Petition for Writ of Certiorari — Florida v. Owen

90-2 ay 3

CASE NO.

IN THE

Supreme Court of the United States

October Term, 1989

STATE OF FLORIDA,

Petitioner,

Vs.

DUANE EUGENE OWEN,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

ROBERT A. BUTTERWORTH

Attorney General

RICHARD E. DORAN

Assistant Attorney General

(Counsel of Record)

GEORGINA JIMENEZ-OROSA

Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS

The Capitol

Tallahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR PETITIONER

July 31, 1990

we es

QUESTION PRESENTED FOR REVIEW

WHETHER, PARTICULARLY IN VIEW OF THE

CONFLICT BETWEEN THE STATE AND FED-

ERAL COURTS, MICHIGAN V. MOSLEY, 423

U.S. 96 (1975), SHOULD BE REVISITED TO

ADDRESS THE UNRESOLVED FIFTH AMEND-

MENT ISSUE OF WHETHER MERELY SAYING

“I DON’T WANT TO TALK ABOUT IT” — MEAN-

ING A PARTICULAR FACT OR POINT — TRIG-

GERS THE TYPE OF PROHIBITION ON

FURTHER POLICE INITIATED CONVERSA-

TION RECOGNIZED IN SIXTH AMENDMENT

CASES SUCH AS EDWARDS V. ARIZONA, 451

U.S. 477 (1967); OR ALTERATIVELY, WHETHER

MICHIGAN V. MOSLEY SHOULD BE ABAN-

DONED.

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED FORREVIEW........ i

TABLE OF CONTENTS .......--e eee ees ii

TABLE OF CITATIONS .......00eeeeeee- iii

OPINIONS BRLOW ... ccc ccc ccc ccene 1

JURBBDICTION 6o ct ee ewes 2

FEDERAL CONSTITUTIONAL PROVISION

INVOLVED ..... cc cet were rece. 2

STATEMENT OF THE CASE AND FACTS ....... 3

REASONS FOR GRANTING THE WRIT ........ 4

CORPCL AION «wk sk ERS ee 8 Oe eee 11

ll

TABLE OF CITATIONS

Cases Page(s)

Bruni v. Lewis, 847 F.2d 561 (9th Cir. 1988),

cert. denied, _ U.S. ___, 109 S.Ct. 403,

Pe Ok YO ee 4

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

Se EES «on tt eect ce wee eae 7

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880,

ee oe bn gw ule wise a“ 7

Johnson v. Zerbst, 304 U.S. 458, 59 S.Ct. 1019,

RR 5

Long v. State, 517 So.2d 664 (Fla. 1987), cert.

denied, 486 U.S. 1017, 108 S.Ct. 1754,

eR he, 6, 7

Martin v. Wainwright, 770 F.2d 918 (11th

Cir. 1985), modified, 781 F.2d 185 (11th Cir.),

cert. denied, 479 U.S. 909, 107 S.Ct. 307,

93 L.Ed.2d 281(1986) ............. 6, 7, 11

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321,

46 L.Ed.2d 313 (1975) ......... 4,5, 6, 8,9, 11

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966) ............ 4,5, 7,10

Owen v. State of Florida, 560 So.2d 207

a ace i er oe a 3, 4, 10

Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682,

64 L.Ed.2d 297(1980) ........ccccccce 7

ill

Cases Page(s)

United States v. Ford, 563 F.2d 1366 (9th Cir. 1977),

cert. denied, 434 U.S. 1021, 98 S.Ct. 747,

6 Be Be ee sk boa ea 6 Sco ee oe ee 4

United States v. Lorenzo, 570 F.2d 294 (9th

ER a ere 4,8

United States v. Rodriguez-Gastelum, 569 F.2d 482

(9th Cir.), cert. denied, 436 U.S. 919,

98 S.Ct. 2266, 56 L.Ed.2d 760(1978) ........ 5

United States v. Thierman, 678 F.2d 1331 (9th

Cir. 1982), cert. denied, Martin v. Wainwright,

479 U.S. 909, 107 S.Ct. 307, 98 L.Ed.2d 281

(1986), and Martin v. Dugger, 481 U.S. 1033,

107 S.Ct. 1965, 95 L.Ed.2d 536 (1987) . 4,5, 8,9, 11

STATUTES AND CONSTITUTIONS

United States Constitution

re oe ae! ae end 2

Nn a a sang ae

Sr Poe re eae 2

United States Code

4 8 a rk ea 2

iV

CASE NO.

IN THE

Supreme Court of the United States

October Term, 1989

STATE OF FLORIDA,

Petitioner,

vs.

DUANE EUGENE OWEN,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

OPINION BELOW

The decision of the Supreme Court of Florida, rendered on

March 1, 1990, is reported at 560 So.2d 207 (Fla. 1990). It

is reproduced in the Petitioner’s appendix at A-3. Rehearing

was denied on May 2, 1990. App. A-2. The state trial court’s

oral findings and ruling denying the defendant’s motion to

suppress are reproduced in the Petitioner’s Appendix at

A-22.

JURISDICTION

The opinion and judgment of the Supreme Court of Flor- |

ida was rendered on March 1, 1990. The Petitioner timely |

filed its petition for rehearing. The motion for rehearing was

denied on May 2, 1990. The jurisdiction of this Honorable

Court is invoked pursuant to the specific provisions of Title

28 U.S.C. § 1257.

FEDERAL CONSTITUTIONAL PROVISIONS

INVOLVED

Amendment V, United States Constitution provides as

follows:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

militia, when in actual service in time of war or

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of

life, liberty or property, without due process of law;

nor shall private property be taken for public use,

without just compensation.

Amendment XIV, United States Constitution, provides in

pertinent part:

... nor shall any state deprive any person of life,

liberty or property, without due process of law. . .

ee

STATEMENT OF THE CASE AND FACTS

The opinion of the Supreme Court of Florida details the

factual background to this crime. Owen v. State, 560 So.2d

207 (Fla. 1990). (A-3). Owen was convicted of burglary,

sexual battery and first-degree murder of a young baby-sit-

ter in March, 1984 in Delray Beach, Florida. He was picked

up by police in Boca Raton, Florida, on suspicion of burglary.

Id. at 207. After he was booked, he initiated contact with

police and was interrogated “relative to various crimes

which occurred in the spring of 1984.” Jd. The Supreme

Court of Florida noted:

During these interrogations, Owen expressed con-

tempt for lawyers and a desire to help clean up

crimes with which he had been charged or sus-

pected. He specifically stated that he did not want

a lawyer present but he asked that a certain officer

(Woods) from Delray Beach who knew him from

previous encounters be present for the

interrogation.

Id.

During this conversation, Respondent said he knew he

was implicated in a separate homicide and that he had been

found out through the fingerprint in the book. Although

denouncing any involvement in the instant murder, Respon-

dent, after listening to the evidence collected in the case,

asked Officer Lincoln questions about the evidence and

inquired whether that was all they have against him. At this

point, the two challenged statements. “I'd rather not talk

about it,” and “I don’t want to talk about it,” were made by

Respondent. (The pertinent portions of the conversations

are detailed in the dissenting opinion of Justice Grimes).

(A-11)

A break was taken shortly after the last statement of

Respondent. After the break, Respondent inquired about

the possibility of the officers bringing his brother to see him

after that day and expressed other personal concerns. He

then acknowledged that the officers had enough evidence to

charge him with the second murder and proceeded to con-

fess.

The conviction and death sentence were reversed on the

basis of the statements given after the response, “I'd rather

not talk about it.” Jd. at 211.

The instant Petition for Writ of Certiorari follows.

