Opposition Brief — Florida v. Walker
Supreme Court brief1992
Ask Donna
What actually matters in this document.
Text
LINED,
kK POOR
If
HARD (
ArT
AND
WHEN
} ‘ k W I
;
o LFA LORS F 1© Supreme Court, U.S.
+ Oren Bs | -
eerie sisiabotes
> APR 10 1892
wet IN THE
42 OFFICE GF THE CLERK
wr SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
DISTRIBUTED Case No. 91-1475
PR 2 L 1992 _
STATE OF FLORIDA
Petitioner,
vs.
ROOSEVELT WALKER,
Respondent.
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
ROOSEVELT WALKER, Respondent in the above-styled cause
hereby moves this Court, by his undersigned counsel, for leave to
proceed in forma pauperis and in support hereof shows as follows:
1. An affidavit in Support of Motion to Proceed on
Appeal in Forma Pauperis is attached to this motion. In the
affadavit respondent sets forth the fact that he is indigent and
unable to pay or give security for the fees and costs attendant
to this proceeding.
2. Respondent was adjudged insolvent for the purposes
of trial and of appeal in the Supreme Court of Florida and was
represented there by appointed counsel.
WHEREBY, it is respectfully requested that Respondent
be permitted to proceed in forma pauperis in this matter.
Respectfully submitted,
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
112-A Orange Avenue
Daytona Beach, Fla. 32114
(904) 252-3367
ATTORNEY FOR RESPONDENT
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been delivered by mail to the Honorable Robert A.
Butterworth, Attorney General, 210 N. Palmetto Avenue, Suite 447,
Daytona Beach, Florida 32114 and Roosevelt Walker, No. B 063386,
P. O. Box 028538, Miami, FL 33102 on April 10, 1992.
CHRISTOP
ASSISTA
R S. QUARLES
PUBLIC DEFENDER
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF FLORIDA,
Petitioner,
vs. CASE NO. 91-1475
ROOSEVELT WALKER,
Respondent.
AFFIDAVIT IN SUPPORT OF RESPONDENT'S
MOTION TO PROCEED IN FORMA PAUPERIS
I, ROOSEVELT WALKER, being first duly sworn, depose and
say that I am the Petitioner in the above-styled cause; that in
Support of my motion to proceed on the Petition for Certiorari
without being required to prepay fees, costs or give security
therefor, I state that because of my poverty I am unable to pay
the costs of said proceeding or give security therefor.
I further swear that:
1. I was convicted of one count of first-degree murder
in the Circuit Court for Seminole County, Florida.
2. I received one sentence of life imprisonment and am
presently in custody of the Department of Corrections in the
State of Florida.
3. I am not employed and have no source of income.
4. I have been represented by appointed counsel
throughout my state trial and appeal proceedings.
5. I have not received within the past twelve months
any income from a business, profession, or other form of
employment, or in the form of rent payments, interest, dividends,
or other source.
6. I do not own any cash, checking account or savings
account.
ve I do not have any real estate, stocks, bonds,
notes, automobiles or any other valuable property.
8. The following are the people who are dependent upon
me for support (if none, so state):
» 1) +! Va
NAME: £ ji Zbethee (oAdlte. aetarromeunes {1/07 C ¢
MABRY. WH )x< ps FS
yen bP ae Let
«¢ ron © f
f) fA - + af
ae } ( ‘ ‘ y r
a th _ a - anh.
ROOSEVELT WALKER
Respondent
STATE OF FLORIDA
COUNTY OF _fpAak:
Sworn to and subscribed before me
VA . a
this co day of DlGACK | _ , 2082.
Kal Ep a. Mh ae
ae PUBLIC STATE OF FLORIDA |
My commission expires:
MOTAMY PINLIC, STATE OF FLORIDA
MY COMMISION EXPIRES: Nov. 14, 1
gONPED rik NOTARY PUBLIC UNI VERWRIT
1994.
ERS,
meee wenn PE
Bes. i F & ~a
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
Case No. 91-1475
STATE OF FLORIDA
Petitioner,
vs.
ROOSEVELT WALKER,
Respondent.
RESPONSE TO PETITION FOR WRIT OF CERTIORARI
TO THE FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL
CIRCUIT OF FLORIDA
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
112-A Orange Avenue
Daytona Beach, Fla. 32114
904-252-3367
MEMBER OF THE UNITED
STATES SUPREME COURT BAR
MICHAEL S. BECKER
ASSISTANT PUBLIC DEFENDER
COUNSEL FOR RESPONDENT
TABLE OF CITATIONS
PAGE NO.
CASES CITED:
McNeil v. Wisconsin
501 U.S. » aaa B.C. 22064
115 L.Ed.2d 158 (1991) 3,4,5,6
State v. Lints
So.2d , Case No. 91-910
(Fla. 5th DCA April 3, 1992) 3,4
Traylor v. State
So.2d , 17 FLW S42
(Fla.Sup.Ct., January 16, 1992) Pe Pe
Walker v. State
573 So.2d 415 (Fla. 5th DCA 1991) i eee”
OTHER AUTHORITIES
Fifth Amendment, United States Constitution 2
Sixth Amendment, United States Constitition 5
Article I, Section 9, Florida Constititon $4,.3,4
STION ESENTED
Whether this Court should exercise its discretionary
jurisdiction to entertain this case where subsequent decisions of
the Fifth District Court of Appeal and Florida Supreme Court have
clarified this issue and where the decision in the case sub
judice can be sustained on independent state grounds pursuant to
Article I, Section 9, of the Florida Constitution?
ii
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
Case No. 91-1475
STATE OF FLORIDA,
Petitioner,
vc
¥Y>
ROOSEVELT WALKER,
Respondent.
RESPONSE TO PETITION FOR WRIT OF CERTIORARI
TO THE FIFTH DISTRICT COURT OF APPEAI
STATE OF FLORIDA
JURISDICTION
Respondent respectfully requests this Court to deny the
Petition for Writ of Certiorari seeking review of the decision of
the Fifth District Court of Appeal of Florida below which is
reported at 573 So.2d 415 (Fla. 5th DCA 1991). Since the
decision below can be sustained on independent state grounds,
this Court should decline to accept jurisdiction in the instant
case.
T NT_O CAS
Respondent was incarcerated in the Seminole County Jail
when he was approached by two police officers regarding a murder
investigation. Although at the time of the interrogation,
respondent was represented by counsel on unrelated charges, a
fact known to the officers, they took no action with regard to
contacting his attorney. The record is silent as to whether
respondent had invoked his Fifth Amendment rights with regard to
the unrelated charge. There is no doubt that the officers
initiated the contact with respondent. At the time that
respondent gave his taped statement, Assistant State Attorney,
Clarence Counts was also present at the jail.
Respondent pled nolo contendere to the charge of first
degree murder specifically reserving the right to appeal the
denial of his motion to suppress his confessions. On appeal to
the Fifth District Court of Appeal for the State of Florida, the
appellate court reversed the decision of the trial court and held
that respondent's confessions had to be suppressed on the
authority of several decisions emanating from this Court which
decisions were grounded on the Fifth Amendment to the United
States Constitution.
Petitioner sought discretionary review in the Florida
Supreme Court which was denied by Order dated January 30, 1992.
This decision denying discretionary review came two weeks after
the Florida Supreme Court issued its decision in Traylor v.
State, So.2d , 17 FLW S42 (Fla.Sup.Ct., January 16,
1992) (copy attached as Appendix I hereto]. Subsequently, on
April 3, 1992, the Fifth District Court of Appeal issued its
opinion in State v. Lints, So.2d , Case No. 91-910 (Fla.
Sth DCA, April 3, 1992). [copy attached hereto as Appendix IT}
By these opinions, the Florida sourts have how determined that
the Florida Constitution in Article I, Section 9 provides greater
protection than the United States Constitution.
REASONS FOR DENYING THE PETITION
THE DECISION OF THE COURT BELOW IS CORRECT IN
LIGHT OF SUBSEQUENT DECISIONS OF THE FLORIDA
SUPREME COURT WHICH HOLD THAT THE FLORIDA
CONSTITUTION PROVIDES GREATER PROTECTION
UNDER ARTICLE I, SECTION 9 THAN DOES THE
UNITED STATES CONSTITUTION. FURTHER, THE
DECISION IS CORRECT INSOFAR AS IT HELD THAT
RESPONDENT HAD INVOKED HIS FIFTH AMENDMENT
RIGHTS TO REMAIN SILENT WHICH RIGHTS WERE
VIOLATED WHEN THE POLICE APPROACHED HIM TO
SPEAK TO HIM ABOUT AN UNRELATED CHARGE.
Petition seeks review of the decision of the Fifth
District Court of Appeal of the State of Florida below ostensibly
because of his belief that it directly conflicts with this
Court's decision in McNeil v. Wisconsin, 501 U.S. __ _» 322 8.6.
2204, 115 L.Ed.2d 158 (1991). However, a close reading of the
decision below reveals that the Court ruled that respondent had
invoked his rights pursuant to the Fifth Amendment to the United
States Constitution and thus the subsequent confession on an
unrelated charge obtained in violation of this Fifth Amendment
right, had to be suppressed. That this was the basis for the
decision is obvious from the subsequent actions of the Florida
3
Supreme Court
In Traylor v. State, ___So.2d , 17 FLW S42 (Fla.
Sup.Ct., January 16, 1992), the Florida Supreme Court held that
under the Declaration of Rights in the Florida Constitution,
greater protection is afforded an accused in addition to the
rights afforded him pursuant to the federal constitution. In
particular, under Article I, Section 9 of the Florida
Constitution:
Once a suspect has requested the help of
a lawyer, no state agent can re-initiate
interrogation on any offense throughout the
period of custody unless the lawyer is
present, although the suspect is free to
volunteer a statement to police on his or her
own initiative at any time on any subject in
the absence of counsel.
As noted before, this decision in Traylor was rendered two weeks
prior to the decision of the Florida Supreme Court declining to
accept jurisdiction in the instant case. It must be assumed that
in light of Traylor, the court saw no need to disturb the
decision below.
In State v. Lints, _ So.2d __, Case No. 91-910 (Fla.
5th DCA, April 3, 1992) the Fifth District Court of Appeal
reversed an order granting a motion to suppress statements made
by an accused. Although Lints had appeared in court on unrelated
charges and asserted his Sixth Amendment right to counsel, the
police from a different county approached him and interviewed him
with regard to a pending investigation. Citing this Court's
opinion in McNeil v. Wisconsin, supra, and Traylor v. State,
supra, the Fifth District Court of Appeal reversed the order of
4
the trial court which suppressed the statements. In doing so,
the Fifth District Court of Appeal had the opportunity if it felt
it was necessary, to recede from its decision below. In this
regard, the Court stated:
We are aware of our previous opinion in
Walker v. State, 573 So.2d 415 (Fla. 5th DCA
1991), review denied, No. 77,479 (Florida o
January 30, 1992), however, we find that
McNej] and Traylor control the result in the
instant case. Accordingly, we reverse the
order granting Lint's motion to suppress his
confession and remand for further
proceedings.
Jiiw
CONCLUSION
The Petition for Writ of Certiorari should be denied
because the decision of the Fifth District Court of Appeal for
the State of Florida below is distinguishable on its facts from
McNeil v. Wisconsin, and further, because the decision below is
based on independent state constitutional grounds and thus this
Court has no jurisdiction to interfere.
Respectfully submitted,
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT
>< Ce >>
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
112-A Orange Avenue
Daytona Beach, Fla. 32114
(904) 252-3367
ee Oe A ae
MICHAEL S. BECKER
ASSISTANT PUBLIC DEFENDER
ATTORNEY FOR RESPONDENT
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
Case No.
STATE OF FLORIDA
Petitioner,
Vs.
ROOSEVELT WALKER,
Respondent
} 1ix |] Traylor v. State, So.2d
17 FLW S42 (Fla.Sup.Ct. January
tate v. Lints, So.2d
Appendix III Walker v. State, 573 So.2d 415
(1991)
-
2
Case No. 91-910 (Fla. 5th DCA April
17 FLW S42 -
PREME COURT OF FLORIDA
thought-provoking argument of two dissenters we held that he
could, but emphasized that the trial judge must carefully analyze
the possible statutory and nonstatutory mutigating factors against
the aggravators to assure that death is appropriate. We are not
unaware of the problems arising out of the imposition of the death
penalty when mitigating evidence is not actively pursued by the
defendant or someone on his behalf, but we adhere to our rule in
Hamblen that a competent defendant can waive its presentation.
The trial judge performed this task in this case. He was par-
ticularly concerned with the effect of Pettit’s having a condition
known as Huntington's chorea. He required Pettit's examination
by physicians and required their testimony in reference to the
voluntariness of Pettit’s guilty plea and for the presence of miti-
gating circumstances. He received the testimony of Pettit’s
grandfather in reference to the devastating and progressively
deteriorating effect that Huntington’s chorea has on a person. '
The trial judge also received a presentence investigation report.
He wrote his findings out longhand and then had them typed after
concluding, despite Pettit's physical condition and history as
reported to the doctors and by the grandfather, that no mutigating
circumstances had been established.
Pettit’s appellate counsel? also contends that the tnal judge
failed to consider nonstatutory mitigation. The sentencing order
itself does not mention the word ‘‘nonstatutory.’’ We conclude,
however, that by his treatment of Pettit’s physical condition and
by allowing the testimony of the grandfather, the judge fully
understood the requirement of considering, and did consider,
nonstatutory mitigating evidence.
Finally, Pettit’s appellate counsel urges that the tral judge
erred in finding that Pettit was under sentence of impnsonment
when he committed these offenses. The State claimed that he was
serving the probation part of an apparent split sentence, but the
record is not clear on this. In any case, however, we have ruled
that a person on probation is not under sentence of impnsonment.
E.g., Trotter v. State, 576 So.2d 691 (Fla. 1990).
We conclude, however, that striking that aggravator would
not have affected the sentence. This was an aggravated cnme
committed by one who has a dismal criminal record and who has
exhibited no socially redeeming virtues. His only possible miti-
gation has been his life’s personal tragedy of neglect and having
an inherited debilitating physical ailment that will cause an early,
painful deterioration of body and mind. While this might be
significant, the decision as to whether mitigation has been estab-
lished lies with the trial court. Sireci v. State, No. 76,087 (Fla.
Sept. 19, 1991) [16 F.L.W. S623]. Competent, substantial evi-
dence supports the rejection of mitigating circumstances, see
Ponticelli v. State, No. 73,064 (Fla. Oct. 10, 1991) [16 F.L.W.
$669], and sufficient aggravating factors exist to support the tral
judge’s conclusion that death is appropriate in this case. We
therefore affirm the judgment of guilt and the sentence of death.
It is so ordered. (SHAW, C.J. and OVERTON, McDON-
ALD, GRIMES, KOGAN and HARDING, JJ., concur. BAR-
KETT, J., concurs in part and dissents in part with an opinion.)
"Pettit’s father committed suicide while suffering from this condition and his
grandmother died from it.
*Pettit did not want to appeal or have counsel for his appeal, but we deter-
mincd that this wish could not be granted because we have an absolute statutory
obligation to review every death sentence.
(BARKETT, J., concurring in part, dissenting in part.) I concur
in the affirmance of guilt. However, for the reasons expressed in
my dissenting opinion in Hamblen v. State, 527 So.2d 800, 806-
809 (Fla. 1988) (Barkett, J., dissenting as to the penalty), I would
remand for a new sentencing proceeding with instructions that
the trial court appoint public counsel to advocate mitigation.
* * .
