Appendix — Mattox v. Carson

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ME COURT, U.S... / a ee

pa] Office Supra Coit Uae

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as “Hu the ie JUN 8 1970.

Supreme Court of the Hhited, Slate sav = oxi.

>>. OCTOBER TERM, mh We

—

No. aR

_ WILLIAM OSCAR MATTOX, IR.

‘ Petitioner,

VS.

DALE CARSON, as Sheriff or. *

Duval County, Florida,’

Responde nt.

CECIL FREDERICK LOWE,

Petitioner,

7 >

. VS.

DALE CARSON, as Sheriff of -

Duval County, Florida, :

Respondent.-

APPENDIX

TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEAL S

_FOR THE FIFTH acide

. Sis eer Wa TER G.- ARNOLD *___- >

. 2508 Gulf Life: Tower

Jacksonville, F lorida

- Counsel for Petitioners

~ RuTiepce R. Lives

Of Counsel

~ Opinion of the United States District ‘Court

INDEX TO APPENDIX |

* hs : F ‘ | oh a. ¢ a

Opinions of the-United States Court of \

a for the Fifth Circuit im |

“Opinion ‘.....: Shae A pigia kk cae Be tees

: » Opinion On Rehearing z me " Eee hehe

” a 4 i : ° «

os : /

for the Middle District of Florida, 295 F.

Opinions of the Supreme Govt of Florida’ ‘

. Opinion in State éx. rel. Lowe v. Nelson,

_ Supp. 1054" (Fla. M.D., 1009) tak et

210 Soa2d 197 (Fla. 1968) ee D1

- Opinion in State ex. rel. Mattox p. Lat yton, ; a

210 ae 2d. 119 (Fla. Nr i El

Opinion of the District Court of Appeal of F lorid: a

Ist District ra os ) ar

_ “Opinion i in State ex: relt Lowe v ; ‘ Nelson, : y

202 So. 2d 232 (Fla. App. 1967) . . FI

Opinion in State ex. rel. ‘Mattox v. ieee, ASN oh se

202 So. 2d seth ies App. 1967) rere : Gl ~~

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APPENDIX A

OPINION OF. THE. ‘UNITED: STATES

COURT OF APPEALS FOR: —

THE ‘FIFTH CIRCUIT - -

wee (Rendered March 25,-1970) oe

fe Before TUTTLE,;, WISDOM and BELL, ra

a Circujt Judges. . oa

BELL. Circuit Judge: In these two cases, scualeliaed for

opinion purposes, the sheriff of Duval County, Florida agpeals:

from judgments of the district court . discharging appellees.

Mattox and Lowe, pursuant to petitions for: habeas « ‘corpus, .

‘from custody. We reverse. .° | - oly ;

. Appellees were Jac antite City Councilmen: The sitnation

' giving rise to these proceedings stems from an investigation by -

the Duval County Grand- Jury regarding Jarceny from’ the

Gity of Jacksonville through the meditm. of’ purchasés. by

appellees from aymerchant ‘with ‘payments. for the. items*‘pur-

"chased having allegedly been made out of the funds .of the

Recteation Department of the. city. - :

Appellees were called to testify before the Grand “Jury in |

July of 1966. At the time the Grand Jury had heard from many °

witnesses and, in the view of the district court, because of the -

earlier Grand Jury proceedings, dppeNees. were “definite sus: °

pects and potential defendants” to the dharge of.larcehy then” ;

being investigated. In these circumstance’, thé Grand Jury was -

inwilling to allow appellees to take advantage of the Florid#

Immunity statute, '. which svould normally immunize from

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:: Fla, Stat. A oe. 932. 99:

Nod person’ shall be excused from attending | and testifying, or pro-

ducing anv book, paper or other’,dgcument: before any court upon . —

any ‘investigation, proceeding. or trial, for a violation of. any of the’ ~

statutes of. “this 7Aate against bribery, burglary, laré ny, gaming or

gambling, or of ‘any of:the statutes against the iHega} ale of spirituous,

-evinous’ or malt liquors, upon the ground ‘or foythe reason that the _

testimony or evidence, documentary or othe*rWwise,- required bell him -

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prosecution those subpoenaed to testify, as appéllees had. beet,

in a larceny’ investigation. State ex rel. Mitchell v. Ke Hey; Fla. | = ;

‘1954, 71 So. 2d 887, 895. Because of this ° ‘unwillingness *the |

‘state attorney requested. Mattox and Lewe, in thei ir separate

“appearances, to sign. written waivers of. immunity, They ae-

ceded to the request and. their subsequent: testimony disclosed.

information which the distriét court found to be “relevant. and

material to.the transactions forming the basis of the chargss,

of eran. larveny.” a eee “ BSP on +

At the close of the Grand Jury incestigatiqns, separate in-| ~

formations for, grand larceny ‘were filed agaist appellees in

» state, criminal court. They immedi: itely Moved to qui ash *

: the*informations on the: “grourid. that the w ‘avers of invmunity

were invalid. This contention rested on the a cument thatgthe®

waivers were executed without the advice of counse} ang’with: .

. gut warning as to their Fifth Amendwfent rights, afl in,violation .-)

‘of Miranda &. State. of. Afizona,, 1966, 38-4 U.S. 436, 86'S. Ct. =

* 1602, 16 L.. Ed. 2d 694, and also that the @ divers were otherwise

not knowingly and voluntarily | mide. The motions were oveF-

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__fuled. Appellees then sought writs of prohibition against their —

prosectition on the same ground. Théy, were again unsuccessful, |

_ State ex rel? Lowe v. Nelson, Fla. App. 1967, 202. So. § 2d 232:

* State ex rel. Mattox v. Layton, Fla. App., 1967, 202 So. 2d 208.

‘These decisions were, afirned by the F lorida Supreme Court.