REASONS FOR GRANTING THE WRIT

In Michigan v. Mosley, 423 U.S. 96 (1975), this Honorable

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

does not create a per se proscription against all further

interrogation once a defendant expresses an equivocal de-

sire to remain silent. Relying on Mosley, federal courts have

decided that a defendant may selectively waive his Miranda

rights, deciding to “respond to some questions but not oth-

ers.” See, Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988);

cert.denied, _U.S.__, 109 S.Ct. 403 (1989); United States

v. Thierman, 678 F.2d 1331, 1335 (9th Cir. 1982); United

States v. Lorenzo, 570 F.2d 294 (9th Cir. 1978); United States

v. Ford, 563 F.2d 1366 (9th Cir. 1977), cert. denied, 434 U.S.

1021 (1978).

Through the exercise of the option to terminate question-

ing, a suspect can control the subjects discussed, the time

at which questioning occurs, and the duration of the inter-

rogation. Mosley, 423 U.S. 96, 103-04. In the case at bar,

Respondent chose which questions he desired to answer in

order that he could find out the amount of evidence the

police had on him, on the Slattery murder, before he could

decide, in his own mind, whether he should confess to this

murder as well. 560 So.2d at 210-11. There is no evidence in

the record that the police did not completely respect the

limitations set by Respondent. Jd. Thus, this case presets a

factual situation analogous to the one hypothesized by Mr.

Justice White in his Mosley dissent:

The majority’s rule may cause an accused injury.

Although a recently arrested individual may have

indicated an initial desire not to answer questions,

he would nonetheless want to know immediately

— if it were true — that his ability to explain a

particular incriminating fact or to supply an alibi

for a particular time period would result in his

immediate release. Similarly, he might wish to

know — if it were true — that (1) the case against

him was unusually strong (2) and that his imme-

diate cooperation with the authorities in the ap-

prehension and conviction of others or in the

recovery of property would rebound to his benefit

in the form of a reduced charge.

423 U.S. at 109. See, also, Thierman, supra, 678 F.2d at

1335.

Miranda should not preclude officers, after a defendant

has invoked his rights, from informing the defendant of

evidence against him or of other “circumstances which

might contribute to an intelligent exercise of his judgment.”

United States v. Rodriguez-Gastelum, 569 F.2d 482, 486-488

(9th Cir.), cert. denied, 436 U.S. 919 (1978).

The developing case law supports Justice White’s Mosley

dissent by holding that informing a defendant of circum-

stances which contribute to an intelligent exercise of his

judgment is normally attendant to arrest and custody.

Thierman, supra, 678 F.2d at 1334 n. 3. See also, Johnson

v. Zerbst, 304 U.S. 458 , 464 (1938).

i

It is respectfully submitted that this Court should reex-

amine and revisit Mosley because it now leads to absurd ’

results. The Supreme Court of Florida has reached the type

of result Justice White feared in his Mosley dissent:

In justifying the implication that questioning

must inevitably cease for some unspecified period

of time following the exercise of the “right to si-

lence”, the majority says only that such a require-

ment would be necessary to avoid “undermining”

“the will of the person being questioned.” Yet,

surely a waiver of the “right to silence” obtained

by “undermining the will” of the person being

questioned would be considered an involuntary

waiver. Thus, in order to achieve the majority’s

only stated purpose, it is sufficient to exclude all

confessions which are the result of involuntary

waivers. To exclude any others is to deprive the

fact-finding process of highly probative informa-

tion for no reason at all.

Id., 423 U.S. at 111. This is precisely what occurred in the

instant case. As noted by the Supreme Court of Florida, the

Respondent was asked “a relatively insignificant detail”

question to which he responded, “I'd rather not talk about

it.” 560 So.2d at 211. Rather than exploring what Owen

meant by this remark, the police “urged him to clear matters

up.” Owen then began responding with incriminating infor-

mation. He also asked questions of the police. Jd. When

asked another relatively insignificant detailed question,

Owen again said, “I don’t want to talk about it.” The police

urged him to again clear things up. Jd.

Citing two cases, Long v. State, 517 So.2d 664 (Fla. 1987),

cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216

(1988), and Martin v. Wainwright, 770 F.2d 918 (11th Cir.

1985), modified, 781 F.2d 185 (11th Cir.), cert. denied, 479

U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986), the Supreme

Court of Florida held that the absence of any Fifth or Sixth

Amendment violation was irrelevant to the question of

whether Owen’s confession should be excluded from evi-

dence. The court held that the mere violation of Miranda

procedures compelled the finding of error which was then to

be reviewed under the harmless constitutional error stan-

dard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967). Id. Neither case is dispositive of the

issue presented and each exhibits the continuing frustra-

tions and difficulties courts have encountered as cases de-

velop in the post-Miranda era. For example, Long v. State

involved a finding of violation of a defendant’s Sixth Amend-

ment right to invoke counsel. The Supreme Court of Florida

relied on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880,

68 L.Ed.2d 378 (1981), Miranda v. Arizona, supra, and

Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64

L.Ed.2d 297 (1980), to find that the police’s failure to clarify

Long’s mental state after he indicated “I think I might need

an attorney”, 517 So.2d at 667, violated Long’s Sixth Amend-

ment right. This case implicates no Sixth Amendment con-

cerns. Thus, the reliance upon Long is wholly inappropriate

and in conflict with the very cases cited by the court in Long,

i.e., Miranda, Edwards, and Rhode Island v. Innis.

The Supreme Court of Florida’s reliance on Martin, supra,

is equally troubling. In Martin, the defendant told police

during his interrogation that he did not want toimmediately

continue the discussion but rather “Can’t we wait until

tomorrow?” 770 F.2d at 923. In response to that question,

the police responded, “Let’s go on.” Jd. In a troubling bit of

logic, the Eleventh Circuit Court of Appeals reasoned that

Martin’s request to hold off further questioning until the

next day was equivocal to invocation of his Sixth Amend-

ment right to counsel. Specifically, the court found as

follows:

It is true that Martin’s request “Can’t we wait until

tomorrow,” was an equivocal invocation of his

right to cut off questioning, and that Martin never

explicitly refused to answer any more questions.

Nevertheless, Detective Anderson’s continuance

of the interrogation was improper. We previously

have held that equivocal invocations of the right

to counsel immediately limit the scope of police

questioning to “clarifying the equivocal request.”

***

We see no reason to apply different rule to

equivocal invocations of the right to cut off

questioning.

Id. at 923-924. In reaching this conclusion, the Eleventh

Circuit Court of Appeals flatly stated that its position was

in direct conflict with the position the Ninth Circuit Court

of Appeals reached in United States v. Thierman, supra. Id.

at 924 n. 6. In Thierman, the court held:

The record supports the district court’s conclusion

that Thierman knowingly and voluntarily waived

his right to remain silent. Twice Thierman was

advised of his Miranda rights and each time he

agreed to answer some questions and refused to

answer questions on certain topics. A person in

custody may selectively waive his right to remain

silent by indicating he will respond to some ques-

tions, but not to others. United States v. Lopez-

Diaz, 630 F.2d 661, 664 n. 2 (9th Cir. 1980); United

States v. Lorenzo, 570 F.2d 294, 297-98 (9th Cir.

1978). Through the exercise of the option to termi-

nate questioning, a suspect can control the sub-

jects discussed, the time at which questioning

occurs, and the duration of the interrogation.

Michigan v. Mosley, 423 U.S. 96, S.Ct. , L.Ed.2d

(19). Thierman chose only to limit the subjects

discussed and there is no evidence in the record

that the police did not completely respect that

limitation.