Criminal law—Self-incrimination—Florida Constitution re-
quires that prior to custodial interrogation in Florida suspects
must be told that they have a right to remain silent, that anything
they say will be used against them in court, that they have a right
to a lawyer’s help, and that if they cannot pay for a lawyer one
will be appointed to help them—Right to counsel—In all criminal
prosecutions, defendant may choose to be heard either by him-
self or through counsel at each crucial stage of proceedings—De-
fendant is entitled to counsel when he or she is formally charged
with a crime via the filing of an indictment or information, as
soon as feasible after custodial restraint, or at first appearance—
Confessions to Alabama murder and Florida murder given,
without assistance of counsel, to Florida detective by defendant
after counsel had been appointed as to Alabama murder and
counsel had advised Alabama authorities not to talk to defen-
dant—Defendant’s privilege against self-incrimination under
Florida Constitution not violated where defendant was adequate-
ly informed of his rights and validly waived them—Confession to
Alabama offense was obtained in violation of right to counsel—
Right to counsel validly waived as to Florida offense prior to
confession to that offense—Fact that defendant had invoked
right to counsel on Alabama offense irrelevant to Florida
charge—Error in trial court’s admission of confession to Ala-
bama murder harmless where admission of that confession did
not affect jury’s verdict
JOHN EDWARD TRAYLOR, Petitioner, v. STATE OF FLORIDA, Respon-
dent. Supreme Court of Florida. Case No. 70,051. January 16, 1992. Applica-
tion for Review of the Decision of the District Court of Appeal - Direct Conflict
of Decisions. First District - Case No. BF-344 (Duval County). Nancy Daniels,
Public Defender and Davis P. Gauldin, Assistant Public Defender, Second Judi-
cial Circuit, Tallahassce, Florida, for Petitioner. Robert A. Butterworth, Attor-
ney General; James W. Rogers, Bureau Chief, Criminal Appeals, and Norma J.
Mungenast and Bradford L. Thomas, Assistant Attorneys General, Tallahassee,
Florida, for Respondent.
(SHAW., C. J.) We have for review Traylor v. State, 498 So.2d
1297 (Fla. Ist DCA 1986), based on conflict with State v. Di-
Guilio, 491 So.2d 1129 (Fla. 1986). We have junsdiction. Art.
V, § 3(b)(3), Fla. Const. We approve the decision of the distnct
court but disapprove its standard for harmless error.
1. FACTS
Tina Nagy was found stabbed to death in her Jacksonville
apartment on June 7, 1980. Traylor was charged by information
with second-degree murder for the crime on June 11, but was not
apprehended at that time. Debra Beason was found stabbed and
strangled in Birmingham, Alabama, on August 5, 1980, and
Traylor was arrested by Alabama police for the crime the next
day under the name of Jason Riley. Traylor was charged in Ala-
bama with the Beason murder and requested and received ap-
pointment of counsel on that charge at a preliminary hearing on
Sugust 18. Two days later, his lawyer told Traylor not to speak
th police and instructed Alabama police not to talk to his client.
A computer check of Traylor’s fingerprints revealed his true
identity and showed that he was wanted in Florida for the Nagy
murder. Detective Warren of the Jacksonville police flew to
Birmingham to question him about the Florida crime. On August
22, Warren, who was never told that counsel had been appointed,
initiated questioning of Traylor relative to both crimes after
advising him of his rights under Miranda y. Arizona, 384 U.S.
436 (1966), and obtaining a written waiver. During this session,
Traylor confessed orally and in writing to the Florida murder and
orally to the Alabama murder. He was tried and convicted of
second-degree murder for the Alabama crime, Riley v. State, 501
So.2d 551 (Ala. Crim. App. 1986), and was temporarily re-
turned to Florida in March 1983 and charged by indictment with
first-degree murder for the Nagy killing.
Prior to trial on the Florida offense, Traylor moved to sup-
press the confessions to both crimes,' claiming that the state-
ments were obtained in violation of his privilege against self-
incrimination under both Article I, Section 9, Florida Constitu-
tion, and the Fifth Amendment to the United States Constitution,
SUPREME COURT OF FLOR. \
17 FLW S43
and of his right to counsel under both Article I, Section 16, Flon-
da Constitution, and the Sixth Amendment to the United States
Constitution. The court denied the motion. The confessions were
admitted into evidence at trial and the jury found him guilty of
second-degree murder. The district court affirmed.
The district court made the following determinations. Under
federal law Traylor’s Sixth Amendment nght to counsel had
attached as to the Alabama crime, and counsel had been appoint-
ed on that charge. The confession to the crime was obtained
through police-initiated questioning without the assistance of
counsel and was thus unJawful. As to the confession to the Flon-
da cnme, Traylor’s Sixth Amendment nght to counsel attached
at the time the Flonda information was issued, but counsel had
not been requested or appointed on that charge. Because the
Miranda warning had been insufficient to inform Traylor of the
availability of his Sixth Amendment nght, this confession too
was unlawfully obtained, but use of the confessions at trial was
harmless error in light of other overwhelming evidence of guilt.
Traylor claims that the district court erred in finding that the
use of the confessions was harmless. The State, on the other
hand, contends that the distnct court erred in ruling that the
confessions should have been suppressed.
The basic issue before us is whether the tnal court erred in
admitting the confessions, and, if so, whether the error was
harmless. To be held admissible, the confessions must pass
muster under both the state and federal constitutions. Consistent
with federalist principles set forth below, we examine the confes-
sions initially under our state Constitution; only if they pass
muster here need we re-examine them under federal law. Before
we apply our state law, however, we must first define its basic
contours under Article 1, Sections 9 and 16, Florida Constitution
Il. FEDERALISM
The courts of at least eleven states have chosen to interpret tt
self-incmmunation provisions of their own state constitutions in a
manner independent of the federal Court's Fifth Amendment
jurisprudence.~ Under our federalist system of government,
States may place more mgorous restraints on government intru-
sion than the federal charter imposes; they may not, however,
place more restrictions on the fundamental nghts of their citizens
than the federal Constitution permits. Prune Yard Shopping Ctr.
v. Robins, 447 U.S. 74 (1980).’ Federalist principles recognize
that although some government intrusion into the life of the
individual is inevitable, such intrusion is to be minimized. Gov-
emment éncroachment ts thus restncted by both the federal and
State constitution.
The federal Constitution secures a common degree of protec-
tion for the citizens of all fifty states, but the federal Court has
wisely exercised restraint in construing the extent of this protec-
tion for several reasons. First, under our federalist system, many
important decisions concerning basic freedoms have traditionally
inhere’! in the states. Second, the federal Court's precedent is
binding on all jumsdictions within the union; once it settles a
matter, further expenmentation with potentially rewarding
alternative approaches in other jurisdictions is foreclosed. Third,
federal precedent applies equally throughout fifty diverse and
independent states; a ruling that may be suitable in one may be
inappropniate in others. And fourth, the federal union embraces a
multitude of localities; the Court oftentimes is simply unfamiliar
with local problems, conditions and traditions. See generally San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
State courts do not suffer these prudential concerns to the
Same degree as the federa! Court. First, unlike their federal
Counterparts, state courts and constitutions have traditionally
Served as the prime protectors of their citizens’ basic freedoms.
State constitutions were the initial and prime charters of indi-
vidual rights throughout most of our nation’s existence:
By 1776 most American citizens enjoyed guarantees against
€ncroachment on their liberties by state governments because
Most of the original thirteen colonies had adopted constitutions
with provisions protecting individual rights. The framers of the
federal Bill of Rights, which the states adopted in 1791, naturally
relied on these state provisions as sources for their document
The federal document sought to provide citizens with protections
against interference by the federal government analogous to
existing state constitutional protections against interference by
state governments.
For the first one hundred and fifty years of our nation’s exis-
tence, the origins of state constitutional provisions were of little
import for federal constitutional jurisprudence. During this
period the federal constitution and state constitutions operated
independently in regulating the interaction between government
and citizen. The federal Bill of Rights protected citizens only
from actions of the federal government, while state constitutions
limited only intrusive action by the states. Because state govern-
ments affected individuals far more frequently during this period
than did the federal government, state constitutions were the
primary documents protecting the liberties of the people from
governmental interference.
Mary A. Crossley, Note, Miranda and the State Constitution:
State Courts Take a Stand, 39 Vand. L. Rev. 1693, 1696 (1986)
(footnotes omitted). State courts function daily as the pnme
arbiters of personal nghts.* An assertive state court thus imping-
es on no traditional federal prerogative where basic nghts are
concerned.
Second, unlike the federal Court, a state court’s decision con-
struing its Own constitution is controlling only as to courts within
that state; the ruling will not stifle the development of alternative
methods of constitutional analysis in other jurisdictions.
To stay experimentation. . . is a grave responsibility. Denial
of the right to experiment may be fraught with serious conse-
quences to the nation. It is one of the happy incidents of the fed-
eral system that a single courageous state may, if its citizens
choose, serve as a laboratory; and try novel. . . experiments
without risk to the rest of the country.
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting). And finally, no court is more sensitive
or responsive to the needs of the diverse localities within a state,
or the state as a whole, than that state’s own high court. In any
given state, the federal Constitution thus represents the floor for
basic freedoms; the state constitution, the ceiling. See Stewart G.
Pollock, State Constitutions as Separate Sources of Fundamental
Rights, 35 Rutgers L. Rev. 707, 709 (1983).
Federal and state bills of mghts thus serve distinct but comple-
mentary purposes. The federal Bill of Rights facilitates political
and philosophical homogeneity among the basically heteroge-
neous states by securing, as a uniform minimum, the highest
common denominator of freedom that can prudently be admunis-
tered throughout all fifty states. The state bills of nghts, on the
other hand, express the ultimate breadth of the common yearm-
ings for freedom of each insular state population within our na-
tion. Accordingly, when called upon to construe their bills of
rights, state courts should focus primarily on tac:ors that inhere
in their own unique state experience, such as the express lan-
guage of the constitutional provision, its formative history, both
preexisting and developing state law, evolving customs, tradi-
tiuns and attitudes within the state, the state’s own general histo-
ry, and finally any external influences that may have shaped state
law.
When called upon to decide matters of fundamental nghts,
Florida’s state courts are bound under federalist principles to
give primacy to our state Constitution and to give independent
legal import to every phrase and clause contained therein.’ We
are similarly bound under our Declaration of Rights to construe
each provision freely in order to achieve the primary goal of
individual freedom and autonomy.
III. FLORIDA DECLARATION OF RIGHTS
The text of our Florida Constitution begins with a Declaration
of Rights—a series of rights so basic that the framers of our Con-
17 FLW S44
SUPREME COURT OF FLORIDA
stitution accorded them a place of special privilege. These nghts
embrace a broad spectrum of enumerated and implied liberties
that conjoin to form a single overarching freedom: They protect
each individual within our borders from the unjust encroachment
of state authority—from whatever official source—into his or her
life. Each right is, in fact, a distinct freedom guaranteed to each
Floridian against government intrusion. Each right operates in
favor of the individual, against governntent. This Court over half
a century ago addressed the fundamental principle of robust
individualism that underlies our system of constitutional govern-
ment in Florida:
It is significant that our Constitution thus commences by
specifying those things which the state government must not do,
before specifying certain things that it may do. These Declara-
tions of Rights . . . have cost much, and breathe the spirit of that
sturdy and self-reliant philosophy of individualism which under-
lies and supports our entire system of government. No race of
hothouse plants could ever have produced and compelled the
recognition of such a stalwart set of basic principles, and no such
race can preserve them. They say to arbitrary and autocratic
power, from whatever official quarter it may advance to invade
these vital rights of personal liberty and private property, *‘Thus
far shalt thou come, but no farther.’’
State ex rel. Davis v. City of Stuart, 97 Fla.69, _, 120 So. 335,
347 (1929). No other broad formulation of legal principles,
whether state or federal, provides more protection from govern-
ment overreaching or a nicher environment for self-reliance and
individualism than does this ‘‘stalwart set of basic principles."’.
Under our Declaration of Rights, each basic liberty and each
individual citizen has long been held to be on equal footing with
every other:
Every particular section of the Declaration of Rights stands
on an equal footing with every other section. They recognize no
distinction between citizens. Under them every citizen, the good
and the bad, the just and the unjust, the rich and the poor, the
saint and the sinner, the believer and the infidel, have equal
rights before the law.
Boynton v. State, 64 So.2d 536, 552-53 (Fla. 1953). Each nght
and each citizen, regardless of position, is protected with identi-
cal vigor from government overreaching, no matter what the
source. Id. at 552.
Special vigilance is required where the fundamental nights of
Florida citizens suspected of wrongdoing are concerned, for here
society has a strong natural inclination to relinquish
incrementally the hard-won and stoutly defended freedoms enu-
merated in our Declaration in its effort to preserve public order.
Each law-abiding member of society is inclined to strike out at
cnme reflexively by constricting the constitutional nghts of all
citizens in order to limit those of the suspect—each is inclined to
give up a degree of his or her own protection from government
intrusion in order to permit greater intrusion into the life of the
suspect. The framers of our Constitution, however, deliberately
rejected the short-term solution in favor of a fairer, more struc-
tured system of criminal justice:
These rights {enumerated in the Declaration of Rights] curtail
and restrain the power of the State. It is more important to pre-
serve them, even though at times a guilty man may go free, than
it is to obtain a conviction by ignoring or violating them. The end
does not justify the means. Might is not always right. Under our
system of constitutional government, the State should not set the
example of violating fundamental rights guaranteed by the Con-
stitution to all citizens in order to obtain a conviction.
Bizzell v. State, 71 So.2d 735, 738 (Fla. 1954). Thus, even
here—especially here—where the nights of those suspected of
wrongdoing are concermed, the framers drew a bright line and
said to government, ‘‘Thus far shalt thou come, but no farther.’"’
IV. PRIVILEGE AGAINST SELF-INCRIMINATION
A. Florida Section 9
The basic contours of Florida confession law were defined by
this Court long ago under our common law. We recognized the
important role that confessions play in the crime-solving process
and the great benefit they provide; however, because of the
tremendous weight accorded confessions by our courts and the
significant potential for compulsion—both psychological and
physical—in obtaining such statements, a main focus of Flonda
confession law has always been on guarding against one thing—
coercion. We defined the abiding standard for determining the
admissibility of a confession nearly a century and a half ago:
To render a confession voluntary and admissible as evidence,
the mind of the accused should at the time be free to act, uninfiu-
enced by fear or hope. To exclude it as testimony, it is not neces-
sary that any direct promises or threats be made to the accused. It
is sufficient, if the attending circumstances, or declarations of
those present, be calculated to delude the prisoner as to his true
position, and exert an improper and undue influence over his
mind.
Simon v. State, 5 Fla. 285, 296 (1853). The test thus is one of
voluntariness, or free will, which is to be determined by an ex-
amination of the totality of the circumstances surrounding the
confession.* This determination is to be made by the judge, in the
absence of the jury, based on a multiplicity of factors, including
the nature of the questioning itself. Nickels v. State, 90 Fla. 659,
__, 106 So. 479, 483 (1925).
Because confessions are oftentimes rendered in private where
the potential for compulsion is great, this Court has long recog-
nized that such statements must be considered with caution.
Coffee v. State, 25 Fla. 501, __, 6 So. 493, 496 (1889). To en-
sure voluntariness, we traditionally have required as a matter of
state law that one charged with a crime be informed of his nghts
prior to rendering a confession. Over a century ago, we held that
before a prisoner can be questioned by an officer at a preliminary
hearing the officer must ‘‘caution the prisoner, to put him on his
guard, and to inform him as to his nights in the premises."* Jd. , 25
Fla. at __, 6 So. at 496.’ Before being questioned, the accused
must be told that ‘‘he need not say anything to cnminate himself,
and what he did say would be taker down and used as evidence
against him.’’ Green v. State, 40 Fla. 474, __, 24 So. 537, 538
(1898). Confessions obtained in violation of these rules were
inadmissible at trial.*
The common law principles governing confessions and other
self-incriminating statements have long been matters of constitu-
tional import in Florida. Section 9 of our state Declaration of
Rights provides in part that
{n]o person shall be . . . compelled in any criminal matter to be a
witness against bimseil.
