# Opposition Brief — Florida v. Walker > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1074%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 504 U.S. 903 ## Text LINED, kK POOR If HARD ( ArT AND WHEN } ‘ k W I ; o LFA LORS F 1© Supreme Court, U.S. + Oren Bs | - eerie sisiabotes > APR 10 1892 wet IN THE 42 OFFICE GF THE CLERK wr SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1991 DISTRIBUTED Case No. 91-1475 PR 2 L 1992 _ STATE OF FLORIDA Petitioner, vs. ROOSEVELT WALKER, Respondent. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ROOSEVELT WALKER, Respondent in the above-styled cause hereby moves this Court, by his undersigned counsel, for leave to proceed in forma pauperis and in support hereof shows as follows: 1. An affidavit in Support of Motion to Proceed on Appeal in Forma Pauperis is attached to this motion. In the affadavit respondent sets forth the fact that he is indigent and unable to pay or give security for the fees and costs attendant to this proceeding. 2. Respondent was adjudged insolvent for the purposes of trial and of appeal in the Supreme Court of Florida and was represented there by appointed counsel. WHEREBY, it is respectfully requested that Respondent be permitted to proceed in forma pauperis in this matter. Respectfully submitted, JAMES B. GIBSON PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT CHRISTOPHER S. QUARLES ASSISTANT PUBLIC DEFENDER 112-A Orange Avenue Daytona Beach, Fla. 32114 (904) 252-3367 ATTORNEY FOR RESPONDENT I HEREBY CERTIFY that a true and correct copy of the foregoing has been delivered by mail to the Honorable Robert A. Butterworth, Attorney General, 210 N. Palmetto Avenue, Suite 447, Daytona Beach, Florida 32114 and Roosevelt Walker, No. B 063386, P. O. Box 028538, Miami, FL 33102 on April 10, 1992. CHRISTOP ASSISTA R S. QUARLES PUBLIC DEFENDER IN THE SUPREME COURT OF THE UNITED STATES STATE OF FLORIDA, Petitioner, vs. CASE NO. 91-1475 ROOSEVELT WALKER, Respondent. AFFIDAVIT IN SUPPORT OF RESPONDENT'S MOTION TO PROCEED IN FORMA PAUPERIS I, ROOSEVELT WALKER, being first duly sworn, depose and say that I am the Petitioner in the above-styled cause; that in Support of my motion to proceed on the Petition for Certiorari without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or give security therefor. I further swear that: 1. I was convicted of one count of first-degree murder in the Circuit Court for Seminole County, Florida. 2. I received one sentence of life imprisonment and am presently in custody of the Department of Corrections in the State of Florida. 3. I am not employed and have no source of income. 4. I have been represented by appointed counsel throughout my state trial and appeal proceedings. 5. I have not received within the past twelve months any income from a business, profession, or other form of employment, or in the form of rent payments, interest, dividends, or other source. 6. I do not own any cash, checking account or savings account. ve I do not have any real estate, stocks, bonds, notes, automobiles or any other valuable property. 8. The following are the people who are dependent upon me for support (if none, so state): » 1) +! Va NAME: £ ji Zbethee (oAdlte. aetarromeunes {1/07 C ¢ MABRY. WH )x 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 >> 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_ ' , « James 8 31DSOF PuD!l1 efender and e rs a « al > a > ry ¥ jyame 1K, A in PUD € f FONA KeEACT *or Ar e Ts) Uday Jtle P 4 € P aT IVONURN J ne fate + \ ¥ 1a af aA ‘ram +rn¢ mn + sLaALemeE ind acm 510 P r + + n r c? ’ + na + r n AS Daf J an ve Jal n oO qa DUTQ! f ‘ + +r ov, ; + + + + | U In y e wv ce f err a e n wh ie fount an nro + / oh ry c + } un } 4 J ¢ ated araqes Re re ‘ i ne 4 1coa +e + r > 4 + ied © ddVv eu IntS C Miranda if }F l Mirand Arivor 2 * Fr eC wWdds if 42 Idy mn c vO 4 | nr nag the nterr Jat ele The ' r h no wl) ie Wa yer r W t ] ‘ a A , 14 4 ry r —- LOUC, 10 L-€0.20 3% L190 Lints agreed to speak *o the police without an attorney present and then confessed to the burglary in Seminole County. Prior to this interrogation, Lints had appeared in court on unrelated charges and had asserted his Sixth Amendment right to counsel on the unrelated charges .< The attorney who represented Lints on the unrelated charges was not present at the subsequent interrogation concerning the Seminole County burglary. Following this interrogation, the State charged Lints with the Seminole County burglary. Lints moved to suppress his confession to the Seminole County burglary. The trial judge relied on Minnick v. Mississippi, 498 U.S. __, 111 S.Ct. 486, 112 L.