678 F.2d at 1335. Clearly, the facts outlined in the Supreme

Court of Florida’s opinion below mirror the facts in Thier-

man. After numerous and detailed presentation of Miranda

warnings by the police, Respondent continually engaged in

a question and answer session with the police officers during

which he twice responded to fact-specific limited questions

by saying, “Id rather not talk about it.” 560 So.2d at 211.

The Supreme Court of Florida’s reliance on Martin and its

Sixth Amendment based analysis is wholly inconsistent

with Thierman, supra, and with Michigan v. Mosley, supra.

As noted above, this case is the perfect example of why

Justice White’s dissent in Michigan v. Mosley provides an

appropriate standard for reviewing non-Sixth Amendment

announcements made by suspects in police custody.

In this case, the record reveals Respondent was a bright

person, with some years of college education, who had once

aspired to be a police officer. He enjoyed talking “law” with

the officers investigating the crimes he was suspected of

having committed. As the court below found:

Through the interrogation sessions, Owen had

indicated his desire to confess to crimes for which

he felt the police had sufficient evidence to convict.

Consequently, there evolved a procedure whereby

the police officers would present their evidence

and attempt to persuade him that they had the

necessary proof.

560 So.2d at 210.

The opinion of the Supreme Court of Florida indicates that

Respondent, at all times including the June 21st interview,

was in “control [of] the time at which questioning occurs, the

subject discussed, and the duration of the interrogation.”

Mosley, 423 U.S. 96, 103-104. 560 So.2d at 210-11. Dissent-

ing in this case, Justice Grimes noted:

While the police in this case did not immediately

cease questioning Owen on the two topics he indi-

cated a reluctance to discuss — whether the house

had been predetermined and where the bicycle

had been left — their follow-up questions can

fairly be seen as attempts to determine what Owen

did mean. In any event, Owen did not make mean-

ingful responses to these inquiries and the discus-

sion shifted to other aspects.

560 So.2d at 216.

Through the conversations between the officers and Re-

spondent on the six different occasions, Respondent had

established a pattern of answering the questions he wished

to and confessing only when he felt good and ready, but after

he had ascertained in his own mind that the police had

enough evidence to charge him with the particular crime.

The Court should take this case because it is abundantly

clear that the original promise of Miranda, providing each

citizen with a shorthand accounting of his federal constitu-

tional rights, has been, over time, firmly rooted in the

American culture. However, the lower courts have contin-

ued to allow this core function of Miranda to be mutated and

misconstrued to the point where cases such as Michigan v.

Mosley now provide a criminal defendant with a sword

rather than a shield for his battle against governmental

authority. If cases such as Owen cannot be harmonized with

the standard set forth in Michigan v. Mosley, then the

Petitioner respectfully suggests that Michigan v. Mosley be

overturned. A good starting place for such analysis would be

Mr. Justice White’s dissenting opinion as discussed above.

Assuming the Court is not willing to take such drastic

10

action, the Petitioner would respectfully suggest that the

case be accepted in order to resolve conflict between Martin

v. Wainwright from the Eleventh Circuit and Thierman

from the Ninth Circuit. See dissent of Justice Grimes at 560

So.2d 214.

It should be enough to find on appeal that none of

Respondent’s federal constitutional rights were violated.

While acknowledging that truth, the Supreme Court of

Florida has still placed him in a position, by suppressing his

statements and confessions, that he may literally get away

with murder.

CONCLUSION

For these reasops, the Petitioner, the State of Florida,

respectfully prays this Honorable Court will accept this case

for further review.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General Florida

RICHARD E. DORAN

Assistant Attorney General

(Counsel of Record)

_ GEORGINA JIMENEZ-OROSA

Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS

The Capitol

Tallahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR PETITIONER

11

CASE NO. ____

IN THE

Supreme Court of the United States

October Term, 1989

STATE OF FLORIDA,

Petitioner,

vs.

DUANE EUGENE OWEN,

Respondent.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF

FLORIDA

ROBERT A. BUTTERWORTH

Attorney General

RICHARD E. DORAN

Assistant Attorney General

(Counsel of Record)

GEORGINA JIMENEZ-OROSA

Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS

The Capitol

Tallahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR PETITIONER

TABLE OF CONTENTS

Pages

Duane Eugene Owen v. State of Florida,

Case No. 68,550

Order Granting Stay of Mandate ......... A-1

Duane Eugene Owen v. State of Florida,

Case No. 68,550

Order Denying Rehearing ............. A-2

Duane Eugene Owen v. State of Florida,

Case No. 68,550

are ee aren eae te ae are eae ae A-3

State of Florida v. Duane Eugene Owen,

15th Judicial Circuit of Florida,

Record excerpts from trial transcripts

Pages 2481-3466 0 ww cece cee A-22

Supreme Court of Florida

Wednesday, May 18, 1990

DUANE EUGENE OWEN,

Appellant,

vs. — Case No., 68,550

STATE OF FLORIDA,

Appellee.

Circuit Court Case No. 84-4014-CF A02

(Palm Beach County)

Appellee’s Motion to Stay Mandate is hereby granted and

proceedings in this Court and in the Circuit Court of the

Fifteenth Judicial Circuit, in and for Palm Beach County,

Florida are hereby stayed pending filing and resolution of

review in the United States Supreme Court.

A True Copy TC

TEST cc: Hon. John B. Dunkle, Clerk

Hon. Richard B. Burk, Judge

Mr. Duane Eugene Owen

Theodore S. Booras, Esquire

Celia Terenzio, Esquire

By: /s/

Sid J. White

Clerk, Supreme Court

A-1

Supreme Court of Florida

Wednesday, May 2, 1990

DUANE EUGENE OWEN,

Appellant,

vs. Case No., 68,550

STATE OF FLORIDA,

Appellee.

Circuit Court Case No. 84-4014-CF A02

(Palm Beach County)

The Motions for Rehearing, having been considered in

light of the revised opinion, are hereby denied.

EHRLICH, C.J., and OVERTON, McDONALD, SHAW,

BARKETT, GRIMES and KOGAN, JJ., Concur as to

Appellant’s Motion

OVERTON, McDONALD, SHAW, BARKETT and KOGAN,

JJ., Concur, but EHRLICH, C.J., and GRIMES, JJ., Dissent

as to Appellee’s Motion

A True copy JB

TEST: cc: John B. Dunkle, Clerk

Hon. Richard B. Burk, Judge

Duane Eugene Owen, Pro Se

Theodore S. Booras, Esquire

Georgina Jimenez-Orosa, Esquire

Sid J. White

Clerk Supreme Court

A-2

Supreme Court of Florida

REVISED OPINION

NO. 68,550

DUANE EUGENE OWEN, Appellant,

vs.

STATE OF FLORIDA, Appellee.

[March 1, 1990)

PER CURIAM.

Appellant Owen was convicted of burglary, sexual battery,

and first-degree murder. The jury recommended and the

judge imposed a death sentence for the murder. We have

jurisdiction. Art. V, § 3(bX1), Fla. Const.

The victim was baby-sitting for a married couple on the

evening of March 24, 1984, in Delray Beach. During the

evening, she called home several times and spoke with her

mother, the last call taking place at approximately 10 p.m.

When the couple returned home, just after midnight, the

lights and the television were off and the baby-sitter did not

meet them at the door as was her practice. The police were

summoned and the victim’s body was found with multiple

stab wounds. There was evidence that the intruder entered

by cutting the screen to the bedroom window. He then

sexually assaulted the victim. A bloody footprint, presum-

ably left by the murderer, was found at the scene.