Art. I, § 9, Fla. Const. As early as 1896 this Court recognized
that our common law principles governing confessions are sub-
sumed under the constitutional proscription concerning com-
pelled self-incrimination:
It is an ancient maxim of the law that no man shall be com-
pelled to criminate himself. The origin and necessity of this
maxim, as others of the common law, grew out of conditions
found in the early history of English jurisprudence in reference
to the administration of criminal law, and which, it must be
admitted, evince many traces of cruelty and barbarity. There was
a time when suspected persons were not only deprived of an
opportunity to have witnesses produced in their favor, and of the
advice and aid of counsel, but were put to torture for the purpose
of extorting from them confessions of guilt, or statements which
could be used in securing their conviction. Securing the convic-
tion of even suspected persons by such means justly became
odious, and we find the humanity of the common law proclaim-
ing that no man shall be compelled to criminate himself,—
‘*Nemo tenetur seipsum prodere.’’ This principle of the common
law was fully recognized in this country when the formation of
governments began, and we find it imbedded in the national and
all the state constitutions that we have examined. In our constitu-
tion it is found in the [ninth] section. ...
SUPREME COURT OF FLORIDa
17 FLW S45
one
Ex parte Senior, 37 Fla. 1, __, 19 So. 652, 654 (1896).° In the
same case, we concluded that in order for this constitutional
privilege to accomplish its intended purpose it must be broadly
construed. /d., 37 Fla. at ___, 19 So. at 654. We have since reaf-
firmed both the constitutional status of Florida confession law
under our Declaration of Rights’® and the broad scope of the
constitutional privilege'' on many occasions.
As a matter of policy, this Court recognizes the indispensable
role that both confessions and interrogation play in the successful
investigation and prosecution of cnme:
Despite modern advances in technology of crime detection,
offenses frequently occur about which things cannot be made to
speak. And where there cannot be found innocent human wit-
nesses to such offenses, nothing remains—if police investigation
is not to be balked before it has fairly begun—but to seek out
possibly guilty witnesses and ask them questions, witnesses, that
is, who are suspected of knowing something about the offense
precisely because they are suspected of implication in it.
The questions which these suspected witnesses are asked may
serve to clear them. They may serve, directly or indirectly, to
lead the police to other suspects than the persons questioned. Or
they may become the means by which the persons questioned are
themselves made to furnish proofs which will eventually send
them to prison or death. In any event, whatever its outcome, such
questioning is often indispensable to crime detection.
Culombe v. Connecticut, 367 U.S. 568, 571 (1961). We adhere
to the pnnciple that the state's authonty to obtain freely given
confessions 1s not an evil, but an unqualified good. McNeil v.
Wisconsin, 111 $.Ct. 2204, 2210 (1991).
Based on the foregoing analysis of our Flomda Jaw and the
experience under Miranda and its progeny,'* we hold that to
ensure the voluntariness of confessions, the Self-Incrmination
Clause of Article I, Section 9, Florida Constitution, requires that
pnor to custodial interrogation in Flonda suspects must be told
that they have a nght to remain silent, that anything they say will
be used against them in court, that they have a nght to a lawyer’s
help,’? and that if they cannot pay for a lawyer one will be ap-
pointed to help them.
Under Section 9, if the suspect indicates in any manner that he
or she does not want to be interrogated, interrogation must not
begin or, if it has already begun, must immediately stop. If the
Suspect indicates in any manner that he or she wants the help of a
lawyer, interrogation must not begin until a lawyer has been
appointed and 1s present or, if it has already begun, must imme-
diately stop until a lawyer is present. Once a suspect has request-
ed the help of a lawyer, no state agent can reinitiate interrogation
on any offense throughout the pernod of custody unless the lawyer
is present,'* although the suspect is free to volunteer a statement
to police on his or her own initiative at any time on any subject in
the absence of counsel.
A waiver of a suspect's constitutional nghts must be volun-
tary, knowing, and intelligent, and, where reasonably practical,
prudence suggests it should be in writing.'’ A prime purpose of
the above safeguards is to maintain a bright-line standard for
police interrogation; any statement obtained in contravention of
these guidelines violates the Florida Constitution and may not be
used by the State. These guidelines apply only to statements
obtained while in custody'* and through interrogation;"’ they do
not apply to volunteered statements initiated by the suspect or
Statements that are obtained in noncustodial settings or through
means other than interrogation. While our state voluntariness test
is still applicable in those cases where actual compulsion is al-
leged in obtaining a self-incriminating statement, adherence to
the above safeguards constitutes significant proof that the result-
ing statement was voluntary.
V. RIGHT TO CHOOSE REPRESENTATION
A. Florida Section 16
The Counsel Clause of the Florida Constitution is contained in
Section 16 of our Declaration of Rights, which provides in part:
In all criminal prosecutions the accused shall, upon demand, . . .
have the right. . . to be heard in person, by counsel or both... .
Art. I, § 16, Fla. Comst. Our state clause embodies an express
night to choose the manner of representing oneself—either pro se
or through counsel—against cnminal charges.
The nght to choose one’s manner of representation in a crimi-
nal triai has been recognized histoncally by both this Court and
our state legislature as an obvious but important state nght be-
longing to the accused. At the tum of the century, in Cutts v.
State, 54 Fla. 21, 45 So. 491 (1907), this Court ruled that
‘*[e]very person accused of cnme has a right to have counsel to
aid him in his defense, but no one is compelled to employ coun-
sel.’’ Id., 54 Fla. at___, 45 So. at 492 (quoting Barnes v. Com-
monwealth, 23 S.E. 784 (Va. 1895)). We reaffirmed this view a
few years later: ‘‘It does not appear that the assistance of counsel
was ‘desired by’ the accused... . A party on trial for a felony
may waive his right to have counsel, and may conduct his own
defense ... .’’ Weatherford v. State, 76Fla.219, _, 79 So. 680,
681-82 (1918). The mght was long ago codified by the legisla-
ture;'* our modem statutes’’ and rules of procedure” continue to
protect it.
The language of our Counsel Clause is simple and direct and
we conclude that the framers intended it to mean just what it says:
In all criminal prosecutions, the defendant may choose to be
heard either by himself or through counsel. This reading is
backed by both English and colonial law. Under early English
common law, it had been the practice to deny the defendant any
choice as to the means of defending himself against state charges
in serious criminal cases. Retained counsel was permitted in civil
and misdemeanor tnals but was severely limited in treason and
felony tnals:
In civil causes and on the trial of charges of misdemeanor, the
parties were entitled to the aid of counsel in eliciting the facts,
and in presenting both the facts and the law to the court and jury;
but when the government charged a person with treason or felo-
ny, he was denied this privilege. Only such legal questions as he
could suggest was counsel allowed to argue forhim....
1 Thomas M. Cooley, Cooley’s Constitutional Limitations 698
(1927). An era of reform, however, began with the Treason Act
of 1695, which authornzed counsel for the accused in treason
tals, but not felony tnals. In this and subsequent reform legis-
lation, ‘‘[t}he mght to counsel was viewed as guaranteeing a
choice between representation by counsel and the traditional
practice of self-representat:on.’’ Faretta v. California, 422 U.S.
806, 825 (1975) (emphasis added). The ban on counsel in felony
cases in England was finally lifted in 1836.
The colonies unequivocally rejected the English felony rule
and accorded to the individual the fundamental nght to choose his
own method of defense:
Colonial judges soon departed from ancient English practice and
allowed accused felons the aid of counsel for their defense. At
the same time, however, the basic right of self-representation
was never questioned. We have found no instance where a colo-
nial court required a defendant in a criminal case to acceptas his
representative an unwanted lawyer. Indeed, even where counsel
was permitted, the general practice continued to be self-repre-
sentation.
The right of self-representation was guaranteed in many
colonial charters and declarations of rights. These early docu-
ments establish that the ‘‘right to counsel’’ meant to the colonists
a right to choose between pleading through a lawyer and repre-
senting oneself. After the Declaration of Independence, the right
of self-representation, along with other rights basic to the making
of a defense, entered the new state constitutions in wholesale
fashion. The right to counsel was clearly thought to supplement
the primary right of the accused to defend himself... . And
when the Colonies or newly independent States provided by
statute rather than by constitution for court appointment of coun-
sel in criminal cases, they also meticulously preserved the right
17 FLW S46
SUPREME COURT OF FLORID/
l
of the accused to defend himself personally.
Id. at 827-30 (emphasis added) (footnotes omitted). This nght to
choose has since been recognized by the federal Court” and is
preserved in the constitutions of at least thirty-six states.
Based on the foregoing, we hold that a prime nght embodied
by the Section 16 Counsel Clause is the mght to choose one’s
manner of representation against criminal charges.~ In order for
this nght to have meaning, it must apply at least at each crucial
stage” of the prosecution. For purposes here, a ‘‘crucial stage’’
is any stage that may significantly affect the outcome of the pro-
ceedings. Because a prime interest™ that is protected is the night
of the individual to exercise self-determination in the face of
criminal charges, prosecution begins™ under the Counsel Clause
when an accused is charged with a criminal act, as set out be-
low.””
Once the defendant is charged—and the Section 16 mghts
attach—the defendant is entitled to decide at each crucial stage of
the proceedings whether he or she requires the assistance of
counsel. At the commencement of each such stage, an unrepre-
sented defendant must be informed of the mght to counsel and the
consequences of waiver. Any waiver of this nght must be know-
ing, intelligent, and voluntary, and courts generally will indulge
every reasonable presumption against waiver of this fundamental
right.* Where the right to counsel has been properly waived, the
State may proceéd with the stage in issue; but the waiver applies
only to the present stage and must be renewed at each subsequent
crucial stage where the defendant is unrepresented.”
Once the right to counsel has attached and a lawyer has been
requested or retained, the State may not initiate any crucial con-
frontation with the defendant on that charge in the absence of
counsel throughout the period of prosecution,” although the
defendant is free to initiate a confrontation with police at any time
on any subject in the absence of counsel. Because a prime interest
protected by the Counsel Clause ts the nght to exercise self-de-
termination in the face of specific criminal charges, the nght to
counsel is charge-specific®' and invocation of the nght on one
offense imposes no restnctions on police inquiry into other
charges for which the nght has not been invoked. Evidence ob-
tained by the State in contravention of these guidelines violates
the Flonda Constitution and may not be used by the State.
The nght to choose, as envisioned by our framers, recognizes
the defendant's nght to exercise freedom of choice in relying on
hrs or her own abilities and assets in obtaining the manner of
representation best suited for the defense. It is a highly personal
choice concerning the allocation of one’s own individual re-
sources. The Counsel Clause, standing alone, thus imposes no
obligation on the state to provide court-appointed counsel in
order to protect this particular nght. The right to appointed coun-
sel arises when Section 16 is read in conjunction with the Equal
Protection Clause of Article I, Section 2, Florida Constitution.
B. Florida Section 2
The Equal Protection Clause of our state Constitution pro-
vides: *‘All natural persons are equal before the law... ."” Art.
I, § 2, Fla. Const. We conclude that the right of indigent defen-
dants to assistance of court-appointed counsel in criminal prose-
culions is constitutionally required under this and the Counsel
Clause.
This Court has historically recognized the general right of
indigent defendants to assistance of court-appointed counsel in
criminal prosecutions. Almost a century ago, in Curts v. State, 54
Fla. 21, 45 So. 491 (1907), we stated:
It has been the general practice in trial courts in this state,
when a party charged with felony has been brought to the bar for
arraignment, to inquire of the accused whether he had counsel to
represent him, and if, upon inquiry, it developed that he had no
attorney and was unable to employ one, to ask the accused whe-
ther he desired one to represent him. If he signified his desire to
be represented by counsel, then it has been the practice for the
trial judge to appoint some attorney to represent the accused.
Id., 54 Fla. at__, 45 So. at 491. Although this right was origi-
nally viewed as discretionary” and was limited by the legislature
to capital cases,’ the principle underlying the right nevertheless
endured and is now codified in our statutes“ and rules of proce-
dure.
The Equal Protection Clause of our state Constitution was
framed to address all forms of invidious discrimination” under
the law, including any persistent disparity in the treatment of rich
and poor. We conclude that our clause means just what it says:
Each Florida citizen—regardless of financial means— stands on
equal footing with all others in every court of law throughout our
state. See generally Palm Harbor Special Fire Control Dist. v.
Kelly, 516 So.2d 249, 251 (Fla. 1987). Nowhere is the right to
equality in treatment more important than in the context of a
criminal tnal, for only here can a defendant be deprived by the
state of life and liberty.
In light of the widely-recognized and oftentimes decisive role
the lawyer plays in the judicial process, we conclude that our
state Constitution requires that the Section 16 right to counsel be
made available to impovershed defendants. No Flonda citizen
can be deprived of life or liberty in a criminal proceeding simply
because he or she is too poor to establish his or her innocence.
This Court has long recognized in our rules of procedure this
right of impoverished defendants to court-appointed counsel
commencing at the point in time when they are charged, either
formally or informally, with a criminal act. Florida Rule of
Cnminal Procedure 3.111 provides in part:
(a) When Counsel Provided. [An indigent person] shall have
counsel appointed when he is formally charged with an offense,
or as soon as feasible after custodial restraint or upon his first
appearance before a committing magistrate, whichever occurs
earliest.
In other words, a defendant is entitled to counsel at the earliest of
the following points: when he or she is formally charged with a
crime via the filing of an indictment or information,” or as soon
as feasible after custodial restraint,* or at first appearance.”
Although rule 3.111 speaks specifically to indigents, we con-
clude that the procedural nghts of nonindigents under Section 16
are at least coextensive with those of indigents.
Rule 3.111 was adopted from The American Bar Associa-
tion’s Standards for Criminal Justice” and was intended to pro-
vide equal representation,“' commencing early in the proceed-
ings.“ The rule is grounded in Sections 2 and 16 of our state
Constitution. Assistance of counsel—either retained or appoint-
ed—begins under these two sections as provided in rule 3.111.°
VI. APPLICATION TO PRESENT CASE
Applying the foregoing Flornda law to the present case, we
initially address the Section 9 self-incrimination issue. In his
motion to suppress, Traylor claimed that both confessions were
obtained in violation of his privilege against self-incrimination
under Section 9. We conclude that the tnal court properly reject-
ed this claim. The statements were not obtained in violation of the
Section 9 safeguards. Prior to conducting the questioning session
during which the confessions were given, Detective Warren
handed a nghts form to Traylor and asked him to read it aloud. °
The form contained the following statement:
You do not have to make a statement or say anything. Anything
you say can be used against you in court. You have the right to
talk to a lawyer for advice before you make a statement or before
any questions are asked of you and to have the lawyer with you
during any questioning. If you cannot afford to hire a lawyer, one
will be appointed for you before any questioning, if you wish. If
you do answer questions, you have the right to stop answering
questions at anytime and consult with a lawyer.
Traylor read the form aloud. Warren then read the form to Tray-
lor and Traylor signed it, indicating that he had been informed of
his rights and voluntarily waived them. Detective Warren and
Sergeant Gay then signed the form as witnesses. During the
SUPREME COURT OF FLORIL_ '
, «< aa
17 FLW S47
course of the interview, Traylor never indicated a desire to con-
sult with a lawyer or to stop the questioning. The record contains
competent substantial evidence to support the conclusion that
Traylor was adequately informed of his rights and validly waived
them.
Two days prior to the interrogation session wherein Traylor
confessed to both crimes, the lawyer representing him on the
Alabama offense, Pete Johnson, told Detective Grubbs of the
Alabama police not to talk to his client in the absence of counsel.
