# Petition — Florida v. Deconingh > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0383%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1005 ## Text 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 i 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? ii 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 ee a ee Ce 8 6 wb bbe bb rei ¥ 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 25 Bek. iv 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 1 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 2 I 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). 3 Il 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). 4 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 5 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. 6 IV 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). 7 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 8 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 9 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 10 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. 11 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 12 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- 13 187), 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). 14 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 15 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 16 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 17 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. 18 / 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. 19 VI 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). 20 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 21 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, 22 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 23 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 24 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 25 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. 26 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. 27 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 28 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 29 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 30 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 31 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. 32 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 33 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 1 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. 2 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 3 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 4 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, 5 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 6 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). 7 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. 8 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 9 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). 10 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 11 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 12 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 13 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). 14 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, 15 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 16 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 17 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. 18 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 19 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. 20 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 21 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 22 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. 23 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. 24 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 25 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 26 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 27 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 28 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 29 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). 30 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 31 (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. 32 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 33 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. 34 [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 35 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. 36 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. 37 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 38 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). 39 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, 40 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. 41 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). 42 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 43 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 45 "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). 46 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. 47 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 48 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). 49 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 50 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 51 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. 52 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 53 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. 54 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. 55 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 en ii we 56 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 57 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 58 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 59 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. 60 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. 61 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. 62 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. 63 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. 64 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? 65 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 66 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. 67 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 68 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 69 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. 70 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. 71 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. 72 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. 73 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? 74 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. 