In late May 1984, Owen was apprehended in Boca Raton

after he was identified as a burglary suspect. Routine book-

ing disclosed that there were outstanding warrants against

him and while being held on these charges, he initiated

A-3

EE

contact with the police and was interrogated relative to

various crimes committed on June 3, 6,7, and 8. He was also

questioned relative to a May 29, 1984, burglary, sexual

battery, and murder in Boca Raton. During these interroga-

tions, Owen expressed contempt for lawyers and a desire to

help clean up crimes with which he had been charged or

suspected. He specifically stated that he did not want a

lawyer present but he asked that a certain officer (Woods)

from Delray Beach who knew him from previous encounters

be present for the interrogation. After confession to numer-

ous burglaries, sexual batteries, and lesser crimes, he re-

fused to talk further to the police about the Boca Raton

murder and terminated the interrogation. On June 18, he

reinitiated contact with the police and renewed his spate of

confessions. He also corrected and amplified earlier confes-

sions. On June 21, the Delray Beach police obtained an

inked impression of Owen’s footprints and the Boca Raton

police informed him that, based on fingerprints taken from

the crime scene and other evidence, they were charging him

with first-degree murder. After the Boca Raton police pre-

sented their evidence to Owen, he confessed to the May 29

burglary, sexual battery, and murder. His account of this

crime was remarkably similar to his earlier confessions to

three crimes where he removed his clothes, committed a

burglary, and either choked or bludgeoned sleeping victims

into unconsciousness before committing sexual battery.

Immediately after the above confession to the May 29

Boca Raton murder, the Delray Beach police interrogated

Owen relative to the March 24 Delray Beach crime. He first

denied any knowledge of this crime, but confessed after the

police confronted him with the bloody footprint from the

crime scene and the inked impression of his foot taken

earlier that day. The details were again remarkably similar

to those of the earlier confessions.

A-4

At trial, the state did not attempt to introduce similar fact

evidence, but relied on Owen’s confession and corroborating

evidence. An expert on podiatry testified that the bloody

footprint was consistent with Owen's, but did not identify

him to the exclusion of others.

The primary issue raised by Owen concerns the admissi-

bility of his confession. He contends that (1) the confession

was compelled by improper psychological coercion in viola-

tion of his fifth amendment right to remain silent, and (2)

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

by continuing to question him after invoked the right to

terminate questioning. He claims that the police had no

well-founded suspicion upon which to stop and seize him on

the street and that all subsequent confessions were thereby

tainted. This argument is without merit. Owen was the

subject of outstanding warrants and had been identified in

a photographic lineup as a burglar. The officer who stopped

him had been given a photograph and specifically alerted to

watch for him in his known habitat. The police had more

than founded suspicion, they had probable cause.

Owen’s more serious argument is that he was psycholog-

ically coerced into confessing by extended interrogation

sessions, feigned empathy, flattery, and lengthy discourse

by the police. These interrogation sessions were videotaped

and we have, as did the trial judge, the benefit of actually

viewing and hearing them. It is clear from these tapes that

the sessions were initiated by Owen, who was repeatedly

advised of his rights to counsel and to remain silent. More-

over, he acknowledged on the tapes that he was completely

familiar with Miranda rights and knew them as well as the

police officers. It is also clear that the sessions, which

encompasses six days, were not individually lengthy and

that Owen was given refreshments, food, and breaks during

the sessions. The tapes show that the confession was en-

tirely voluntary under the fifth amendment and that no

A-5

improper coercion was employed. Martin v. Wainwright, 770

F.2d 918, 924-28 (11th Cir. 1985), modified, 781 F.2d 185

(11th Cir.), cert. denied, 479 U.S. 909 (1986).

Owen next argues that even if the confession was volun-

tary under the fifth amendment, it was nevertheless ob-

tained in violation of the procedural rules of Miranda. On

this point, we agree. Throughout the interrogation sessions,

Owen had indicated his desire to confess to crimes for which

he felt the police had sufficient evidence to convict. Conse-

quently, there evolved a procedure whereby the police offi-

cers would present their evidence and attempt to persuade

him that they had the necessary proof. On June 21, after the

Boca Raton police presented the fingerprint evidence and

the similarity of the crime to earlier burglary rapes to which

Owen had confessed, he acknowledged his guilt and re-

sponded to further questions. Thereafter, the Delray Beach

police took up questioning on the instant crime. After police

presented evidence on the “matched” footprints, alluded to

evidence they expected to develop and the close similarity

of the crime to the Boca Raton murder and earlier burglaries

and rapes, Owen closely studied the footprint impression

and appeared to acknowledge the conclusiveness. However,

when police inquired about a relatively insignificant detail,

he responded with “Id rather not talk about it.” Instead of

exploring whether this was an invocation of the right to

remain silent or merely a desire not to talk about the

particular detail, the police urged him to clear matters up.

He was soon responding with inculpatory answers and

asking questions of his own. After further exchanges and a

question on another relatively insignificant detail, Owen

responded with “I don’t want to talk about it.” Again, instead

of exploring the meaning of the response, the police pressed

him to talk.

When presented with the motion to suppress, the trial

judge initially indicated that the continuation of the ques-

A-6

tioning after the responses appeared to be a clear violation

of Miranda, rendering the statements thereafter inadmis-

sible. However, after reviewing the complete interrogation

sessions, the judge concluded that the responses were not

an invocation of the right to remain silent. The ruling of the

trial court on a motion to suppress comes to us clothed with

a presumption of correctness and we must interpret the

evidence and reasonable inference and deductions in a man-

ner most favorable to sustaining the trial court’s ruling.

McNamara v. State 357 So.2d 410, 412 (Fla. 1978). The state

urges that on the totality of the circumstances, we should

affirm the ruling below. Counterposed to this argument is

the well-established rule that a suspect’s equivocal asser-

tion of a Miranda right terminates any further questioning

except that which is designed to clarify the suspect’s wishes.

See Long v. State, 517 So.2d 664 (Fla. 1987), cert. denied,

108 S.Ct. 1754 (1988), and cases cited therein; and Martin,

where although there was no violation of the fifth amend-

ment by continuing questioning after an equivocal invoca-

tion of Miranda rights, the court held that continued

questioning was reversible error under Miranda. Given this

clear rule of law, and even after affording the lower court

ruling a presumption of correctness, we cannot uphold the

ruling. The responses were, at the least, an equivocal invo-

cation of the Miranda right to terminate questioning, which

could only be clarified. It was error for the police to urge

appellant to continue his statement. Such error is not,

however per se reversible but before it can be found to be

harmless, the Court must be able to declare a belief that it

was harmless beyond a reasonable doubt. Chapman v. State,

386 U.S. 18, 24 (1967); Martin v. Wainwright. Applying this

standard, we are unable to say in this instance that the error

was harmless beyond a reasonable doubt. Even though

there was corroborating evidence, Owen’s statements were

the essence of the case against him. We accordingly reverse

Owen’s convictions on the basis of inadmissible statements

given after the response, “I'd rather not talk about a”

We address additional issues which may recur should a

retrial occur. In accordance with section 921.143, Florida

Statutes (1983), the trial judge heard testimony from the

victim’s family on the impact of the crime after receiving the

jury’s advisory recommendation of death. The judge did not

have the benefit of Booth v. Maryland, 482 U.S. 496, (1987),

and of Grossman v. State, 525 So.2d 833 (Fla. 1988), cert.

denied, 109 S.Ct. 1354 (1989), but nevertheless recognized

that victim impact evidence by family members could not be

used as an aggravating factor. If a death penalty phase is

reached in a retrial, such evidence should not be received.

