Opposition Brief — Florida v. Long

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Supreme Court, U.S.

FILED

APR 20 1988

GRIGINAL Case No. 87-1625 JOSEPH F. SPANIOL, JR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

STATE OF FLORIDA,

Petitioner,

vs.

ROBERT JOE LONG,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

JAMES MARION MCORMAN

PUBLIC DEFENDER

TENTH JUDICIAL CIRCUIT

WILLIAM C. McCLAIN

Assistant Public Defender

Barnett Bank Building

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR RESPONDENT

TABLE OF CONTENTS

TABLE OF CITATIONS

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

PAGE(S)

TABLE OF CITATIONS

CASE PAGE(S)

Cannady v. State, 427 So.2d 723 (Fla. 1983) 5

Donovan v. State, 400 So.2d 1306 (Fla. 1981) 4

Edwards v. Arizona, 451 U.S. 477 (1981) 5,6

Norris v. State, 429 So.2d 688 (Fla. 1983) 4

Smith v. Illinois, 469 U.S. 91, (1984) 4

Valle v. State, 474 So.2d 796 (Fla. 1985) 5

Waterhouse v. State, 429 So.2d 301 (Fla. 1983) 5

STATEMENT OF THE CASE

Respondent accepts the Petitioner's Statement of the Case

with some additions. A copy of the transcript of the complete

suppression hearing is attached as an appendix and page

references are made to it as well as to the record on appeal in

the lower court.

On November 16, 1984, Respondent Long was arrested for the

sexual battery and kidnapping of Lisa McVey. (R 816) (A 2)

Although Long was the primary suspect in the series of murders

which had occurred in the Tampa area, the detectives were

careful not to suggest this fact to him. (R 830)(A 16)

Detective Price testified that the concealment of this fact was

to aid in psychologically preparing Long for the interrogation

about the murders. (R 830)(A 16) The Hillsborough County

Sheriff had personally selected Price to interview Long because

of his skills as an interrogator.(R 831)(A 17)

Price transported Long to the sheriff's department where

ne and Detective Latimer conducted an extensive interrogation

about the McVey case and the series of murders. Long signed a

form waiving his Miranda rights and consenting to be inter-

viewed on the Lisa McVey case. (R 821-822)(A 7-8) The form

designated only the charges of sexual battery and the abduction

of McVey. (R 836-837, 869-870, 2890)(A 22-23, 54-56) Long was

not advised that he was a suspect in the murders. (R 836-837)(A

22-23) Price and Latimer questioned Long for over one and

one-half hours, and Long confessed to the abduction and sexual

battery. (R 836-870)(A 22-56)

After obtaining the McVey case confession, the detectives

changed the subject to the murders and the interrogation

continued, lasting over five hours. (R 837, 871)(A 23, 57)

They did not inform Long of the change in subject. Instead,

they used a series of psychological techniques to prepare Long

emotionally to talk. Price left the room to secure photographs

of five of the homicide victims who were prostitutes. (R

837-839)(A 23-25) Latimer discussed the various types of

physical evidence which can be left at a scene. (R 837-838,

875-876)(A 23-24, 61-62) ‘his was done to suggest to Long that

he may have left such evidence in the murder cases. (R 843,

876)(f 29, 62) Latimer also moved very close to Long which

would have a subtly coercive effect. (R 839)(A 25) Price

returned with photographs, and Long's mood seemed to change. (R

840)(A 26) Latimer asked Long if he ever picked up

prostitutes. (R 840, 872)(A 26, 58) Long said he did when he

lived in Miami. (R 840, 872)(A 26, 58) Latimer then asked

about the Tampa area. (R 841-842, 872)(A 27-28, 58) Long said,

“I'd rather not answer that." (R 841-842, 872)(A 27-28, 58) In

response, Latimer confronted Long about the murders. (R

842-844, 872-873)(A 28-30, 58-59) There was no break in the

interrogation. (R 879)(A 65) Latimer handed Long photographs

of the victims and asked if he hau seen any of them. (R 875)(A

61) Long said he had not seen any of the first four. However,

he lingered on the fifth and said he may have seen her

somewhere. (R 845, 875)(A 31, 61) After seeing the

photographs, Long said,

The complexion of things sure have changed

Since you came back into the room I think

I might need an attorney

(R 846, 877)(A 32, 63) Before Latimer could respond (R 848)(A

34), «rice interjected and said, “Nothing has changed. I am

still being honest with you.” (R 846)(A 32) He also asked

Long, “Why would you need an attorney?” (R 856-857)(A 42-43)

Price admitted that he lied to Long and responded quickly to

prevent Long from having adequate time to think about a lawyer.

(R 847-850)(A 33-36) At the suppression hearing, Price

testified, “Nothing had changed for me. I was pursuing the

interrogation.” (R 847)(A 33)

Detective Price was proud of his skills as an interroga-

tor. He admitted that he and Latimer used ten different

techniques to persuade Long to continue talking. First, after

Long was arrested, he was placed in the patrol car. Price told

him, “I want to thank you for not hurting that little girl.” (R

830-831)(A 16-17) He then left Long alone to think about the

statement. (R 831)(A 17) Second, Price carefully did not let

Long know he was the suspect for the murders. (R 830,

847-848)(A 16, 33-34) Third, Price let Long know that he knew

something about his background by mentioning that he knew Long

was from West Virginia. (R 833-834)(A 19-20) Price said this

was done to start the psychological preparation of Long for the

interrogation about the murders. (R 834)(A 20) Fourth, when

the interrogation about the murders started, Price used the

photographs of the victims for psychological impact. (R 837)(A

23) Fifth, Latimer talked about physical evidence to imply

that Long had left such evidence. (R 838)(A 24) Sixth, the

detectives told Long the investigation was complete when in

fact they did not have a case on him for the murders at that

time. (R 854)(A 40) Seventh, during the interrogation,

Detective Latimer moved close to Long for a psychologically

coercive effect. (R 839-840)(A 25-26) Eighth, when Long said

he did not want to talk because the subject of the interview

changed, Price lied to him and said nothing had changed when in

fact the interrogation had shifted to the murders.

(R 846-847)(A 32-33) Ninth, when Long asked for a lawyer,

Price interrupted with the statement that the investigation nad

not changed and questioned why Long thought he would need a

lawyer. (R 856)(A 42) Price admitted that his purpose was to

prevent Long from thinking about a lawyer and to encourage him

to continue talking. (R 849-850)(A 35-36) Tenth, Price said he

used a lot of flattery on Long, too, in hopes that it would

make him prone to talk about the crimes. (R 850)(A 36)

REASONS FOR DENYING THE WRIT

The petition for writ of certiorari should be denied for

two reasons. First, the Supreme Court of Florida's decision is

not a suitable vehicle ior this Court to resolve the conflict

among the jurisdictions left undecided in Smith v. Illinois,

469 U.S. 91, 96 (1984), on the effect of an ambiguous reference

to counsel during custodial interrogation. Second, Petitioner

is merely seeking another forum to relitigate the factual issue

resolved in Respondent's favor that he did request counsel.

In Smith, this Court identified three approaches various

jurisdictions had fashioned to deal with an ambiguous reference

to counsel during custodial interrogation. One requires the

interrogating officer to treat any reference to counsel as a

request for counsel and to immediately terminate all question-

ing. A second mandates that the reference to counsel must

first meet a threshold of clarity before it is treated as a

request for a lawyer. The third requires the officer to stop

questioning about the offense and to limit his inquiry to

Clarifying the ambiguous reference to counsel. 3169 U.S. at 96,

n. 9. After noting these tnree approaches, Petitioner

suggests that the Florida court has aligned itself with the one

which limits inquiry to clarifying the comment any time an

equivocal reference to counsel is made. (Petition for Writ of

Certiorari at page 16-17) This suggestion is incorrect, and

this case does not clearly present the conflict issue.

The Supreme Court of Florida uses a combination of the

threshold of clarity and limited inquiry approaches. Initial-

ly, the court uses the threshold of clarity approach to deter-

mine if the reference can be construed as a request for coun-

sel. E.g., Norris v. State, 429 So.2d 688 (Fla. 1983)

(defendant's asking officer if he thought he needed a lawyer

not deemed a request for counsel); Donovan v. State, 400 So.2d

1306 (Fla. 1981)(defendant's asking if he could obtain a lawyer

without cost not a request for counsel). Next, if the

ambiguous reference is deemed to be a request for counsel, as

well as 4 desire to continue without counsel, the court permits

@ police officer to make inguiry to clarify without being

guilty of init.ating further interrogation in violation of the

teachings of Edwards v. Arizona 451 U.S. 477 (1961). See,

©:9-- Valle v. State, 474 So.2d 796 (Fla. 1985); Waterhouse

¥. State, 429 So.26 301 (Fla. 1963); Cannady v. State, 427

So.2¢ 723 (Fla. 1983). Were, the Florida court first evaluated

the factual issue of whether Long's statement was 2 request for

counsel and concluded that it met the threshold. Saving

Getermined that a request for counsel was involved, the court

found # violation of Miranda and Edwards. The court noted that

the detectives would not have been faulted had their inguiry

been limited to clarifying the request because it was

equivocal. However, the point of decision was the resolution

of the factual issue of whether Long's comment constituted «

request for counsel. The court has sot clearly aligned itself

with the position that any ambiguous reference to counsel

restricts the officer to questions aimed at clarification of

the comment. As stated in the opinion. the restriction of

questioning to clarification is pertinent wnen the ambiguous -

comment can be interpreted as both a request for counsel and a

Gesire to continue the interview without counsel.

Throughost the petition for writ of certiorari, the

Petitioner talks of Long's “reference to counsel.“ This

Gemonstrates the Petitioner's real desire here is to relitigate

the factual issue of whether Long's statement was « mere

reference to counsel or a request for counsel. The Supreme

Court of Florida decided that question in Long's favor. More

than ample evidence supports that decision. and this Court

should not exercise its certiorari jurisdiction to again decide

facts. Long tried to stop the questions about the homicides

before he asked for a lawyer. When the subject of prostitutes

arose, be said he did not want to talk about it. When the

Getectives continued to press the matter by showing Long

photographs. Long then made his request for counsel.

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ASSISTANT PUBLIC DEFENDER

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CERTIFICATE OF SERVICE

I, WILLIAM C. MCLAIN, a member of the Bar of the

Supreme Court of the United States and counsel of record for

ROBERT JOE LONG, the Respondent, hereby certify that on Ap.il

9°, 1988, pursuant to Supreme Court Rule 28, I served a single

copy of the foregoing Brief in Opposition to Petition for Writ

of Certiorari to the Florida Supreme Court on each of the

parties as follows:

On the State of Florida, the Petitioner, by

depositing said copy in the United States Post Office,

Tallahassee, Florida, with first class postage prepaid,

properly addressed to PEGGY A. QUINCE, Assistant Attorney

General, 1313 Tampa Street, Suite 804, Park Trammell Building,

Tampa, Florida, 33602. /

APPENDIX

ITEM PAGE

Transcript of Motion to Suppress A-1

. ' IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY

3 |Ppoeececoeoueeeecseecesssanoeeeoes

STATE OF FLORIDA, 3

F 4 :

Plaintiff, ;

q BF «| 5 $

i -vVs- g CASE NO. 84-1725CFPAES

6 :

ROBERT JOE LONG, :

7 .