In his motion to suppress, Traylor claimed that the subsequent
interrogation in the absence of counsel violated his constitutional
privilege against self-incrimination. The trial court found that
**[o}n August 20, 1980, attorney Pete Johnson . . . called Detec-
ve George Grubbs of the Birmingham Police Department and
told him he did not want the police to talk with his client.’’ After
hearing Johnson's testimony, however, the court concluded that
[flor [self-incrimination] purposes, the Defendant never per-
sonally invoked his nght to counsel."’
The Section 9 right to counsel ensures voluntariness by pro-
tecting those individuals who express a personal inability to
undergo the ngors of custodial! interrogation unassisted by legal
counsel. See supra pp. 12-18. The record contains adequate
evidence to support the conclusion that Johnson's statement to
police was not based on a personal inability on Traylor’s part to
deal with the pressures of interrogation, but rather was a routine
request by newly appointed counsel.“ In fact, Johnson testified
that it has become his ‘‘practice as a defense lawyer when [he]
get(s] a letter of appointment just to go and carte blanch [sic] tell
anybody associated with the investigation not to speak io [his]
client."’ We note that the tral court had the Opportunity to ob-
serve Johnson's extensive live testimony and question him.”
Competent substantial evidence supports the trial court's finding
that Traylor never invoked his privilege against self-incrimina-
tion,
The circumstances surrounding the confessions indicate that
the statements were not the product of coercion, but rather were
voluntarily given. The tral court made the following finding:
Commencing at 9:20 A.M., and over the next 30 to 45 min-
utes, the Defendant gave oral statements to Detective Warren
admitting his guilt to the Jacksonville and Birmingham homi-
cides. There was a mid-morning break and beginning at 11:10
A.M., the Defendant reduced his oral confession regarding the
Jacksonville homicide to writing. That writing was completed at
11:59 A.M.
The evidence clearly reflects that at the time the oral and
written statements were made on both the Florida and Alabama
homicides the Defendant had been fully advised of his Constitu-
tional rights, . . . executed a waiver of those Constitutional
rights, fully understood those rights, intelligentiy waived each
and every one of them, and thereafter freely and voluntarily
spoke with Detective Warren of Jacksonville, Florida. The
Defendant had not been offered any hope of reward, better treat-
ment, promise of leniency, or inducement in order to get him to
make those statements. The Defendant never personally invoked
his right to have counsel present nor did he ever indicate that he
wished not to speak with Detective Warren. At all times during
the morning of August 22, 1980, the defendant was sober, calm,
collect(ed], not upset, and not nervous. Both statements confess-
ing to both crimes were freely and voluntarily made.
The record contains competent substantial evidence to support
the tral court’s finding that the confessions were freely given.
Next, we address the Section 16 right-to-counsel claim. In his
motion to suppress, Traylor claimed that both confessions were
obtained in violation of his Section 16 right to counsel. We agree
as to the Alabama offense. Traylor was arrested and charged
with the Alabama offense on August 6, and had counsel appoint-
ed at a preliminary hearing on August 18. Under Florida law, the
Section 16 right attaches at charging. Because Traylor subse-
quently requested counsel! at the preliminary hearing and a law-
yer was appointed, Florida police were constitutionally barred
from initiating any crucial confrontation with him on that charge
in the absence of his lawyer for use in a Florida court. The con-
fession to the Alabama murder that was obtained by Florida
police through police-initiated questioning after counsel was
appointed was thus obtained in violation of Section 16 and was
inadmissible in the Florida proceeding.
As to the Florida offense, Traylor was charged by information
with the crime on June 11. His Section 16 right to counsel thus
attached at that time. However, when police initiated questioning
on August 22, Traylor had not retained or requested appointment
of counsel on that charge.“ The question here is whether the
police, prior to initiating questioning, adequately informed Tray-
lor of his Section 16 rights and the consequences of waiver, and
then obtained a valid waiver.
Any waiver of the Section 16 right to counsel must be know-
ing, intelligent, and voluntary. Our rules of criminal procedure
provide additional express guidelines. Florida Rule of Criminal
Procedure 3.111 provides in part:
(d) Waiver of Counsel].
(1) The failure of a defendant to request appointment of coun-
sel or his announced intention to plead guilty shall not, in itself,
constitute a waiver of counsel at any stage of the proceedings.
(2) A defendant shall not be deemed to have waived the assis-
tance of counsel until the entire process of offering counsel has
been completed and a thorough inquiry into accused's compre-
hension of that offer and his capacity to make that choice intelli-
gently and understandingly has been made.
(3) No wawer shall be accepted where it appears that the
defendant is unable to make an intelligent and understanding
choice because of his mental condition, age, education, experi-
ence, the nature or complexity of the case, or other factors.
(4) A waiver of counsel made in court shall be of record; a
waiver made out of court shail be in writing with not less than
two attesting witnesses. Said witnesses shall attest the voluntary
execution thereof.
(5) If a waiver is accepted at any stage of the proceedings, the
offer of assistance of counsel shall be renewed by the court at
each subsequent stage of the proceedings at which the defendant
appears without counsel.
As noted above, prior to questioning Traylor the police in-
formed him of his nights, including the following:
Anything you say can be used against you in court. You have the
right ‘o talk to a lawyer for advice before you make a statement
or before any questions are asked of you and to have the lawyer
with you during questioning. If you cannot afford to hire a law-
yer, one will be appointed for you before any questioning, if you
wish.
The clear language of this warning was sufficient for general
Section 16 purposes. First, Traylor was adequately informed of
his nghts: He was expressly told that he had the right to have a
lawyer’s assistance pnor to and during questioning and that if he
could not afford a lawyer one would be appointed. This is the
core of the Section 16 right to counsel. Second, he was sufficient-
ly apprised of the consequences of waiver: He was explicitly told
that anything he said could be used against him in a criminal
prosecution. This is the ultimate adverse consequence of a deci-
sion to submit to police questioning unassisted by counsel. Tray-
lor’s waiver of his Section 16 rights concerning the Florida crime
was thus knowing and intelligent, and, as noted above, we agree
with the court’s finding that the statements were voluntary.”
The waiver also complied with the specific requirements of
rule 3.11i(d). First, assistance of counsel clearly was offered to
Traylor, and Detective Warren extensively inquired® into Tray-
lor’s understanding of the offer. Second, the record contains no
competent evidence shewing that the waiver was the result of a
deficiency in the defendant's mental condition, age, education,
experience, or any other factor. And third, the waiver was in
wniting, signed by two attesting witnesses. We thus conclude that
17 FLW S48
SUPREME COURT OF FLORIDA _ |
Traylor’s waiver of his Section 16 nght to counsel was valid as to
the Flonda offense.
We must finally determine whether the tral court’s error in
allowing the confession to the Alabama murder to be admitted
into evidence at trial was harmless. We announced the abiding
standard for applying the harmless error test in State v. DiGuilio,
491 So.2d 1129, 1139 (Fla. 1986): ‘‘If the appellate court cannot
say beyond a reasonable doubt that the error did not affect the
verdict, then the error is by definition harmful.’’ In the present
case, the jury had before it the following evidence of guilt: Tray-
lor had threatened Nagy’s life prior to the murder, his hair was
found on her body, his bloody handprint was found on the wall
near the body, he confessed to the murder to police, and he wrote
letters to his Florida and Alabama judges confessing to both
murders and requesting to be put to death for the crimes. We find
beyond a reasonable doubt that the erroneous admission of the
confession to the Alabama murder did not affect the jury's ver-
dict. Accordingly, we approve the decision of the district court”
but disapprove its standard for harmless error.*
It is so ordered. (OVERTON, McDONALD and GRIMES,
JJ., concur. BARKETT, J., concurs in part and dissents in part
with an opinion, in which KOGAN, J., concurs. KOGAN, J.,
concurs in part and dissents in part with an opinion, in which
BARKETT, J., concurs.)
(BARKETT, J., concurring in part, dissenting in part.) I concur
in Parts II through IV, and like Justice Kogan, in most of Part V
of the majonty opinion. 1 dissent as to the application of the law
in Part VI but concur in the result because admitting the Flonda
confession was harmless error.
I agree with the recital of the law on federalism. It is, of
course, axiomatic that Florida can interpret its constitution inde-
pendently of the federal courts. I certainly concur with the incor-
poration of the principles and rationales expressed in Miranda,
Minnick, Roberson, and Edwards as part of Flonda’s constitu-
tional protections. I also agree with the majonty that the nght to
counsel under article I, section 16 of the Flonda Constitution
attaches at the earliest of the following points: upon being for-
mally charged with a crime via indictment or information, as
soon as feasible after custodial restraint, or at first appearance. I
part company with the majonty when it fails to apply the princi-
ples it is adopting to the facts of this case, and with the majority's
apparent conclusion that a request for counsel at a first appear-
ance hearing on a specific charge is not an assertion of counsel
nghts under article I, section 9 of the Florida Constitution, bar-
ring state-initiated custodial questioning on any matter.
Indigent defendants are entitled to a lawyer for one basic
purpose—to assist them in dealing with the power of the State.
They are first entitled to a lawyer under article I, section 9, to
advise and protect them when the State attempts to interrogate
them while in custody. The nght to this assistance obviously
continues throughout the defendant’s detention. When the initial
restraint becomes a court case, the accused is then entitled under
article I, section 16 to a lawyer's assistance, not only during
custodial interrogation but also throughout any and all necessary
stages of the case.
An accused is usually informed of the nght to counsel either
by the police or by a judge. The police will inform an accused of
the nght to counsel before any attempt to interrogate, and a judge
will advise an accused of the right to counsel at the initial court
hearing and thereafter at anytime the accused appears without a
lawyer. Neither the police nor the judge differentiate between
constitutional sources of the right to counsel or announce which
constitutional provision is affected at any given stage of the pro-
ceedings. The accused is simply advised that a lawyer will be
appointed if the accused is indigent. There is no explanation, for
example, that the right to counsel during interrogations may exist
simultaneously under both section 9 and section 16 of the consti-
tution. Of course, the legal distinction is totally lost upon the
accused. I venture to say, without intending any insult, that there
are judges and lawyers who do not understand the distinction. It
is, thus, completely unrealistic to expect an accused to under-
stand it. Indeed, the Supreme Court in Patterson v. Illinois, 108
S.Ct. 2389 (1988), implicitly recognized that any such differenti-
ation in the context of the Fifth and Sixth Amendments is silly.
Patterson held that Miranda warnings suffice to inform the
accused of his night to counsel under the Sixth Amendment as
well as under the Fifth Amendment and waiver of the Fifth
Amendment right constitutes waiver of the Sith Amendment
right. The Court held in Patterson that when an accused says he
or she does not want a lawyer, that means the accused does not
want a lawyer period. The effect of the waiver applies to both
constitutional provisions to which an accused is entitled. Implicit
in that conclusion is the converse proposition: When an accused
invokes the right to a lawyer by requesting counsel, the request is
for all purposes for which he or she is entitled to a lawyer. To say
that the accused can waive the Sixth Amendment nght to counsel
by waiving the Fifth, but cannot invoke the protections of the
Fifth when he or she invokes the Sixth, is bafflingly illogical. If
the Miranda warnings are sufficient to inform the accused of his
Sixth Amendment nght to counsel, then surely the invocation of
the Sixth Amendment nght to counsel is sufficient to inform the
State that the accused desires counsel for any custodial question-
ing.
In this case, as Justice Kogan notes, Traylor asserted his
section 9 right to counsel through his lawyer. Additionally,
however, he personally asked for a lawyer in the Alabama court
before he was interrogated. A lawyer was appointed for him.
Accordingly, I would hold that the police were thereafter pro-
hibited from initiating questioning of Trayior as to either the
Alabama or the Flonda charge in the absence of his lawyer. See
Arizona v. Roberson, 108 S.Ct. 2093 (1988). I would therefore
find that the Florida confession was obtained in violation of
Taylor's nght to counsel under article I, section 9 of the Florida
Constitution, and thus was inadmissible. Nonetheless, I agree
with Justice Kogan’s analysis that in light of the other evidence in
the case, the admission of this confession was harmless. (KO-
GAN, J., concurs.)
(KOGAN, J., concurring in part, dissenting in part.) I concur
with the result, with Parts II through IV, and with the bulk of Part
V of the majority opinion, at least as far as they go. I wnte sepa-
rately to address a federal-law issue and to dissent from Part VI.
As is obvious from the majority opinion, the record discloses
that Traylor’s attorney had invoked his client's Fifth Amendment
right not to be interrogated without assistance of counsel. This
was done prior to the time the Florida authorities questioned
Traylor. Majority op. at 2, 30-31. Under traditional and long-
standing principles of federal law, this sequence of events pre-
sumptively would render Traylor’s statements inadmissible
under Edwards vy. Arizona, 451 U.S. 477 (1981), and Arizona v.
Roberson, 108 S.Ct. 2093 (1988), because the authorities—not
Traylor—clearly initiated the contact in question.”
The majority skirts this problem by affirming the trial court’s
finding that ‘‘Defendant never personally invoked his right to
counsel.’’ Majority op. at 30. For the reasons expressed more
fully below, I believe this finding is erroneous as a matter of
federal law, since it rests on the false assumption that an attorney
cannot invoke the client’s constitutional nghts. I also believe the
majority falls into this error partly because it has overlooked the ©
full factual record regarding Johnson's actions.
A. The Facts
In its relevant factual findings, the trial court below described
the following sequence of events:
On August 18, the Defendant appeared before a judge in District
Court, Birmingham, Alabama, Case Number DC80-4246, for
the purposes of first appearance on the Alabama charge. Court
records indicate the Defendant was adjudicated insolvent and
ee
——
}
SUPREME COURT OF FLORILa
17 FLW S49
appointed the services of Pete Johnson (Defendant's Exhibit #2).
On August 20, 1980, attorney Pete Johnson told the
Defendant not to talk to the police. Also on that date, the aftorney
called Detective George Grubbs of the Birmingham Police De-
partment and told him he did not want the police to talk to his
client. This request was not communicated by Grubbs to any
other law enforcementofficer of either Alabama or Florida.
It was learned that the individual arrested in Alabama known
as Jason William Riley, Jr., was the same as John Edward Tray-
lor, who was wanted in Jacksonville, Florida. In the afternoon of
August 21, 1980, Detective Gay of Birmingham contacted Jack-
sonville Detective Warren directly about the two cases. On the
morning of August 22, 1980, Detective Warren left for and ar-
rived in Birmingham for the purpose of interviewing the Defen-
dant exclusively regarding the Jacksonville homicide of Tina
Nagy.
As approximately 9:20 A. M., the Defendant was brought
from the county jail to the District Attorney's office in Birming-
ham at the request of Detective Gay. The Defendant raised no
objection and did not refuse to go.
Commencing at 9:20 A. M., and over the next 30 to 45 min-
utes, the Defendant gave oral statements to Detective Warren
admitting his guilt to the Jacksonville and Birmingham homi-
cides. There was a mid-morning break and beginning at 11:10 A.
M., the Defendant reduced his oral confession regarding the
Jacksonville homicide to writing (State’s Exhibit #2). That writ-
ing was compicted at 11:59 A. M. At 12:01 P. M., the Defen-
dant requested and was allowed to cal! his wife who was on the
psychiatric floor at the University of Alabama at Birmingham
Hospital. That telephone call ended at approximately 1:00 P. M.
At that time, the Defendant was in the presence of Detective
George Grubbs alone who was interviewing him regarding the
Alabama homicide. The Defendant's attorney abruptly ap-
peared, interrupted the interrogation, and instructed Detective
Grubbs that there would be no more questions and answers.
(Emphasis added). Because these f.ctual findings are supported
by competent substantial evidence, this Court must accept them
as true. /n re Baldridge's Estate, 74 So.2d 658, 660 (Fla. 1954).