£d.2d 489 (1990) and granted Lints's motion. However, the United States Supreme Court has since issued its decision in McNeil v. Wisconsin, 501 U.S. 111 $.Ct. 2204, 115 L.Ed.2d 158 (1991), which requires a contrary result. In McNeil, the Court held that under the United States Constitution a defendant's Sixth Amendment right to counsel is offense-specific and that an invocation of the Sixth Amendment right to counsel does not constitute an invocation of the Miranda right to counsel derived from the Fifth Amendment right against compelled self-incrimination. Id. at 2207-11. Furthermore, the Florida Supreme Court has recently determined that under Article I, Section 16 of the Florida Constitution, “the right to counsel is charge-specific and invocation of the right on one offense imposes no restrictions on police é At the hearing on his motion to suppress, Lints testified: Q. And at that time did you request that the Judge appoint Counsel in connection with the matter that you had just been arrested on, if you... half a day before? A. Yes, I did. inquiry into other charges for which the right has not been invoked." Traylor v. State, 17 F.L.W. 42, 46 (Fla. Jan. 16, 1992) (footnote omitted) (comparing Florida's independent right to counsel with the Sixth Amendment right to counsel). We are aware of our previous opinion in Walker v. State, 573 So. 2d 415 (Fla. 5th DCA 1991), review denied, No. 77,479 (Fla. Jan. 30, 1992), however, we find that McNeil and Traylor control the result in the instant case. Accordingly, we reverse the order granting Lints's motion to suppress his confession and remand the cause for further proceedings. See Trody v. State, 559 So. 2d 641 (Fla. 3d DCA), review denied, 576 So. 2d 291 (Fla. 1990), vacated, __ U.S. _, 111 S.Ct. 2845, 115 L.Ed.2d 1013 (1991), appeal after remand, 586 So. 2d 440 (Fla. 3d DCA 1991 Ser ww dew er oe et + -- - wet. — Cite as $73 So.2d 415 (Fla.App. 5 Dist. 1991) Roosevelt WALKER, Appellant, Vv. STATE of Florida, Appellee. No. 89-1832. District Court of Appeal of Florida, Fifth District. Jan. 24, 1991. Defendant was convicted in the Circuit Court, Seminole County, O.H. Eaton, Jr., J., of murder, and defendant appealed. The District Court of Appeal held that when a defendant is in confinement on one charge as to which he is represented by appointed or retained counsel, and law enforcement officers initiate an interrogation as to some other offense and, in the absence of de- fense counsel, obtain an_ incriminating statement from the defendant relating to the second offense, even if Miranda warn- ings are properly given and the defendant “waives” the presence of his counsel, that statement is inadmissible in evidence against the defendant in a subsequent criminal! trial. Reversed and remanded. Griffin, J., concurred in the result. Criminal Law @412.2(4, 5) When defendant is in confinement on one charge as to which he is represented by appointed or retained counsel, and law en- forcement officers initiate interrogation as to some other offense and, in absence of defense counsel, obtain incriminating state- ment from defendant relating to second offense, even if Miranda warnings are Properly given and defendant “waives” Presence of his counsel, that statement is inadmissible in evidence against defendant Mm subsequent criminal trial. U.S.C.A. Const. Amends. 5, 6. &s See, ¢.g., Tillman v. State, 471 So.2d 32 (Fla. 1985). Bertolotti v. Dugger, 514 So.2d 1095 James B. son, Public Defender, and Michael S. becker, Asst. Public Defender, Daytona Beach, for appellant. Robert A. Butterworth, Atty. Gen., Talla- hassee, and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for appellee. PER CURIAM. The defendant was in custody as to an- other matter in the Seminole County jail when he was approached and questioned by the police during a murder investigation. As a result of the police-initiated interroga- tion the defendant, without his counsel be- ing present, confessed to the murder. When the defendant was charged with murder and moved to suppress his state- ments, at the hearing before the trial court, the focus of attention was on whether, and when—before or after his statements—M1- randa warnings were given, whether the defendant waived counsel and whether the statément was the result of unlawful in- ducements, promises or coercion. The trial court found the essential factual issues against the defendant’s contention and de- nied the motion to suppress. The defen- dant pled nolo contendere, reserving his right to appeal the suppression ruling and now appeals. It is often stated that in order to pre- serve an issue for appellate review, the specific legal argument or ground on which it is based must be presented to the trial court.! However, it is often not that sim- ple. Sometimes issues present errors of fundamental magnitude which can be raised at any time. Sometimes