Defendant. : nm

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: e 48

10 PROCEEDINGS: MOTION TO SUPPRESS ee ~s E

" DATE: 17 April 1985 pri *

Commencing at 2:55 p.m. =

< 12 _ a

a BEFORE: HONORABLE RAY E. ULMER, JR. - ~~ ™

+ 13 Circuit Judge

C Sixth Judicial Circuit

2, 14

PLACE: Courtroom 1

15 Pasco County Courthouse

Dade City, Florida

REPORTED BY: PHYLLIS M. DAVIS

, 17 Deputy Official Court

2 Reporter and Notary Public

18 State of Florida at Large

19 APPEARANCES: PHILLIP VAN ALLEN, ESQUIRE

Attorney for the State

= RANDALL C. GRANTHAM, ESQUIRE

2) ROBERT A. NORGARD, ESQUIRE

WILLIAM K. EBLE, ESQUIRE

22 Attorneys for Defendant

23 ALSO PRESENT: Robert Joe Long

24 OFFICIAL COURT REPORTERS

* Room 203 Pasco County Courthouse

25 Dade City, Florida 34297.

“2 a (904) 521-4375 tS. 7 Vee By

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110

that was his motion. Request to proceed to the Motion

to Suppress Statements at this time.

THE COURT: Let's do so.

(Thereupon, the following Proceedings were held

in open court.)

THE COURT: Mr. Van Allen, are you going to be

going forward on this Motion, sir.

MR. VAN ALLEN: Yes, sir, Judge. I'd call

Detective Price. I'll get him.

Thereupon,

ROBERT PRICE,

the witness herein, being first duly sworn, was examined

and testified as follows:

DIRECT EXAMINATION

BY MR. VAN ALLEN:

Q Would you state your name, please.

A Sgt. Price.

Q And how are you employed, sir?

A I'm a supervisor, Tampa Police Department

Homicide Bureau,

Q And how long have you worked for the Tampa Police

Department?

A Approximately 15 years.

Q Did you have occasion on November 16, 1984, to be

present or participate in the arrest of Bobby Joe Long?

ars

A Yes, sir, I did.

2 Let me show you an Exhibit marked for

identification as State's Exhibit B, see if you recognize

that document.

A Yes, sir.

Q Is that the warrant upon which Mr. Long was

arrested on November 16, 1984?

A Yes, sir.

Q If you would just for the benefit of the Court

explain the background. First, where did the arrest take

place?

A The arrest took place on North Dale Mabry in

| Hillsborough County, Tampa, at the Main Street Theater.

Q Okay. Who was present at the time of the arrest

of Bobby Joe Long?

A Well, sir, I was not technically present when he

was physically placed under arrest. I was in an adjacent

parking lot in a car standing by to be advised that he had

been arrested, was under physical control so to speak.

Q Why don't you explain to the Court the method or

scheme that you had all had set up in order to take Mr.

Long into custody.

A Well, sir, as a result of the forming of a task

force on the 14th of November, after warrants such as

search warrants and such were prepared, Lt. Terry from

112

Hillsborough County Sheriff's Office assigned me the

responsiblities of supervising the serving of the search

warrant on the vehicle and the arrest warrant.

Q Okay. And you had taken other officers from

Tampa Police Department, Hillsborough County Sheriff's

Office to the theater. They were positioned at the

theater.

A No, sir. Mr. Long was under surveillance and

being followed. We were monitoring his movement by radio

and moving other additional units into position as a

result.

Q And you actually came into contact with him there

at the theater.

A Yes, sir.

Q When you were advised Mr. Long had been reduced

to custody, what did you do?

A I supervised the impounding of Mr. Long's

vehicle, assigned a detective to Stay with the vehicle

while it was being transported to Hillsborough County

Sheriff's Office for Storage. Also, witnessed the reading

by Detective Cribb of the search warrant to Mr. Long.

Q Okay. Where did the reading of the search

warrant to Mr. Long take place?

A In the parking lot. well, sir, Mr. Long and

Detective Cribb were in the back seat of an unmarked

police car in the parking lot in front of Main Street

Theater.

Q That was the search warrant for the search of the

vehicle?

A Yes, Sir.

Q After that search warrant was read to Mr. Long,

what happened then?

A Well, sir, Mr. Long was transported from the Main

Street Theater to his apartment on East Fowler.

Q And how -- who transported Mr. Long?

A Detective Winsett was driving the icle,

Detective Smith was the passenger in the front seat, I was

in the back seat with Mr. Long.

Q During the period of time from his transfer from

the Main Street Theater to his apartment, was Mr. Long

questioned in any fashion about either the rape of Lisa

McVey or any of the homicides which the task force was

involved in investigating?

A No, Sir, he was not.

Q What happened when you arrived at Mr. Long's

residence?

A Upon arrival at Mr. Long's residence, he was

somewhat concerned about the amount of people at the rear

of the apartment. Estimating there was 15 - 20, probably

more than that. One gentlemen had a camera. He was

114

concerned about the media, and I assured him at that point

that no one here -- no one present was with the media,

that we had gone through a great deal of trouble to see

that they weren't there.

Q Okay. And what happened at Mr. Long's residence?

B After being there a short period, Mr. Long asked

me if it was necessary for him to be there. Prior to that

I advised him that Sheriff Heinrich had requested that he

be present. He said he didn't want to be. I said, "Well,

you don't have to be." He waived his right to be

present.

I advised Lt. Terry who in turn gave me the okay

to go ahead and have Mr. Long transported to the

Hillsborough County Sheriff's Office.

Q Okay. Now, at the -- at Mr. Long's residence,

how long did you stay there?

A I would be estimating. I'd say ten - fifteen

minutes - twenty maybe.

Q And then you left there. And how did you get

from Mr. Long's residence back to Hillsborough County

Sheriff's Office?

A Unmarked vehicle.

Q Same people present, Smith, Winsett and yourself?

A Yes.

Q And what happened when you got to Hillsborough

County Sheriff's Office?

A Went upstairs to the Detective Division to the

interview room and stood by and waited on Sgt. Latimer.

Q Okay. And who was -- the four of you still, Mr.

Long, yourself and Winsett and Smith?

A Yes, sir, until shortly after we got upstairs.

I'm not certain as to who stayed with him, but I left the

room for probably three - four - five minutes. I'm

certain that either Detective Winsett or Smith stood by

with Mr. Long and removed the handcuffs.

Q How long did you have to wait for Sgt. Latimer?

A Again estimating, probably not more than five to

ten minutes at the maximum.

Q And what happened upon Sgt. Latimer's arrival at

the Hillsborough County Sheriff's Office?

A Mr. -- Sgt. Latimer and myself had maybe a minute

to two minutes outside the door to agree upon some type of

strategy in regards to interviewing Mr. Long in reference

to this offense. We entered the room, had a Miranda

warning form provided by the Tampa Police Department,

standard form, which I in fact read to Mr. Long in its

entirety.

Q I show you an Exhibit marked for Identification

as State's Exhibit C, and ask if you recognize that

document?

116

A Yes, sir.

Q Is that the document that you read to Mr. Long or

is that a copy of the document?

A That is a copy, sir.

Q Does it appear to be an exact copy of the

document?

A Yes, sir, it does.

Q All right. And you read the entire document as

it's written to Mr. Long.

A Yes, sir.

Q After you read it to Mr. Long, what happened

then?

A I asked Mr. Long to read it himself and sign it.

Q All right. And did you hand it to Mr. Long?

A Yes, sir. -

Q All right. Did he look at it?

A Yes, sir.

Q Did he appear to read it?

A Yes, sir.

Q And did he sign it?

A Yes, sir, he did.

Q Who else signed that document?

A Myself as a witness and Sgt. Latimer.

Q And does that copy of the document appear to be

in substantially the same condition it was in at the time

LS]

you obtained it from Mr. Long?

bh Yes, sir.

MR. VAN ALLEN: At this time I move to introduce

that as -- State's Exhibit C as State's Exhibit 2.

THE COURT: Any objection.

MR. GRANTHAM: No objection.

THE COURT: It will be received.

MR. VAN ALLEN:

Q By this point you had been in contact with Mr.

Long for what, approximately an hour?

A Yes, sir.

Q Little less - little more?

A Probably a little more.

Q Okay. Did it appear to you during that period of

contact that you had with Mr. Long that he was under the

influence of an alcoholic beverage?

A No, sir.

Q Did it appear to you that he was under the

influence of a narcotic?

A No, sir.

Q During that period of time, up until -- up to and

including the time when you read the Consent to Interview

form to Mr. Long, had he ever asked you to talk to a

lawyer?

A No, sir.

118

_—

Q As a matter of fact, had you questioned him at

2 |} all?

3 B No, sir.

ad Q Had he ever given you any indication that he

> || didn’t want to talk to you?

e ia No, sir.

? Q Following your obtaining this signed Consent to

* | Interview, you did talk to Mr. Long for some period of

|) time.

0 A Yes, sir.

he Q During those conversations with Mr. Long, did --

'? || Gig he ever tell you that he didn't want to talk to you

‘3 |) any more?

t4 A No, sir.

's Q Did he ever unequivocably say, “I will not telk

‘@ || to you or deal with you without a lawyer*?

” B No, sir.

id Q Did Mr. Long ever indicate to you that he wanted

"9 to stop talking at any point?

20 B No, sir.

2 Q During the period of time that you were with mr.

22 || Long that evening and into the morning, where was Mr.

23 || Long? In the interview roon?

24 n Yes, sir.

2s Q What size room are we talking about?

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A No, sir.

MR. GRANTHAM: Yes, Your Honor.

CROSS-EXAMINATION

BY MR. GRANTHAM:

Mr. Long?

A Yes.

rights?

A No, sir.

A Pardon me?

at that time? .

A At the time of the search warrant?

Yes, sir.

I have no idea.

Or the arrest warrant.

> Oo F OD

I have no idea.

represent your department.

MR. VAN ALLEN: That's all I have, Judge.

THE COURT: Cross-examination, Mr. Grantham?

Q Did you hear Detective Cribb read the warrant to

Q Did you hear him read Mr. Long his Miranda

Q Is it your position they weren't read at that

Q Is it your position that he was not read Miranda

Q You say Lt. Terry had appointed you as the one to

Wat

121

122

A Yes, sir.

Q You weren't hand-picked by Sheriff Heinrich? |

A Sir, we're talking about two different

Situations. You're referring to --

Q I'm referring to your duties as to the

interrogation.

A That was by Sheriff Heinrich.

Q Excuse me, sir. That was by Sheriff Heinrich.

Excuse me, sir.

You had interviewed Lisa McVey.

A Yes, sir, I was involved in an interview

conducted -- |

Q You were present in the interview?

A Yes, sir.

Q Was Sgt. Latimer?

A Sir, I believe so but I'm not positive at this

moment. I'm really not. I believe he was.

Q Miss McVey's description and stutf she told you

was pretty general.

A Yes, sir.

Q In fact, you didn't -- you thought it sounded

like a fairy tale when Miss McVey started telling you

that.

A Not when she told me about it; when I heard about

it. The initial offense when it was brought to my

ARTY

attention seemed somewhat like a,

fairy tale, yes, sir.

Okay.

Detective Wolfe

Detective Wolfe and Helms at that time were assigne

as I said earlier,

presently works for me.

Detective Helms and Wolfe work with you?

the task force, but they worked for Sgt. Pennington in

sexual assault squad.

Q At that time were they assigned to the task

force?

A At the same time everyone else was, 14th of

November.

Q You became aware that they had occasion to sto

Mr. Long --

A Yes, sir.

Q -- the 15th.

In fact, they called you by phone or radio.

A By radio.

Q Did you tell them to stall as long as possible?

A Until I could find out what the situation was.

When they contacted me,

description of the vehic

they felt very good about the

le and Mr. Long.

Q You told them to stall there as long as

A What I told them initially was there was not

lot we could do about it, to let Mr. Long go.

Q Okay. When you -- you rode in the same car

A-\s

possible?

°o

Mr. Long from the theater to Mr. Long's house.

A Yes, sir.

Q Did you tell Mr. Long that you were in charge of

that investigation?

A Yes, sir.

Q That wasn't true; was it?

A No, Sir.

Q You told Mr. Long that you were not going to talk

about the case until you got downtown; correct?