75 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 76 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. 77 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? 78 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 79 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. 80 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. 81 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. 82 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? 83 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. 84 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? A No, sir, I was out of town. 85 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? 86 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? 87 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? 88 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 89 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." 90 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. 91 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. » 92 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? 93 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-- 94 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 other questions. MR. DENARO: I have just a few. 95 REDIRECT EXAMINATION BY MR. DENARO: Q: Do you know how the police ob- tained any blood evidence that was taken from her at the hospital? MR. BLUDWORTH: Objection. There's no testimony the police took any blood from her. THE COURT: Sustained. Q: Do you know if a police officer took the blood samples from the hospital? A: I don't know. Q: You indicated that the tran- scripts that were made of the particular tapes were accurate, is that correct? A: Yes, barring spelling and punc- tuation, yes, they are. Q: I'd like to draw your attention, just to refresh your recollection, to Page 4 of the statement on the 4th day of October 1978, the fourth line down where 96 it says, "In just," and in parenthesis it says "inaudible." Are you sure it's in- audible? A: You mean the word? She did not say "inaudible." That means the typist cannot recognize what she had said. Q: If you play the tape, you would not be able to hear the words "in just as an expression"? You couldn't clearly hear from the tape those words "in just as an expression"? A: What are you referring to? Q: Right here on the fourth page. You indicated the transcript is accurate. The fourth line down on Page 4, if we played the tape, would it not be correct that you would clearly hear those words, "in just as an expression," rather than "in just an (inaudible)"? A: You mean did she say "as an ex- pression"? Q: Can you hear it on the tape? 97 A: I don't know. Q: Now, the transcript tht has been prepared, doesn't it give the time when she started to cry? A: It doesn't give a time period, no, it doesn't. Q: When she did give the statement to you on the 4th of October, she cried many, waany times. There was lulls and lapses cf time before she would continue on? A: Yes, that's true. Q: So, when you look at the tran- script, one might get the impression she was very eloquent as she told her story, but that's not the case, is that? A: Very eloquent? No, I would not use that term "very eloquent." Q: Or unabridged or uninterrupted? A: No, it was not uninterrupted, either, that's true. 98 Q: When you came to see her on the 4th of October--on the 2d of October 1978 when she signed the rights form, didn't she indicate to you she didn't think she would need an attorney? A: Yes, she said that. Q: When she said that, she was visibly upset? A: That's true. Q: She was crying and hysterical when she said that? A: She was visibly upset. I don't think I would use the word hysterical. MR. BLUDWORTH: He testified to this in direct. It seems it's culminative. MR. DENARO: I have two or three questions on another line. Q: The first time you went to see her for the first time was in your offi- cial capacity as a police officer? A: Yes, sir. 99 Q: Was it not only as a good friend to see a good friend in the hospital? A: I couldn't say that, no. I was a policeman. Q: In other words, from the time you entered into the room on the 2nd of October 1978 until you left, you did not befriend her as a friend or treat her as a friend? A: Yes, I did. I used her first name. I probably said something like things will work out. Q: Did you say that before you started to advise her of her rights that things would probably work out? A: Yes. Q: When you made that statement, you were making it as a friend and not as a police officer? A: Yes, probably more so as a friend than a police officer. 100 Q: Did you say anything else in that tone, in that vein? A: Iwas only like that for a very short time. MR. DENARO: I have no further ques- tions. MR. BLUDWORTH: Nothing further, Your Honor. THE COURT: Thank you very much. (The witness was excused.) THEREUPON : SEMA McANINCH, called as a witness 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 address, please. A: Sema McAninch. Q: Spell that, please. A: Q: A: 101 (Spelling) M-c-A-n-i-n-c-h. Your address? 93 Copa D'Ora (spelling) C-o-p-a D-'O-r-a, Marathon. Q: A: What do you presently do? Right now, a psychologist at the Guidance Clinic of the Middle Keys. Q: What were you doing in most of September and October 1978? A: Iwas also a psychologist there. Q: Where is that located? A: That's in Marathon. Q: What were you doing before that? A: Before that? YQ: What were you doing for them at that time? A: I was working as staff psycholo- gist there. Q: What are your credentials in order to work as a staff psychologist? A: I have a master's degree in counseling and I have two years after 102 that in special training in psychotherapy and Gestalt. Before that I worked at the Community Mental Health Center for five years in West Palm Beach, Florida, where I also was a consultant at the State Hospital in Hollywood. I've been doing mostly evaluations and planning. Q: I direct your attention to the name of Suzanne DeConingh and ask you did you ever come in contact with a person by the name on the 30th of September 1978 or immediately thereafter. A: Yes. Q: Do you see that person in court A: Yes, I do. Q: Would you point her out? A: This woman (indicating). MR. DENARO: Indicating the defen- dant for the record. 