Opposition Brief — Florida v. Walker

Supreme Court brief1992

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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):

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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.

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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

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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

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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.

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Opposition Brief — Florida v. Walker · 504 U.S. 903 | Frix