A Yes.

Q Okay. What case was that?

A That was the abduction/kidnapping/involuntary

sexual battery of Lisa McVey or Rhodes.

Q There was no mention at this time of murder

cases.

A No, sir.

Q In fact, that was purposeful, you did not want to

mention that.

A No, sir. Yes, sir, it was purposeful.

Q Now, after telling Mr. Long that you weren't

going to talk about this until you got downtown, --

A Yes, sir.

Q -- you had Mr. Long sitting in the back seat of

the police car. As you got out leaving Mr. Long in there

by himself, you said something to the effect of, “I want

to thank you for not hurting that little girl.

A That's exactly what I said.

Q And you left him in there to think about ts

correct?

x Yes

Q That was for the psychological affect you w

hoping it would have on hin.

A Yes, Sir.

Q That's also why you left him alone in the c

for the psychological affect

A Yes, Sir.

Q You've had extensive training and on-the-jo

experience in interrogating people.

A Yes, sir, I would assume.

Q Seminars - classes =- training.

A Yes, sir.

Q Approximately how many people have you

interrogated in your 15 years with Tampa Police

Department? Over a thousand?

A Sir, it would be very difficult to say, but

very large number, yes, sir.

Q Pretty good at it?

Mh That would be a matter of opinion.

Q Okay. Sheriff Heinrich hand-picked you to

represent the whole Tampa Police Department.

A Yes.

Q And he hand-picked Sgt. Latimer to represent the

whole Sheriff's Office; didn't he?

A Yes, sir.

Q Did you hear the search warrant being read to Mr.

Long?

x Not word for word, sir. I would have to say I

;

heard the search warrant being read, but not from the

first line to the last line, no, Sir.

Q Are you familiar with the search warrant?

A Not very.

MR. VAN ALLEN: Objection until we find out which

one. There were 59 search warrants in this case.

MR. GRANTHAM: The one that was read to him at

that time. I believe there was only one,

BY MR. GRANTHAM:

Q The search warrant that you were discussing

earlier that you had heard,

MR. VAN ALLEN: Talking about the one of the car

or the one of the house?

MR. GRANTHAM: The car.

MR.VAN ALLEN: You can talk about the one on the

car.

MR. GRANTHAM: Thank you.

BY MR. GRANTHAM:

FA?

126

apartment,

Virginia”

Yes, Sir.

When you were

I asked him.

Didn't you say

Yes.

Basically you

of his background.

Virginia.

"Where ar

I asked him if

e you from?”

you told hin

in the car with M

that he was fron

» "I understand you

were telling him y

he'd ever be

asking you is:

Wes

~“

| interrogated, feeling him out, see if he was going to talk

128

West Virginia," or something along that line.

A IT told him -- I asked him, "zr understand you're

from West Virginia."

Q Right.

A Okay.

Q Okay. Is it true by telling a suspect that

you're interrogating a little bit about. their background,

it builds your status in their eyes, maikes them think

you're more of an authority figure, more all knowing?

A Not under those circumstances iI wouldn't say.- I

was not interrogating Mr. Long when I made that statement.

Q Weren't you shall we say preparcing him to be

to -- seeing if he was going to talk, beest way to talk to

Mr. Long?

A I would agree with that.

Q You're saying the fact -- are you saying the fact

that you -- you said, "1 understand you'ire from West

Virginia,” as opposed to saying, "Where are you from?"

that had no tactical or strategic signifiicance?

a Not to me at the time, no, sir.

Q But you do agree it's an interrogation technique

that you should appear to know a lot about your subject

and let him know you know it.

A Yes, sir.

A+20

1] Q You told Mr. Long that you had gone to a lot of

2 || trouble to avoid having the press there; was that true?

3 | A To a degree. Not as much as I had expressed it.

4 Q You told Mr. Long you thought the press were

5 snakes; didn't you?

6 Bq Yes, Sir.

? Q Was that true?

é A No, Sir.

9 Q When you got into the interview room, you Say you

° had Mr. Long sign this Consent to Interview.

A Yes, sir.

2 Q Okay [here are a couple blanks up on top

Who filled in those blanks, sir?

15 B, I did, sir.

On the first blank you've written in Mr. Long's

name, Bobby Joe Long.

18 A Yes, sir.

Q On the second blank you've written in your name

Oj} and Sgt. Latimer's name; correct?

A Yes, sir.

2 Q And then it says, "Concerning the offense of

- « -” Blank, and there is what he had consented to be

24 interviewed on.

130

Q What's it say?

A Involuntary sexual battery or the abbreviation --

or the abbreviation for involuntary sexual battery and

abduction.

Q Doesn't say anything about any murders there;

does it?

A No, sir, it does not.

Q Again, that was done purposely, omitting any

reference to the murders: at that time.

A Yes, sir.

Q You did all or the vast majority of the

questioning on the McVey case; didn't you?

A Yes, sir.

Q Okay. That went on for an hour - hour and a

half.

A Approximately.

Q Basically during that time, there was really

nothing but the McVey case discussed.

A Yes, sir.

Q He was cooperative with you at that time.

A Very much so.

Q He never mentioned anything about an attorney.

A No, sir. .

Q Never mentioned anything about not wanting to

talk about any specific area except for I think the sex

f-22

act; is that correct?

A With Lisa McVey.

Q Yes, sir.

A Yes, sir. Correct.

Q At that point after you had gotten pretty much

} all you could or all you needed or all you wanted about

the McVey case, you felt it was time to start talking to

him about the murder cases.

A Yes, sir.

Q You went out of the room to get a prop.

A Yes, sir.

Q And what was the purpose of the prop?

A Just an -- it's a method or technique utilizes

always, if at all possible, if you can have some type of

article that the subject is familiar with, and you walk in

the room, it definitely has a psychological affect.

Q Since you really have no feelings about the press

one way or the other, the fact that you told him you

thought they were snakes, was that also designed for the

psychological affect on Mr. Long?

A Yes, sir.

Q Now, I believe you left the room to go get the

prop or look for a prop of some sort.

2 Yes, sir.

Q Did Sgt. Latimer start talking to Mr. Long when

A-23

you got up to leave?

A He was talking to him when I left.

Q Okay. What was he talking about, sir?

A They were discussing physical evidence.

Q Such as blood, fiber, semen, hair, fingerprints,

things like that?

a Yes.

| Q Was he saying anything specific about them or

| just saying you know what fingerprints are, you know what

| tire prints are?

A Yes, sir, that type of thing.

Q He was still talking about that when you got back

in there?

A Yes, sir.

Q At this point, still no mention of murders;

correct?

A No, sir.

Q What prop did you find?

B I was provided five Polaroid photographs of five

victims.

Q These were press release photos?

AK Yes, sir.

Q Photos that had very likely been printed in the

newspaper along with the story about these incidents.

A I couldn't say one way or the other whether any

Az24

132

Yes, sir.

134

Okay. Now, when you handed them to Sgt. Latimer,

did Mr. Long get a chance to see them or at least the top

one when you were handing them to Sgt. Latimer?

Didn't

A I would assume, yes.

Q You noticed visible consternation on Long's face

at the point you handed the photographs to Mr. -- Sgt.

Latimer.

A Yes, sir.

Q It was a start?

A Nothing radical, but there was a change in mood.

Q At that point, Sgt. Latimer has the photographs;

correct?

A Yes, sir.

Q He's sitting a foot to a foot and a half from

Bobby Joe Long.

A Yes, sir.

Q He asked Mr. Long if he'd ever picked up any

prostitutes.

A Yes, sir, he did.

Q Mr. Long's response was Miami.

A "In the Miami area," I believe he said.

Q Sgt. Latimer said, “How about in Tampa?"

he?

A Yes, sir.

that.*

BY No, sir

Q "= t want AnSwe that*

A “3 prete not t anéwer that,”* tr xk he nid

0 "Tl we , ete not ¢t answe that.” I that ¢t

the best of your rec ect what he said

A Yes, sir

Q Now, most of these -- this series of homicide:

you were investigating known as the prostitutes murders or

erseuU’ i

Q Several of the girls had prostitution

backgrounds.

he Sir, the nine homicides that were committed, one

body was left in the City of Tampa. Sgt. Latimer can

answer much better in regards to the personal background

on the individual girls.

Q You're saying you don't have any personal

knowledge?

A Yes, sir, I know for a fact that -- say I can go

as far to say maybe three, you know, that I was positive

of or sure of that had been either loose or background

involving prostitution.

Q You said you remember hir saying, “I prefer not

A-27

to answer that." Is that the same as, "I'd rather not

< answer that"?

A Yes, sir, I'd say it would be the same.

. Q I was just referring to this supplement report.

You're a co-author of this; is that correct?

? Q You basically adopt and agree with everything

8 || contained in this seven-page supplement.

9 A Yes, sir.

Q And if in the supplement it indicates he saia

he'd rather not answer that question, it's more -- more

than likely what was said rather than 1 would prefer,

( 13 A Rather not - prefer, I would assume.

14 Q You don't have any eye witnesses to these

|| murders; do you?

A No, sir.

Q About all you had was some physical evidence;

a correct?

19 A Yes, sir.

2 | Q Some fibers?

|| A Pardon?

22 || Q Fibers. Some fibers.

23 | A Yes, sir.

Q Some tire prints.

Yes, sir, impressions.

137

Q Was -- although you can't speak for Sgt. Latimer,

was Sgt. Latimer's purpose in bringing up the physical

evidence a lead into the murders?

i Most definitely, yes, sir.

Q How about the prostitute question, was that also

a lead in into the murders?

A Yes, sir.

Q So at this point the interview is shifting from

McVey to the murder cases; correct?

A Yes, sir.

Q At the point that Sgt. Latimer mentioned

prostitutes in Tampa, Mr. Long got pretty upset; didn't

he? Uneasy?

A No, sir, I wouldn't say upset. There was an

obvious change in mood. Not upset.

Q Uneasy?

A To a degree, yes, sir.

Q At that point, he had seen the photographs, or at

least one of them.

A Okay.

Q You'd been talking about physical evidence and

prostitutes in Tampa, basically decided it was now or

never, and go into the murders.

A Yes, sir.

Q What happened at that point?

Ar24

oa Sgt. Latimer started to confront him about the

murders.

Q Let me make sure I understand the chain of

events. You've talked about McVey until it’s talked out.

You leave the room and Latimer starts up on the physical

evidence. You leave the room. Come back in the room,

Latimer is still talking about physical evidence.

n Yes.

Q You have the photographs in your hands.

K Yes.

Q You hand them to Latimer and Mr. Long probably

sees them, there was some change in his attitude or

demeanor.

a Yes.

Q And then at that point Sgt. Latimer mentioned

prostitutes in Tampa to which he says, “I'd rather not

answer that question.”

Yes, sir.

Is that all correct up to that point?

Yes, sir.

olU[€;PwmlUC<CiOUCUPF

And at that time, immediately after saying that,

Sgt. Latimer begins handing him these photographs, and

says, “Ever see this one? Ever see this one?”

A Yes, sir.

Q Did he not answer or deny it or what?

138

A-30

139

A He denied four of the photographs. He seemed to

linger on the last one longer than the rest, then made a

comment reference to he thought he'd maybe seen her around

before or someone similar. And then more or less just

unsure, totally unsure. No. Bottom line was, "No, I

don't really know any of these people."

Q These were photographs of the murder victims.

A Yes, sir.

Q Obviously he would be attempting to talk about

the murders.

A Yes, sir.

Q Mr. Long at this point have to go to the

restroom?

A No, sir.

Q Sir, do you have your supplement with you?

A Yes, sir, I do.

Q Perhaps you could refer to Page 3, see if that

refreshes your recollection. This isn't exactly a

deposition, although it is a statement adopted.

A All right.