During the guilt phase, the victim’s mother was permitted

to testify, over objection, concerning certain corroborating

evidence. Owen claims that the evidence was not at issue

and that permitting the victim’s mother to take the stand

was unduly prejudicial. At trial, the basis of the objection

was that the mother had been unable tocontrol her emotions

during an earlier deposition and her testimony was being

presented for the sole purpose of creating improper sympa-

thy. The record does not show that the mother was unduly

emotional during her testimony, which corroborated Owen's

confession. The mother’s testimony meets the relevancy

test; we see no error.

Appellant also claims that the jury should have received

a special instruction during the penalty phases stressing the

extreme importance of the jury’s advisory recommendation.

In appellant’s view, Florida’s standard jury instruction den-

igrates the role of the jury contrary to Caldwell v. Missis-

sippi, 472 U.S. 320 (1985). We have previously held,

1 Statements made before this response do not implicate Miranda

rights.

A-8

—————————

contrary to appellant’s position, that the standard jury

instructions accurately reflect Florida law. Combs v. State,

525 So.2d 853 (Fla. 1988).

Owen also argues that the trial court erred in not directing

a verdict on the sexual battery charge because the evidence

shows that the victim was dead before sexual union and

Florida law does not criminalize necrophilia. In support, he

cites the testimony of the medical examiner that the victim

had “probably” died from her massive wounds before being

transported to the bedroom, where appellant confessed that

he “raped her, I guess you could say.”

In defining sexual battery, section 794.011, Florida Stat-

utes (1983), refers to the victim as “another” and as “the

person.” We are satisfied that under the legislative defini-

tion a victim must be alive at the time the offense com-

mences. Sexual union with a previously deceased person, as

in a morgue, would not meet the definition of sexual battery.

However, we do not believe that the legislature intended

that a person whois alive at the commencement of an attack

must be alive at the end of the attack. Here we need not

decide this precise issue because the jury was instructed

regarding the distinction between sexual battery on a live

person and attempted sexual battery on a victim killed in

the course of the crime before sexual union is achieved. The

verdict of guilt on the sexual battery count resolves this

question of fact. In denying the motion for a directed verdict,

the trial court relied on the well-established rule that a

defendant’s motion for acquittal admits “every conclusion

favorable to the [state] that a jury might fairly and reason-

ably infer from the evidence” and the motion should not be

granted “unless the evidence is such that no view which the

jury may lawfully take . . . can be sustained under the law.”

Lynch v. State, 293 So.2d 44, 45 (Fla. 1974).

Owen has filed two pro se briefs, in addition to the briefs

filed by his counsel. Most of the issues raised duplicate those

raised by appointed counsel, but one issue merits comment.

Owen claims that his trial counsel, who is also serving as

his appellate counsel, was ineffective. Although this issue is

customarily handled in a 3.850 hearing, it may be raised on

direct appeal under rare circumstances where it is pre-

served and the ineffectiveness is apparent on the face of the

record. Refusal to address the issue under such circum-

stances would be a waste of judicial resources. No such

circumstances exist here. Blanco v. Wainwright, 507 So.2d

1377, 1384 (Fla. 1987). Here, there is nothing on the face of

the record even remotely suggesting ineffective assistance

of trial counsel and appellant repeatedly expressed satisfac-

tion with trial counsel’s performance in response to queries

from the trial judge. What concerns us is not only that

appellant makes such an assertion concerning his current

appointed counsel, but also his apparent belief that he is

entitled to independently defend his case by submitting pro

se briefs without reference to the actions of his appointed

counsel. On remand, assuming retrial, the trial judge is

directed to clarify this situation and make the appellant

aware of Faretta v. California, 422 U.S. 806 (1975), and his

choices thereunder. We reverse all convictions and remand

for retrial.

It is so ordered.

OVERTON, McDONALD, SHAW and KOGAN, JJ., Concur

BARKETT, J., Concurs specially with an opinion, in which

KOGAN, J., Concurs

GRIMES, J., Dissents with an opinion, in which EHRLICH,

C.J., Concurs

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEAR-

ING MOTION AND, IF FILED, DETERMINED.

A-10

BARKETT, J., specially concurring.

I concur in the decision to reverse because the interroga-

tion subsequent to appellant’s assertion of his right to re-

main silent was improper. As the Miranda Court stressed:

“If the individual indicates in any manner, at any time prior

to or during questioning, that he wishes to remain silent,

the interrogation must cease.” 384 U.S. at 473-74 (emphasis

added). And, as the Court later explained in Michigan v.

Mosley, 423 U.S. 96, 104 (1975), the admissibility of state-

ments obtained after a person in custody has decided to

remain silent depends under Miranda on whether his right

to cut off questioning was “scrupulously honored.” In this

case, it was not.

KOGAN, J., Concurs

GRIMES, J., dissenting.

I must respectfully dissent from the holding in this case

and that portion of the majority opinion concerning the

Miranda? issue. I do not believe that current case law

requires police to cease questioning a suspect simply be-

cause, as happened here, the individual expresses some

reluctance to confront the details of his crime. Nor do I

believe in the context of the extended series of interviews

between Owen and police that his two statements — “I'd

rather not talk about it,” and “I don’t want to talk about it”

— must be construed as a request for a lawyer or a request

to cut off questioning.

Initially, several points need to be emphasized. As the

majority touched on its discussion of the first issue, the

police questioning of Owen was totally lawful. Often he

initiated contact. None of the interview was especially long;

Owen never complained about the questioning and never

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

A-11

directly halted a session. The interviews were brought to a

close by the officers, apparently when they felt Owen had

told them all he would tell them in that session. The officers’

conduct was in no way coercive, though they did attempt to

persuade Owen to confess. Owen was not browbeaten or

threatened with anything other than the probability that

criminal charges would be brought against him. Prior to al!

sessions, he waived his Miranda rights, including the right

to consult a lawyer and to have one present.

The two statements Owen made must be seen in the

context not only of the conversation during which they

occurred but also of the relationship that had built up

between Owen and the two policemen who did most of the

questioning, Lieutenant Kevin McCoy, Boca Raton Police

Department, and Officer Mark Woods, Delray Beach Police

Department. This series of interviews was a long cat-and-

mouse game between Owen and the detectives; indeed, the

game may have begun with the killings.® Often he would

appear ready to talk about the murders, only to change the

subject.

The portrait of Owen that emerges from these interviews

is of a person who wanted to impress the officers with his

cunning, and with his skill as a criminal. He even alleged

that he had taken criminology and crime scene analysis

courses ata college while in Michigan. He never exhibited

3 For example, the Delray Beach victim was stabbed to death and a

hammer was found beside here, while the Boca Raton victim was killed

by multiple blows with a hammer, a knife being found nearby. While in

jail, Owen wrote rhymes that seem intended to tantalize the officers. One

went: “Roses are red, white, yellow and pink. To play my game you've got

to think.” Also, one detective asked Owen to fill in a blank with the number

of murder victims. Owen deflected the question but, he said later, drew a

square on his styrofoam coffee cup and filled in the number two while he

talked. The officer had not noticed the cup.

A-12

any reticence in admitting criminal acts generally,* and

never indicated any desire to speak with an attorney. It is

clear from reading the record that Owen did not mean he

had changed his mind about talking to police and that he

wished to speak with a lawyer before continuing. His com-

ments are those of someone who does not want to face the

truth, not someone who seeks legal counsel.

Long v. State, 517 So.2d 664 (Fla. 1987), cert. denied, 108

S.Ct. 1754 (1988), which the majority cites for authority,

involved a statement: “I think I might need an attorney.”

