Opposition Brief — Lewis v. Florida

Supreme Court. US.

oar i FILED

bw ee ORIGINAL pie

ert: } JOSEPH F. SPANIO” UR.

fv No. 87-6422 CLERK

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ae IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1987

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ROBERT LEE LEwIS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

FOURTH DISTRICT OF FLORIDA

RESPONSE IN OPPOSITION

TO WRIT OF CERTIORARI .

ROBERT A. BUTTERWORTH

Attorney General

Tallahassee, Flor >

MARDI LEVEY COHEN

Assistant Attorney General

111 Georgia Avenue, Suite 204

West Palm Beach, Florida 33401

. Telephone: (407) 837-5062

Counsel for Respondent

QUESTION PRESENTED ; TABLE OF C s

Whether pursuant to Rhode Island v. Innis, infra, and Arizona v.

Mauro, infra, revealing evidence to a suspect which is available

against that suspect amounts to an interrogation?

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CITATION TO OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

CONCLUSION 6

CERTIFICATE OF SERVICE 7

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Arizona v. Mauro, U.S. » 107 8.Ct. 1932

(1987)

Jenkins v. Bara, 663 F.Supp. 891

(E.D.N.Y. 1987)

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

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

U.S. v. Barnes, 432 F.2d 89

(9th Cir. 1970)

U.S. v. Davis, 527 F.2d 1110

(9th Cir. 1975)

U.S. v. Hodge, 487 F.2d 945

(Sth Cir. 1973)

U.S. v. Pheaster, 544 F.2d 353

(9th Cir. 1976) cert. denied 429

U.S. 1099 (1977)

U.S. v. Rodriquez-Gastellum, 569 F.2d 482

(9th Cir. 1978)

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No. 87-6422

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1987

ROBERT LEE LEWIS,

Petitioner,

STATE OF FLORIDA,

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL,

FOURTH DISTRICT OF FLORIDA

CITATION TO THE OPINION BELOW

The Respondent accepts the Petitioner's statement.

JURISDICTION

The Respondent accepts the Petitioner's initial

statement, but rejects its final statement as conclusory.

CONSTITJTIONAL PROVISIONS INVOLVED

The Respondent accepts the Petitioner's statement.

STATEMENT OF THE CASE

Respondent accepts Petitioner's Statement of the Case

to the extent that it is a non-argumentative recitation of the

facts and would make the following additons and/or clarifica-

tions:

Officer Curcio took Petitioner to an evidence room

where he played a video tape depicting the robbery and the

shooting of the victim. Officer Curcio at no time questioned the

Petitioner, nor did he make any comments with regard to the video

while Petitioner viewed it.

Petitioner viewed the video tape beside the police

officer. He did not appear distressed, he was not badgered by

questions or coercive comments in fact as the Florida Fourth

Distrigt Court of Appeal noted he treated the situation rather

haphadardly and with some levity. Additonally, the Court noted

that Qetiti © was well aware of his rights and the procedures

invol as he had been arrested on felony charges many times

previously. Here the court concluded that the circumstances of

the case ie. Petitioner's knowledge of his rights and his obvious

lack of fear and pressure supported the conclusion that from the

Petitioner's perspective viewing the video did not “impinge upon

his will in a coercive manner". 509 So.2d at 1237.

REASONS POR DENYING THE WRIT

Petitioner seeks to invoke this Court's discretionary

jurisdiction to determine whether presenting evidence available

against a suspect is an interrogation within the meaning of Rhode

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

depict the decision of the Florida Fourth District Court of

Appeal as a novel aproac: which misapplies the holdings of Rhode

Island v. Innis, supra, and Arizona v. Mauro, U.S. , 107

S.Ct. 1931 (1987). Respondent submits that the Fourth District's

application of these two decisions was correct and that the

thorough, well-documented decision must stand.

In Rhode Island v. Innis, supra, this Honorable ao

was confronted with a factual scenario in which a custodial

murder suspect, who had been given his Miranda v. Arizona, 284

U.S. 436 (1966) warnings and invoked his rights to counsel and

silence in response thereto, incriminated himself by volunteering

the location of the murder weapon after overhearing two police

officers discuss the possibility that the shotgun would be found

and discharged by schoolchildren. The Court held the defendant's

inculpatory statement admissible, enunciating the legal principle

that the officers’ conversation did not constitute the "function-

al equivalent” of prohibited interrogation because they should

not have been expected to know that their actions "were

reasonably likely to elicit an incriminating response” from the

particular suspect. Id., 446 U.S. 291, 301.

In Arizona v. Mauro, supra, this Court revisited Rhode

Island v. Innis, focusing on the importance of the suspects per-

ception. The Court held that a suspect's statement made after

Miranda warnings were given and not a product of psychologica:

pressure, compelling influences or direct questioning was not a

result of interrogation or the functional equivalent and were ad-

missible at trial. The Court employed a “totality of the circum-

stances approach” in reviewing the suspect's perception of the

police procedure in question and relied on such factors as the

suspect's understanding of the situation and whether the police

questioned the suspect immediately prior to his statements.