Q Right beneath the first paragraph, beneath the --

"Long at this time requested to use the restroom."

A Yes, sir. I -- we've talked about this before.

I still hold my position in fact that there he did not

ask, Mr. Long, to get up and go to the restroom, no, Sir.

140

Q You can put your report away, sir.

A We did not.

Q You're saying you would not have allowed him to

use the restroom at that point because you were ready --

getting ready to pop the big question, so to speak.

A We allowed Mr. Long to use the restroom after he

had admitted to the homicides.

Q Okay. After Mr. Long said he'd rather not answer

the question about Tampa prostitutes, after you showed him

pictures of some prostitutes in Tampa, some maybe not

prostitutes in Tampa, do you recall at that point Mr. Long

saying "I think I might need an attorney"?

A Yes, sir.

Q Were those his exact words the best you recall?

A No, they weren't his exact words. Best of my

recollection his exact words -- he looked at myself, made

the statement, “The complexion of things sure have changed

since you came back into the room."

Q And?

A And he continued by saying, "I think I might need

an attorney.”

Q Complexion of things have changed, hadn't they?

A Yes, sir.

Q You told him they haven't?

I said, "Nothing has changed. I'm still being

A-32

honest with you."

Q Were you -- were you being honest with him in

fact?

A Nothing had changed for me. I was pursuing the

interrogation.

Q The interview hadn't changed. The fact that

you'd gone from a sexual battery/kidnapping to a string of

nine murders, that wasn't a change in the interview.

A Yes, sir, that's a change in the interview.

Q You told him nothing had changed. After he said,

"I think I might need an attorney."

A That's true.

Q Did you attempt to clarify that?

A Yes, sir. I told Mr. Long that not to try and

fool himself or me, that he knew upon his arrest at the

Main Street Theater that the interview being conducted in

regards to Lisa McVey would eventually turn into the

investigation of the homicides of the nine women.

Q And yet you'd made every effort to not let him

know that; isn't that true?

A Very true.

Q And still you told him that you were being honest

with him and that nothing had changed at that point.

A Nothing had changed as far as my honesty in

regards to what I was telling him.

Q Would it be fair to say your honesty or your lack

of honesty with Mr. Long, for instance, you said you were

involved in the press not being there, that wasn't true,

you thought the press were snakes, that wasn't true, you

were in charge of the investigation, that wasn't true, in

addition to other statements; correct?

A Yes, sir.

Q In fact, you told him you were not going to lie

to him. In fact, you had been lying to him; correct?

A Yes, sir.

Q Now, sir, when he made this statement, "I think I

|| might need an attorney," this was a response to something

Sgt. Latimer was saying or doing; right?

A Yes, sir, showing the photographs.

Q And before Sgt. Latimer could respond, you jumped

in and said "nothing's changed"; correct?

A Yes, sir.

Q You felt you had built up a rapport over the hour

and a half - two hour period.

A Yes, sir.

Q And you did that so he wouldn't have a chance to

think about what he'd just said about the attorney.

A Not necessarily.

Q Do you recall giving a deposition March 22 before

myself, prosecutor, Court Reporter? Page 94.

142

143

MR. VAN ALLEN: Objection, Judge. I don't know

2 | -- has the Court been provided copies of the

| depositions? I know I haven't.

| THE COURT: I don't know.

5 MR. GRANTHAM: He's read them; they have been

ry ia About an hour before we were allowed to come in

e | here.

THE COURT: Mr. Van Allen, do you want take a

10 look at the court file?

(Pause. )

V2 BY MR. GRANTHAM:

( 13 Q At Page 94, in the middle of your answer you're

14 | talking about what -- where he says,

15 | - « «'I think I might need an attorney. I

16 | said, Nothing's changed. We're still being

17 | honest. Now, you know that when we brought

18 || you down to talk to you about Lisa we would

19 | eventually confront you with these murders.'

20 || Question: And at that point he shook his

21 | head and --

22 Answer: Sgt. Latimer continued. Sir, in

23 all honesty, you don't -- the method is you

24 don't give them a great deal of time to

25 think about it...

| \-3s

144

¢ } Is that true?

2 A Yes, sir.

| Q Was that your intention when he spoke up and made

|| the attorney statement? |

|| A If it wasn't, it should have been. |

6 | Q It was your intention to prevent him thinking

about an attorney.

}

8 || A Yes, sir. Not prevent him from thinking about an |

97 attorney.

aa| Q Thinking about exercising his right to an |

| attorney?

42 2 No, sir.

re 5 Q Prevent him from thinking about what, sir?

14 || A Anything. I'm controlling the conversation. |

15 || Q You want to prevent him from thinking?

16 A No, sir, not necessarily thinking. I don't think |

'7 || I could prevent Mr. Long from thinking.

18 Q Throughout this questioning, you used a lot of |

19 || flattery on Mr. Long; didn't you? You're a good looking

20 !| guy, intelligent guy, that kind of thing.

21 A To a degree, yes, sir.

22 || Q Is it your position that you told him at the

23 || beginning, the very first McVey statement, you told him,

24 || we could do this one of three ways, tape record it, you

25 || can say it or you can write it down?

A-3l

A Yes, sir.

2 | Q Was Sgt. Latimer there when you say that, sir?

3 || A I'm not positive.

‘ || Q Okay. If you told him those three options after

° he made the first very brief admission to the McVey case,

an | would Sgt. Latimer have been there? In other words, did

7 || you talk to Mr. Long at any time about the McVey case

8 || without Sgt. Latimer being there?

9 A Discussing details, no, sir. There were probably

10 remarks there made here and there. For instance, when h

came out of the bathroom, he would make a remark h

Ie fact, he asked several times about Carol who he called her

r4 13 || who in turn was Lisa. Those situations.

14 Q I'm talking about at the very beginning, sir.

'5 || Did you begin talking to Mr. Long about the McVey case,

16 did he make any type of statement about the McVey case at

'7 || the very beginning before Sgt. Latimer arrived?

18 || A Not to my knowledge. I don't recall. No, sir, I

19 || don't.

20 ] Q And do you recall when you gave him these three

21 || options? Was that into the statement on McVey?

22 A Yes, sir, I assume it would be in that very early

23 statement because we're fixing to start the interview. I

24 || prefer to tape; Bobby preferred not to.

25 Q Do you know -- do you have any idea whether Sg

| 3"

146

C | Latimer was there when you discussed those three options?

ia No, sir, I don't have any idea.

Q When Mr. Long sa.d, “I think 1 might need an

“|| attorney,” you jumped in, didn't even give Latimer a

chance to respond; did you?

¢ B Yes, sir.

? Q Yes, sir, you're agreeing with your statement?

& p I agree with your statement.

9 Q Now, when those photographs were brought in, the

Situation was fixing to change.

A Yes, sir.

Q And Mr. Long saw that even before you began

( 3 || talking to him about the photographs.

‘ BR That would be an assumption on my part, but I

'S || would say yes.

'e Q Pick up on -- you've been trained in body

'? || language and such at seminars.

18 | B Yeah.

19 | Q You picked up that he was kind of turning you

20 | off, arms crossed, Sitting up, backed away from you.

2 A Yes.

22 Q When you say the Questioning was based on

73 || honesty, that's what you wanted mr. Long to believe.

a4 || That's not reality; is it?

25 A Yes, sir.

r 4 y take - - ‘se - - - > -_ - ~ ™

. i you ] 3 , | :

this statement

a NO, Sif

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A There were two female deputie I believe ina

c m maybe down the hal] But not direct Sut r -

sir

= © Did you oc out a 7 talk ¢t the he ef

A-34

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149

immaterial.

MR. GRANTHAM: It goes directly to coercion,

involuntariness and freedom to exercise rights, what

was told to Mr. Long.

THE COURT: Anything further?

Objection overruled.

BY MR. GRANTHAM:

Q You agree that -- your evidence that you had,

iad

fibers and tire prints; correct? <-- and that's abou

as far as you knew at that time.

A My personal knowledge?

Q Yes, sir.

8 I would say yes.

Q So when you told Mr. Long that you had your case

] made, that wasn't true; was it?

MR. VAN ALLEN: Same objection.

A No, sir.

THE COURT: I understand. Be the same ruling.

BY MR. GRANTHAM:

Q Pardon me, sir.

4 No, sir.

Q When you were at Mr. Long's apartment, when you

were trying to I guess basically feel him out, see whether

or not he was going to talk -- you can usually tell when

somebody is going talk within five or ten minutes of

-4\

150

C ! contact.

2 A Yes, sir.

3 | Q Pardon me?

4 A Most of the time, yes, sir.

5 Q At that point after spending five or ten minutes

with Mr. Long, you felt he was going to talk to you about

McVey; right?

8 A Yes.

Q Sir, when Mr. Long made the statement, "I think I

might need an attorney," did you consider that a request

—

"| || for an attorney?

il A No, sir.

re '3 || Q You thought it was like, hey, it's a nice day

we're having today? What did you feel he was saying?

15 | MR. VAN ALLEN: Objection. That's immaterial.

| THE COURT: Sustained. I think that's going a

7 | little far afield, Mr. Grantham.

18 | You can reframe your question.

19 MR. GRANTHAM: Thank you, Your Honor.

20 || BY MR. GRANTHAM:

21 || Q When he said that, did you say, "Why would you

need an attorney"?

23 | MR. VAN ALLEN: Objection, Judge.

24 | MR. GRANTHAM: What --

25 || MR. VAN ALLEN: I've got a feeling Mr. Grantham's

going to get into something that's contained in the

2 || deposition that obviously Mr. Grantham sees notes made

3 by this witness. He claims he never said that. I

4 || object. I've checked, I've found nobody else that

Says that witness made the statement, “Why would you

¢ need an attorney?" Mr. -- rather, Detective Price has

indicated that there was a mistake in the deposition

8 a mistake that belongs -- an error made by the Court

9 Reporter.

And if that's what Mr. Grantham wants to get to,

then I suggest we need to have something a little more

definite than the Court Reporter's-- or the

( transcript of deposition to get this to it wit

‘ Do you understand what I'm trying to say?

1s THE COURT: Yes, sir, I understand what you're

16 | saying.

He can ask the witness the question, see what the

18 response is.

19 | MR. VAN ALLEN: Very well

2 BY MR. GRANTHAM:

2 Q Did you say that, sir?

22 A No, Sir, I did not.

Q Again referring to the deposition that you gave

4 --

é: MR. VAN ALLEN: Objection, Judas

THE COURT: Okay. I assume that there is an

indication contrary in the deposition.

MR. GRANTHAM: Yes, Your Honor. Very clear. I

believe Mr. Van Allen spoke or somebody spoke to the

Court Reporter; she recalls it. If Mr. VanAllen spoke

to people that were there, I don't know.

MR. VAN ALLEN: What I'm suggesting to you is

that the detective has reviewed the deposition and

indicated that in his recollection the Court Reporter

is wrong, and Mr. Grantham knows that going into this

cross-examination, and he's going try and use

impeachment which is not proper impeachment. Even the

witness says -- he knows now the witness is saying he

never said it.

MR. GRANTHAM: Your Honor, he would be allowed to

say that. This isn't a typographical error.

MR. VAN ALLEN: You're right.

MR. GRANTHAM: It's in the deposition. Is he

accusing the Court Reporter of fabrication? If he

denies it, says that's in by error -- I have an

indication he said that.

MR. VAN ALLEN: I'm not saying it's

typographical; I'm saying it's a flat mistake, it

was never said.

THE COURT: Well, --

A=44

MR. EBLE: I think that goes to credibility.

THE COURT: Just what is your role in this, sir?

MR. EBLE: Your Honor, I'll sit back.

THE COURT: Please do.

Go ahead and ask your question, Mr. Grantham and

we'll see what the gentleman answers. He's already

made an answer, and apparently we've not an indication

by the witness that the Court Reporter is in error.