State Cx el. Lowe Nchon:- Fla.’ 1968, 210 So. 2d. 197; Staté a4

_‘éx rel. Mattox v. Layton, Fla.» 1968, 210 Sv. 2d 199: The Son

sdure followed, by. appellees ‘in, the Florida courts, in effect

F cotta appeal in ‘criminal cases, ais permissible iinder the

Florida practice. We treat these procee dings: as the exhaustion.

of state remedies insofar as the immunity question is conéerned.*

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may. tend toc mv ict him of a Crige-or to subject hint to penalty or? -

_ fS#feiture, bu no _petson: shall ‘be ‘prosecuted or subjetted to any ;

perety or forfpiture for or on account ef- any. transacti6n, matter or

thing concerning: which che may so -testify -or * produce evidence:

’ documentary or. ~otherwi ,.and no- -testiindny go given’ or produced

’ .shall_be-“receiyed — chim, upon any criminal investigation or

AX,

‘ After the failure of these state court efforts, appellees” were

confined in the Duval County jail pending arraignment and

trial on thie grand larceny charges. The petitions: for writs of -

habeas corpus which are the subject: of these appeals were-

then. filed. They -contended, in sum, ‘as they had in,the state .

* cor irts, that the ‘waivers of immunity tinder FSA Sec 932. 29,

supra, were inv alid. Z . “as

The district court vigwed the matter in light of the require-

ments. of - Mirandd ‘v: Arizona, supra, and whether they are

_ applicable to a otential. defendant subpoenaed to. ‘testify \:

_ before a Grand ‘fury. The conrt then, concluded that the Grand, L:

. jury investigation was. indeed a “Custodial interrogation” as

eautemplated. by Miranda, and since it was undisputed that

the petitioners ‘were not given the Mifanda \ warnings; the’ dis-

“trict court reasoned that the immunity. waivers’ w ere inv alid.

’ Thus, Mattox and- Lowe «were ordered released, from, ‘custody

‘dnd. rendered. ‘immune “frém.’ any’ future prosecution on the

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ian urges of grand, larceny. eee Yi . am ey

"We hold that the.d: strict court planned error in so ruling.

Assuming ‘arguendo that Miranda \ Ww ould apply, to ‘a Grand Jury?

_ investigation; arid we expressly pretermit the question, Miranda’

does” not have the scope given it by’ the district court. Miranda

is. directed’ to incriminating. ev idence, here ‘such. evidence as

- was ‘adduced fram appellees. be? ore’ fhe © rand..Jafry or: the -

frnits thereof. In-such event, and if Miranda applies, the failure

to give’ the ‘required warnings would not.result ina ee

’ dismissal of: the jnformation. against: appellees. The remedy in’

- suchia case dies in the exclustonary rule, not ina pretrial federal’.

2 habeas corpus proceeding. Cf. United: States v- Blue, 1966..

384 U.S. 251, 255-56; 86 S. Ct. 1416, 16 L. Ed. 2d 510..,.If

appellees were subjected to a “custodial inter rogation” as con-

templated by Miranda, then thes failure to warn them of the

-constitutional: rights due under Miranda should be - “urged in .

the state court trials’ asa bar to the. admission of any évidente.

_ or fruits thereof, gained during the interrogations. Miranda

~ does not authorize. a-camplete Bietsieeal of the criminal charges:

~ reinstating the. immunity Kighits of appellees. Seer

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If the question, presented is oudieed under the test of

. Johnson v. Zerbst, 1938, 304 U.S. 458758 S. Ct. 1019, 82 L. Ed.

-1461, that a waiver. of’ a federal constitutional right must be .

Knowingly and voluntarily made, appellees ive no. -better. -

There again the relief, as ‘will be seen, would come in the form

of asserting the exclusionary rule in the state trials.

‘; The federal right here is to-be fotind inthe Fifth Aménd- “s

ment privilege against ‘self-incrimination as it relates \to the

Florida Immunity : statute.. The Florida right of immunity w hich

prevents prosecution altogether exceeds the scope of the Fifth

Amendment priv ‘ilege. The federat right-which may_be_asserted .

in a federal habéas: court is limjted by the’ outer limits. of the

Fifth Amendment privilege. These outer limits for the purposes

of this eer are found in Gardner: v. Broderick, 1968, 392

U.S. 273, 276, 88 S. Ct. bi 20 L. Ed. 2d 102, where the —

“court axl os Pes

. The priv ilege may” be waived in ‘appropriate cir

cunistances if the, waiver is knowingly ahd ‘voluntarily

made. Answers may be compelled regardless of the

privilege if there is immunity fron federal and state

use of the compelled testimony or its fruits in connec-

tion with a criminal prosecution against the person:

testifying. Counselman v. Hitcheack, supra, at 585-586,

. » 33 L. Ed. at 1122; Murphy v. Waterfront a :

r supra, at 79, 12 L. Ed. 2d at 695."

“It is’ thus élear thawa federal: habeas corpus court must

~ leave such _federgl_questions as : mnty poseibhy arise urider the

This ‘dictions, as to the- priv dlege in immunity situations being” vouch- -

safed by the exclusionary ‘ule, is ‘contrary to ‘the dictum in Counsel-

man v. Hitchcock, 1892,-142 U.S. at 585-86, 36 L. Ed.. at 1122, that.

the privilege under inimunity statutes, must be- supplanted. by

absolute immunity. from prosecution, For—the—ratio—_decidendi-_of

Counselman.v. Hitchcock, see the fact recitals. 142 U.S. at 564-65.

“Cf. Murphy v. Waterfront Commission of New York,,1964,.378 U.S. |

-52, 78-80 84 S. Ct: 1594, 12.L. Ed, 2d 678. See also Byers v. Jus-

tice Ct of Mendocino City, Calif. Sup. Ct., September 16, 1969, 38

_ EW 2214; and In re Zicarelli, N. J. Sup. Ct:, January 20, ‘1970,

- 38 LW 2428. : ,

-—_

RE ae

Fifth Amendment aspect of the Florida Immunity statute to

the state trial courts under the exclusionary rule. This includes -

questions.as to the validity of the waivers. >. |

REVERSED with direction, to bes the petitions for -

habeas corpus. :

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| . APPENDIX B

OPINION OF THE COURT OF APPEALS DENYING

« PETITION FOR REHEARING AND ‘PETITION,

; FOR REHEARING EN’ BANC.