The sequence of events on August 20, 1980, was further
illuminated by the testimony of Johnson at the suppression hear-
ing below, upon which the trial court relied in making its
findings. Johnson first noted that he had received the letter of
appointment from the tral court on August 19, and the next day
began preparation for the case. On questioning by the tnal court,
Johnson descnbed what he did on August 20:
THE COURT: Let me see here just a second. Were you
aware when you went—before you went to the Police Depart-
ment to give them that message [not to interrogate Traylor], had
you seen or spoken with Mr. Traylor since receiving the letter of
appointment? Between the letter of appointment on the 19th,
going to the Police Department on the 20th, had you seen or
spoken to him?
A [by JOHNSON] Yes, sir.
THE COURT: I want to know—you had seen him and spoken
to him?
A [by JOHNSON] Yes, sir.
These statements by Johnson are entirely consistent with the trial
Court's factual findings. Obviously, the trial court itself was con-
cerned whether the message Johnson communicated to the police
arose from privileged communications with Traylor, thus pre-
Sumptively reflecting Traylor’s own desires at that point in time.
© majority concedes that the attorney-client privilege was an
important issue in the suppression hearing. Majority op. at 3!
n.45.
_ As the majonty notes, Johnson also stated that his usual prac-
Lice was to tell police not to speak with his clients. Majority op. at
30. However, the majonty then goes on to make a wholly unwar-
ranted assumption based on this rather unremarkable fact. The
Majority assumes that Johnson's statements to police were made
without first consulting with Traylor about the matter. Although
the majonty fails to state this assumption expressly, it neverthe-
less is the only possible way of interpreting the majority's treat-
ment of this issue.
However, this assumption is severely undercut by the facts we
know to be true, based on Johnson’s testimony and the trial
court's factual findings. Nothing in the material quoted by the
majority suggests that Johnson's usual ‘‘practice’’ was to talk to
police before he talked with his client. Nothing anywhere else in
the record supports this surprising conjecture. Nothing suggests
that Johnson's practice was to invoke the right to counsel without
knowledge or participation of the client. Nothing suggests that
Johnson failed to obtain his client's consent to invoke the nght in
this case. Indeed, there is much saying exactly the opposite.
We know, for example, that Johnson talked with his client be-
fore he talked with the police. This fact was clearly established in
the tral court’s questioning of Johnson during the suppression
hearing, quoted above. We also know that, when consulting with
Traylor, Johnson told his client nor to talk to police. The trial
court's findings expressly say so, as quoted above.
It thus is highly likely that, during this conversation, Johnson
told his client what he intended to say to the police and obtained
his client’s agreement. The record is at least as consistent with
this conclusion as with the one the majority reaches. All we know
for certain is that Johnson routinely *old police not to talk to his
clients. We do not know if he did so w.thout obtaining his clients’
agreement to this procedure, as the majority erroneously finds.
I also must admit some surpnse that the majority is expressly
and self-consciously supplementing the factual record with its
own personal conjecture. Fact-finding is not the proper role of
any court hearing an appeal, and certainly not the subjective and
dubious form of fact-finding that has occurred in the majority
opinion. When we are deciding a man’s fate, as we are here, it is
utterly improper to rest that decision on hunches or speculation.
Indeed, the majority nowhere cites to any portion of this re-
cord disclosing that Johnson was acting beyoad the scope of
Traylor’s wishes in this case. It would be impossible to do so,
because all of Traylor’s statements to Johnson were privileged
and therefore inadmissible. § 90.502, Fla. Stat. (1985).
Throughout the suppression hearing below, the trial court recog-
nized this fact and consistently ruled that Johnson could not be
required to testify about conversations with his client, a fact the
majonty itself acknowledges. Majority op. at 31 n.45. In addi-
tion, Traylor himself is pnvileged to remain silent, and therefore
cannot be required to testify about conversations with his coun-
sel. U.S. Const. amend. V; art. I, § 9, Fla. Const. These privi-
leges are all the more pressing here because the majority opinion
apparently requires Traylor either to abandon them or accept the
admissibility of an otherwise tainted confession. See majority op.
at 30-31 &31n.45.
If anything, we must presume that Johnson's statements to the
police reflected the desires of Traylor. There is no lawful way to
rule otherwise without violating the right to counsel, the sanctity
of the attomey-client relationship, or Traylor's pnvilege to
remain silent. Accordingly, I must respectfully reject the
majonty’s conjecture that Johnson was not acting on behalf of
Traylor in invoking the right to counsel. We simply do not know
this to be true.
And I would like to note for the record that, if the majority in-
sists upon this course of action, the only proper thing to do would
be to remand this cause to the trial court for a proper factual
finding of the issue. That way, Traylor at least will have the
opportunity to waive his privileges so that Johnson can establish
whether Traylor participated in the decision to invoke the right to
counsel. Only the true facts should be the basis for depriving a
man of his liberty.
For the above reasons, I dissent from the majority's charac-
terization of the facts in this case.
17 FLW SS0
SUPREME COURT OF FLORIDA }
B. The Edwards Analysis
There aiso are grave problems with the majority's legal analy-
sis of the Fifth Amendment issue. When Johnson told police not
to question his client, he plainly was invoking one aspect of the
Fifth Amendment right against self-incrimination—the right to
refuse to be interrogated without counsel being present.“ On this
question, the United States Supreme Court's case law teaches
that
once a suspect asserts the right, not only must the current inter-
rogation cease, but he may not be approached for further inter-
rogation ‘‘until counsel has been made available to him,”’ [Ed-
wards,] 451 U.S., at 484-485, 101 S.Ct., at 1884-1885—which
means, we have most recently held, that counsel must be present,
Minnick v. Mississippi, 498 U.S. _, 111 S.Ct. 486, 112
L.Ed.2d 489 (1990). If the police do subsequently initiate an
encounter in the absence of counsel (assuming there has been no
break in custody), the suspect's statements are presumed invol-
untary and therefore inadmissible as substantive evidence at trial,
even where the suspect executes a waiver and his statements
would be considered voluntary under traditional standards. _ . .
The Edwards rule, moreover, is not offense-specific: once a
Suspect invokes the Miranda right to counsel for interrogation
regarding one offense, he may not be reapproached regarding
any offense unless counsel is present. Arizona vy. Roberson, 486
U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).
McNeil v. Wisconsin, 111 S.Ct. 2204, 2208 (1991). The only ex-
ception to this rule is that situation in which the Suspect volun-
tanly disclosed information to the authorities without prompting,
Minnick, 111 S.Ct. at 489, which clearly had not occurred here
based on the tral court's factual findings.
In its Minnick opinion, the Court rejected the contention that
the nght recognized in Edwards somehow cou!d be waived with-
out further assistance of counsel. The Court stated:
Whatever the ambiguities of our earlier cases on this point, we
now hold that when counsel is requested, interrogation must
cease, and officials may not reinitiate interrogation without
counsel! present, whether or not the accused has consulted with
his attorney.
-...» A single consultation with an attorney does not remove
the suspect from persistent attempts by officials to persuade him
to waive his rights, or from the coercive pressures that accom-
pany custody and that may increase as custody is prolonged.
Id. at 491. The Court went on to say:
We noted in Miranda that ‘‘[e]ven preliminary advice given to
the accused by his own attorney can be swiftly overcome by the
secret interrogation process. Thus, the need for counsel to pro-
tect the Fifth Amendment privilege comprehends not merely a
right to consult with counsel prior to questioning, but also to
have counsel present during any questioning if the defendant so
desires.**
Id.
One might argue that the foregoing holdings should not be
applied to the present case because only the Alabama authon-
tues—not the Florida authorities—were aware that Traylor had
invoked his Edwards right. However, this question was resolved
to the contrary in Roberson. There, the United States Supreme
Court stated:
[W]e attach no Significance to the fact that the officer who con-
ducted the second interrogation did not know that respondent had
made a request for counsel. In addition to the fact that Edwards
focuses on the state of mind of the suspect and not of the police,
Custodial interrogation must be conducted pursuant to established
procedures, and those procedures in turn must enable an officer
who proposes to initiate an interrogation to determine whether
the suspect has previously requested counsel . . . . Whether a
contemplated reinterrogation concerns the same or a different
offense, or whether the same or different law enforcement au-
thorities are involved in the second investigation, the same need
to determine whether the suspect has requested counsel exists.
Roberson, 108 S.Ct. at 2101. In other words, the burden falls on
law enforcement to learn whether the Edwards right has been
asserted. The failure to do so renders any subsequent interroga-
tion impermissible, even if the Miranda nights are waived by the
suspect. See id.
Significantly, the majority expressly codifies the principles of
the Edwards line of cases, discussed above, within article I,
section 9 of the Florida Constitution. Majority op. at 17 n.14.
With this, I have no quarrel. However, the majority's error
Occurs in its treatment of the role of counsel. The majority con-
cludes that the defendant is required to personally assert the Fifth
Amendment nght, and that counsel cannot assert the night on the
client's behalf. Majority op. at 30-31. In support of this conclu-
sion, the majority cites no precedent and provides no analysis
whatsoever.
Even when viewed without the aid of legal theory, the ma-
jority’s conclusion in this regard is quite Surprising. It is tanta-
mount to saying that an attorney cannot speak for a client on legal
issues. It effectively says that an attorney who has consulted with
the client behind the opaque veil of the attorney-client privilege”
1S powerless to act upon that consultation by asserting the client's
nghts. This is an absurd conclusion, since it is utterly contrary
to the most fundamental conceptions of an attorney's role in
representing a client.
Moreover, I can find absolutely no authority and no legal
theory supporting the majority’s conclusion in this regard. Fior-
ida law, for example, has long been settled that the acts of an
attorney are imputed fo the client so completely that the attorney
legally is the alter ego of the client except in extreme circum-
Stances clearly inapplicable here, such as outnght fraud or a
serious violation of professional ethics. In effect, the voice of the
attorney is the voice of the client. Griffith v. Investment Co., 92
Fla. 781, 110 So. 271 (1926); Small v. Colonial Investment Co.,
92 Fla. 503, 109 So. 433 (1926); see Abney v. Hurner, 97 Fla.
240, 121 So. 883 (1929); State ex rel. Gutierrez vy. Baker, 276
So.2d 470 (Fla. 1973) (acts of attorney are binding on ciient).
Other jurisdictions are in general agreement with this principle.*”
E.g., United States v. DiMucci, 879 F.2d 1488, 1496 (7th Cir.
1989); McNeal v. Wainwright, 722 F.2d 674, 676-77 (11th Cir.
1984); Camp v. United States, 352 F.2d 800 (Sth Cir. 1965).
The selfsame principle has been appired in cases involving an
attorney's assertion of a client's constitutional nights. In Brewer
v. Williams, 430 U.S. 387, 1235-36, 1240-41 (1977), the United
States Supreme Court held that the Sixth Amendment night to
counsel had been violated when police interrogated a defendant
after the attorney had asked the police not to do so. This message
was communicated to police by the attorney after he had consult-
ed with the client by telephone. The Court could only have found
a violation of the Constitution if the attorney in fact had authonity
to assert the nght on behalf of the client.
Also relying on the Sixth Amendment, the Fifth Circuit Court
of Appeals has underscored the holding of the Brewer Court:
After counsel for a person who has been charged with and
arrested for a criminal offense has directed the police not to
interrogate the accused in the absence of counsel, a confession
elicited from the accused by police questioning in counsel's
absence is inadmissible even though the police have given him a
Miranda warning.
Felder v. McCotter. 765 F.2d 1245, 1246 (Sth Cir. 1985), cert.
denied, 475 U.S. 1111 (1986). Obviously, this holding is
premised on the belief that an attorney has complete authority to
assert constitutional rights on behalf of the client. Accord United
States v. Lilla, 534 F.Supp. 1247 (N.D.N.Y. 1982); United
States v. Callabrass, 458 F.Supp. 964 (S.D.N.Y. 1978).
Other courts have extended these same principles into the
Fifth Amendment context. The Texas Court of Criminal Ap-
peals, for example, has directly recognized that an attorney can
assert a Fifth Amendment right on behalf of the client in dealings
—- meee
— =
-oarie
_—
‘
<a
a
SUPREME COURT OF FLORID. |!
17 FLW SS1
—_—
with the police. Janecka v. State, 739 S.W.2d 813, 828 (Tex.
Crim. App. 1987); Wilkerson v. State, 657 S.W.2d 784 (Tex.
Crim. App. 1983), cert. denied, 470 U.S. 1008 (1985); Phifer v.
Suate, 651 S.W.2d 774 (Tex. Crim. App. 1983); Stone v. State,
612 S.W.2d 542 (Tex. Crim. App. 1981); Williams v. State, 566
§.W.2d 919 (Tex. Crm. App. 1978). A similar conclusion was
reached by the Oregon Court of Appeals in State v. Barmon, 679
P.2d 888, 892 (Or. Ct. App.), review denied, 683 P.2d 91 (Or.
1984), which also concluded that the attorney's statements were
binding on the police under Edwards.
In a case addressing the precise issue before us today, a unan-
imous panel of Florida’s Second District Court of Appeal held
that an attorney's assertion of the Fifth Amendment nght recog-
nized in Edwards is binding on the police:
The state concedes that prior to the questioning of the defen-
dant by Officer Price at the jail, the defendant was visited by his
attorney. The attorney informed the booking officer at the jail
that he represented the defendant and did not want him ques-
tioned without the attorney's presence. The defendant thus clear-
ly invoked his right to have counsel present during custodial
interrogation.
Del Duca v. State, 422 So.2d 40, 40 (Fla. 2d DCA 1982) (citing
Edwards). Nowhere does the mayonty address this holding or
purport to overrule it.
I agree there are some limited exceptions to the general prin-
ciple that an attorney can invoke a client's Edwards nght with
regard to the police. For example, the Texas Court of Cnminal
Appeals has held that the mght cannot be invoked by an attomey
who has not yet even spoken with the ‘‘clent. °* Janecka, 739
S.W.2d at 828. This conclusion is in harmony with the United
States Supreme Court's opinion in Moran v. Burbine, 475 U.S.
412 (1986). In Moran, the Court concluded that the Fifth and
Sixth Amendments are not offended if police fail to inform an
attorhey that a suspect will be interrogated, when the attorney
had only been contacted by a relative of the suspect and never had
talked with the suspect. Accord Edwards y. State, 307 S.E.2d
264 (Ga. Ct. App. 1983).
The rules I distill from the foregoing case law are as follows:
First, an attorney acts as the voice and alter ego of the client-
defendant under Florida law. E.g., Griffith. As such, the attor-
ney has complete authontty to assert a Fifth Amendment prvilege
(or any other constitutional mght, for that matter) to police on
behalf of the client.” Del Duca. Accord Brewer. Felder. The
Only prerequisite is that the attorney must have consulted with the
client before this assertion is made. Moran; Janecka. Consulta-
tion 1s necessary because counsel cannot claim clairvoyance in
knowing what the client wants, but must actively inquire as to
that question after giving appropriate legal advice. By engaging
in even one pnor consultation, however, a conclusive presump-
tion then anses that the attorney is speaking on behalf of the cli-
ent, since it is not permissible to go behind the veil of the attor-
ney-client pnvilege to refute such a presumption. § 90.502, Fla.
Stat. (1985) (defining the scope of Florida's attorney-client privi-
lege).
Second, when the attomey subsequently asserts the right
recognized in Edwards on behalf of the client, the police cannot
initiate further contacts with the client-suspect, even if the latter
is given Miranda wamings and purports to waive the Fifth
Amendment nght. McNeil; Minnick; Edwards. This restriction
applies to all law enforcement agents and agencies, even if they
have no actual knowledge that the right has been asserted. Rob-
erson. A very limited form of waiver then can occur only if the
Client-suspect initiates the contact with police and volunteers
information without being interrogated. Minnick.