There are ways under the evidentiary rules to handle

that, and I just invite your attention to that.

BY MR. GRANTHAM:

Q Do you remember giving a deposition on March 2 of

| 1985?

A Yes, sir, I do.

Cc Okay. Do you recall making this statement,

He said, ‘I think I might need an attorney."

I said, ‘Why would you need an attorney?'

Do you recall that answer?

A No, sir.

Q Are you saying you never made that statement at

deposition?

A No, sir, I never made that statement during that

deposition.

Q Are you saying you didn't make that statement at

-- where Mr. Long was being questioned?

A-4s

154

A Absolutely not.

MR. GRANTHAM: I don't believe I have anything

further. Ls

MP. VAN ALLEN: Move to strike the last exchange

from the Record. Mr. Grantham has the burden to go

forward and show this witness did in fact make that

statement. He's trying to impeach and he's doing it

improperly. There are ways under the Evidence Code to

take care of this, and if he's not going to do it, I

Suggest you strike it from the Record or -- move that

you strike it from the Record.

THE COURT: Care to speak to that, Mr. Grantham?

MR. GRANTHAM: Your Honor, we could call the

Court Reporter as a witness, have her review her

notes.

THE COURT: I'm going to deny the motion for

purposes of this hearing only. It is something we'll

have to approach if and when we get to a point that it

would be a further part of these proceedings.

MR. VAN ALLEN: Yes, sir.

THE COURT: And I put counsel on notice we'll

need to be prepared to go forward at that time if we

get to that point.

MR. GRANTHAM: Okay, Your Honor. I will also

tell the Court that the Courc Reporter does recall the

| Ao

155

statement being made.

THE COURT: Thank you.

Mr. Van Allen, do you have questions of this

witness, sir?

MR. VAN ALLEN: No, Sir.

THE COURT: May the officer be excused?

MR. VAN ALLEN: I'd ask that he remain.

THE COURT: If you'd return to.the witness room,

please, sir.

Further witnesses, Mr. Van Allen.

MR. VAN ALLEN: Yes, Sir. Sgt. Latimer.

|| Thereupon,

RANDALL LATIMER,

the witness herein, being first duly sworn, was examined |

and testified as follows:

DIRECT EXAMINATION |

BY MR. VAN ALLEN:

Q Would you state your name, please.

A Randall Latimer.

Q You're employed as a detective with the

Hillsborough County Sheriff's Office.

A Yes, I am.

Q And how long have you worked for the Hillsborough

| County Sheriff's Office?

A Thirteen years,

C 1 Q And were you so employed on November 16, 1984? |

2 A Yes, I was.

3 Q Were you present at the time on November 16,

4 || 1984, when Bobby Joe Long, Robert Joe Long, was arrested

5 || in Hillsborough County?

6 A I wasn't present when he was arrested.

| Q Do you know when he was arrested?

8 | A Yes.

9 | Q Where were you at at the time?

10 || A I was in my office.

| Q Why were you in your office? What were you

'2 || doing?

re 13 |] A Catching up on paperwork.

14 Q When did you, if ever, come in contact with him?

15 A I came into contact with him at his apartment on

‘6 || East Fowler Avenue.

7 Q Why did you happen to be there?

18 A I was out there waiting for him to come to the

'9 || scene where they were going to execute a search warrant on

20 || his apartment.

21 Q How long did you remain at the apartment with Mr.

22 || Long?

23 A About ten or fifteen minutes.

24 Q After your stay at the apartment, where did you

25 ?

| go?

A |

24 ||

A Back to the Sheriff's Office.

Q And did you come in contact with Mr. Long at the

Sheriff's Office?

A Yes, Sir, I did.

Q Who was present when you came in there, Sergeant?

A Robert Joe Long, Sgt. Price, Tampa Police

Department.

Q Where did that take place?

A Interview room, Sheriff's Office.

Q When you came -- what was the purpose of your

being? There why were you with Mr. Long and Bob Price?

A To conduct an interview with him.

Q What was -- what were you going to talk to him

about? What was your intention?

A We were going to talk about the arrest warrant

that had just been issued on him and executed on him.

Q Okay. Was Mr. Long advised of his Constitutional

rights at that time?

A Yes, he was.

Q Show you an Exhibit marked as -- marked in

evidence as State's Exhibit Number 2. Do you recognize

this document?

A Yes, sir, that's a copy of the form that we used,

myself and Sgt. Price, to advise Bob -- Mr. Long of his

Constitutional rights.

157

158

Was that document read to him in its entirety?

Yes.

Mr. Long read it himself?

r OD YF 0

It was handed to him, he was instructed to read

it.

Q Did he subsequently read and sign it?

A Yes, sir.

Q You and Price likewise signed it.

A Yes, sir.

Q Did it appear to you at the time you came into

contact with him that he was under the influence of an

alcoholic beverage?

A No, sir.

Or narcotic?

No, Sir.

And did you in fact interview Mr. Long?

Yes, I did.

How long did that interview take?

r OD Fr OD FY YD

Approximately five hours.

Q During the period of time of the interview, you,

I assume, asked questions of Mr. Long and Mr. Long

answered your questions.

A Yes, sir.

Q Were his answers coherent, make sense in light of

the questions that you were asking him?

A Yes, sir.

Q Was Mr. Long promised anything in order to get

him to talk, offered a reward or told things would be

better for him or if he cooperated, anything like that?

rN No, Sir.

Q Was he threatened in any manner?

A No, Sir.

Q During the period of time that you were with Mr.

| Long during the interview, did he at any time indicate to

you that he didn't want to talk to you any more?

A No, Sir.

Q He wanted to stop talking to you?

A No, Sir.

Q Was he offered cigarettes during the interview?

A Yes, sir. He said he didn't smoke.

Q Food - drink?

A Yes, sir.

Q Did -- at any time during the course of the

interview, did he make an unequivocal statement to the

effect, "I want a lawyer," or "I won't deal with the

| police without a lawyer" or anything like that?

A No, sir.

Q Since November the 15th and 16th, 1984, have you

received any written correspondence from Mr. Long?

A Yes, I have.

159

Q And do you recognize the handwriting of that

document?

MR. GRANTHAM: Objection, Your Honor. No

predicate laid whether he's a handwriting expert, has

any expertise.

THE COURT: Mr. Van Allen.

MR. VAN ALLEN: Cite the Court to several cases.

Branch v. State, 118 So. Page 18, another case,

Pitman v. State, 41 So. 385, Thalheim (phonetic)

versus the State, 20 So. 930, all of them indicating a

person who is familiar with the handwriting of an

alleged writer or questioned document may sive opinion

testimony with respect thereto although they are not

experts in the field of handwriting analysis.

MR. GRANTHAM: Your Honor, I point out those

cases are extremely old. Since that time, the

expertise and training and status of the law in that

area have come a long way. If he intends to prove

that was in fact the writing of Mr. Long, I just don't

think he's qualified.

THE COURT: Do you have cases?

MR. GRANTHAM: Not offhand. I saw no handwriting

experts or the person that got that letter -- honestly

caught off guard. I just don't feel the predicate'’s

been laid.

161

\-53

162

THE COURT: Objection be overruled.

MR. VAN ALLEN: Thank you.

| BY MR. VAN ALLEN:

Q Do you recognize the handwriting in this letter?

A Yes, sir.

Q Who do you believe that handwriting to be?

m Mr. Long's.

MR. VAN ALLEN: Your Honor, at this time I move

lr to introduce the letter as State’s Exhibit Number 3.

THE COURT: Any objection other than previously

noted, Mr. Grantham?

MR. GRANTHAM: Not other than previously noted.

I would just strenuously object on those grounds.

THE COURT: All right, sir. Be the same ruling.

MR. VAN ALLEN: That's all the questions I have

of Sgt. Latimer.

THE COURT: Cross-examination, Mr. Grantham.

CROSS-EXAMINATION

BY MR. GRANTHAM:

Q You're the supervisor of the homicide squad.

B Yes, sir, I was.

Q Thirteen years with the Hillsborough County

Sheriff's Office.

ia Yes, sir.

Q Basically represented the Hillsborough County

}

| - Ast

| 163

i! P ‘

C 1 | Sheriff's Office in your activity during the arrest of Mr.

2 Long.

3 A Yes, sir.

4 Q You've had training and experience in

interrogating people.

¢ Bh Yes, sir.

? Q Approximately how many people have you

6 interrogated, sir? Estimate a thousand, a hundred, fiv

9 hundred?

A Hundreds.

Q When you arrived at the police station there,

Sgt. Price was already in the investigation room with Mr

Long.

(

é A Yes, sir.

f Q And that room's about 9 by 9.

1é ia Yes, sir, something like that.

Q I believe the first subject of conversation was

18 || the Lisa McVey case.

19 B Yes, sir.

2¢ Q I show you State's Exhibit Number 2. This is the

copy of the Consent to Interview form.

22 ‘ Yes, sir.

23 Q Do you know who filled in these blanks in the

24 top, sir?

"I, Bobby

interviewed. . .” by yourself,

involunta

the murde

164

Okay. He filled in the blank where it says that,

Joe Long, do hereby consent to be being

concerning the

ry sexual battery/abduction. . ." Any mention of

rs on there?

This is on the McVey case?

Did you all mention the murders to him at the

beginning?

you were

majority

No, Sir.

Any of the murders?

No, sir.

Did you avoid any mention of those?

Yes, sir.

When you read him his rights and he signed that,

talking to him only about the McVey case.

Yes. Yes, sir.

Sgt. Price did all the talking or the vast

of the talking during the McVey statement.

Yes, sir.

Mr. Long was cooperative with you.

Almost eager to talk on that subject.

He was cooperative. He indicated he wanted to

~Sb

165

talk about it.

Q Then after he had pretty much talked out the

McVey case, you started talking to him; correct?

A Yes, sir.

Q First subject you started talking to his about

was physical evidence.

A Yes.

Q Now, as far as these murder cases, €ié you ai:

have any eye witnesses?

A No, sir.

Q Okay. About all you had on those cases were

physical evidence.

B Yes, sir.

Q Fair to say when you started talking about

physical evidence with Mr. Long, that was leading into the

murder cases?

A Yes, sir.

Q Sir, there was some photographs that were showed

to Mr. Long right about this time. Where did those photos

come from? Did you have them or did Sgt. Price go out and

get them?

A I think I had them with me. I'm not real sure

where they came from.

Q Do you recall before you showed them to Mr. Longs

Mr. Long seeing them or seeing the top picture while they

A-s1

166 |

were in your hands or in Sgt. Price's hands?

A No, sir, I don't.

Q You don’t recall that?

b No, sir.

Q Now, during the McVey questioning Sgt. Price

asked him, “Did you commit any other crimes?" and he

denied that; correct?

——$-—

A Yes, sir.

Q Several of the girls that were found, their

bodies, were they involved in prostitution?

A Yes, sir. 7

Q After talking to him about physical evidence, you

talked to him about prostitutes.

A Yes, sir.

Q You asked him if he ever picked up any

prostitutes.

e Yes, sir.

Q He said, “In Miami.*

A Um-ham.

Q You said, “How about in Tampa?" And he said,

"I'd rather not talk about that.*

Yes, sir.

Then you showed him pictures of these girls.

Yes, sir.

o > 3D >

Some of whom were prostitutes in Tampa.

A-52

Land

ves, sir.

Asked him on each

he know this one.

Yes, sir.

Those were the

press releases.

had made

Yes, sir.

He said he didn't

Correct.

Did Sgt. Price

of this five o

Just a portion of the handw

later

earn

as or

4 ey

give y

hour in

nour 1

me to call in to word processing to

one did he know

A portion of the handwritten supplement,

referring to the seven page supplement?

Yes, Sir.

Did -- he made some

notes fr

recalled and you incorporated those

Correct.

