none of the

police or law enforcement agencies did

those things, did they?

A: No, they did not.

Q: It's your understanding she

stayed there for a period of time for

treatment?

aA: Foe, Biz.

\- She was there under her own per-

sonal physician?

A: Yes, sir, that's correct.

Q: As 1 read--I haven't listened to

the tape, either--but as I read this, you

stopped after advising her of her rights

and having her sign this, which you said

you don't know her normal signature, this

exhibit which is a copy we've marked

here. You say you didn't read it to her;

is that correct, Rick?

A: I handed that to her and asked

her to read it.

Q: This is 1:15 in the afternoon?

A: That's the first time I was

there, yes, sir, that's correct.

Q: When you talk about her appear-

ance, was she in a private or semi-pri-

vate room?

A: Private room.

Q: Other people were present?

Yes, they were. I take that

back. It seems to me there were two

beds. It was semi-private, but nobody

was in the adjoining bed.

Q: Well lit?

A: Yes.

Q: Was it comfortable in there, air

conditioning working?

A: Yes.

Q: She didn't appear to be uncom-

fortable, did she?

A: She was crying.

Q: How long have you been a police

officer?

A: 15 years.

Q: Have you seen anybody that was

normal after they shot their husband?

A: No, I haven't.

Q: When you talk about somebody

crying two days after they shot their

husband, that wouldn't be abnormal, would

it?

A: No.

Q: Might be abnormal if somebody

wasn't?

A: Yes, I would say that's a true

statement.

Q: Now, was she able to relate to

you and talk to you and converse, ask you

questions?

A: She didn't ask any questions,

really. She just said, "I want to get

this over with. I want to give a state-

ment. I want to get it finished with."

Her attorney instructed me prior to

taking the statement not to ask her any

questions. We didn't have back and forth

question and answer type conversation.

Her attorney says, “Let her give you

a narrative and don't ask any questions."

I said, "Fine."

Q: When you stopped the first time

and you left her to talk to her attor-

neys, Mr. Cunningham and Mr. Lenzi--I

assume we'll have them in to testify--

they were attorneys who represented her,

right?

A: Yes.

Q: And you came back a day and a

half or two days later?

A: Two days later, yes, sir.

Q: Was it nighttime? What time was

it?

A: The second sttement was 11,

11:10 in the morning.

Q: Did she appear to be coherent?

A: Yes.

Q Well lit room?

A Yes.

Q: Were attorneys present? Were

they physically there?

A: Yes, sir.

Q: That's Mr. Lenzi--

A: (Interposing) And Mr. Ralph

Cunningham.

Q: Two lawyers present with this

defendant?

A: Yes, sir.

Q: Is this the defendant right here

that was in the hospital (indicating)?

A: Fee, eit.

MR. BLUDWORTH: Let the record indi-

cate he has identified the defendant

Suzanne DeConingh.

Q: Now, did she appear to be under-

standing what was going on at that time?

A: She could relate a narrative to

me, yes.

Q: Then, I assume the tape would

reflect that. Is this a transcript, a

correct copy, of what appeared on the

tape?

me. Be, 46 Se.

Q: Did you promise or threaten her

in any way to get her to make a state-

ment?

A: No, I didn't.

Q: Did you give any inden to

her or her attorneys for her to make a

statement?

A: No.

Q: Did they ask you, the attorneys,

if you would grant any favorable treat-

ment of this case if they allowed her to

make a statement?

A: No, sir.

Q: Did they know you to be a law

enforcement officer?

A: Yes, they did.

Q: Did Mr. Cunningham and Mr.

Lenzi--they've worked with you before?

A: Yes, sir.

Q: You were dressed in civilian

clothes?

As: Fees.

Q: They know you as a police offi-

cer and that you were not someone other

than a law enforcement officer?

A: Yes, I know both of them.

Q: The defendant knows you as a

police officer? She wouldn't be laboring

under any fact you weren't a police

officer?

A: No.

Q: Did you show your badge?

A: No, I didn't feel it was neces-

sary.

Q: Because she knew you were a law

enforcement officer?

A: Yes, sir.

Q: You're not her priest. You were

there in any official capacity, weren't

you?

A: Yes, I was.

Q: She assumed--I hadn't listened

to the tape, but we will if this goes--

she gave you a statement about what she

says happened; is that correct?

A: Yes, that's correct.

Q: Have you had the time to read

the sworn statement she made in the

motion to dismiss by the defendant filed

in this case?

A: I don't believe so.

Q: It was filed at a time subse-

quent to this statement under oath and I

just wondered if you had an opportunity

to look at it.

A: No, sir.

Q: Were you threatening, trying to

get her to make a statement or were you

just as calm as you are now?

A: Same as I am now.

MR. BLUDWORTH: I don't have any