(Rendered May 6, 1970)

- Before TUTTLE, WISDOM and BELL

Circuit Judges —

PER CURIAM:

The Petition for Rehearing is DENIED a no,member of

this panel nor Judge ‘in regular active service on the Court

having requested that the Coutt be: polled on rehearing en

. bane, "(Rule 35~Federal Rules of Appellate Procedure; Local .

, . Fifth Qircuit Rule 12) the Petition for Rehearing En Bane |

is DENIED- $$ — ———

com

APPENDIX Cc

“OPINION ¢ OF THE UNITED STATES DISTRICT COURT nah

f 3 FOR THE MIDDLE DISTRICT :

{ \ OF FLORIDA

| - ,

a - 4 (Rengered January 10, 1969)

ORDER GRANTING PETITION -»

FOR HABEAS CORPUS .

This cause came on for hearing’ on petition for habeas

corpus by Willian Oscar Mattox, Jr., and Cecil Frederick Lowe, .

pursuant to 28 U.S.C.A. Sec. 2254, attacking the legality of

petitioners’ custody. The facts in both cases are identical except

for the-testimony given .by each petitioner before the’ Duval

County Grand Jury, which is the same in substance. Therefore,

~--except for-miner—variances, the- two- petitioners for’ writs—of

habeas corpus are the same. m

~ Subsequent to their rélease on bond ‘in State Court and.at

— the time these petitions for habeas corpus were filed, petitioners

were confined. by Dale Carson, as Sheriff of Duval County,

Florida, inthe Duval County Jail, Jacksonville, Florida, under:

separate informations for grand larceny pending against each

of them as defendants in the Crimindl Court of Record of +

Duval County, Florida, Division, C. Pending final judgment in

this cause, this’‘Court entered an ‘order pursuant to Title 28,

U.S.C.A., Sec. 2251, staying the proceedings in the Criminal

Court of Record of Duval County, Florida, and petitioners

were then released on bond i in this Court. |

After the filing of. wal infoitaattons against dinate in the .

Criminal Court of Record, petitioners filed sworn motions to

quash in the Criminal Court’ of Record on the grounds that

they were compelled to testify before the Grand Jury of Duval

County, Florida, on July 14, 1966, when they were potential

defendants to the charges then ‘being. investigated by the’

Grand Jury, and that the alleged waivers of their ‘constitutional

privileges and their immunity under Section 932.29, Florida

. . C.2 ‘

_Steyites, F.S.A., were -null and void since: the. waivers were

executed witKout the advice of counsel andthe required warn- .

ings of their ree ace privileges were not given to them.

Thé State of Flori

: quash by filing s demurrers thereto. —_s : :

On November 18, 8, 195 the Criterion Court of Record

ente red orders sustaining the State’s demurrers to t he-petition-

ers’ motions to quash the informations. Afterwards: petitioners

filed suggestions for writs of prohibition in the First Distriet

-Court of Appeal of Florida,. alleging that the Criminal Court

of Record of Duval County lacked jirisdiction (6 try petitioners

admitted all the facty in said-motions to’

and that for the State of Florida to continue prosecuting peti-

tioners was a violation of their rights guaranteed to them by -

the Fifth, Sixth and Fourteenth Amendments to the United

States Constitution. Petitioners’ suggestions for prohibition were

denied by the First District Court a Appeal of Florida. State

* ex. rel. Mattox -¥. Layton, 202 “So. 2d 206 (Fla. App. 1967); State”

ex. rel. Lowe v. Nelson, 202 So. 2d 232 Te ig App. 1967 ).

Petitioners ee filed’ petitions for writs of certiorari to the

Supreme Court of Florida, which Court. issued writs ‘of cer-

‘tiorari tq the First, District Court of Appeal of Florida and —

‘subsequently affirmed the latter Court’s decisions. State ex. rel.

Mattox v. Layton, 210 So. 2d 199, (1968); State ex. rel. Lowe v.

Nelson, 210 So. 2d 197 (1968). Petitions for rehearing were

denied by the Supreme Court of Florida oh June 4, 1968.

Petitioners allege that their custody is anleefal par ‘illegal -

and contrary to'the Fifth, Sixth and Fourteenth Amendments

to the United States.Constitution based upon the grounds and

facts set forth below.

The Spring: Term of the bina: Jury ‘of Duval Cotinty,

Florida, conducted an investigation, inquiry and proceeding

City of Jacksonville, a municipality, in connection with the -

fraudulent acquisition of personal items of merchandise from

the Harry Finkelstéin Company, Jacksonville, Florida, for’ the

personal use. of certain individuals, which merchandise ‘was

nt eeier of memes aa ther persona tem fromthe

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| then. a for through the City Recréation Seasmeecas of the %

eee es City of Jacksonville. Prior: to July 13, 1966, this.Grand Jury ° od

_ - had heard many witnesses’ testimoriy and had adduced before

it many documents in reference to said larcenies. On'that day

ay petitioners were definite suspects and potential defendants of

Sf ie _ the larcenies then. being Serpe by the Grand Jury and

| were so considered by the said Grand Jury and the State

Attorney of the Fourth Judicial Circuitsof Florida in and for

_ Duval County, Florida, by reasoit of the evidence previously- aan

adduced and. heard by the Grand Jury.! The Grand Jury then’ >

S ; ' ordered zand caused. to be issued by:the Clerk. of*the Circuit

\a Court of Duval County, Florida,, witness subpoenas requiring |

petitioners . to appear before the Grand Jury to testify. Peti-

- tioners* were each administered. thé oath .and interrogated in

reference to the larcenies from the City, of Jacksonville. Their

testimony disclosed information relevant and material to the © att

a Uses aera eae transactions forming the-basis-of the-charges-of grand farceny oe

subsequently charged i in the informatioys.

While petitioners were in the Grand Jury Room, the State on :

.. Attorney for the Fourth: Judicial Circuit handed to petitioners ate

and- ‘requested them to sign a written waiver of the inimunity to -

~ which petitioner’ would be entitled under Section 932.29,

e «Florida Statutes, F.S.A., in. lieu of the constitutional privilege.

» to ‘remain silent and inet incriminate . themselves under. the.