Do you recall a depositi

Question:

168

after the interview?

Answer: No. No, sir.

Now you're saying he did ‘have some notes that he gave you?

A It wasn't notes he gave me; it was a -- we wrote

the supplement out ahead of time so I could call it into

-- on the telephone to word Processing. It wasn't notes

that he gave me that he took. I interpreted that question

as notes that he took during the interview. There was no

notes that he took during the interview that he turned

Over to me.

Q Okay. Again, back to that same page, page 20,

this is the question immediately before that:

Question: In addition, you also used some

notes that Price had written down after the

interview.

Answer: I don't know what Price wrote down

after the interview.

Same question,

Question: Did he turn over any notes to you

after the interview?

Answer: No. No, sir.

A When you asked me those questions, I thought you

were talking about notes that he took -- actually took

during the interview. He turned over no notes to me that

he took during the interview.

A-tod

fea)

Immediately after you showed him those

| Q All right, sir.

photographs and he denied knowing any of them, he had to

go to restroom,

A Yes, sir.

Q Do you recall how he let you know "I think I

might need to use the restroom"?

A He said, "Can I use the restroom."

Q And you let him use the restroom at that point.

A Yes, sir.

Q Are you certain of that, sir?

A Certain of what? I let him use the restroozs

Q At that point?

A Yes, sir. When he asked if he could use the

|} restroom, I let him use the restroom.

1] Q Upon his ioturn from the restroom, you started

| talking about physical evidence.

A yes, sir. Yes, sir.

| Q Hair, fiber, semen, blood, things along those

| lines.

A Yes, sir.

Q As far as you knew, did you have any semer

evidence tying him in?

A We had semen evidence. Nothing to tie him in at

that time -- at that point.

170

C 1 Q How about blood, did you have any blood evidence

2 || at that time to tie him in?

: A No, sir.

4 Q Fingerprints? |

"| A No, sir.

| Q At that point, did you have any hair that would

7 || tie him in?

8 || A We had hair samples at some of the crime scenes.

| Q At that point the only thing that you really had

10 || was fiber connecting the -- some of the bodies and the | |

’ || McVey case. Had you gotten the F.B.I. report back

12 || analyzing Mr. Long's -- the sample taken from his car?

i] |

C 13 || A No, sir. |

14 |} Q So really you had no fiber evidence at that point

in time at Mr. Long's interview; did you?

A No, sir.

Q Only thing was a tire impression and you had

information that Mr. Long had a Vogue tire. | |

| information that was a Vogue tire impression and you had

| A Yes, sir.

21 || Q That's basically the only physical evidence you

22 | had at that point to connect Mr. Long to any of these

23 | cases.

24 || A Yes, sir.

25 || Q You then talked to him about how good the F.B.I.

) A-t2

C } is. Talked about the F.B.I. laboratory.

2 A Yes, sir.

|| Q Yes, sir?

a || A Yes, sir.

Q At that point, do you recall -- now this is after

6 || the McVey case is all talked out and you've discussed

| physical evidence with him, you've asked him about

8 | prostitutes, you've shown him the pictures of some of the

9 || bodies of the women whose bodies you've found and he wants

10 to get up and go out of the room. You took him

restroom, brought him back, at that point do you recall

things sure has changed. I think I might need an

14 || attorney"?

15 A Yes, sir.

16 | Q Did you get an attorney for him?

17 | A No, sir.

18 | Q Did you tell him, "Do you want an attorney or

20 | A No, Sir.

21 || Q Did you readvise him of his rights?

22 A No, sir.

23 Q Did you have him sign another one of these

4 || Consent to Interview forms with murder on the top of it

~o3

A No, sir.

Q In fact you tried to talk him out of having a

attorney.

A No, Sir.

Q Sgt. Price did.

A No, sir.

Q Do you recall Sgt. Price almost as soon as Mr.

Long said that saying, “Nothing's changed. You knew this

was all going to happen. We've been honest with you. Be

honest with us"?

A Yes, sir.

Q That was before you could even respond to Mr.

Long, wasn't it, when he said, "I think I might need an

attorney"?

A He responded before I did, yeah.

Q You're saying that neither of you all tried to

talk him out of having an attorney. Is it fair to say you

didn't encourage it either?

I didn't think he requested an attorney.

You think he was just making conversation?

I felt like he was sitting thinking out loud.

That he was thinking about he needed an attorney?

He thought he might need one.

Did you ask him, "Do you want one or not?"

> OF OF CBD PF

Ho, sir, I didan't.

172

173 1%

Q At the time you read him his rights, -- did you

read him his rights?

A Sgt. Price.

Q At the time Sgt. Price read him his rights, the

only thing that he had heard mentioned or seen in writing

or heard read was the abduction/sexual battery of Lisa

McVey; is that true?

A Yes, Sir.

Q And it was at some point an hour to an hour and a

half after that that the prostitute murders started being

talked about; correct?

A Yes, Gif.

Q And there was no break there; was there? There

was no -- wasn't "I'm going put you in a cell. We'll come

back and talk to you in half an hour."

A No, Sir.

Q There was no break. When he said, "I don't want

to answer that," you immediately started showing him the

pictures; correct?

A Yes, sir.

Q There was no break when he said, "I think I might

need an attorney." You or Sgt. Price immediately started

talking, "Nothing's changed. Nothing's changed."

A Yes, sir.

Q Three times you went over physical evidence with

hus

him, "Do you understand what physical evidence is?" Three

separate conversations broken up by other subject matter;

is that true?

A Yes, sir.

Q After the McVey thing when Sgt. Price got up to

leave and you started doing the talking, there was kind of

a shift in the interview at that point from McVey to the

murders. You were talking about physical evidence as a

lead in.

B Yes, sir.

Q Since the interview was shifting to another

subject, did you read him his rights at that point?

A No, sir.

Q Did anybody ever tell Mr. Long that he could tape

record that first interview on McVey and what followed?

B Ask the question again. I'm sorry.

Q Did anybody ever tell Mr. Long he had a choice,

he could have this conversation tape recorded or he could

write it down or you could write it down?

A I didn't tell him that. I didn't hear anybody

else tell him that.

Q Now, on the McVey case it was pretty much a

narrative. Mr. Long didn't need a whole lot of prompting,

pretty much a narrative, this, this and this.

a Yes, sir.

174

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177

No, sir.

You didn't?

No, sir.

How far were you sitting from him, sir?

Maybe five feet - six feet.

oreo ? © 2?

You weren't sitting three feet from him before

Sgt. Price left?

A No, sir.

Q And you didn't move to within a foot and a half

before Sgt. Price came back?

A I didn't move during the entire time. Whether 1

was three feet or five feet from him, whatever the

distance was, it remained the same.

Q As far as the case concerning Virginia Johnson,

the body found in Pasco County, were you in the area when

that was found?

A No, sir.

Q Okay. You -- in your mind, that statement, ae

think I might need an attorney,” was nothing so you didn't

attempt to clarify it; correct?

A No, sir.

Q You and Sgt. Price bee: working together for a

long time, interacting pretty much on a daily basis?

A Yes, sir.

Q Somebody call you while Detective Wolfe and Helms

A-lo9

had Mr. Long on the side of the road on November 15?

A I was called after the stop had been made.

Q It wasn't while the stop was made?

A No, Sir.

Q Prior to questioning Mr. Long, were you familiar

with the psychological profile that had been prepared by

the F.B.I.?

A Yes.

Q You spoke with F.B.I. Agent Jacobson who prepared

it.

A Yes, sir.

Q Told you certain facets of the makeup of this

person that he felt had done these crimes.

A Yes, sir.

Q Did you use information in that report during

your interrogation of Mr. Long? For instance, authority

figure, was that in there and did you use that?

A Yes, sir.

Q How about what to wear, did he say what to wear

there?

A There was information as to -- as to how you

should or shouldn't dress,

Q Should dress in browns or tans?

A Not a flashy-type dresser.

Q And you dressed in accordance with that.

the arrest went down.

Q And it matched?

t=» ) wv

A Yes, Sir. I not a flashy dre er.

lA ‘ ; ¥ w Y ¥ r

Q Told you even when t interview him, the pe

that did thi was probably going t<¢ be a nocturnal per n,

A Yes, Sir.

might need an attorney,” you didn't refer | k to the

Consent to Interview and say, “You've already w é that

right,” anything like that.

A No, Sir.

@ Didn't make any mention of that Consent t

A No, sir

MR. GRANTHAM: Nothing further of thi witness,

Your Honor.

THE COURT: Further question Mr. Van Allé

THE COURT May the officer be excused

MR. VAN ALLEN: I'd ask he remain, H

THE COURT: If you'd return to the witne t

180

Purther witnesses?

MR. VAN ALLEN: No, Your Honor.

THE COURT: Witnesses for the defense?

MR. GRANTHAM: Your Honor, I -- I believe I would

be prepared if the Court thinks it's relevant to call

the Court Reporter and have her read back her notes of

the deposition to show that Sgt. Price did make that

statement.

THE COURT: Well, problem we run into, there

won't be a Court Reporter to take the Court Reporter

to start with; and, number two, --

MR. VAN ALLEN: I had understood the Court

overruled my objection anyway.

THE COURT: Yes, I have for purposes of this

proceeding only. But if we get to the point that it

becomes relevant before the jury, if we get to that

point, I think we need to proceed according to Hoyle

as far as any -- in keeping with the rules, how to

handle that type of a problem.

MR. GRANTHAM: Other than that, we have no

witnesses, Your Honor.

THE COURT: Arguments?

MR. GRANTHAM: Yes, Your Honor. I would ask the

Court consider a very brief recess.

THE COURT: Ten minutes?

A-12.

waived his right for an attorney and that is

v Arizona. I'm sure the Court's aware of the case.

that before an admission or confession or statement is

admissible, inculpatory or exculpatory, the person

must be advised of certain rights and offered an

MR. GRANTHAM: Ten minutes would be fine.

THE COURT: Take exactly ten minutes.

(Thereupon, Court recessed at 6:48 p.m.)

(Thereupon, Court reconvened at 6:58 p.m.)

THE COURT: Thank you very much. Argument?

MR. GRANTHAM: Yes, Sir.

THE COURT: Mr. Grantham.

MR. GRANTHAM: Your Honer, I understood the State

had the burden in this Motion to prove the statements

were voluntary and knowing and intelligent.

THE COURT: Mr. Van Allen.

MR. VAN ALLEN: Your Honor, I'd suggest to the

Court that Mr. Long was advised of his Miranda rights,

never made an unequivocal demand for an attorney and

referenced in the Record.

MR. GRANTHAM: Your Honor, I wish I could be that

brief.

Your Honor, the obvious starting point is Miranda

THE COURT: Yes, sir.

MR. GRANTHAM: That's 384 US 436, which states

A-B

opportunity to exercise those rights.

In the case before the Court today, there were

rights read to Mr. Long, but only as to an abduction

and an involuntary sexual battery, the McVey case.

That was very clear, all the witnesses said that they

purposely omitted any mention of any murders up until

an hour and a half into the interrogation, an hour and

a half removed from this Consent to Interview which

specifically says involuntary sexual battery and

kidnapping.

Miranda also speaks to police techniques. It --

citing a book of instructions, Methods for Criminal

Interrogation, it cites different methods that police

use to overcome the will of a person who does not wish

to make a statement. For instance, they first tell

him to tell the truth. Also they note that: "To be

alone with the subject is essential. . ." which is

exactly what Sgt. Price noted,

". . . to deprive him of any outside

support. The aura of confidence in his

guilt undermines his will to resist."

The Supreme Court said,

"Patience and persistence, at times

relentless questioning, are employed."

Five hours of questioning we have testimony to.

182

The manual goes on to say,

- « « The interrogator must ‘patiently

maneuver himself or his quarry into a

position from which the desired ob

may be attained.'