The United States Supreme Court has required an immedi-

ate cessation of interrogation upon any request by the de-

fendant for an attorney. Edwards v. Arizona, 451 U.S. 477

(1981). However, with respect to a suspect’s terminating an

interrogation where no request for counsel is involved, that

Court has said that “[t]hrough the exercise of his option to

cut off questioning, he can control the time at which ques-

tioning occurs, the subjects discussed, and the duration of

the interrogation.” Michigan v. Mosely, 423 U.S. 96, 103-04

(1975).

In United States v. Thierman, 678 F.2d 1331 (9th Cir.

1982), the court considered the validity of a confession made

to the police after the defendant had earlier asked, “Can we

talk about it tomorrow?” The court said:

Twice Thierman was advised of his Miranda

rights and each time he agreed to answer some

questions and refused to answer questions on cer-

tain topics. A person in custody may selectively

waive his right to remain silent by indicating he

will respond to some questions, but not to others.

4 In fact he admitted, and showed no remorse for, numerous instances

of drug abuse, several unreported break-ins, and one incident of “flashing”

a young woman on the campus of Florida Atlantic.

A-13

United States v. Lopez-Diaz, 630 F.2d 661, 664 n.

2 (9th Cir. 1980); United States v. Lorenzo, 570

F.2d 294, 297-98 (9th Cir. 1978). ...

The only other event relevant to whether Thier-

man invoked his right to remain silent occurred

when he inquired “Can we talk about it tomor-

row?” The district judge was not required to inter-

pret Thierman’s questions as an invocation of his

right to remain silent. The question is more easily

construed as a mere request to postpone interro-

gation on a single subject than an outright refusal

to answer any more questions.

Id. at 1335-36. The Eleventh Circuit Court of Appeals in

Martin v. Wainwright, 770 F.2d 918 (11th Cir. 1985), modi-

fied, 781 F.2d 185, cert. denied, 479 U.S. 909 (1986), dis-

agreed with Thierman to the extent that it held that the

defendant’s statement, “Can we wait until tomorrow?” con-

stituted an invocation of the right to cut off questioning.

However, that court did not dispute the Thierman court’s

premise that the defendant’s election to remain silent on a

single subject does not necessarily require that the interro-

gation be completely terminated. In fact, the court in Martin

distinguished Thierman by pointing out that in that case

the surrounding circumstances “indicated that the suspect’s

request concerned a particular subject matter and not the

interrogation in general.” Martin, 770 F.2d 924 n. 6.

It seems to me that the instant case is closer to Thierman.

When Owen made has first statement that the majority

finds objectionable, Lieutenant Rick Lincoln, a newcomer to

the interview, was talking to him about the similarities

between the Boca Raton murder and the one in Delray

Beach, while showing him the footprint he left behind in

Delray Beach.

A-14

OFFICER LINCOLN: .... Duane, this is you. This

stuff proves it’s you.

THE DEFENDANT [OWEN)]: Yeah, it looks iden-

tical to me.

OFFICER LINCOLN: Sure, it is.

Tell me about it for you, Duane.

I think you need to.

I know you want to.

Yeah, you’re right, this is you.

When did you first see her?

Now is the time, Duane.

We can’t have stuff on this thing.

OFFICER WOODS: It’s good enough.

I know what you’re thinking.

THE DEFENDANT [OWEN]: That’s it, man.

OFFICER WOODS: You’re taking a look at it and

you're checking it out

THE DEFENDANT [OWEN]: Yeah.

OFFICER WOODS: And that’s it. That’s the bot-

tom line.

OFFICER LINCOLN: Satisfy yourself right now.

There’s a few things —

OFFICER WOODS: Yeah.

A-15

OFFICER LINCOLN: — that I have to know,

Duane.

A couple pieces of the puzzle don’t fit.

How did it come down?

Were you looking at that particular house or

just going through the neighborhood?

THE DEFENDANT [OWEN]: Id rather not talk

about it.

OFFICER WOODS: Why?

OFFICER LINCOLN: Why?

You don’t have to tell me about the details if you

don’t want to if you don’t feel comfortable about

that.

Was it just a random thing?

Or did you have this house picked out.

That's what I'm most curious about.

Things happen, Duane.

We can’t change them once they’re done.

THE DEFENDANT [OWEN]: No.

OFFICER LINCOLN: But you can sure make it

easier on two pa-rents that need to know.

OFFICER WOODS: And a whole town full of

babysitters that are afraid to go outside.

That’s how the kids make their money in the

summer.

A-16

OFFICER LINCOLN: Had you ever been to that

house before?

THE DEFENDANT (OWEN): That was a big

scene over there.

At this point the conversation shifted, with the officers

trying to find out if Owen had known the victim or the family

for whom she had been babysitting and how long it had

taken him to get into the house. They interspersed these

questions with statements flattering Owen and with dem-

onstrations of how evidence was sufficient to convict him.

Finally, Owen said he had not been to the murder scene

and the subject shifted to where his bicycle had been left:

THE DEFENDANT (OWEN): How do you know I

even had a bike?

You don’t even know that.

OFFICER LINCOLN: You tell me you didn’t have

a bicycle.

See, you won’t lie, Duane.

I know you won't lie when you are confronted

with the truth.

Now, are you going to tell me you didn’t have a

bicycle?

I know that much about you now.

You play by the rules. Those rules are impor-

tant.

We all need rules.

Now did you have a bicycle? Of course, you did.

THE DEFENDANT [OWEN |: I don’t want to talk

about it.

OFFICER LINCOLN: Don’t you think it’s neces-

sary to talk about it, Duane?

Two months have gone by already, Duane.

That's a long time. It’s a long time for people to

work. It’s a long time for you to hold it within

yourself. It’s a long time for people to wonder.

OFFICER LINCOLN: I won’t make you tell me

something you’re not comfortable in talking about,

Duane.

But I do want to know some of the things that

shouldn’t hurt that much to talk about.

What you did with the bicycle. How long you

were outside the house. Those kind of things.

I know what you're reluctant to talk about and

I won’t press you on that.

THE DEFENDANT (OWEN): I don’t see what

them kind of things got to do with it anyway.

OFFICER LINCOLN: It’s all part of the crime,

Duane.

And I know you’re uncomfortable about talking

about certain aspects of it, and I respect that.

Do you know what time it was when you first

got to the house?

Do you remember?

OFFICER WOODS: What time was it, Duane?

THE DEFENDANT (OWEN): Let me take — use

the bathroom, first.

OFFICER WOODS: Sure. I have to also.

It is not perfectly clear what Owen meant by his com-

ments, but it is clear from a totality of the circumstances

that he did not want to quit talking to the officers about the

crime. While the police in this case did not immediately

cease questioning Owen on the two topics he indicated a

reluctance to discuss — whether the house had been pre-

meditated and where the bicycle had been left — their

follow-up questions can fairly be seen as attempts to deter-

mine what Owen did mean. In any event, Owen did not

make meaningful responses to these inquiries and the dis-

cussion shifted to other aspects.

Owen’s attitude toward the questioning can be seen

graphically in the circumstances surrounding the actual

confession. When the questioning reconvened from the

break, Officer Woods left to get coffee, leaving Owen and

Lieutenant Lincoln alone. Owen mentioned the possibility

of visiting with his brother, commented on the fact the he

would get bad publicity for facing two counts of first-degree

murder, and asked about the possibility of unrelated minor

charges being field against him.

OFFICER LINCOLN: I have no idea. See, I’m

talking about a homicide here. I don’t know about

all that other stuff. That’s what we're dealing

about tonight.