Constitution of the United States of America.* 2 |

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1. See the transcripts of record filed in the First: District Court of

Appeal of Florida in the Mattox and Lowe cases, supra, P: 16-20

of transcripts. al

Section’ 932.29, Florida Statutes, F ‘s, A., reads as Salons: Soa

‘“No person shall be excused. from attending and testifyi ing, or pro-

ducing any book, paper_or other document before any court upon zs.

any investigation, proceeding or trial, for a violation. of any of ‘the

statutes of this state against bribery, burglary, larceny; gaming or

gambling, or of any of the statutes against the egal sale of spiritous,

vinous or malt liquors, upon the ground or for the reason that the

testimony or evidence, documentary or otherwise, required of him

may tend to convict him of a crime or to subject. him to a } penalty

Sie iy yr C-4

7 “After seis went before the Grand bay the State

pes requested that the waivers of immunity be signed.

. Petitioners had not 2 with a lawyer prior to: or during

their appearances before the Grand Jury, nor had they been.

_. adyised-that they had a right under the United-States Constit Sore

__ tion or Section 932.29; Florida Statutes, F.S.A;, to cansujt |

. fa lawyer. Petitioners had not. been advised about the Waiver of

SL any such rights and privileges in reference to their testimony

kes? before the. Grand Jury. “They were not advised that if they did

‘not have the financial ability or cae to employ an attoritey

. that an attorney Would be appointed to advise and represent

them before and, during such intetrogation. Petitioners were -

yot advised that they’ had a right to remain silent under the —

United States Constitution winless the immuniti sand privileges

‘under Section 932.29, Florida. Statutes, F.S.A.; Were accorded

~ them; and that if the yalid not remain silent anything that they

said might be and could be used against them, either then or -

in a subsequent proceeding. Petitioners were. not advised that

they had the right to exercise any of these rights and privileges

_at_any time during the interrogation or that. ‘they were definite

suspects and ‘potential ‘defendants to the charges of grand =

larceny then being investigated by the Grand Jury. —

th the absence of any. warnings or explanations of their

_ rights dnd privileges under the United States Constitution,

petitioners signed the waivers of immunity before the Grand

Jury without the advice of counsel.-

Federal jurisdiction in these cases is ‘sought under 28 U. S. C.

See. 2254 because of the alleged violation by the State of

_ Florida of the Fifth, Sixth arid, Fourteenth Amendments to the

. +, Constitution of the United States. Respondent contends that

this Court lacks jurisdiction to entertain the’ present Sarai :

or forfeiture, but no person shall bé prosecuted ‘or subjected to any

penalty or forfeiture for or on aécount of any transaction, matter *

or thing concerning which he may so testify or produce evidence,

documentary or otherwise, and no testimony so. given or produced

shall be received against him upon any criminal investigation or pro-

ceeding.”

‘/:

under 28 U. S.C. See 2954" ‘since s petitioners are not’ held pur-

-suant to. any State Court judgment as required to igh

confer jurisdiction ‘on this Court. Respondent contends that,

Actitio ners’ claim for relief. is premature, poiettn ing ‘out. that»

petitioners are each in custody merely by operation of a capias

for arrest issued nee to Section: 932M8, ‘Florida Statutes,

FS.A. SA

- Section 2254, U.S.C., Title 28, uses the term “judgment”

not “final. judgment”. Quite obviously the Supreme Qourt of

Florida, by affirming the decision of the First District Court of

Appeal on certiorari, has entered its judgment denying the. pe-

titioners immunity and holding, them for trial. To hold that a

“final _ judgment”. isa prerequisite. to’ habeas. relief would re-

quire petitioners to stand trial. This w ould.be a direct violation

— of Section’ 932.29, Florida Statutes, F.S.A.,.which specifi¢ally

grants immunity from prosecution. Such a statutory enactment,

_to-be validy must afford absolute immunity against future prose-,

cution for the offense to which ‘the incriminating questions

related. Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195,

~ 35 L.NEd. 1110 (1892); Cf. Albertson Vv. Subversive: Activities

Control Bd., 382, U.S. 70~86 S. Ct. 194,15 L. Ed. 2d 165°

(1965). Undér the principles of Fay v. Noia, 372 U.S. 391,

83 S. Ct. 822, 9 L, Ed. 2d 838 (1963), ,the habeas -corpus

jurisdictional prerequisite is not the judgment of a.State Court

but “detention simpliciter.” The Supreme Court. in Fay v.

Noia, stated:

“The éntire céurse of decisions in (the Supreme: Court

_ of the United States) elaborating the rule of exhaustion

of state reniedies is wholly inconipatible with -the

proposition that a‘state court judgment is required to

confer federal habeas’ jurisdiction. * * *’Habeas lies to

enforce the right of personal liberty; when that right

the ag to release him.” Fay, supra, at 430, 83 S. Ct.

- at 844. |

: This puieas: has not been altered 3 the siiiadinnail ‘of Sec: -

- 2254 0 on November 2, 1966. White v. Swenson, 261 F. Bic 42

ns . C-6 : Soda ty me

_ *(W.D.Mo. 1966). The existence of a “mdgment” is not a vital | <

aoe ingredient for Federal. habeas jurisdiction. See Falgout’ v.’

ATyujille,.270 F. Supp. G85 ( D.€olo. 1966), aff'd 380 F. “od 376 ¥

_". . &# 10th Cir. 1967); Plumer v. State, 262-F. Supp~1021, ‘1023 7. —

= . (E. D167) ); Foster-v. Odbert 264 = Supp. 209 (S.D. hn

ae 1967 ) ; : eae }

Contrary to respondent's sidlialaens: the petitions for. ‘

. habeas corpus are not premature ‘and this Court has jurisdiction

to determine. the i issues raised by petitioners. The jurisdictional Bi

' prerequisite is not a judgment of a State @oart, but, rather,

ce detention itself. ee. Jo ;

Regponde nt ioe not, deny vat pe itioners have exhgusted

* their“remedies. Neither does he deny’ that the actual merig

‘involve. Federal rights controlled by Federal law. Fherefore,

we proceed to the merits.