Third, because Fifth Amendment nghts are not offense-spe-
cific, McNeil, 111 S.Ct. at 2208, they apply at least to all charges
that are or may be brought against the accused during the period
of incarceration while any single charge is pending. According-
ly, once the attorney asserts the Edwards nght on behalf of an
incarcerated client, no further police interrogation of the client
can occur about any offense, charged or uncharged, unless the
attorney is present.
Applying these principles to the present case, I find that the
procedures employed by both the Alabama and Florida authori-
ties when they interrogated Traylor on August 22, 1980, violated
the Edwards rule. Johnson by that time had been appointed coun-
sel and thus was attorney-of-record for Traylor. The trial court
specifically found that Johnson had consulted with Traylor and
asserted his client's Fifth Amendment rights by instructing the
police not to question his client. The record upon which the trial
court relied in reaching this conclusion clearly shows that John-
son had consulted with Traylor prior to asserting these rights.
Under Roberson, this instruction is imputed to the Flonda au-
thonities.
Although Traylor did not actively object to the interrogation,
he also did not initiate the contact. The trial court so found when
it stated *‘[{i)tis true that the Defendant did not initiate the inter-
view as such.’"® This finding is supported by overwhelming
evidence and must be accepted as true in this review. In fact, the
police took Traylor from his jail cell and drove him to the district
attorney's office specifically to be questioned, and only then did
the interrogation begin. Clearly, the police went to great lengths
to unitiate the interrogation themselves.
Moreover, Officer Grubbs—to whom Johnson previously had
asserted Traylor’s Fifth Amendment nghts—actively partic-
ipated in this interrogation and failed to tel! other officers that the
Edwards nght had been invoked. The surreptitious nature of the
interrogation was Only underscored by the fact that the attorney,
when he learned of the police activities, interrupted and stopped
the ongoing interrogation.
Accordingly, all statements made to both the Alabama and
Flonda authonties dumng the uncounseled interrogation on
August 22 were illegally obtained and were inadmissible. The
distnct court below properly ruled that these statements should
have been suppressed. However, | agree with the State's asser-
tion that the error in admutting these statements was harmless
beyond a reasonable doubt in ligh: of the other admissible con-
fessions, the threats against the victim, and the physical evi-
dence. In light of the entire record, the State has shown there is
no reasonable possibility that the jury's verdict would have been
changed had the error not been commutted.
C. Points of Agreement with the Majonty
Finally, I must emphasize the reasons I am wniting this sepa-
rate opinion and the fact that I am dissenting only as to portions of
the majonty opinion. There are important aspects of the majority
opinion with which I wholeheartedly agree. Indeed, I find myself
in complete agreement with the statements of legal priaciples
contained in Parts II through IV of the majonty and with the bulk
of Part V, at least as far as they go. I would go further than the
majonty in several important respects on Parts II through V, but I
agree that the mghts created by the Flonda Constitution are as
least as extensive as those recited by the majority.
I fully concur in Parts II and III of the majority opinion, and
especially its statement regarding the primacy of the Flonda
Constitution in state courts. Majority op. at 8. Cleariy, state
constitutional issues must be considered first whenever funda-
mental nghts are at stake. Far too often, both bench and bar fail
even to consider the possibility that some principle of the Flonda
Constitution may be dispositive of the issue. This practice clearly
is contrary to the two central policies upon which the doctnne of
primacy rests.
First, pnmacy promotes judicial economy. As is obvious to
all, lawyers and courts need address federal claims only if no
violation is found under the Florida Constitution. If the state
constitution provides greater rights than the federal, then there is
no need for litigants to waste further time and resources in ap-
peals or other challenges mounted in the federal courts. Second
and most importantly, primacy gives the state Constitution the
17 FLW SS2
SUPREME COURT OF FLORIL |;
respect and effect its framers manifestly intended it to have. The
Flonda Constitution is not a nullity to be ignored. Its words are
not meaningless. When the state Constitution creates a funda-
mental right, that right must be respected, even if no similar nght
is recognized by the federal courts.
To this-end, the doctrine of primacy promotes the longstand-
ing tradition of American states interpreting their own constitu-
tions independently. Few now remember—but it nonetheless is
true—that the federal Bill of Rights was not deemed binding on
the states for roughly the first 150 years of the American repub-
lic. Only starting un the middle part of this century did the federal
courts gradually expand the scope of the Fourteenth Amendment
to ‘‘incorporate’’ virtually the entire range of nghts contained in
the first eight amendments to the federal Constitution.
Prior to this time, the only guardians protecting individual
liberty were the state constitutions and the courts that interpreted
them. Without these independent efforts, nothing would have
prevented an American state from establishing an official reli-
gion, prohibiting free speech, forbidding public assemblies, or
authonzing medieval methods of extracting confessions from
defendants. All of these evils were avoided when the people of
the states, including Florida, adopted freestanding constitutional
guarantees expressly forbidding such practices. Thus, the doc-
trine of primacy recognized by the majontty is a vital and living
concept whose antecedents extend back to the earliest days of
Flonda history.
I concur in the majonty’s statements in Part IV that article I,
section 9 of the Flonda Constitution has codified the requirement
that Miranda warnings be given to suspects pnor to question-
ing.*' | also agree with that portion of Part IV recognizing that the
Edwards rule exists as a matter of state law under article I, sec-
tion 9 of the Flonda Constitution. | agree that this incorporation
includes both the holding of Edwards and several other cases
refining Edwards’ holding as to Fifth Amendment issues. See
Mayjonty op. at 17 & 17 n.14 (citing Minick, Roberson, and
Edwards).
Moreover, the majonty opinion also recognizes two other
important principles. First, once the Edwards nght has been
asserted, the authonties may not initiate interrogation in the
absence of counsel even if the suspect purports to waive the nght,
unless the suspect actually initiates the contact and volunteers
information to the authonties.“ Majority op. at 17 & 17 n.14
(citing with approval Mivznick, Roberson, and Edwards, support-
ing same conclusion). Second, the assertion of the refusal tc any
law enforcement agent is binding upon all other such agents—
even those from other jurisdictions— whether or not these agents
have actual knowledge that the right has been asserted. /d.
I concur in the remainder of Part IV of the majontty, although!
would go further than the majonty for the reasons expressed
more fully below.
With only a single exception, I also concur in Subpart V(A) of
the majonty opinion, as far as it goes, since I find that the right to
counsel is at least as extensive as that described by the majonty. |
would only emphasize, as the majority opinion itself suggests,©
that another very strong interest protected by article I, section 16
is the night of individuals to interpose counsel between them-
selves and the state wherever they are suspected of crimes, whe-
ther charged or uncharged. Art. I, § 16, Fla. Const.
As is applicable to police procedures, I believe this right of
interposition is derived not merely from articie I, section 16, but
is coextensve with the right-to-counsel clause in article I, section
9 of the Flonda Constitution. In this context, the ‘‘rights’’ creat-
ed by these two sections are not really separate at all.“ Thus, by
asking for the assistance of an attorney, the suspect should be
presumed to be asking for assistance for all purposes in dealing
with the police. By choosing assistance of counsel, suspects in
effect build a doorway between themselves and the police. That
doorway is the attorney; and through that doorway the police are
obliged to go in all but their most perfunctory dealings with the
suspect.
Severel conclusions flow from this premise. I agree with the
majority that, as to the offense for which the suspect initially has
been detained, the right to counsel under article i, section 16
continues until the conclusion of the prosecution. Majority op. at
23. I also agree that the right to counsel under article I, section 9
continues at least for the duration of custodial detention of the
suspect. Majority op. at 17. Moreover, in dealings with the
police, all a defendant need do is ask for ‘‘the assistance of an
attorney’’ or words generally to that effect, which immediately
would entitle that defendant to all the nghts created by article I,
section 9. Majority op. at 17. The majonty recognizes that no
particular ‘‘magic words’’ are needed to invoke the right.© Jd. In
this, I concur.
I have only one real difference with the majonty’s analysis in
Subpart V(A). I dissent from the following sentencé and its ac-
companying citation:
Because a prime interest protected by the Counsel Clause is the
right to exercise self-determination in the face of specific crimi-
nal charges, the right to counsel is charge-specific” and invoca-
tion of the right on one offense imposes no restrictions on police
inquiry into other charges for which the right has not been in-
voked.
"Cf, McNeil v. Wisconsin, 111 S.Ct. 2204,
Amendment nght is ‘‘offense-specific’’).
Majonty op. at 23. I would hold that, in all dealings with the po-
lice, the nghts created by article I, section 16 are nor charge-spe-
cific throughout the same period of custodial detention, but apply
to all charges police begin investigating during that detention.
Thus, if the nght is invoked at first appearance and the suspect is
under police detention at the time, then all later police interroga-
tron must be done in the presence of counsel. I believe such a
holding would best respect the policies underlying the mght to
counsel, including the nght to interpose counsel between oneself
and the police, and the mght tc be free from coercion when one is
suspected of cnme.
i fully concur in Subpart V(B) of the majority opinion and
would only add that I believe article I, section 21 of the Flonda
Constitution independently requires the same result. Under this
portion of the Declaration of Rights, all persons are guaranteed
meaningful access to the courts of this state for the administration
of justice. Art. I, § 21, Fla. Const. Thus, in the cnminal-law
context and in light of the great complexity of modern law, an
indigent defendant is denied meaningful access to justice unless
the services of an attorney are made available.
As noted earlier, I dissent from Part VI, since I believe the
confession to the Florida murder should have been suppressed.
Part VI violates the Edwards line of cases. Thus, the majority
opinion also violates its own holding that the Edwards line of
cases has been codified within article I, section 9 of the state Con-
stitution. I find that the majonty errs both factually and legally
when it finds ‘‘[c]ompetent substantial evidence support[ing] the
tnal court's finding that Traylor never invoked his privilege
against self-incrimination.’’ Majority op. at 3i. Accordingly, I
dissent from this holding and its related analysis. Majonty op. at
30-32. Iconcur, however, in the conclusion that the confession to
the Alabama offense was inadmissible.
Despite my objections to the majority's analysis, I concur in
the result reached by the majority, since I have found the errors
harmless beyond a reasonable doubt. (BARKETT, J., concurs.)
2207 (1991) (Sixth
'The state proposed to introduce the confession to the Alabama crime as
“*similar fact’’ evidence in the trial on the Flonda offense.
*As of 1986, courts in the following states had construs* the self-incrimina-
tion provisions of their state constitutions independently of u.. “ederal Court's
Fifth Amendment holdings: Alaska, California, Georgia, Hawaii, Louisiana,
Massachusetts, Michigan, New Hampshire, Pennsylvania, Vermont, and Wyo
ming. See Scott v. State, 519 P.2d 774 (Alaska 1974); Jn re Misener, 698 P.2d
637 (Cal. 1985); State v. Armstead, 262 S.E.2d 233 (Ga. 1979); State v. Miye-
a vr taG@u ev =
'
SUPREME COURT OF FLORIDA
17 FLW SS3
gki, 614 P.2d 915 (Hew 1980); State in re Dino, 359 So.2d $86 (La.), cert
denied, 439 US. 1047 (1978); Atomey Gen. v. Colleton, 444 N.E 2d 915
(Mass. 1982); People v. Conte, 365 N.W.2d 648 (Mich 1984); State v. Benoit
49 A.24 295 (N.H. 1985); Commonwealth v. Bussey, 404 A.24 1309 (Pa.
1979); State v. Badger, 450 A.2d 336 (Vi. 1982); Westmark v. State. 693 P.2d
220 (Wyo. 1984). Mary A. Crossley, Note, Miranda and the State Consnitu-
fon. State Courts Take a Stand, 39 Vand. L. Rev. 1693, 1717-180.181 (1986)
See also Oregon v. Hass, 420 U.S. 714 (1975); Cooper v. California, 386
U S, 381967 See generally State v Hunt, 450 4.24 952 (1982).
See William nnan, Introduction: Quef Justice Hughe
ghes and Justi
Mountain, \0 Seton Hall L. Rev. xii (1979) (**{I}t is the state courts at all le —*
ae ee oe determine the overwhelming number of the
tal wasucs of Life, rty ry that t 5
er we aap property rouble countless human beings of
*Under the federalist principles ¢
xpressed above, where a d consttu-
Uonal revimon results uo the loss or resiriction of an Suhemeasians Gaademoaee
Mate mght, Gus loss must be made known to cach parucipating voter at the ume
of the general election. Cf People Against Tax Revenue Mismanagement v
County of Leon, $83 So.2d 1373, 1376 (Fla. 1991) (“This is especially true if
~ — sanguage gives the appearance of creating new nights or protections
~ : ,
oe _ effect is to reduce or eliminate mghts or protections already in
“See also Metzger v. State, 18 Fla. 481, 488 (Fla 1881)
See also Greeny. State, 40 Fla 474, 24So. $37, $38 (1898)
‘See ¢.g., Damels. Suste, 57 Fle. 1, , 48 So. 747, 748 (1909)
ee also Nukels v. Suste, 90 Fla. 659, , 106 So. 479, 495 (1925) CT
re J., concurring) if ‘bend
a«
See Reddish v. Susie, 167 So.2d 858. 863 (Fle 1964). William. v
; , ] Si ‘
156 Fle 300, 22 So.2d 821, 823 (1945). Flowers v. State 152 Fle 649
'2 So.24 772, 778 (Fla.), cert. denied, 320 US. 767 (1943).
See Jones v. Stoutenburgh, 91 So.2d 299, 303 (Fla. 1956
Byerv. Willard, $4 So 24 179, 181 (Fle. 1951)
In Miranda v. Anzona, 384 US 436 (1966). the federal C murt established
procedurs! safeguards similar to those defined above in order to ensure the
volunianness of statements rendered dunng custodial mic rrogation ia
Sute ex rel
quent decisions, the Count expanded Miranda's sc pe. See. eg 9 iors
Mississippi, 111 S Ct. 486 (1990); Arizona v. Roberson, 486 U S 675 1988:
Edwardsv Anzons, 451 U.S. 477 1981) ars
In aber sreas, the Court limuted Miranda's scope. See, e.g. Ulinois v
re mms, 110 S.Ct. 2394 (1990). Duckworh v Eagan, 492 U.S. 195 2875
1989), C yiorado v. Spring, 479 U.S. 564 (1987); Colorsdo v Connelly, 479
US 137 (1986) Moran v. Burbine, 10€ S.Ct. 1135 (1986 Oregon v. Elsiad
470 U.S. 298 (1985): New York v Quarles, 467 US. 649 (1984) Michigns ‘
Mosicy, 423 US 96 (1975); Michigan v. Tucker, 417 U.S. 433
v. New York, 401 U.S. 222 (197) |
"This means that the suspect hes the nght to consult with « lawyer before
eeing interrogated and to have the lawyer present during interrogation
Jnce the mght to counsel has been invoked, any subsequent waiver dunn
§ ponce-imiusated encounter in the absence of counsel during the same penod r
cus ody is invalid, whether or not the accused has consulted with counsel earls
tr g Minruck, Roberson, Edwards comparable rule under federal law) -
A written waiver will dispel @ major criticism of Miranda, ie... that it did
. - ng whaisoever to mutigaie the piifalls of the sweanng contest’” between
* apart and the policeman a3 to the conicnt of warnings, or whether warm
7; Ag - “nay gt y age hulhofer, Confessions and the Court, 79
rong }, 82 (1981) milen waivers arc in fact common in many
present case involves one
1974); Harns
‘
lions A person is in custody for Section 9 purposes if s reasonable person placed
*€ same position would believe that his or her frecdom of action was cur
‘auled to « degree associated with actual Cf :
US an sdhane ctual arrest. Cf Berkemer v. McCarty, 468
Interrogation takes place for Section 9 purposes when @ person is subjected
\ Supeese questions, or other words or actions, by « state egcni, thal @ reason
‘ me person would conclude are designed to lead to an inc nimnaung response
y Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)
ree, €.8., § 3969, Gen. Si 19% I
1906 FC 1 catia 3 tats. 1906, F C.L. (1914);
See § 454.18, Fla. Sut. (1989
See Fila. R. Crm. P. 3.111, 3.130, 3.160
_e¢ Faretta v. California, 422 U.S. 806, 833-34 (1975
fd. at B13 09.10
- This nght necessarily entails two corresponding nghis—the right to
“tone s own defense and the right to assistance of counsc!
ety Cf United States v. Wade, 388 U.S. 218. 237 (1967) (Sixth Amendment
£ nag counsel epplics to each ‘‘critical stage’’ of the prosecution)
‘ ?
or a 16 also protects the right of the individual to « fair trial
- be Kirby v. Ulinois, 406 U.S. 682, 689-90 (1972) (prosecution begins
= am Amnondensas with instuation of ‘judicial criminal proceedings’ ’)
mer infra notes 37-43 and accompanying icxt
ns yf Brewer v. Williams, 430 U.S. 387, 404 (1977) (under Sixth Amend-
“» Courts indulge in every reasonable presumpiion s r
Benerally Fla. R. Com. P.3.111(d) ican cit heat aaliatoas
See Fla. R. Crim. P. 3 111(d)(5)
§ 1347, Gen. Stats
con
Mined right has attached and been invoked any
uring @ police-initiated confrontation in the abse ; ounsel j inval
id. Cf. Michigan v. Jackson, 475 U.S. 625 lb weamemae at fee isth
poe sth. tule rc Sixth
"Cf. McNeil v. Wisconsin, 111 S.Ct. 2204, 2207
nght is ‘‘offense-specific’”) , 2207 (1991) (Sixth Amendment
— State, 54Fla.21, , 45 So. 491, 491 (1907).