THE DEFENDANT (OWEN): How come you don’t

carry around this big briefcase full of bullshit like

he | Woods] does?

OFFICER LINCOLN: I don’t think I need to, do

you?

A-19

OO

THE DEFENDANT [OWEN]: No.

OFFICER LINCOLN: I think we’re talking about

something. We’re talking about an event that took

place. I know about it because I was there. You

know about it because you were there. So why do

I need a big sheaf of papers? We’re both intelligent

people with memories, am I right? How long were

you outside the house, Duane? Hours? Minutes?

THE DEFENDANT [OWEN]: You guys got me

good, man.

OFFICER LINCOLN: Yeah.

THE DEFENDANT [OWEN]: Yeah. I knew it, too.

OFFICER LINCOLN: Did you?

THE DEFENDANT [OWEN]: Yep. As soon as they

asked me for footprints.

These excerpts show two things: First, that the conversa-

tions were two-way transactions, with both the officers and

Owen trying to gather information. Owen was trying to

learn how good a case the police had. Second, and more

importantly, they show that Owen did not wish for question-

ing to cease; indeed, he wished for it to continue until he had

made up his mind to end the game. It should be noted that

his confession was not triggered by a particularly insightful

or accusatory question. It is also important that this confes-

sion was hardly different from any other that Owen gave as

to lesser crimes. There was no emotional breakdown, simply

a statement of fact.

Under these circumstances, I would uphold the trial

judge’s denial of the motion to suppress which comes to us

with a presumption of correctness. I believe that Owen’s

comments can fairly be understood as intending only to cut

A-20

off questioning on a particular subject and not a request to

terminate questioning in its entirety.

EHRLICH, C.J., Concurs

An Appeal from the Circuit Court in and for Palm Beach

County,

Richard B. Burk, Judge — Case No.84-4014-CF A02

Theodore S. Booras, West Palm Beach, Florida; Michael

Salnick and Barry E. Krischer of Salnick & Krischer, West

Palm Beach, Florida; and Duane Eugene Owen, in proper

person, Starke, Florida,

for Appellant

Robert A. Butterworth, Attorney General and Georgina

Jimenez-Orosa, Assistant Attorney General, West Palm

Beach, Florida,

for Appellee

A-21

TRANSCRIPTS FROM THE TRIAL

The trial court’s findings and rulings on Appellant’s Motions

to Suppress. Record Excerpts pp. 1422-1445.

THE COURT: I will point out also that as I began this week,

having reviewed the Miranda decision, I was clearly of the

opinion that, “I don’t want to talk about it,” or, “I rather not

talk about it,” was an automatic triggering device, which, at

that point, precluded further discussion with the confess-

ant, absent some reinitiation by the confessant, separate

and apart from any inquiry by law enforcement or people in

that category.

The cases that have been furnished to me by the State, as

well as the one furnished by the defense, although furnished

from a different viewpoint or contention, convince me that

the demand for an attorney may be automatic triggering

device, and probably still is under Miranda.

But that the, “I don’t want to talk about it,” or that the, “I

rather not talk about it,” are matters which have to be

examined in context. And once examined in context, then

the determination has to be made as to whether or not they

are equivocal, which would warrant law enforcement to

making further inquiry to ascertain the equivocation and

then with regard to that determination, once again, accord-

ing to the case law that has been furnished to me, there must

be a scrupulous adherence to the confessant’s right to re-

main silent with regard to the matters being addressed.

I pointed out to you earlier today, and it is part of my

discussion with you now, the matters that I had reviewed, I

will not enumerate those items. But I will add to that litany

the cases that the State has delivered to me, which I have

now reviewed during the noon hour, that first of all the

Puccio v. State, out of the First District in 1983, 445 S.2d

419. The Breedlov v. State, out of the Florida Supreme Court

A-22

Pi ee

in March of ’82 at 413 S.2d on Page 1. Sonny Boy v. State,

out of the Supreme Court of the State of Florida, February

of ’84, 446 S.2d Page 90. State v. Beck, out of the Third

District in 1980 at 390 S.2d 748. Harley v. State, 407 S.2d

at 382. Harris v. State out of the Supreme Court of the State

of Florida, 1983, 438 S.2d 787.

Barneson v. State, out of the Third District in 1979, 371 S.2d

at Page 680. I have not Shepardized any of these cases. I am

relying upon both the State and the defense for representa-

tions in having furnished these cases to me that they are

valid decisions which have not been overruled or superceded

by some following case.

I began these proceedings being concerned about Mr.

Owen’s statement that he didn’t want to talk about it, that

he rather not talk about it. The contrast in speed between

Sergeant, now Lieutenant McCoy and Sergeant Woods are

similar, but Captain Lincoln’s speed is more rapid than

either of the two officers named.

A great deliberation for me is the issue of whether or not

there was a scrupulous adherence to the right to remain

silent once involved, if in fact it was invoked.

With regard specifically to the Slattery matters, which

have been argued at great length by the State, with great

emphasis placed on them, I have been encouraged by both

the State and the defense to consider all of these matters in

totality.

I pointed out to Mr. Owen at the beginning of this week

that I felt that I knew him, certainly better than he knew

me, by simply having observed him during some 20-some-

odd hours of tapes. .

Certainly the same relates to Officer McCoy, Officer

Woods, and Officer Lincoln.

A-23

I have previously ruled, and reaffirmed that ruling with

regard to the original arrest, that it was certainly on prob-

able cause. I have denied at the earlier part of this week the

defense motion with regard to that issue, the issue of free

and voluntary, the threshold issue of the free, voluntary

nature of the — all of the statements based upon my review

of the tapes, of the testimony that has been presented in

Court, as it relates not only to the video tapings, but also the

original statements that were made orally to the officers

back on the 30th of May and June, the first part of June,

before they were video taped.

It is my determination that those rights were properly

given to Mr. Owen to the point that after viewing the tapes

and even hearing at one point the suggestion by Mr. Owen

that either the officer or Mr. Owen could do them from

memory, a factual finding by the Court at this time, there-

fore, is that the rights were appropriately advised to Mr.

Owen; that he fully understood the right that we refer to as

the Miranda rights, which are actually the constitutional

rights that Miranda defines the proper procedure for giving.

And further, that he freely and voluntarily talked with law

enforcement throughout the course of these proceedings,

insofar as it relates an understanding that he had a right to

remain silent, and what would happen if he didn’t, and that

he had the right to have a lawyer, and that one will be made

available for him at state expense.

* * *

A factual finding by me at this time is that there was no

physical coercion, there was no physical duress on Mr.

Owen. There are not threats of violence on him. There were

no suggestions of violence to him, in my observation of the

tapes; he was in the room that he was in, in the corner that

he was in, because that is where the television camera was

pointed. I did not find during my entire viewing of the tapes

any discomfort, although I would have been uncomfortable

A-24

Ji ead di :

if I had been siting in one of those metal chairs, but I found

no discomfort or any other people sitting on those chairs,

even though they were in them, what would seem to me, for

a long period of time. I found, as a matter of fact, no

preclusion of the normal bodily functions, either eating or

sleeping or rest room facilities being denied to him that

would place him in a physically discomforted position.

I further find, as a matter of fact, with regard to these

matters, that a substantial portion of the discussions be-

tween Mr. Owen and law enforcement were at Mr. Owen’s

request, or invitation, and that even applies to the session

when Mr. Owen was read the Probable Cause Affidavit, I

believe, with regard to the Worden homicide, that Mr. Owen

had requested the officers that should charges be filed, that

he be advised. And it was in compliance with that request

that the officers scheduled a meeting with Mr. Owens and

read him that Probable Cause Affidavit.