The sole “question before this Court i: is whether or not the’ °

’ principles and sifeguards announced in Miranda v. Arizona,

384 US. 436,86 S. Ct’ 1602, 15 L. Ed. 2d 694 (1966), are’

applicable toa suspect and potential defendant w he istequired ~ .

a . by a witness subpoena to appear. before a State Grand Jury

_ which is investigating the witness’ alleged crimes where the‘

‘State has an immunity statute which ‘is applicable to the Grand -

Jury proceedings. : A ede

«a ‘The ‘First District Court of Appeal, ‘of. Florida. recognized

in its“wpinion that this Fede ral question was ‘the. only point ,

involved wherrit stated:.

es he record be fore: Us. fo S th: at no shkeiabetd “were: -

made to the’relator to the effect.that he had a right to.

counsel, retained orfappointed, before he executed the

waiver arg responded to questions put: to him hy the

Grand fits Miranda s—appticatbite he re, re, then that,

‘single omission would be’ gpk nt to make out the re-

» Jator’s: case.” State ex. rel. Lowe, supra, at 234,"

The Supreme Count of F lorida adopted this opinion | in State

eX. rel, Lowe v. Nelson. 210 So, 2d 197 (1968) .;

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“It is argued. ‘“ “the es aa | lhe principles, of

- Miranda are net applicable heré because’ a Grand Jury pro- - ;

- ceeding is not a’ critical stage“ of prosecution. While it irae. Mote LE

that. only probable cause was: being; determined, and,that an’ =,

rs information’“could*have beén fited regardless of whethe 4 /

.. indictment. was returned, petitioners werethe targets. off inz

Vestigation anysbwere definite sus gts of the Bleged@arcenies? a ; re

, Intefminatirk: statements made ¢ dtiring the Grand’ lls

tionitig cout. be used against the deftndante at the trial. .

confessioit*of guilt made in the secrecy of: a Grand Spry, "0m

would affect the whole trial. sere Fs at

.* °?

{lik Supréine ys tart of te Moited Stat tates ‘i. already fecog- a

We; 4 that: a Grand Jury proceeding. can be a critical stage ic a+, -\

thi gas iy nv. Remrssee 368 U.S. 52, 54, 82 S. Ct. > ae

ZL. Edy2d"14 ); Messiah v. Unite States. 377-US. 201,

~ $4 SoC TI99, 12 Fa aa 2d 246 ee cording ire) Escohedo™ at

_v. Illinois, 378 US. 478, 84S. Ct. 1758, . Ed. 2d 977 (1964), ee

the accused must be permitted to-€onsult With his lawyer‘whea .-

Rag proc e353 paz ‘shifted from “inVestigatory . accusatory*. oy pac

Escobedo, supra! ‘at-492, 84 S. Ct. 1738, 1765: For this Court

to deprive e petitiqners of the constitutional right.to consult Ww ith

“counsel until afte? the Grand Jury procce dings would be tanta-,

mount to: rendering worthless their Six Amendment right.“ :

have the assistance of counsel fer (their) defense.” are.

Respondent: satilenhaliiey that the, contention raised by, peti-

tioners as to their ‘right to ‘be ‘advised by counsel is ot ap-— —

propriate since there was.no “custodial sgecreged as con-* |

templated by. Miranda. Hiow’ver, the language .of Miranda ~

_ clearly shows that its principle seare not tonne to police '

station interrogation. U nder. that decision,~ ie Ni

“the Fifth Amendment. privilege is- “available-gutside-of — —— 7

criminal court proceedings and serves 5 to protect’ —

3. The Stat ate did not traverse any of the allegations contained - in.

petitioners’ motions to quash. Instead, the State filed a demmrer

; to ap x motions, admitting | as true the allegations contained there- fe

. See Wilson v. State. 134 Fila. 390, 184 Se. 34-44938}. se i ew

miley oe C8.

in all settings in. which. their freedom of action is cur-

tailed in-any significant way from being compelled to

incriminate themselves. neh Monedver. this warning

may serve to make the individual more acutely aware

, that he is faced with a phase of the adversary system-— ~

that he is not in the presence of persons acting. solely -

in his. interest.” Miranda, ‘supra, at AG7, 469, 86 SX.

- 1602, at 16235.

In Miranda, custodial interrogation is defined as “questioning

initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of

action in@ny significant Way.” M spe: supra, at +: - 86S. i

at 1612. ‘ :

Several Courts have’ held that interrogation of a suspect :

_ under circumstances similar to those under whick petitioners —

were each interrogated was “in custody interrogation.” See

State v. Ruggeri, 19 Utah 2d 216, 429 P. 2d 969 (1967): State

*v. Sarcone, 96 N.J. Super. 501, 233 A..2d 406 (1967); State -v.

Rosania, 96 N.J. Super. 515, 233 A. 2d 413 (N.J. 1967) ; People”

», Arnold, 66 Cal. 2d 438, 426 P. 2d 515, 58 Cal. fe 115

( Cal. 1967); People v. Reason, 52 Misc. 2d 425, 276 N.Y.-S. 2d

196 (1966); Commonwealth v. Jefferson, 423 Pa. 541, 226 A.

2d 765 .(1967:); |

Respondent complains that if ‘the Miranda: warnings are

applicable to petitioners before the Grand Jury proceedings,

then petitioners would be entitled to the presence of counsel

before these hearings” which would be contrary to* Section

905.17, Florida Statutes, F.S.A., since that statute prohibits

‘counsel from being present in the Grand Jury room. However,

we are not determining petitioners’ rights to the presence of

counsel before the State Grand Jury. The determination before

this Court is limited to. whether petitioners were entitled to

the Miranda warnings and thus the right to be advised by

counsel: and to confer with counsel before being asked to

execute the waivers. —

*»

It is clear that the Grand Jury proceedings w were investiga-

wid proceedings for the alleged ss asi of a Florida statute

‘e

» ..2d.613,.616 (Fla. 1958). It follows, therefore, that the same

C-9 A ore”

against larceny.* Producing evidence beforda Grand Jury in

reference ‘to the crime of larceny immunizes the witness under

Section 932,29, Florida Statutes, 1965, F.S.A. State ex. rel.

’ Byer y. Willard, 54 So. 2d‘179, 182 (Fla. 1951); State ex. rel.

Johnson yW MacMillan, 194 So. 2d 627, 635-(Fla. App. 1967).

~ Under Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L.