That was done here, expertly used deceptive

strategems.

Again, Your Honor, the police admitted this; he

continuously lied, and the police lied to Mr. Long

throughout the entire contact.

Miranda states that:

If the individual indicates in any manner

any time prior to or during the questioning,

indicates he wishes to remain silent, the

interrogation must cease.

Your Honor, we would submit that at the point when Mr.

Long was questioned about Tampa prostitutes and he

said, “I don't want to talk about that," that was an

invocation of his right to remain silent.

Further, Miranda says:

If the individual states that he wants an

attorney, the interrogation must cease until

an attorney 1S present.

Miranda states unequivocably that his rights must

"be scrupulously honored." They must -- he must have

Aas

184 |

C ' an opportunity to exercise these rights throughout the |

2 interrogation, not just at the beginning. The opinion |

3 is clear that a person may reassert a right that he

4 | has waived.

5 || In support of the submission that Mr. Long may |

° | very well have waived his rights on the McVey case,

? || the sexual battery/kidnapping, but not waived it as to

6 | the -- any of the murder cases, case of Shriner v

° | State, 386 So.2d 525, Supreme Court of Florida,

0 | 1980. There, it was just the opposite, the person

Wy asserted his right to remain silent as to the first

v2 crime, and then he waived it as to the second.

( 13 | And we have just the opposite situation. Mr.

1a | Long very well may have waived his right as to the

is | first, but he did not waive his right as to the

16 second. He never had an opportunity. He was never |

7 advised of his rights. If anything, he attempted to |

18 invoke both his right to remain silent and his right |

19 to an attorney. |

20 || Case of Bowen v. State, 404 So.2d 145, Second |

2) District Court, holds that when a person said I don't |

22 || want to talk about this or that, that was an |

23 invocation of his right to remain silent and isn't a |

a waiver, any statements obtained after that would not |

25 | be admissible.

C ! Spradley v. State, another Second District Court

2 case, 442 So.2d 1039, where the police obtained a

3 | statement from a person, and then asked him, “Anything

4 || you want to add?" that was hele to be an invocation

5 | of his right to remain silent, and the statement was

o| suppressed even though the rights were read again and

7 | they were supposedly waived before the other

8 | statement.

9 | State v. Dixon, Second District Court, 348 Sco.2¢

10 | 333, deals with two co-defendants. One says, "No,

man, I ain't going to talk. I ain't going to talk,”

12 that was an invocation of his right to remain silent

13 His statements were suppressed.

14 His co-defendant said, "I don't want to talk to

ie] you about it," and that, too, was an invocation of his

16 | right.

z "| Your Honor, what we have here is Mr. Long, he's

18 || first confronted with physical evidence which the

| police admit is a lead into these murder cases, a

20 || definite shift in the interview, then asked about

2 | prostitutes. He says, “In Miami." They say, "what

22 || about Tampa?" I don't want to answer that. “I'd

23 | rather not talk about that. I don't want to talk

24 | about that." Did the rolice stop that interrogation?

25 No, they continued immediately showing him photographs

186

C 1 of prostitutes in Tampa. There is definitely

interrogation that occurred after he invoked his

3 right to remain silent on that subject, prostitutes in

7 Tampa.

5 Likewise, Your Honor, the case of State v

6 Wininger, Third District, 412 So.2d 1114, person said,

7 "I don't believe it. I want to go home,” after he'd

a been accused of a crime, and then said, "Can 5S don

ae! "Sure, you'll be able to, I want to talk to you some

10 more." The Court found that that was a clear

nN invocation of rights, unequivocal. All he said was,

12 | "I want to go home. Can I?" And the Court suppressed

( 13 the statement in there. . |

“14 Your Honor, the next United States Supreme Court |

1S case upon which I rely is Edwards v Arizona, 451 US |

16 477. There, Mr. Edwards said, "I want an attorney |

7 before making a deal." He didn't say, “I want an |

18 attorney before I talk to you. I want an attorney |

19 before I confess." "I want an attorney before making |

20 a deal." The Court in that case held that that was an |

21 unequivocal invocation of his right to remain -- his |

22 right to an attorney. And the Court states: |

23 - « . If he requests counsel, the |

24 interrogation must cease until an attorney

25 is present. . °

ART

It differentiates the right to counsel from the right

to remain silent. The right to counsel is a more

important right; it's a more strict standard. To

determine a waiver, it

- » « Must not only be voluntary, but must

also constitute a knowing and intelligen

relinguishment or abandonment of a known

sight. « «

United States Supreme Court said.

The Court specifically notes,

»- « - the right to counsel was a prime

example of those right

“nn

special protection of the knowing and

intelligent waiver standard, . .

And

- « « when an accused has invoked his right

to have counsel present, a valid waiver of

that right cannot be established by showing

only that he responded to further

police-initiated custodial interrogation

even if. « s

they had re-advised him of his rights which was not

done here.

And there is a Florida Supreme Court case,

Cannady v. State, 427 So.2d 723. They held in that

188

case, Florida Supreme Court case, where the Defendant

said, "I think I should call my lawyer" that was

enough they held to invoke the right to an attorney.

However, in that case, the officer sought to clarify

the statement, and then the Appellant kept on

crying and crying said, “I didn't mean to kill the

man. I didn't mean to kill the man.” What we have

here are the police doing what they are supposed to.

Where there is some sort of statement asking for an

attorney, they must either cease questioning or

they're limited to clarifying what may be an equivocal

response in their minds.

Your Honor, the Supreme Court case of Cannady v

State cites three out-of-state cases. One is 290

N.W.2d 312, Wentela v. State, where the defendant

said, “I think I need an attorney,” or “I think I

should see an attorney.” There the Florida Supreme

Court -- citing with approval, the Court held that it

was ". . . @ sufficient request for counsel.”

Likewise in People v. Traubert cited in Cannady

with approval, 608 P.2d 342, "I think I need to see an

attorney” was an unequivocal invocation of the right

to counsel.

And in State v. Blakney, 605 P.2d 1093, Supreme

Court of Montana, the defendant while being

A-%

interrogated in regard to murder stated “. . . maybe I

2 || should have an attorney." That effectively asserted

3 || his right to counsel in those cases.

7) Some Florida cases that deal with specific

$ statements by defendants of whether or not they were

t an invocation of their rights, Barris v. State,

Fourth D.C.A., 396 So.2d 1180. The defendant asked,

6 ". « « is I want an attorney. . ." Now or later, the

cation of his

9 Court in holding that that was an inv

right to counsel stated:

The prohibition. ..

d talking about Miranda and Edwards,

rq The prohibition applies where the assertion

‘ is made by indirection or suggestion, as

well as in the case of direct positive

16 assertion.

Case of Thompson v. Wainwright, 601 F.2d 768,

8 Fifth Circuit, 1979, holds that the only thing,

19 quoting,

2c - + « whenever even an equivocal request fo:

2 an attorney is made by a suspect during

22 custodial interrogation, the scope of that

23 interrogation is immediately narrowed to one

24 subject ..

25 And

C ! Further questioning thereafter must be

2 limited to clarifying that request until it

| is clarified...

|| - « « the limited inquiry permissible after

an equivocal request for legal counsel may

6 | not take the form of an argument between

| interrogators and suspect about whether

e| having counsel would be in a suspect's best

9 | interest or not.

Your Honor, we've had testimony today that

immediately following Mr. Long's statement "I think I

might need an attorney,” the police did anything but

re 13 try to clarify it. Although they denied it, I would

14 submit they actually talked Mr. Long out of it. Now,

aad there is an indication they said why would you want

6 || one. The witness denies ever saying that. They also

17 | said, “Nothing's changed.” They admitted that was a

°] lie. “We've been honest with you.” They have

act admitted that was a lie. Instead of clarifying, they

20 lied to him in an attempt to get him not to assert his

2 right that he had already asserted.

22 In Norris v. State, Supreme Court of Florida, 429

23 So.2d 688, the defendant asked the police officer do I

aa need an attorney or not. The police officer stated it

2s you want an attorney I will stop questioning you. The

- hilt + + on} , the r

J Ci, YU i wa Lig ay emi gu 4 k ii

a)+? ) ¢he have r Ai + » nee ’ ‘ —n that

the need a se erorne + he - + re r a —s:

> ré i¢ > ‘ . Ar . i > . = -

r ’ ‘ce

™ ‘ . ~ >

: >

~ +

¢ the > > As

whe .

. " . .

T >

equivocal.

And Singleton v. State, 344 So.2d 911, the

defendant asked maybe I should ask my mother if I need

an attorney, and the Court held that was an invocation

of her right to an attorney.

Bain v. State, defendant "was unsure of himself"

is the only indication in the opinion, and again the

Court held that there could be no waiver in a

situation such as that and any statements had to be

suppressed.

Your Honor, it's axiom -- citing Buehler v.

State, 381 So.2d 746, that the Court must indulge

every reasonable presumption against waiver.

Here Mr. Long, first as to the prostitutes, said

"I don't want to talk about it." They started

showing him pictures.

Case of Tierney v. State, Second D.C.A. out of

Pasco County, 404 So.2d 206, held that where a police

officer read a co-defendant's interview to the other

defendant, that was interrogation. There is no way

that showing pictures of murder victims would not be

interrogation after he had asserted his right to

remain silent on that particular issue.

Also, Jones v. State, Second D.C.A., 346 So.2d

639, he began reciting his investigation and he got

192

the defendant to talk, and that also was held to be

interrogation.

Your Honor, the State -- in Cason v. State,

Second D.C.A., 373 So.2d 372, the State has a

heavy burden of establishing with unmistakable clarity

the admissibility of statements in a criminal case.

If there was an equivocal response -- and we

submit that there was an unequivocal response -- but

if it is equivocal, the only path the police could go

in at that point is to clarify, to ask him, "Do you

want an attorney? Do you want to remain silent?"

Drake v. State, Supreme Court of Florida, 441

So.2d 1079, 1984, states that the only path after a

equivocal response is clarification. That was not

done here.

Your Honor, I anticipate the State will refer to

the letter that was admitted over my objections, and

it has some statement regarding -- something about the

confession. We submit that is not the issue here.

The issue is not voluntariness at that point as far

as the Fifth Amendment rights go. Miranda says

statements can be voluntary, but if the Miranda rights

are not scrupulously honored, then the statement is

inadmissible.

Likewise, the police cannot use attendant

194

C ' circumstances that are calculated to delude the

2 prisoner as to his true position or exhibit improper |

3 or undue influence over him.

4 We submit that is what was present throughout the

5 || contact with the police. He was lied to from his

6 first contact to his last contact with the police.

? Lastly, Your Honor, cite the case of Fiske v.

8 State, Supreme Court, Florida, 366 So.2d 423, which

9 states that any ambiguities, any doubts, in criminal |

10 || proceedings have to be resolved in the defendant's |

WW favor, and if there is any question whether it's

equivocal or not, it must be held to be unequivocal.

13 In any event, if it is equivocal the only path the

C 14 police could take at that point was to clarify.

15 We submit that the statements should be

16 suppressed.

7 THE COURT: Thank you very much, sir.

18 Mr. Van Allen.

19 MR. VAN ALLEN: Judge, the issue appears to be

20 “Clear. I'd like to pick up and cite to the Court

21 || again the case Mr. Grantham cited, Norris versus the

22 State, found at 429 So.2d 688. There are a couple of |

23 things that occurred in this case. The police gave |

a4 Mr. Norris the standard Miranda warnings including his

25 right to the appointment of counsel. Norris then

C |

A-te

195

asked the detectives interrogating him whether or not

he needed an attorney. Detectives responded that they

couldn't make that decision for Mr. Norris and if

Norris wanted an attorney he would quit talking to him

at that time. Norris thereafter said that he would

answer questions but only the ones he wanted to

answer. The Court found that that was a valid waiver,

not an equivocal waiver but a valid waiver of Mr.