As a finding of fact, I view throughout the discussions an

intelligent and astuteness on Mr. Owen’s part with regard,

not only the legal ramifications of what he was doing, but

also a complete continuation of what he referred to as

maneuvers, or what can be put in the context of somebody

who does not become a policeman, but is enamored enough

with that activity to take up the opposite of that as a

challenge or as a competition. It has been referred to as a

game by the officers. I don’t recall specifically whether or

not it had been referred to as a game by Mr. Owen, but

clearly it was a mental activity on Mr. Owen’s part, as law

enforcement.

But Mr. Owen’s inquiries, as a finding of fact at this time,

were a constant test to law enforcement, to see whether or

not law enforcement had dotted the “I’s” and crossed the

“T’s” with regard to the matters that Mr. Owen was

involved in.

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My finding of fact with regard to Mr. Owen’s statements

with regard to the more serious of his offenses are that he

placed a higher challenge or a higher goal on getting the

information with regard to those than he did with regard to

the lesser charges against him, and as a necessary corollary

he required of law enforcement a higher standard or a

higher burden with regard to the proof to him of those

particular issues.

As a factual determination made by me at this time, Mr.

Owen was clearly aware of — is still aware of the penalties

involved in the charges that are involved in his cases. That

was clear during the taped interviews. It was clear during

the testimony that has been presented with regard to this

week’s hearing.

* * *

[I]t is clear and convincing to me that there was no physical

discomforture foisted upon Mr. Owen with regard to these

matters. There was no threat of physical violence or any

threats of any kind. There were no problems as acknow]-

edged by Mr. Owen, and as acknowledged by the law en-

forcement officers. There was no suggestions that we are

going to get you a better deal. Everybody was straight up

front with each other.

Mr. Owen, through his discussions with the officers, I

believe was straight up front with them to the extent that

if you can prove it to my satisfaction, I will discuss the

matters with you. But that was the challenge that he placed

to them, and upon receiving the necessary input back to him

as to what they had done, that he determined whether they

had met his burden, and if they had, then he’d discuss the

matters with them. He deliberately tested them and sent

them on some wild goose chases for the purposes of seeing

if they were doing what he expected them to be doing when

the results came back in and he weighed and evaluated

those very carefully. If I had seen, as the State has positioned

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the matter, if I had seen just the one tape with regard to

what has been designated now, I guess, as the Delray Beach,

I guess the case where the Karen Slattery matter occurred,

in Delray, if there had been just one tape by itself, it would

have been substantially different. It is not the one tape by

itself. If Captain Lincoln had been doing all of the inquiries,

I don’t know that the same result would have come about.

But at least contrast between Captain Lincoln and Lieuten-

ant McCoy would not have been as substantial as it was.

I pointed out previously and make the factual finding of

fact at this time that Lieutenant McCoy’s approach was

unquestionably laid back.

You have referred to that as the friend or good-guy ap-

proach, Mr. Krischer, with regard to those matters. I don’t

find anything in the cases that addresses itself to prohibit-

ing that type of inquiry.

I have gone back and I have looked at the Miranda

decision again, and although they talk about the Mutt-and-

Jeff and the false-friend as a determination of law, I do not

find that that is precluded.

* * *

I may be completely misjudging Lieutenant McCoy, but I

don’t believe so. There is no question but that he arrived to

talk to Mr. Owen as a law enforcement officer. Neither he

nor Mr. Owen had any-question in their mind but that that

was the case. But I believe that Lieutenant McCoy had an

earnest interest that we have referred to here of having on

the hat of either the prison confessor or the bartender. I

think he had an earnest interest in assisting Mr. Owen in

getting some of these matters off of Mr. Owen’s chest, sepa-

rate and apart from — and certainly subordinate to his

activity as a law enforcement officer in getting these state-

ments.

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He certainly did not come in and say, “If you want to

confess, I will hear your confession, and I will not use it for

anything.” I don’t believe he had to, under the circum-

stances, acknowledge to Mr. Owen that Lieutenant McCoy

was in fact a law enforcement officer, and the challenge was

there. Had he been a priest, Mr. Owen would not have talked

to him. The charge was not to test the priest. The charge

was to test the law enforcement officer to see if he came up

with the right answers to the questions, in effect, Mr. Owen

had presented to him.

* * *

Now, with the difficulty coming into these hearings that I

have had during these hearings, is the matter with regard

to whether or not the discussions should have been termi-

nated once Mr. Owen says, “I don’t want to talk about it.”

Once he said, “I rather not talk about it,” those matters, by

a preponderance of the evidence, to me, would not give me

as much difficulty, perhaps, if Captain Lincoln had more

patience with — had more patience with regard to these

inquiries than to wan to address them with the rapidity in

which he did. I believe with regard to his inquiry, that may

be pointed out, or pointed up so much simply because of the

contrast between his approach and that of Lieutenant

McCoy. But my view of these tapes leads me in my determi-

nation by a preponderance of the evidence to follow what the

State has posited; she may not have put it in exactly those

words, but I think two things problemed Mr. Owen with

regard to those matters when he said, “I don’t want to talk

about it. I rather not talk about it.”

I will say at the outset I do not believe that he was

problemed or concerned in any way attempting to con-

sciously or subconsciously to invoke his constitutional right

to remain silent. I think what he was doing was twofold:

Number one, he was weighing, he was being pushed more

rapidly than he had been pushed with regard to the previous

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matters to make a decision with regard to whether or not:

“We have got enough here to convict you, Duane Owen.” He

was weighing those matters.

As I recall that tape, he got back into a great deal of

consideration and discussion; he had his socks on at the time

that he was supposed to have walked through that blood,

and he had a puzzled situation as to how that print would

have been left if he had his socks on . That wasn’t discussed

on the tape, but that was a problem that was puzzling Duane

Owen. So he was equating, he was sifting, he was running

through his mental computer the evidence that had been

presented to him. And without doubt, and perhaps on equal

plane with that was his simple, although Anglo-Saxon-

worded statement, “You just don’t confess to shit like that,”

which placed the significance of it in his mind, and it was

not in my determination at this time an effort to exercise,

although I am certain that there can be people who can view

that tape dispassionately as I have tried to do, that may

come to a different conclusion.

I believe that he was weighing other matters separately

apart from any articulated or unarticulated exercise of the

right to remain silent.

The case law that you furnished to me is replete that it

doesn’t — that you don’t view it from a standpoint of a legal

scholar whether or not that exercise has been made. The

person doesn’t have to be a lawyer to phrase the statement,

“I want to exercise my constitutional right to remain silent.”

These cases are replete with that. I don’t believe that is what

he was doing; I don’t believe that he was even attempting to

exercise the right to remain silent with regard to those

issues. I think he was computing, he was being pushed,

unlike Lieutenant McCoy, Captain Lincoln was pushing him

to make a decision, and that is not the way Duane Owen

operated throughout these proceedings. He wanted to take

A-29

aarti

his pencil and paper; he wanted to go back and calculate; he

wanted to determine in his mind what these people have,

the evidence.

I believe that he ultimately determined in his mind, more

rushed than he would like to have been, that he did, in fact,

have that to the point that he decided to talk about it, and

did, in fact, talk about it.

These matters that I have indicated here on the record,

coupled with the recitation with regard to these matters

what I have reviewed will constitute my finding of fact with

regard to these taped statements as well as to those that

were not taped.

All the matters addressed by the Motion to Suppress are

being denied by me at this time based upon a finding of fact

and conclusion of law that I have neither eloquently nor,

perhaps, in logical sequence laid out for you.

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