¢, €.g., Watson v. State, 145 Fla.218, , 194S0. 641.64
“See, €.g., §§ 27.51, $2, Fla. Stat. (1989) ee
ee a P.3.111,3.130, 3.160
¢, €.g., Shriners Hospitals v. Zrillic, 563 So.24 64 (Fla. 1990
Ayele v. Florida Farm Bureau Casualty Ins. Co., 543 $0.24 204 (Fis. 1989)
Im Harbor Special Fire Control Dist. v. Kelly, 516 So.2d 249 (Fla. 1987).
Storer Cable T.V. v. Summerwinds Apartments Assocs., 493 So.2d 417 Fis.
1986); Vildibill v. Johnson, 492 So.2d 1047 (Fis. 1986).
need also Fla. R. Crim. P. 3.140
As @ general rule, assignment of counsel is feasib t
See Pe. RCo PS t1iep 18 feasible by the time of booking
nSee also Fla. R. Crim. P. 3.130
tae he R. Crm. P. 3.111
¢ commentary following the Americ
peta g the ncan Bar Association (ABA) Standard
Perhaps most important, unicss the impecunious accused is provided
counsel at the earliest possible time, an invidious discrimination is pres-
ent between the poor defendam and the defendant of financial means
The letter is able to afford counsel and frequently acquires legal repre-
seniauion well before formal commencement of adversary proceedings
This standard seeks to provide for the eligib
Lon opportunucs . cligible accused similar represen-
I Standards for Criminal Justice § 5-5.1 (Am. Bar Ass'n 1980).
"The committee note following this rule states that **(t\}here was consider-
able discussion within the commitiee concerning the me when counse! should
be eppoinicd The commentary in the ABA Standard under $5.18 b con
virn od ne commutice to the language here contained .'’ Committee Note to Fla
K. Crm. P. 3.111(a). The commentary to the ABA Standard provides in pant .
This standard, however, cxicnds beyond the Supreme Court's decisions
for it applies to situations that have not been held to be “‘critical stages’
within the meaning of the sixth amendment. Thus, the standard ae
mends that counsel be provided ‘‘as soon as feasible afler custody be-
gins, assurming that Us event occurs, as it usually docs, pnor to the
defendant's appearance before a judicisl officer or the filing of formal
charges
subsequent wriver
Effective representation of the accused requires that counsel be pro-
vided at the carlicst possible time. Often there are witnesses who must
interviewed promptly by the defense lest their memories of critical
events fade or the witnesses become difficult to locate. Where the ac-
cused is incarcerated, defense counse! must begin immediately to mar
ak shal facts in support of the defendant's pretrial release from custody
] Sera Criminal Justice § 5-5.1 (Am. Bar Ass'n 1980) ;
“Cf Ponticelli v. Sute, 16 F.L.W. 669 (Fla. Oct. 10, 199
; . 1) (right to coun
scl under federal Sixth Amendment had not attached where judictal cnminal
proceedings had not begun), Kight v. State, $12 So.2d 922 (Fla. 1987) (Sixth
Amendment nght had not attached where formal charges had not been filed)
cert. denied, 485 U.S. 929 (1988); Keen v. State, 504 So.2d 396 (Fla. 1987)
(Sixth Amendment nght had not attached where formal charges had not been
filed); Anderson v. State, 420 So.2d $74 (Fla. 1982) (Sixth Amendment right
had attached where defendant had becn indicted and would have attended first
appearance if he had been present in Florida), Peoples v. State, $76 So.2d 783
(Fla. Sth DCA 1991) (state and federal mght attaches on indictment or informs
uuon); McHaney v. State, $13 So.2d 252 (Fla. 2nd DCA 1987) (unspecified
mght to counsel had not attached where line-up was held prior to first appear-
ance); Traylor v. State, 498 So.2d 1297 (Fla. Ist DCA 1986) (federal right had
atlached where information had been issued); Sobczak v. State, 462 So.24 1172
A " ch — right attaches as carly as first appearance); State v
ouse, 0.24 1184 (Fla. 4th DCA 1984) (st
ge er ) (state mght attaches as carly as
os e
“ ohnson had just received the letter of appointment the day vcfore, August
ae counsel! at the suppression hearing prevented Johnson from being
qucstioned concerning any staicment made by Traylor to i
atiorne y-clicat privilege , : pensecanenies
. a the Section 16 night to counsel is charge-specific, the fact that
rayior had invoked his nght to counsel on the Ala
is Weedie dean z ¢ Alabarna offense is irrelevant to
“Cf. Patierson v. Ulinois, 487 U.S. 285 (1988) (co
simular facts under Sixth Amendment). ec she al meatal
“We mote that the extent of the requircd inquiry into the defendant's wnder-
standing of the consequences of waiver of the Section 16 right to counsel will
vary depemiing on the stage of the prosecution. For instance, an inquiry that
pe og for sete questioning necd not be as claborate as the formal inqui-
ry that is required for waiver of counsel at trial. Cf id.
» tenets: ner J. id. (comparable rule under
“We conclude that the same result would obtain under federal law. See
~JPREME COURT OF FLORIDA |
17 FLW S54
McNeil v. Wisconsin, 111 S.Ct. 2204 (1991); Pauerson, Michigan v. Jackson,
475 U.S. 625 (1986); Kirby v. Dlinois, 406 U.S. 682 (1972); Chapman v.
California, 386 U.S. 18 (1967); Miranda v. Anzona, 384 U.S. 436 (1966);
Brown v. Mississippi, 297 U.S. 278 (1936).
The district court found admission of the confessions harmless ‘‘in the face
of other overwhelming evidence of guilt." Traylor v. State, 498 So.2d 1297,
1301 (Fla. 1st DCA 1986).
**The trial court so found in its order on the motion to suppress
21 am doubly surprised at this assumption. After erroneously concluding
that the Fifth Amendment right cannot be asserted through counsel, majority op
at 30, there is no need for the majority to worry itself with what transpired
between Johnson and Traylor. The only remaining issue would be whether
Traylor personally asserted his Fifth Amendment night, which he clearly did nc
do at the relevant times. The fact that the majority concerns itself with this issue
can only mean that some importance is being attached to Johnson's authority to
speak with police on behalf of Traylor. In essence, the majority is adopting an
alternative theory that Johnson was acting beyond the scope of his authority as
an attorney, and his statements to police therefore had no legal effect. I dissent
from this view.
Even then, | have very grave doubts that the state lawfully can require
Traylor to make this Hobson's choice See U.S. Const. amend. V; arnt. I, § 9,
Fla. Const.; § 90.502, Fla. Stat. (1985).
*This fact distinguishes the present matter from a line of cases from the
Fifth and Eleventh Circuits, where there was no assertion of the Edwards nght
either by counsel or the accused. Tinsley v. Purvis, 731 F.2d 791 (11th Cir
1984); United States v. Brown, 569 F.2d. 236 (Sth Cir. 1978), United States v
Vasquez, 476 F.2d. 730 (Sth Cir.), cert. denied, 414 U.S. 836 (1973). In each
of these cases, the accused was interrogated without the assistance of counsel
after waiving all relevant rights. The courts uniformly concluded that this proce-
dure did not violate the Fifth and Sixth Amendments, even if counsel previously
had been appointed for the accused. In other words, either the attorney or the
client must assert the right ageinst uncounseled interrogation before the protec-
tions afforded by Edwards will attach. Here, that nght in fact was asserted by
counsel!
See § 90.502, Fla. Stat. (1985)
*No one would seriously contend, for example, that an aliorncy 1s power-
less to invoke the defendant's Fifth Amendment nght to remain silent at a cmmi
nal trial. U.S. Const., amend. V. I see no relevant distinction between asserting
the right in this context and asserting it to the police pnor to an interrogation
"Simultancously, the attorney carnes an absolute obligation to represent the
interests and protect the rights of the client. Gay v. Heller, 252 F.2d 313, 316
(Sth Cir. 1958). Obviously, this duty is of special weight in the cnmuina!-lew
context, where dercliction by the attorney could result in the client losing life
or liberty. The gravity of this obligation was directly recognized in Miranda v
Arizona, 384 U.S. 436, 480-81 (1966), where the Court stated
An attorney may advise his client not to talk to police until he has had an
opportunity to investigate the case, or he may wish to be present with his
client during any police questioning. In doing %0 an atlorney is merely
exercising the good professional judgment he has been taught This is
not cause for considering the attorney a menace to law enforcement. He
is merely carrying out what he is sworn to do under his oath—to protect
to the extent of his ability the rights of his client.
(Emphasis added.)
I recognize that the Texas court sometimes has suggested that the police
must agree not to interrogate the accused in the absence of counsel before the
Fifth Amendment right will attach. However, the Janecka court clarified this
misimpreasion in the following terms:
Our opinions in the past have sometimes focused on the sgreement of
police officers not to question s suspect in his atiorney’s absence If an
accused, or an attorney speaking for the accused, has stated « desire to
talk to the police only in the presence of counsel, that request musi be
honored whether or not police officers agrec.
Janecka v. State, 739 S.W.2d 813, 828 n.6 (Tex. Crim. App. 1987). Thus, s
police agreement not to interrogate in the absence of counsel is relevant evi-
dence, but the lack of such an agreement does not excuse « subsequent failure to
honor counsel's instructions.
*The only case I have found making # contrary assertion—State v. Beck,
687 S.W.24 155 (Mo. 1985), cert. denied, 476 U.S. 1140 (1986)—is singularly
unpersuasive. First, the case is factually distinguishable. In Beck, the Missoun
Supreme Court confronted s case in which an atiorney also had not spoken with
the client, much like the facts in Moran. Second and more significantly, the
Beck court stated in dictum that an atlorney can never assert the client's Fifth
Amendment rights, but the court made this statement based on an obvious and
blatant misreading of United States Supreme Court precedent:
Appellant's constitutional privilege against self-incrimination is @ per-
sonal one and is a right that cannot be exercised by third parties. United
States vy. [Nobles], 422 U.S. 225, 233, 95 S.Ct. 2160, 2167, 45 L.Ed.24
141 (1975).
Id. at 158 n. 7. In actuality, the Nobles Court had set forth s wholly unrelated
point of lew:
We thus conclude that the Fiflh Amendment privilege against compul-
sory self-incrimination, being personal to the defendant, does not extend
to the testimony or statements of third parties called as wimesses at inal.
Nobles, 422 U.S. at 234 (emphasis added). This is « vastly different matter than
the issue at hand. An attorney clearly acts on behalf of « client and can assert
that client's personal rights, whereas « third-party witness in « proceeding has
no such relationship with the client and cannot assert that client's rights. I thus
find the dictum in Beck unconvincing and unnecessary for the holding the court
reached. The Beck court could have resolved the issue simply on the fact that
counsel had not yet spoken with the accused, as did the Court in Moran v. Bur-
bine, 475 U.S. 412 (1986).
“The trial court went on to dismiss this fact in light of the toulity of the
circumstances. For the reasons set forth above, | do not agree with this assess-
ment, because it is erroneous as & matter of law. The majority opinion thus errs
when it approves the judge's legal conciusion on grounds they are supported by
competent substantial evidence. Majority op. at 30. As recited by the trial court,
the facts and statements of law establish s plain constitutional error.
“article I, section 9 also embodies an exclusionary rule, as the majority
notes. Majority op. at 17. 1 fully concur in this conclusion.
“Obviously, the contact initiated by the suspect must be more than « per-
functory or mundane interaction. The suthorities cannot use & simple “*hello”’ or
other routine contact as an excuse to interrogate the suspect once the right is
asserted. Rather, the suspect must volunteer information to the authorities with-
out being asked to do so. Thus, as soon as any police interrogation commences,
the information obtained thereafter would be inadmissible whether or not the
suspect is regarded as making some sort of initial contact. The rule is simple:
Once the right is asserted, the police may not interrogate in the absence of coun-
sel. Period. Whatever the suspect wishes to give the authorities without prompt-
ing is admissible evidence, but al! information elicited through any interrogation
by those authorities must be suppressed. Art. I, § 9, Fla. Const.
“Majority op. at 21, 0.23.
“indeed, the fact that these ‘‘rights’’ have been blurred together in both a
theoretical and practical sense is only emphasized by the majority's holding that
article I, section 16 sometimes can attach almost immediately after a suspect is
detained, thereby implicating police conduct. Majority op. at 21, 30-31. In an
earlier and more purist sense, the traditional Fifth Amendment right applied to
police activities while the Sixth Amendment nght applied to courtroom activi-
ties. Although the case law’ now clearly establishes that some police activities
a!so implicate the Sixth Amendment, the federal courts nevertheless have con-
tinued to analyze cases as though the antiquated distinction still exists. The
majority parrots this trend in holding that article 1, section 16 is charge-specific
To the extent that article I, section 16 applies to police conduct, I see no reason
why it should not be analyzed precisely the same way as article I, section 9. The
law should not produce complexity where none is needed to achieve justice and
fairness. Police conduct is police conduct, and should be measured by the same
yardstick when that conduct impacts upon the nght to counsel
“The majority states
If the suspect indicates in any manner that he or she wants the help of a
lawyer, interrogation must not begin until a lawyer has been appointed and
is present, or, if it has already begun, must immediately stop until « lawyer
is present. Once a suspect has requested the help of a lawyer, no state agent
can reinitiate interrogation on any offense throughout the period of custody
unless the lawyer is present, although the suspect is free to volunteer « state-
ment to police on his or her own inulialive at any time on sny subject in the
absence of counsel
Majority op. at 16-17 (emphasis added; footnote omitted)
- * *
IN
FIFTH DISTRICT
( n #35] Anr 19
Jpinion ied + ’
Ann ] ver “7 + +
ADDed! m tne Cir J JT
Tor em \¢ le ane
4 a4
A’ A ] in
Kia’ ba VICK@Y JUaCge
Robert A. Butterworth Attorney ener
Ta} haccee ar lamea A i. y . A +
d dadiidas of gil valle Ve iid a
Attorney Genera aytona Beacfr Tor
P ,
Anne! ant
» >
James 8 31DSOF PuD!l1 efender and
e rs a « al > a > ry ¥
jyame 1K, A in PUD €
f FONA KeEACT *or Ar e Ts)
Uday Jtle P 4 €
P aT
IVONURN J
ne fate + \ ¥ 1a af aA ‘ram +rn¢
mn + s< + + “n+ v4 4 c .