103 Q: How was it you met her on that particular time, on that occasion? A: My immediate supervisor, Dr. David Rice, called me by phone that morning asking me to do an evaluation, an emergency evaluation, at the hospital with hin. Q: Did you do this? A: Yes. Q: When you arrived at the hospital did you meet the defendant? A: Yes, I did. Q: Would you identify for the Court as to what her condition was when you first met her, giving the exact or appro- ximate time, if you can? A: It was the morning and she was severely confused, disorientated. At times she was catatonic. She couldn't talk. She couldn't respond to the exter- nal environment. She seemed to be very 104 much in her own space and unreachable at times. The evaluation itself took about three hours to get her to respond to questions and to bring her back. I would have to say, "Look at me. Tell me my name," things like that just to get her to respond. Q: What was your initial diagnosis after you examined her? A: She had a dissociative reaction. Q: What is a dissociative reaction? Is that a mental state? A: Absolutely. Q: Would you explain to us what a dissociative reaction is in layman's, rather than clinical terms? A: The person becomes depersonal- ized. They lose touch with themselves and with the external environment. They, in a sense, just jump out of their bodies so they are watching 105 themselves rather than actually perform- ing things. They are severely disturbed in that state of mind. Q: Did you have occasion to examine her and treat her from the time you first saw her through and until the 4th of October 1970? A: Yes, I did. Q: When was she finally released from the hospital? A: I'm sorry. I'd have to check because I don't remember the exact dates. Q: Would you _say approximately two weeks? A: Yes. Q: What was her condition on October 2, 1978 to the best of your recollection? A: On October the 2nd she had a severe headache. she was still pretty disorientated. I would say that she was beginning to improve at that time. 106 She seemed to be in better contact with reality, less times of slipping off to another plane, let's say, you know, more-- THE COURT: (Interposing) Let me in- terrupt. I may have missed the date of the first time that you saw her. THE WITNESS: I saw her on the 30th of September. MR. BLUDWORTH: Is that the first time that you saw her? THE WITNESS: No. MR. BLUDWORTH: That's not the first time she had seen her. THE COURT: I meant in relation to your being called by Dr. Rice and asked to come over. THE WITNESS: Right, yes, sir, but I had seen her before. I knew her from before. THE COURT: But the condition that you described--I just want to make sure-- 107 THE WITNESS: (Interposing) That was September 30th, sir. THE COURT: September 30th. I missed that date, then. Thank you. It's cleared up now. BY MR. DENARO: Q: Now, the condition you perceived with regard to the date of September 30, did it continue through the second and third day of October 1978? A: Yes, especially the third day. Q: The third day? Would you describe her condition on the lst of October 1978, her mental condition? A: She was still very confused and disorientated. She would still have periods where she would just not be able to respond and would have to be brought back. She would sit up and just stare into space without being able to respond. She at one point experienced, she told me, 108 tactile hallucinations where she felt people touching her. There were night- mares at night. She would report the next day seeing figures. Q: Did she report or do you recall her indicating that she had hallucina- tions on the 2nd of October '78? A: I can't tell you exactly the 2nd, but I believe it was around that day, either the 2nd or the 3rd. It was just a couple days after she was ad- mitted she was hallucinating. Q: Were there times around the 2nd of October 1978 where she was uncommuni- cable, that is, you would talk to her and she could not respond or could not under- stand what you were-- A: (Interposing) That was true for the whole first week. Q: That was true for the whole first week? 109 THE COURT: There's one thing that was bothering me her. The witness has stated or reported that Mrs. DeConingh told her she was seeing figures. I think that's what you were referring to when you said she was hallucinating? THE WITNESS: Right. BY MR. DENARO: Q: Did you say that was, in fact, what she was doing, hallucinating? A: Yes, sir. This is during right- mares when no one was in the room. She would see her late husband, George. THE COURT: I just wanted to make sure about that. Okay. BY MR. DENARO: Q: When you say she was disori- entated on the 2nd day of October 1978, what do you mean by that? A: I mean that she was unaware of what day it was, how long she had been in 110 the hospital, things like that, what time of day it was. Q: Did you formulate an opinion as to what her mental state was the first week of her entry into the hospital? A: Yes. Q: What was your opinion to her mental state during that particular period of time within reasonable psycho- logical probability? A: I would say she was very con- fused, extremely so, and very disturbed. Q: Would you say during that period of time she was out of touch with reality? A: Yes. That's a clinical term. It's very hard for me--that means one thing--when I'm answering yes to that question, there were times when I had to speak to her, call her name five or six times to get her to respond, things like that. 111 Q: Would you be able to render an opinion to this particular Court as to whether during the first week of her stay at the hospital that her state of mind was not rational? A: Oh, definitely not. Q: She was not rational? A: No. Q: Now, do you know what medication in terms of drugs that normally affect mental perception and mental ability that she was given from the time she entered the hospital through the 4th day of October 1978? A: Yes, sir. Q: Would you identify for the Court as to what medication she was given to the best of your recollection on the 2nd day of October 1978. MR. BLUDWORTH: I would object unless she has her own direct information 112 be cause she's not a doctor. I doubt if she could give medication. THE WITNESS: I have the hospital records. MR. BLUDWORTH: Unless she gave any herself, I object to any testimony from her about what was administered. MR. DENARO: I would ask the Court to mark these (indicating). THE COURT: For identification, B, composite. (The documents referred to above were marked for identification as Defendant's Composite Exhibit B.) BY MR. DENARO: Q: I would like to show you what has been marked as Defendant's Exhibit Composite B for identification and ask you if you can identify them for the record. MR. BLUDWORTH: Objection. I'd like to voir dire her as to how she can iden- tify those records. 