the law becomes more clear between the trial court decision and the appellate review. At other times the essential legal issue has multiple inherent aspects or facets and before the trial judge, counsel focused on one aspect of the issue and before the appellate court some other aspect of the issue is empha- sized. The legal issue here is whether the de- fendant’s statement is admissible in evi- dence in the murder case against him. The (Fla.1987). Ap pendix» tir focus of legal argument argely con- trolled by counsel, but judges have some responsibility to see that the case is decided on the correct issue or issues. The trial judge below carefully and conscientiously considered and based his ruling on the sub issues presented to him and there empha- sized by trial counsel. Alas, the case is presented on appeal by different counsel with a different emphasis and in the light of case law that came into existence after the trial court ruling that is being appeal- ed.? However, the issue on appeal was brought into focus, and was fairly well stated, in the argument of the state attor- ney before the trial court as follows: The first issue ... is can law enforce- ment officers go to the jail and interview somebody who is in jail on one charge and represented by an attorney on that charge [emphasis added] and who is not under arrest for another charge and do as these officers did? Based on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2098, 100 L.Ed.2d 704 (1988) and in view of Minnick v. Mississippi, — US. , 111 S.Ct. 486, 112 L.Ed.2d 489 (1990),3 the answer to the question posed by the State attorney is, “No.” 4 Except to hold they contro! this case, it serves little purpose to analyze or discuss those three cases in this opinion. Stated in a positive theoretical and ab- stract form based on the above cited cases but as limited to the facts in this case, the legal principle controlling in this case is: When a defendant is in confinement * on one charge as to which he is represented by appointed or retained counsel, and law enforcement officers initiate an interro- 2. This case well illustrates why neither the me- dia, the bar nor the public should grade or score trial judges on the basis of whether or not their decisions are reversed on appeal. 3. See also, Trody v. State, 559 So.2d 641 (Fla. 3d DCA 1990). 4. Technically the answer is yes, the police offi- cers can do what they did but no resulting gation as to some per offense and, in the absence of defense counsel, obtain an incriminating statement from the defen- dant relating to the second offense, even if Miranda warnings are properly given and the defendant “waives” the presence of his counsel, that statement is inadmis- sible in evidence against the defendant in a subsequent criminal trial. Apparently a law enforcement officer may approach a citizen who has never had retained counsel or appointed counsel as to a criminal charge and give him Miranda warnings and the citizen may expressly or impliedly waive the presence of counsel and voluntarily make an incriminating state- ment which may later be used against him in a criminal case. However, now, under the above cited federal case law, after a citizen has retained or appointed counsel in connection with one criminal charge, that citizen has an extra mantle, cloak or um- brella of protection from self-incrimination resulting from interrogation initiated by law enforcement officers which bars the admissibility of incriminating statements taken in the absence of defense counsel. The exact breadth and depth and scope of that protective mantle is not exactly clear but according to the view of the justices dissenting in Minnick, it exists in perpetui- ty. Normally counsel is retained either until the trial proceeding is completed or the criminal] conviction becomes final after appellate review is completed. However, there is nothing to prevent a convict from being represented by retained counsel in connection with post conviction proceedings and during the entire term of any confine- ment or supervision resulting from convic- tion of crime and thereafter for the rest of the convict’s life and, apparently, he would always have this new second level of pro- tection from self-incrimination resu.ting inculpatory statement obtained from the defen- dant, nor the fruits thereof, can be used against the defendant in a criminal trial. 