Ed. 2d 653--( 1964), tlre Fifth Amendment is made applicable

_to the State under the Fourteenth:Amendment. Since the ims pee

munity provided: by Section 932.29, Florida, Statutes,-F.S.A., C

stands in the stead of the. Fifth-Amendment privileges against

self-incrimination, and gives the same protection. to citizens, iK(~

--shotld be construed’ as liberally as the Fifth, Ameridment.

_ See Counselman, supra, at 562, 563, 12 S. Ct. 195; Stevens v.

Marks, 383 U.S. 234, 86 S. Ct. 788, 15 I. Ed: 2d 724 (1966):

Florida State Board of Architecture v. Seymour, 62 So. 2d 1, °

3 (Fla. 1952); Ex Parte Senior, 37 Fla. 1, 19 So. 652, 654, 32

_A‘L.R. 133 (1896); State ex rel. Reynolds v. Newell, 102 So.

requirements which are necessary to. constitute a valid avaiver

of the constitutional right against self-incrimination dre re- °

quired to waive immunity under Section 932.29, Florida Stat-

utes, F.S.A. Accordingly, we think that the Miranda warnings |

are applicable where the immunity statute is involved. and

parties are subpoenaed before a State Grand Jury to testify ®

potential defendants for the crime of larceny. In the absence _

of a valid waiver petitioners” were immuttized under Section

932.29, Florida Statutes, F.S.A.," by giving their testimony

before the Duval County Grand Jury, and they could not be - ee,

_ prosecuted for the offenses for which they were indicted.

Petitioners contend that their written waivers were invalid

because: the State failed to give them any warnings of their..

— constitutional privileges and rights under Section 932.29, Flor-

ida Statutes, F S.A’ The First District Court of Appeal found

4.. See ‘the transcript of record in State.ex. rel. Mattox v. Layton, supra,

‘pp. 32-62 of transcript, and the transcript of record in State ex.

rel. Lowe v. Nelson, supra, pp. -32-69 of transcript. —

Pots | Co

ns : ~~ ,

that petitioners’ waivers of ‘immunity were valid and that no

factual coercion was present. However; from a careful reading

of. Miranda, supra, it is apparent that the Miranda warnings

are a pre-requisite to any in-custody interrogation. Miranda,

supra, at 471, 478, 86 S. Ct. 1602, at 1626, 1630. In the absence *

of these warnings we , think that the waivers were- invalid

regardless of any showing of coercion or intimidation by

petitioners. . +

In. Miranda, ‘supra, apd Escobedo, supya,/ no immunity

statute was involved. The Supreme Court of-the United States

in each case suppressed the illegal admissions and reversed for

new trials. When an immunity. statute is involved the matter

is more than evidentiary. Where there has been no valid

waiver of the immunity statute, the defendants must be dis-

.-missed from further prosecution. See State ex rel. Mitchell v. °

Kelly, 71 So. 2d 887 (Fla. 1954); State ex rel. Byer v. Willard,

54 So. 2d 179 (Fla. 1951). Cf. People v. Straehle, 53 Mise. 2d

512, 279 N.Y.S. 2d 115 (1967); State v. Milam, 210 Miss. 13,

48 So. 2d 594; 49 So. 2d 806 (1950). In addition, the following

language appears in Miranda:

“After such warnings have been given, and such op-

portunity afforded him, the. individual may knowingly

and intelligently waive these rights and agree \to answer

_ question or make a statement. But unless and until sich

warnings and waivers’ are demonstrated by the prose-

_cution at-trial, no evidence obtained as a result of ini-

terrogation can be used against him”. Miranda, supra, at -

478, 86 S. Ct. 1602, at 1630. (emphasis supplied )

Under the immunity statute, Section 932. 29, Florida Stat- .

utes, F.S.A., petitioners are released from custody and free from

any further criminal prosecution on the charges of grand

larceny.

It is so ordered and final judgment shall issue in accordance

with this opinion.

/s/ Charles-R. Scott

Judge

D-1 es ;

APPENDIX D

OPINION OF THE SUPREME COURT OF FLORIDA -

(Rendered — 24, 1968)

Before CALDWELL, THOMAS, DREW,

THORNAL, ERVIN, ROBERTS"

AND ADAMS, Justices

PER CURIAM.

° . 3

The writ of certiorari has issued in this cause pursuant to

certificate of the District Court of Appeal, Ist District, under

‘Article V, Section 4, of the Florida Constitution, F.S.A. and

_ Rule 4.5, subd. c, Flaxida Appellate Rules, 32 F.S.A.

The views expressed and the conclusion westliod by the —

majority in the very able and thorough opinion of the appellate

court, 202 So. 2d 232, are in our opinion correct. That opinion,

.and the judgment denying writ of prohibition against prosecu- ,

Record of Duval County, should accordingly be adopted as

‘fon of petitioner ct larceny in-the Criminal Court of

the opinion and judg ent of this Court.

‘It is so ordered. }

‘CALDWELL, &. 4. and THOMAS, DREW and THOR-

NAL, JJ., concur.

- ERVIN, J., concurs specially with opinion.

- ROBERTS and ADAMS, JJ., dissent. .

_ ERVIN, Justice ( sec —— in the denial of

certiorari) :

The mandate of Miranda v. State of Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is applicable to a

custodial interrogation conducted pursuant to a grand jury

_ investigation of suspected criminal activities. A properly con-

structed adversary system of criminal justice must contain

"de ae Be oe

sili aril against overzealous. official. attempts to compel

ev idence from the mouth of a person who’stands. “accused” of

criminal activities, whether in a police 6r prosecuting attorney

or grand jury interrogation. Miranda v. State of Arizona was~

designed to superimpose safeguards upon the state systems of

criminal justice which would function in all custodial inter-

rogations. - :

In the instant case, it appears that Petitioner was stibpoena-

ed before the grand; jury not as an ordinary witess' but as a

target of the investigation being conducted. Accordingly, the

critical stage of due process was reached when the. Petitioner

virtually aud as a person accused before the grand jury and

under’ the Miranda mandate he was entitled to the mantle of

protection afforded thereby. In the event of a failure to apply °

the Miranda requirements, the rule is that the state may not

introduce statements secured as a product of the custodial

interrogation of the accused.