In the instant case the Fourth District applied both of

the holdings in Rhode Island v. Innis and Arizona v. Mauro. The

Court paid particular attention to the circumstances of the case

as espoused in the Arizona v. Mauro decision. The court stated

that Petitioner had been given Miranda warnings and chose to

remain silent. He was then shown a video tape of the robbery in

the presence of a police officer and was "not subject to any

express questioning". Further, Petitioner had an understanding

of police procedure as he had been subject to many prior

arrests. His demeanor while viewing the tape was one of

lightheartedness and levity and was contrary to his contention

that he was subjected to an “interrogation environment". Again,

the Court relied on Arizona v. Mauro which re-emphasized the

importance of viewing the circumstances from the suspect's

perspective. The Fourth District thus reviewed the facts,

Petitioner's knowledge experience, and demeanor. The court,

relying on the particular circumstances of the case, correctly

determined that from Petitioner's perspective the police action

involved did not rise to a level of interrogation, and his

statement was a spontaneous and voluntary assertion which was

correctly held admissible at trial.

Petitioner however wishes to dramatize the factual

scenario in order to portray a scene which necessarily suggests

an atmosphere of psychological pressure. Respondent asserts that

no such psychological pressure or coercive questioning took

place. In fact when the circumstances are evaluated without the

Grama the facts reveal that no questions were asked nor comments

were made to Petitioner while he viewed the tape. Petitioner was

under no great compulsion to speak, his statements were merely

spontaneous and voluntary and not a product of psychological

pressure or coercive questioning.

After a review of federal case law it appears that

several courts have addressed the same issue as involved here,

that is, whether revealing evidence available against a suspect

to the suspect after he has invoked his right to remain silent

cons itutes compulsion. In U.S. v. Davis, 527 F.2d 1110 (9th

Cir. 1975) a defendant's confession was held admissible although

made immediately after he indicated his wish to remain silent and

made after F.B.I. agents asked defendant if he wished to

reconsider his position, showing him a bank surveillance photo of

himself participating in the robbery. See also U.S. v.

Rodriquez-Gastellum, 569 F.2d 482 (9th Cir. 1978); U.S. v.

Pheaster, 544 F.2d 353 (9th Cir. 1976) cert denied 429 U.S. 1099

(1977); U.S. v. Hodge 487 F.2d 945 (Sth Cir. 1973). Additionally

in Jenkins v. Bara, 663 F.Supp. 891 (E.D.N.Y. 1987), it was held

that a police officer's conduct in defendant's presence, of on

ing up the volume of a police radio broadcast and remarking about

the broadcast which involved the defendant did not amount to an

interrogation. Accordingly, federal courts have addressed this

issue with similar facts as involved in the instant case and have

upheld such police procedure under similar constitutional at-

tacks.

Petitioner relies on several decisions of state courts

to support his position that this type of police procedure is

always coercive and always amounts to interrogation therefore

rendering any statements or confessions inadmissible at trial.

These decisions are certainly not binding on this Court.

Additionally, the two federal decisions which Petitioner relies

on were decided prior to the guidance of this Court's decisions

in Rhode Island v. Innis and Arizona v. Mauro. Further, the

Ninth Circuit in U.S. v. Barnes, 432 F.2d 89 (9th Cir. 1970) a

case relied on by Petitioner, has since held contrary to Barnes

in such cases are U.S. v. Rodriquez-Gastelum, supra, U.S. v.

Davis, supra, and U.S. v. Pheaster, supra. Accordingly, pursuant

to the dictates of Rhode Island v. Innis and Arizona v. Mauro the

federal courts have decided that simply revealing evidence to the

suspect, alone does not per se amount to interrogation.

In sum this Court has answered the issue presented here

numerous times. The trial court and the Florida Fourth District

Court of Appeal has decided this case in a manner consistent with

this Court's prior decisions. No conflict among the decisions

exists. Accordingly, this Court should not exercise its juris-

diciton.

!

4 . . 87-6422

CONCLUSION : " No. 87-6

WEHEREFORE, based on the foregoing reasons and ' IN THE

authorities, the State of Florida, Respondent, respectfully SUPREME COURT OF THE UNITED STATES

requests that the Petitioner's Petition for Writ of Certiorari be OCTOBER TERM 1987

denied.

Respectfully submitted, seseeseeeeeeeeeeeeeeseseeeeeeeee eeeee ee

ROBERT A. BUTTERWORTH ROBERT LEE LEWIS,

Attorney General

Tallahassee, Florida Petitioner,

vs.

he (heel tim f°

fnghath COHEN Ce

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Lk L STATE OF FLORIDA,

Assistant Attorney General CL Va

lll Georgia Avenue, Suite 204 Respondent.

West Palm Beach, Florida 33401

Telephone: (407) 837-5062 Sseenvmpeeeaeseseeeesaeeseeeeeaeeseeeseseeeseeeseeeee

Counsel for Respondent. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing Response to Petition for Writ of Certiorari to the

District Court of Appeal, Fourth District of Florida has been

furnished by courier to: MARGARET GOOD, ESQUIRE, Assistant

Public Defender, The Governmental Center, 301 N. Olive Avenue,

_

9th Floor, West Palm Beach, Florida 33401 this a~/ ~— day

of April, 1988.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

Tallahassee, Florida

Vhn % (atelsmmn

phn

JOHN W. TIEDEMANN

Assistant Attorney General

Counsel of Record

fi t/ LE, L/

MARDI LEVEY COHEN

Assistant Attorney General

1ll Georgia Avenue, Suite 204

West Palm Beach, Florida 33401

Telephone: (407) 837-5062

Counsel for Respondent.