5. In this case and in the cases cited as control- ling the defendant was in custody on another criminal charge but the rationale of the cited Cases would not appear to be strictly limited to custodial interrogation. ——— t ; Cen WILSON v. STATE ria 414 Cit. $73 So2d 417 (Fla.App. $ Dist. 1991) -.e interrogation. However inter- : genset or distressing these ott are to law enforcement offi- oe tian and state court judges, they = far beyond the reach or control of an “ ediate state appellate court because a based on interpretations of federal oe ations! provisions by the United States Supreme Court. State judges ie firmly bound by oath to follow federal law as interpreted by the highest federal court. The order denying the suppression aod tion is reversed and this cause is remande for further proceedings. REVERSED and REMANDED. COWART, J., and ANTOON, J., I, Associate Judge, concur. GRIFFIN, J., concurs in result only without opinion. ° KEY NUMBER SYSTEM 4AYmse Christopher WILSON, Appellant, v. STATE of Florida, Appellee. No. 89-2129. District Court of Appeal of Florida, Fifth District. Jan. 24, 1991. Criminal Law ¢=641.. 2), 1166.11(5) Where defendant moved to have ate sel discharged from his case, and nna told judge she was unwilling to oo defendant and in fact refused to pagel during trial, conviction was —* reversed and case remanded for _—s af- ter appointment of competent sor agi adequate inquiry and determination = defendant was qualified to represent im- self, neither of which was done during first proceeding. U.S.C.A. Const.Amend. 6. James B. Gibson, Public Defender, and Michele A. Lucas, Asst. Public Defender, Daytona Beach, for appellant. Robert A. Butterworth, Atty. Gen., Talla- hassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee. DAUKSCH, Judge. This. is an appeal from a conviction for sexual battery and a life sentence with a twenty-five year mandatory minimum. Appellant alleges he was denied effective assistance of counsel at trial. He mye that issue at trial and sought to have the P court appoint a competent lawyer for him. Frazier v. State, 453 So.2d 95 (Fla. 5th DCA 1984). | Appellant was dissatisfied with his sil yer, who is an assistant public defen a and expressed that dissatisfaction to t . judge before the trial. He filed a wig” : have her discharged from his case. “ lawyer told the trial judge she was oops ing to represent appellant and declare 8 would refuse to participate during row She did just that—she sat through the mee but did nothing. The trial judge said he would cite her for her behavior. We have Defendant was convicted in the Circuit Court, Orange County, Ted P. Coleman, J., of sexual battery, and defendant appealed. The District Court of Appeal, Dauksch, J m held that remand was required for retrial after appointment of competent counsel or adequate inquiry and determination that defendant was qualified to represent him- self. Reversed and remanded. no record to know what happened in that regard. We reverse the conviction and — the case for retrial after appointment 0 competent counsel or an adequate cane and determination that the appellan es qualified to represent himself. - er was done during the first proceeding. : nt etta v. California, 422 U.S. 806, 95 ‘ 2525, 45 L.Ed.2d 562 (1975); Hart v. State, CERTIFICATE OF SERVICE I, CHRISTOPHER S. QUARLES, a member of the Bar of the Supreme Court of the United States and counsel of record for Roosevelt Walker, the Respondent, hereby certify that on April 10, 1992, pursuant to Supreme Court Rule 28, I served a single copy of the foregoing to the Supreme Court of Florida with attached Appendix on each of the parties as follows: On the State of Florida, the Petitioner, by depositing said copy in the United States Post Office, Daytona Beach, Florida, with first class postage prepaid, properly addressed to Robert A. Butterworth, Attorney General, 210 N. Palmetto Avenue, Suite 447, Daytona Beach, Florida 32114. ae ed ff 2 or Fs WH, a \ £ CHRISTOPHER S. QUARLES ASSISTANT PUBLIC DEFENDER OFFICE OF yeli Sy _ * ‘4 =. \ ay PUBLIC DEFENDER - pick: SEVENTH JUDICIAL CIRCUIT OF FLORIDA RONALDO K. ZIMMET i + APPELLATE DIVISION Cnet Assistant Pubhe Detender "aa “vette 112 Orange Avenue JAMES R. WULCHAK Daytona Beach, Florida 32114 Chief, Appeitate Drvision Telephone: (904) 252-3367 a eaon Sanaa SUNCOM 380-3758 FAX (904)254-3943 CHNSTOMER ©. GUESS PUBLIC DEFENDER Crwet, Caprtai Appeais MARLEAH K HILBRANT Adrrerustratrve Assistant April 10, 1992 _——e- +--+ RECEIVED Honorable William Suter, Clerk APR 15 1992 Supreme Court of the United States First and Maryland OFFICE OF THE CLERK Washington, DC 20543 SUPREME COURT, U.S. ey Case No. 91-1475 Dear Mr. Suter: Enclosed please find the Response to the Petition for Certiorari to the Fifth District Court of Appeal, and the Motion for Leave to Proceed in Forma Pauperis in the case of State of Florida v. Walker. Very truly yours, aE 4p = . Christopher S. Quarles Assistant Public Defender MSB/CSQ/mkh Enclosures --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1074%3A2. Public record. Not legal advice.