) SUDDTE »>LaALemeE ind acm 510
P
r + + n r c? ’ + na + r n
AS Daf J an ve Jal n oO qa DUTQ!
f ‘ + +r ov, ; + + + + |
U In y e wv ce f err a e n wh ie
fount an nro + / oh ry c + }
un } 4 J ¢ ated araqes Re re
‘
i
ne 4 1coa +e + r > 4 +
ied © ddVv eu IntS C Miranda if }F
l
Mirand Arivor 2 < 1 2F QF +
irdanadd y AT 12 a. le SOO, J bs
THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
T
JANUARY TERM 1992
7.
in ‘% “4 ¢
aOW J
-
. crite
AY =
on sé. Se ¢ Vv
= ‘
t x
yy? reo ‘aa y r .s
3 4 sc 4 4
Va. c +or +e y
madeé Jy reter r ne ev
b P 4 C
which occurred in Semir
la rc rr , >* Fr
eC wWdds if 42 Idy mn c vO 4 |
nr nag the nterr Jat ele The
'
r h no
wl) ie Wa yer r W t ]
‘ a A ,
14 4 ry r —-
LOUC, 10 L-€0.20 3% L190
Lints agreed to speak *o the police without an attorney present and then
confessed to the burglary in Seminole County.
Prior to this interrogation, Lints had appeared in court on unrelated
charges and had asserted his Sixth Amendment right to counsel on the unrelated
charges .< The attorney who represented Lints on the unrelated charges was
not present at the subsequent interrogation concerning the Seminole County
burglary. Following this interrogation, the State charged Lints with the
Seminole County burglary.
Lints moved to suppress his confession to the Seminole County burglary.
The trial judge relied on Minnick v. Mississippi, 498 U.S. __, 111 S.Ct. 486,
112 L.£d.2d 489 (1990) and granted Lints's motion. However, the United States
Supreme Court has since issued its decision in McNeil v. Wisconsin, 501 U.S.
111 $.Ct. 2204, 115 L.Ed.2d 158 (1991), which requires a contrary result.
In McNeil, the Court held that under the United States Constitution a
defendant's Sixth Amendment right to counsel is offense-specific and that an
invocation of the Sixth Amendment right to counsel does not constitute an
invocation of the Miranda right to counsel derived from the Fifth Amendment
right against compelled self-incrimination. Id. at 2207-11. Furthermore, the
Florida Supreme Court has recently determined that under Article I, Section 16
of the Florida Constitution, “the right to counsel is charge-specific and
invocation of the right on one offense imposes no restrictions on police
é At the hearing on his motion to suppress, Lints testified:
Q. And at that time did you request that the Judge
appoint Counsel in connection with the matter that you had
just been arrested on, if you... half a day before?
A. Yes, I did.
inquiry into other charges for which the right has not been invoked." Traylor
v. State, 17 F.L.W. 42, 46 (Fla. Jan. 16, 1992) (footnote omitted) (comparing
Florida's independent right to counsel with the Sixth Amendment right to
counsel).
We are aware of our previous opinion in Walker v. State, 573 So. 2d 415
(Fla. 5th DCA 1991), review denied, No. 77,479 (Fla. Jan. 30, 1992), however,
we find that McNeil and Traylor control the result in the instant case.
Accordingly, we reverse the order granting Lints's motion to suppress his
confession and remand the cause for further proceedings. See Trody v. State,
559 So. 2d 641 (Fla. 3d DCA), review denied, 576 So. 2d 291 (Fla. 1990),
vacated, __ U.S. _, 111 S.Ct. 2845, 115 L.Ed.2d 1013 (1991), appeal after
remand, 586 So. 2d 440 (Fla. 3d DCA 1991
Ser ww dew er oe et + -- - wet.
—
Cite as $73 So.2d 415 (Fla.App. 5 Dist. 1991)
Roosevelt WALKER, Appellant,
Vv.
STATE of Florida, Appellee.
No. 89-1832.
District Court of Appeal of Florida,
Fifth District.
Jan. 24, 1991.
Defendant was convicted in the Circuit
Court, Seminole County, O.H. Eaton, Jr., J.,
of murder, and defendant appealed. The
District Court of Appeal held that when a
defendant is in confinement on one charge
as to which he is represented by appointed
or retained counsel, and law enforcement
officers initiate an interrogation as to some
other offense and, in the absence of de-
fense counsel, obtain an_ incriminating
statement from the defendant relating to
the second offense, even if Miranda warn-
ings are properly given and the defendant
“waives” the presence of his counsel, that
statement is inadmissible in evidence
against the defendant in a subsequent
criminal! trial.
Reversed and remanded.
Griffin, J.,
concurred in the result.
Criminal Law @412.2(4, 5)
When defendant is in confinement on
one charge as to which he is represented by
appointed or retained counsel, and law en-
forcement officers initiate interrogation as
to some other offense and, in absence of
defense counsel, obtain incriminating state-
ment from defendant relating to second
offense, even if Miranda warnings are
Properly given and defendant “waives”
Presence of his counsel, that statement is
inadmissible in evidence against defendant
Mm subsequent criminal trial. U.S.C.A.
Const. Amends. 5, 6.
&s
See, ¢.g., Tillman v. State, 471 So.2d 32 (Fla.
1985). Bertolotti v. Dugger, 514 So.2d 1095
James B. son, Public Defender, and
Michael S. becker, Asst. Public Defender,
Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Talla-
hassee, and David S. Morgan, Asst. Atty.
Gen., Daytona Beach, for appellee.
PER CURIAM.
The defendant was in custody as to an-
other matter in the Seminole County jail
when he was approached and questioned by
the police during a murder investigation.
As a result of the police-initiated interroga-
tion the defendant, without his counsel be-
ing present, confessed to the murder.
When the defendant was charged with
murder and moved to suppress his state-
ments, at the hearing before the trial court,
the focus of attention was on whether, and
when—before or after his statements—M1-
randa warnings were given, whether the
defendant waived counsel and whether the
statément was the result of unlawful in-
ducements, promises or coercion. The trial
court found the essential factual issues
against the defendant’s contention and de-
nied the motion to suppress. The defen-
dant pled nolo contendere, reserving his
right to appeal the suppression ruling and
now appeals.
It is often stated that in order to pre-
serve an issue for appellate review, the
specific legal argument or ground on which
it is based must be presented to the trial
court.! However, it is often not that sim-
ple. Sometimes issues present errors of
fundamental magnitude which can be
raised at any time. Sometimes the law
becomes more clear between the trial court
decision and the appellate review. At other
times the essential legal issue has multiple
inherent aspects or facets and before the
trial judge, counsel focused on one aspect
of the issue and before the appellate court
some other aspect of the issue is empha-
sized.
The legal issue here is whether the de-
fendant’s statement is admissible in evi-
dence in the murder case against him. The
(Fla.1987).
Ap pendix» tir
focus of legal argument argely con-
trolled by counsel, but judges have some
responsibility to see that the case is decided
on the correct issue or issues. The trial
judge below carefully and conscientiously
considered and based his ruling on the sub
issues presented to him and there empha-
sized by trial counsel. Alas, the case is
presented on appeal by different counsel
with a different emphasis and in the light
of case law that came into existence after
the trial court ruling that is being appeal-
ed.?
However, the issue on appeal was
brought into focus, and was fairly well
stated, in the argument of the state attor-
ney before the trial court as follows:
The first issue ... is can law enforce-
ment officers go to the jail and interview
somebody who is in jail on one charge
and represented by an attorney on that
charge [emphasis added] and who is not
under arrest for another charge and do
as these officers did?
Based on Edwards v. Arizona, 451 U.S.
477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)
and Arizona v. Roberson, 486 U.S. 675, 108
S.Ct. 2098, 100 L.Ed.2d 704 (1988) and in
view of Minnick v. Mississippi, — US.
, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990),3
the answer to the question posed by the
State attorney is, “No.” 4
Except to hold they contro! this case, it
serves little purpose to analyze or discuss
those three cases in this opinion.
Stated in a positive theoretical and ab-
stract form based on the above cited cases
but as limited to the facts in this case, the
legal principle controlling in this case is:
When a defendant is in confinement * on
one charge as to which he is represented
by appointed or retained counsel, and law
enforcement officers initiate an interro-
2. This case well illustrates why neither the me-
dia, the bar nor the public should grade or score
trial judges on the basis of whether or not their
decisions are reversed on appeal.
3. See also, Trody v. State, 559 So.2d 641 (Fla. 3d
DCA 1990).
4. Technically the answer is yes, the police offi-
cers can do what they did but no resulting
gation as to some per offense and, in
the absence of defense counsel, obtain an
incriminating statement from the defen-
dant relating to the second offense, even
if Miranda warnings are properly given
and the defendant “waives” the presence
of his counsel, that statement is inadmis-
sible in evidence against the defendant in
a subsequent criminal trial.
Apparently a law enforcement officer
may approach a citizen who has never had
retained counsel or appointed counsel as to
a criminal charge and give him Miranda
warnings and the citizen may expressly or
impliedly waive the presence of counsel and
voluntarily make an incriminating state-
ment which may later be used against him
in a criminal case. However, now, under
the above cited federal case law, after a
citizen has retained or appointed counsel in
connection with one criminal charge, that
citizen has an extra mantle, cloak or um-
brella of protection from self-incrimination
resulting from interrogation initiated by
law enforcement officers which bars the
admissibility of incriminating statements
taken in the absence of defense counsel.
The exact breadth and depth and scope of
that protective mantle is not exactly clear
but according to the view of the justices
dissenting in Minnick, it exists in perpetui-
ty. Normally counsel is retained either
until the trial proceeding is completed or
the criminal] conviction becomes final after
appellate review is completed. However,
there is nothing to prevent a convict from
being represented by retained counsel in
connection with post conviction proceedings
and during the entire term of any confine-
ment or supervision resulting from convic-
tion of crime and thereafter for the rest of
the convict’s life and, apparently, he would
always have this new second level of pro-
tection from self-incrimination resu.ting
inculpatory statement obtained from the defen-
dant, nor the fruits thereof, can be used against
the defendant in a criminal trial.
5. In this case and in the cases cited as control-
ling the defendant was in custody on another
criminal charge but the rationale of the cited
Cases would not appear to be strictly limited to
custodial interrogation.
———
t
; Cen
WILSON v. STATE
ria 414
Cit. $73 So2d 417 (Fla.App. $ Dist. 1991)
-.e interrogation. However inter-
: genset or distressing these
ott are to law enforcement offi-
oe tian and state court judges, they
= far beyond the reach or control of an
“ ediate state appellate court because
a based on interpretations of federal
oe ations! provisions by the United
States Supreme Court. State judges ie
firmly bound by oath to follow federal law
as interpreted by the highest federal court.
The order denying the suppression aod
tion is reversed and this cause is remande
for further proceedings.
REVERSED and REMANDED.
COWART, J., and ANTOON, J., I,
Associate Judge, concur.
GRIFFIN, J., concurs in result only
without opinion.
° KEY NUMBER SYSTEM
4AYmse
Christopher WILSON, Appellant,
v.
STATE of Florida, Appellee.
No. 89-2129.
District Court of Appeal of Florida,
Fifth District.
Jan. 24, 1991.
Criminal Law ¢=641.. 2), 1166.11(5)
Where defendant moved to have ate
sel discharged from his case, and nna
told judge she was unwilling to oo
defendant and in fact refused to pagel
during trial, conviction was —*
reversed and case remanded for _—s af-
ter appointment of competent sor agi
adequate inquiry and determination =
defendant was qualified to represent im-
self, neither of which was done during first
proceeding. U.S.C.A. Const.Amend. 6.
James B. Gibson, Public Defender, and
Michele A. Lucas, Asst. Public Defender,
Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Talla-
hassee, and Belle B. Turner, Asst. Atty.
Gen., Daytona Beach, for appellee.
DAUKSCH, Judge.
This. is an appeal from a conviction for
sexual battery and a life sentence with a
twenty-five year mandatory minimum.
Appellant alleges he was denied effective
assistance of counsel at trial. He mye
that issue at trial and sought to have the
P
court appoint a competent lawyer for him.
Frazier v. State, 453 So.2d 95 (Fla. 5th
DCA 1984). |
Appellant was dissatisfied with his sil
yer, who is an assistant public defen a
and expressed that dissatisfaction to t .
judge before the trial. He filed a wig” :
have her discharged from his case. “
lawyer told the trial judge she was oops
ing to represent appellant and declare 8
would refuse to participate during row
She did just that—she sat through the mee
but did nothing. The trial judge said he
would cite her for her behavior. We have
Defendant was convicted in the Circuit
Court, Orange County, Ted P. Coleman, J.,
of sexual battery, and defendant appealed.
The District Court of Appeal, Dauksch, J m
held that remand was required for retrial
after appointment of competent counsel or
adequate inquiry and determination that
defendant was qualified to represent him-
self.
Reversed and remanded.
no record to know what happened in that
regard.
We reverse the conviction and —
the case for retrial after appointment 0
competent counsel or an adequate cane
and determination that the appellan es
qualified to represent himself. - er
was done during the first proceeding. : nt
etta v. California, 422 U.S. 806, 95 ‘
2525, 45 L.Ed.2d 562 (1975); Hart v. State,
CERTIFICATE OF SERVICE
I, CHRISTOPHER S. QUARLES, a member of the Bar of the
Supreme Court of the United States and counsel of record for
Roosevelt Walker, the Respondent, hereby certify that on April
10, 1992, pursuant to Supreme Court Rule 28, I served a single
copy of the foregoing to the Supreme Court of Florida with
attached Appendix on each of the parties as follows: On the
State of Florida, the Petitioner, by depositing said copy in the
United States Post Office, Daytona Beach, Florida, with first
class postage prepaid, properly addressed to Robert A.
Butterworth, Attorney General, 210 N. Palmetto Avenue, Suite 447,
Daytona Beach, Florida 32114.
ae ed ff 2
or Fs WH,
a \ £
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
OFFICE OF
yeli Sy
_
* ‘4
=. \ ay PUBLIC DEFENDER
-
pick: SEVENTH JUDICIAL CIRCUIT OF FLORIDA
RONALDO K. ZIMMET
i + APPELLATE DIVISION Cnet Assistant Pubhe Detender
"aa “vette 112 Orange Avenue JAMES R. WULCHAK
Daytona Beach, Florida 32114 Chief, Appeitate Drvision
Telephone: (904) 252-3367
a eaon Sanaa SUNCOM 380-3758 FAX (904)254-3943 CHNSTOMER ©. GUESS
PUBLIC DEFENDER Crwet, Caprtai Appeais
MARLEAH K HILBRANT
Adrrerustratrve Assistant
April 10, 1992
_——e- +--+
RECEIVED
Honorable William Suter, Clerk APR 15 1992
Supreme Court of the United States
First and Maryland OFFICE OF THE CLERK
Washington, DC 20543 SUPREME COURT, U.S.
ey
Case No. 91-1475
Dear Mr. Suter:
Enclosed please find the Response to the Petition for
Certiorari to the Fifth District Court of Appeal, and the Motion
for Leave to Proceed in Forma Pauperis in the case of State of
Florida v. Walker.
Very truly yours,
aE 4p = .
Christopher S. Quarles
Assistant Public Defender
MSB/CSQ/mkh
Enclosures
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.