- Because the state is prosecuting him for an offense concern-,

ing which he was questioned before the grand jury, Petitioner ©

contends the state’s failure to adhere to the Miranda safe-

guards when it obtained his waiver of immunity frony prosecu-

tion preliminary to his testimony before the grand jury im-

munizes him completely from prosecution for such offense.

~ The Petitioner has failed to properly distinguish the restraints

and safeguards of Miranda and the immunity sctgured by

\ | Section 32.29, Florida Statutes, F.S.A.

Briefly stated, Section 932.29 provides that ‘a person com-

| pelled to give testimony concerning certain designated crimes

is forever itnmune from prosecution for criminal activities

concerning or related to the compelled testimony. See State -

ex rel. Mitchell v. Kelly, 71 So. 2d 887 (Fla. 1954). The statute

in essence supplants the constitutional privilege against self-

incrimination by immunizing the witness ‘from prosecution.

The obvious purpose of the statute is.to permit state prose-

cuting officials to obtain evidence which might otherwise be J

denied to them by the witness’ exercise of the privilege against

—

- &

self-incrimination. See Lewis'y v. State, 155 So. ». 2d 841 (2d DCA _

Fla. 1963)... «

In the instant case, the record reveals. that Petitioner

executed a written waiver relinquishing the imm ity grante d

by ‘the statute. It appears that under the existing law of this

state the voluntary nature, of this waiver as evidenced by the °

record determines the extent of the effectiveness of such -

waiver so far as relinquishment of Petitioner's’ statutory right

of immunity is concerned. The offer of counsel and other

Miranda requirements were -not critical prerequisites to the-

execution of a valid waiver of the’statutory right of immunity.

The Miranda safeguards embrace only the Fifth Amendment

privilege against self- incrimination and are not applicable to

any statutory substitute of the privilege. Once it appears that the

statutory substitute of immunity is intelligently. relinquished,

Petitioner is relegated to’the protection afforded by the con-"

stitutional privilege itself and it is at this point that the

Miranda safeguards become operative. Accordingly, the failure

to observe the Miranda requirements in the instant case does

not restore Petitiorier’s statutgxy, right_of immunity which was .

duly waived but, if he tiniely objects, Miranda may preclude

the state from making use at his trial of any statements elicited

from him by the interrogation: conducted by the. grand jury.

In the present case, it may well be that the state has. ev idence-

of Petitioner's alleged criminal activities—perhaps from ‘a source

other.than the mouth of the .Petitioner—which is not tainted ©

by v iolations of the Miranda safeguards. If this be the case, such

- evidence ‘is admissible in a proceeding brought to secure con-

-viction of Petitioner.

In summary, statutory immunity from prosecution and an

‘intelligent waiver thereof are in a separate category from

_ Miranda requirements. There is complete dichotomy between -

the two. Here,.the Petitioner intelligently waived his statutory

immunity from prosecution. The state: was then free to prose-

cute Petitioner as if he-had never appeared before the grand

jury, but at the trial. the Petitioner is entitled to the benefit of

“e

D-4

all rules relating to trial evidence and due process, including

Miranda. Therefore, at trial in the prosecution of Petitioner,

if it-appears incriminating testimony was taken from him inthe

grand jury room and such testimony is sought to be introduced,

‘it may be found inadmissible on timely objection if Mirarida

requirements were not complied with as a predicate to taking

such testimony. Petitioner was entitled to the Miranda warn-

ings if he became the criminal target of the grand jury inter-

rogation. He also should have been’ advised of his right ,to

| counsel to represent him ‘and, if not intelligently declined, he

should have had counsel beside him in the ‘grand jury room to

advise him when he testified.

For the reasons stated, I see no 10 justification for prohibiting

prosecution of the Petitioner and accordingly would affirm the

panppecnt denying the rule nisi. .

E-1

APPENDIX E

OPINION OF THE SUPREME COURT OF FLORIDA

(Rendered April 24, 1968)

Before CALDWELL, THOMAS, DREW

THORNAL, ERVIN, ROBERTS and

ADAMS, Justices

PER CURIAM:

~ Pursuant to writ of certiorari issued herein the decision of

the District Court of Appeal, Ist District, has been reviewed

and should be adopted on authority of the order of this Court

in the companion case of State ex rel. Lowe v. Nelson, Fla. 1968,

210 So. 2d 197, and the — a ae | at Fla. App. 202

‘So. 232. we

It is's so ordered.

CALDWELL, C.J., and° THOMAS, DREW and‘ THOR-

NAL, JJ., concur. ete,

ERVIN, J., concurs, but see my special concurring opinion

_ filed in State ex rel. Lowe v. Nelson, Fla. 1968, 210 So. 2d 198.

ROBERTS and ADAMS, JJ., dissent.

~ frony further prosecution of the relator on a charge of grand .

‘APPENDIX F

OPINION OF THE ‘DISTRICT’ COURT OF APPEAL

OF FLORIDA ° FIRST DISTRICT

. (Rendered September- 15, 1967)

‘ Before SPECTOR, WIGGINTON and

JOHNSON, Judges

SPECTOR, Judge,

The relator has filed’a suggestion for the issuance of a rule

nisi in ‘prohibition against the respondent to prohibit the latter

: larceny.

As giciinite for his suggestion, the relator contends:that- be

has become immunized from prosecution -an that charge by

operation of the State’s immunity statute, Section 932.29,

Florida Statutes, F.S.A., by reason :of having been required

under subpoena to testify before the.Grand Jury, Spring Term,

1966, of Duval County, Florida, concerning the grand larceny

charge now faced by him-in the Criminal Court of Record —

of ae al County. Although a written waiver of the immunities

~ afforded by Section 932. 29 was executed by the relator, it is’

his contention that said waiver is a nullity because it. was

peor without benefit of the warnings prescribed by the

United States Supreme Court in Miranda v. State of Arizona,

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, decided June 13,

. 1966.

The iishe ee the ssatant ‘iiccaibiie are briefly : the

following. Mr. Cecil Lowe, the relator, at the time of the ©

_ incident “complained: of was a member of the City Council of

_ Jacksonville, Florida, an office to which he had initially beén

elected almost twenty years earlier and held continuotisly

since. On July 13, 1966, one month after Miranda, a witness

subpoena was served on Mr. Lowe commaridiffg him to appear’

before the Grand fury as a witness on the following day.