Norris' constitutional rights under Miranda.

And they didn't waste a minute in determining

that it was all right for a defendant to pick and

choose what questions he wanted to answer, as in the

situation with Mr. Long where, when asked about

prostitutes, said he didn't want to talk about them.

But he -- the Court says,

. « « He now contends that the state did not

demonstrate a valid waiver because the

police never answered his question of

whether or not he needed an attorney.

And finds

. . . that the response given by the

detective did not make further conversation

with Norris either impermissible or

inadmissible. . . The failure to answer

Norris' question neither lulled him into

waiving an attorney or prevented his asking

for one. -

And the Court goes on to say, the

Investigating officers must respond

affirmatively to a request for an attorney,

but they are not required to try to convince

a defendant that he needs an attorney.

In this situation, the defendant made the

statement "I think I need an attorney.” It is not the

obligation of either Detective Price or Detective

Latimer to sit down and figure out whether or not that

means I think I need one or I think I don't need one.

It's simply not a request for a lawyer.

I point out the case again cited by Mr. Grantham,

the case of Cannady versus the State, 412 So.2d. 723,

again a Supreme Court of Florida case. In this case,

the context in which appellant said he thought he

should call his lawyer

made it impossible. . .to determine whether

or not he was requesting a lawyer.

While expressing a desire to speak to an

attorney, which presumably indicates a wish

not to answer any more questions, appellant

was also readily confessing his guilt by

196

= A-3T

repeatedly saying he did not mean to kill

the man, thereby indicating a desire to

continue talking.

Again, same situation we have here. The

defendant says, well, I think I might need a lawyer,

and then he says’ -- he goes on to talk about how he

killed these women.

In Cannady the factual situation was that,

According to McKeithen. .

Mr. Cannady

started acting nervous so McKeithen

asked him outright if he killed Carrier.

The defendant, Cannady, started

« e e Crying and said, ‘I didn't mean to

shoot that man, I didn't mean to kill that

man, it wasn't supposed to happen that way.'

McKeithen said that appellant kept crying

and then said, 'I think I should call my

lawyer.' McKeithen said that he then ceased

his questioning and placed a telephone in

front of appellant. McKeithen testified that

appellant continued crying and kept saying,

'l didn't mean to kill the man. It wasn't

supposed to happen that way.' McKeithen

asserted that three or four minutes later he

A-¥9

198

asked appellant if he wanted to talk and

appellant said yes.

The cop did absolutely nothing wrong. The man

said I need to talk to a lawyer, I didn't mean to kill

him, McKeithen waited and later asked do you want to

talk about it, he said yes. The Court held that was

not a equivocal waiver, it was a valid waiver of his

rights under Miranda.

There is a case entitled Bryan F. Jennings versus

the State of Florida, 413 So.2d 24, in this particular

case, Mr. Jennings was being questioned by a man named

Hudepohl who was from the homicide squad. He read the

dissertation set forth in the footnotes of the case.

He read the standard Miranda warnings to the

defendant, after each one asking whether or not the

defendant understood, he finally said,

Are you willing to proceed without an

attorney being present to represent you? In

other words, do you want to go ahead and

talk to us now?

Answer: Yeah, but let me wake up a little

bit first this is not good when I just woke

up. No, I don't think so; I definitely have

to have a lawyer for this. This is too

heavy for me to do.

199

Question: Are you fully awake and

understand everything that I'm saying to

you?

Answer: I'm still half asleep right now,

but I'm awake enough to, hey, this is a

heavy charge, and I'm not even going to sit

here and take this on myself and try to talk

about it. Huh-uh, not this kid. Now if it

something like a burglary, I wouldn't mind

it. But I mean Christ, this -- you're

talking about murder.

Mr. Porter: That's right, we are.

He goes on and on and on.

That's right we are.

The witness: Jesus, look, I've done a lot

of things a lot of them weren't always

nice. I ain't ever killed nobody,

especially not no seven year old girl.

The officer goes on.

Well, it's your right to exercise however

you want to do it, you know. All we -- all

-- you know we're giving you opportunity to

talk to us, but we're required by law to

advise you of what your rights are before we

do. You know, we're more than willing to

A-4i

200

sit here and listen to your side of the

story and ask you questions and let you

answer them, but we have to advise you of

your rights. And before we can ask you any

questions, you have to intelligently waive

those rights. . . If you like, and if it's

your decision not to talk to us without a

lawyer, fine, we'll terminate the

interview. If it's your decision that you

want me to read, re-read something, or

whatever you want, you just, you tell us,

but we have to know. It's your decision to

make, Bryan, you know; I can't make it for

you. Like I say, we're here giving you the

opportunity to talk about it and, you know,

it's your decision to make.

All right.

The defendant says,

All right. Tell me -- tell you what, give

me about five minutes, walk down here to the

bathroom to get some water and clear my head

a little bit --

Question: Absolutely.

Answer: -- and we'll talk.

And the Court held that was a waiver of the

201

defendant's rights under Miranda.

Case of Waterhouse versus the State found at 429

So.2d 301, Supreme Court again, 1983, in the

Waterhouse decision,

On January 9, after making certair

statements in the car on the way to the

station, appellant said,'I think I want to

talk to an attorney before I say anything

else.' At this point the officers ceased

guestioning him. Then, when appellant was

being processed into the jail on the charge

of murder,. .

the Detective asked him

. « whether he would like her to come to

his cell, talk to him, and answer any

questions that he might have.

Court pointed out

He seemed interested, so detectives. . .

went to talk to him at 2:00 a.m. At this

point appellant became emotionally upset and

made certain statements described

previously. The conversation ended when

appellant said, ‘I think I'd like to talk to

my attorney. Would you all come back

tomorrow?' Then on the following day there

was further interrogation eliciting

statements entered into evidence.

The Court held that the statement taken the next

Gay did not violate the defendant's right to remain

silent or his request for an attorney.

The defendant cited Edwards as has been cited

here. The Court said,

Edwards does not apply here because

appellant did not express a desire to deal

with police only through counsel. fis

statements that he should talk to an

attorney, were at most equivocal requests to

consult with counsel. The officers were not

prohibited from initiating further

communication for the purpose of clarifying

appellant's request.

In King versus the State, another Supreme Court

case, 1983, found at 436 So.2d, Page 50, in this

situation, -- if I can finds this situation -- In

King, the Supreme Court again distinguished Edwards to

allow into evidence confessions to a Daytona Beach

police officer and Orlando police officer, all the

defendant had said prior to the statement is, “I think

I need an attorney.” After hearing that, the

detective stated, quote,

A=%

203°

‘we're only here to talk to you about what

the detective from Daytona Beach talked to

you about.’

And the defendant confessed. The statement was not

taken in violation of Edwards, and the Court stated,

We conclude that appellant gave the

statement to the Orlando police officers

voluntarily, with full knowledge of his

right to counsel, and with knowledge thet dy

giving the statement under the

circumstances, he was waiving his right to

counsel. This was clearly not @ situation

as that in Edwards, where the defendant

stated, "I want a attorney before making 2

deal, and was consequently advised that he

had talk to the detectives.

Again found that the statement made to the police

officer was voluntarily and was done after a waiver of

Constitutional rights even in light of the statement

made by the Defendant King, ‘I need to talk toa

lawyer.*.

Judge, we can go on citing cases. Mr. Grantha>

cited cases in Cannady that came from South Dakota ans

I believe Montana. In the Cannady case, the Court

also cites in a paragraph after those cases that Mr.

Grantham cited s series of cases from other

jurisdictions where it was held that the same types of

requests or statements that were made did not

constitute a waiver.

For instance, as Mr. Grantham pointed out,

Although the defendant's statement,'I think

I need to see an attorney’ was neither

‘sophisticated’ nor, perhaps, in ‘legally

Proper form,* it was sufficient ... to put

the police officers on notice...

of the right to counsel, from Montana.

From the State of Illinois, the defendant's

remark was

"Maybe I ought to have an attorney. Maybe

I need a lawyer. Maybe I ought to talk to

an attorney,” was not a request for

counsel.

In that case, cert. was denied by the United States

Supreme Court. What the case says it is not what the

Gefendant says, it is the context in which the

defendant makes the statement. It's like most other

close questions in any matterc of law. It is the

circumstances of a particular decision or a particular

Situation that give rise to the determination as to

whether, considering all the facts and circumstances,

204

A-le

the defendant had his rights tromped on.

In the Cannady case, the Court says at page 728,

. « « the context in which appellant said he

thought he should call his lawyer made it

impossible for Officer McKeithen to

determine whether appellant was regque

to sex an attorney. While expressing a

desire to speak to an attorney, which

presumably indicates a wish not to answer

any more questions, appellant was also

readily confessing his guilt

@®

{

’

Saying he did not mean to kill the man,

thereby indicating a desire to continue

talking to the police without the benefit

an attorney's presence. When a person

expresses both a desire for counsel and a

desire to continue the interview without

counsel, further inguiry is limited to. .

determining what the officer -- or what the defendant

wunts to do.

In this situation, Officer McKeithen put the

phone in front of him, the man continued to talk. Ané

the situation we have here, the officer didn't say

anything other than we've been honest with you, you be

honest with us, and the defendant at that point

206

continued to talk about the murdered girls.

Again I'd suggest to the Court that it's a

case-by-case situation. The only other evidence that

we have that points to what the defendant's state of

mind was on the night of November 16, 1984, when he

confessed is part of a letter that was identified

during the course of the hearing as coming from the

pen of Bobby Joe Long in the letter that he says,

They had tire prints, hair, fiber, blood

samples, .. .«

And then goes on up in the corner,

I mean they had me, so I thought if I

cooperate, it would go better on me. I was

wrong, but I learned if I ever get out

shoot first, ask questions later, and don't

say shit to the police except I want a

lawyer. Live and learn but I don't forget.

I think that this speaks directly to what the

defendant's state of mind was on the night of the

16th. He was never promised anything; the defendant

waived his rights. Be decided he'd cooperate and now

he thinks he's done the wrong thing. It's too late.

I suggest that the motion be denied.

THE COURT: Anything else, gentlemen?

MR. GRANTHAM: Just a few brief points.

THE COURT: Are you going to be brief?

MR. GRANTHAM: I thought the Court asked if we

had anything further.

THE COURT: I didn't know you had further

argument.

MR. GRANTHAM: In every one of the State's cases

where there was a statement, they either stopped, gave

them a phone, or clarified the request which is

exactly what was not done here.

And as far as the letter that was read that Mr.

Long had allegedly written, they had him -- I would

point out everything that he based that on -- almost

everything was a lie from the police officers and th

would show he was deluded and misled into making any

statement beyond the Fifth Amendment issue.

THE COURT: That prompt any further comment, Mr.

Van Allen?

MR. VAN ALLEN: No, sir.

THE COURT: Gentleman, number one, I thank

you for your efforts. Number two, I'm going to find

from the evidence that there's been no violation of

Mr. Long's Constitutional rights, that the statement

sought to be introduced was freely and voluntarily

made. Motion will be respectfully denied. I thank

you.

A-a9 |

STATE OF FLORIDA

COUNTY OF PASCO

I, PHYLLIS M. DAVIS, Deputy Official

Court Reporter in and for the Sixth Judicial Circuit of

the State of Florida,

DO HEREBY CERTIFY that proceedings were had in

the captioned matter at the time and place set forth

herein; that I was authorized to and did report

stenographically said proceedings and testimony, and that

the foregoing pages, numbered 1 through 212, inclusive,

constitute a true and correct transcription of said

proceedings and testimony as had.

WITNESS MY HAND AND SEAL this UK of

» 1985, at Dade City, Pasco County, Florida.

213

Deputy Official Court

Reporter

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.