113 MR. DENARO: I think the next ques- tion is going to go into that. THE COURT: Let's see what his next question is. Q: How can you identify them? A: I wrote in these. These are the hospital records that I wrote in every day at least one time, three times a day. Q: In other words, the records be- fore the Court are the records you made recording the defendant? A: Right. MR. BLUDWORTH: I know you're going to ask her about the medication. Now, I know her background. She can't give any medication. THE WITNESS: That's correct. MR. BLUDWORTH: You're asking her if those records reflect her giving any medication to this defendant. 114 It's your testimony that she's going to testify she ordered and gave medica- tion to this defendant. MR. DENARO: No, not that she order- ed and gave, but the testimony will be-- and these I'm attempting to get them in as an exception to the hearsay rule-- these records for the most part were written by this particular witness and she has access to these particular records. If I can show through the wit- ness that they were prepared in the nor- mal course of events, I think it's an exception to the hearsay rule under the new Florida statute of evidence under the 800 series. These documents and, probab- ly, more importantly and more cogently, these records were prepared, most of these records were prepared by this par- ticular witness regarding the treatment of this particular defendant. 115 But regarding the drug and the drug administration, she could now testify if the recordation is in the hospital records, if she can identify the records. state they were made in the ordinary course of events, that she has access to them, it's no different. I think this would come in as an exception to the hearsay rule. The Court permits hearsay on a motion to suppress. Every time I argue, the State Attorney tells me that. MR. BLUDWORTH: As I understand your question, it was what medication this witness she--I hope she didn't administer any medication. She's not qualified to do that, and I think you ought to have the predicate did she actually see her take any medication or no medication was prescribed for her from her own know- ledge, otherwise the doctor or whoever prescribed it is going to be best able to testify to that. 116 I haven't voir dired her about her knowledge of--I do not know what a psy- chologist is. THE COURT: This is argument between counsel. MR. DENARO: Judge, no doctor could ever remember of his own personal inde- pendent recollection what he administered to a person or patient two years before, and he would have to rely upon the docu- ments at hand. Im order to get them into evidence, they can only come into evidence, not be- cause he was the one that administered it, but because these documents are hos- pital or business records and are an ex- ception to the hearsay rule because if the law states that if they were made in the ordinary course of events for the business at hand close in time to the events they record, they are reliable. 117 No witness is going to remember what was administered on any given day two years before. MR. BLUDWORTH: I have a general ob- jection to the materiality and the rele- vance of it to this hearing, this motion to suppress. How are those records material to this? You show the materiality and then the admissibility to be determined by the judge is whether she's a competent person to testify as to that. Hearsay doesn't have that much to do with that point. My objection is on the materiality of those records. THE COURT: Are those the original hospital records? MR. DENARO: She couldn't take the original records out. Then she would have to testify to the Court that these are true and correct copies, or, if not, 118 then the Court will not allow them into evidence. I would ask her questions so she could refresh her recollection through those records, but I think in terms of materiality, it would be more material than the hospital records of the patient. THE COURT: I'm not going to admit those records because she may have writ- ten into some of those and she may recog- nize some of those, but the drift that I get is you're going to rely on the fact she wrote into some of those records to introduce them in evidence for the pur- pose of this hearing and also admit, thereby, other statements of the medica- tion she is supposed to have taken. I think that's improper that way. Those are only copies. She's not the of- ficial custodian of the records, and how she came into the possession of those, I mean, all these things are material. 119 I will let you know right now unless you can give me something more of what I see before me at the present time, I won't admit those copies into evidence for this purpose. MR. DENARO: At this time I cannot give you more. BY MR. DENARO: Q: Do you have any independent recollection as to anyone administering of your own personal knowledge, anyone administering any medication to her in her stay the first day, first five days she was there? A Yes. Q: You have personal knowledge of it? A: Yes. I can't tell you exactly the day, but I can tell you the doctor, Dr. Rice, and I designed a treatment plan. 120 Q: You call him Dr. Rice? A: Yes. He's a Ph.D. psychologist. MR. BLUDWORTH: He's not a medical doctor? THE WITNESS: Dr. Mankowitz is a medical doctor. With Dr. Mankowitz and Dr. Rice, I designed the medical plan. We discussed her medicine and her treat- ment on a daily basis. Now, part of that time Dr. Rice was not in town, so I discussed her treat- ments, her progress and so forth with Dr. Mankowitz who was the attending physician each day, so I am aware of what medicine she had. Q: What medicine are you aware of she received? A: Thorazine (spelling) T-h-o-r-a-z-i-n-e, 50 milligrams, I can't remember how many times a day. I believe it was three times a day. 121 There was Valium, 10 milligrams. I believe it was three times a day. It might have been four. Q: What is Thorazine? A: Thorazine is a major tranquili- zer usually used in the treatment for psychotic illness. It's an anti-psycho- tic. Q: Is one of the symptoms of the use of Thorazine, is it depression and immobility, is that correct or not? MR. BLUDWORTH: Objection. She's not competent to anwer any questions about medicine, about what medicine can do. I object. She's not a competent witness to answer any questions about the medical effects of drugs unless it's shown she has medical training to testify about what drugs are used for. It's out of her field. 122 MR. DENARO: If no police officer can ever give an opinion about anyone under the influence of alcohol, o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0383%3A1. Public record. Not legal advice.