° .

™

F-2..

. ees |

The transcript: of the proceedings before the Grand Jury

reveals that Mr. Lowe was ‘advised that the Grand Jury

oe: ae engaged | in an investigation relating to larcenies’ of

money from the City ‘of Jacksonville, Florida, concerning

_purchases of various merchandise from the Harry Finkelstein

Company of Jacksonville, Florida.” He was further advised -

that “° * ° this inv estigation is brought within the terms and

prov isions of our immunity statute.

“Under the laws of the State of Florida, when a person is —

called. before the Grand Jury in connection with certain enum- |

erated offenses, the law provides a person as called to testify. |

cannot: refuse to testify on the, grounds his testimony might

incriminate him. * * © The law ¢ gives complete immunity to

such person from,any prosecution.’° ° ° Do you understand?

“Yes, sir, I think I do.

1 40.09 are you Ww illing to waive your immunity?”

At this point in the proceedings, the State Attorney advised

Mr: Lowe that the Grand Jury would not be interested in

granting him complete immunity. It seems to us that this state-

by the Grand Jury. Ri Pee <g

_ face that it was given voluntarily.

ment was enough to put the witness on notice: that if he did

not sign the waiver of immunity, he Ww ould not be interrogated

The written waiver of imnjunity ‘ahh was thereupon

executed by the. relator séts forth that_under ‘the laws of this

State a ‘person may not be prosecuted for offerises questioned

‘upon by the Grand Jury unless such immunity is waived and -

said instrument concludes with | language which’ imports on its

- The fall thrust of. relator’s suggestion is that the waiver of

immunity ,made by him both in writing*and orally before the

Grand Jury is constitutionally tainted, and thus a nullity, for

the reason that-the Miranda warnings ,were ‘not given to the

witness. prior to the waiver. This contention is advanced by

the relator even though the record fails to reveal: any factual

coercion, leading to the. execution of the Waiver.

si, aor oF

F-3 \ = 7

Accordingly, this Couns is ‘faced with the need to determine

whether the aor enunciated by the United States Su-

. preme Court in Miranda/are applicabla, to progeedings before

__ a state grand jury; and, secondly, if they\are not so applicable,

whether this Court will extend Miranda to such a proceeding.

In its opinion degiding Miranda and the three companion

cases, the Supreme Court summed up its holding at 384 U.S.

444, 86 S. Ct. 1612, 16 L. Ed. 2d 706, in the following language:

“* # ® the prosecution may. yot use statements whether

exculpatory or inculpatgry, stemming from custodial

interrogation’ of the ,dgfendant unless it demonstrates

the use of procedural safeguards effective to secure the

. privilege against self-incrimination. By custodial inter-

rogation we mean questioning initiated” by law.enforce-¢

_ment officers after a person has been taken into custody

or otherwise deprived of his freedom of action in any:

significant way. °,. ° Prior to any questioning, the

person ‘must be warned that he has a right to remain

silent, that any statement:he does make may be. used |

as evidence against him; and that he has a right to the

presence - an attorney, either retained or. appointed.

sem

The -record before us mmiciace that no- statements were

made to the relator to the effect that he had a right to counsel,

retained or appointed, Before he executed the waiver and

responded to questions: put to him by the Grand Jury. If

Miranda is applicable here, then that single omission would be

sufficient ‘to make out the relator’s case.- An examination of

Miranda and its, companion cases shows that in each ‘of the

~ four cases the defendants made either written or oral-confes- |

_ sions diring the course of interrogation by police. In each case;

the finterrogation and cortfession_occurred: while the accused,

was in the physical custody of the police.. Mirangla was: inter-

rogated while held in custody in the Phoenix police’ station and:

confessed. Vignera was interrogated while held in two separate

detective squad headquarters | in New York and confessed.

Westover was s interrogated by both the local police and F. B.I.

”-

F-4

while hgld in the Kansas City police station and confessed.

Stéwart |was interrogated while held, in custody at the Los

Angeles police station and confessed. In each of the casés, the

confession w as admitted against the defendants. In each. in-

stance, the deféndant, had been subjected to. custodial inter-

rogation while in the custody of the police. In the instant ‘case,

the interrogation complained of did not occur while Mr. Lowe

Was in ss custody of ‘the police nor in the, spritate office of a

“prosecuting official. On the contrary, the interrogation occurred

before a Grand Jury c6émposed of the relator’s fellow citizens

as prescribed by statute. A court reporter was present and the

¢ Grand Jury was operating under the direct supervision of the

Circuit Court.

The Court in ‘Mipande: at 384 US. ‘AT? 86 S..Ct. 1629, 16.

L. Ed. 2d 725, stated: «+

f - “The -principles spniunced tides deal with the protec-

- tion which. must. be given to the privilege * against

self-incrimination, when the individual is first. subjected :

to police interrogation, while in custody at the station

or otherwise. deprived of his freedom of action in any

. significant way.” ‘(Emphasis supplied. he

Earlier in 384 U. S. 461, 86'S. Ct. 1620 and 16 L. Ed. 2d 716,

we find the followi ing: &

- / “We are satisfied that all the te embodied in the

privilege apply to informal compulsion exerted by law-

-* enforcement officers during in-custody questioning. An

individual swept from familiar surroundings into police’

custody, surrounded by antagonistic forces, and. sub-

jected to the techniques of persuasion described above

cannot be otherwise than under compulsion to speak.

As a practical matter, the compulsion to’ speak in the

isolated setting of the police station may well be greater °

than in courts or other ’ official investigations, where |

there are often impartial observers’ to guard against —

intimidation or trickery. (Emphasis supplied. ) as

It is our opinion that the above mi abe Mir-

anda serves to distinguish police cuStodial apr s ion from

_* : _

OFS os,

interrogation by the grand j jury even though the presence of the

witness before the grand jury is compelled. From what we

gather, Miranda is applicable to interrogations in the * ‘isolated

setting of thé police station” and not those occurring “in courts

or other official investigations” where there are impartial

observers to guard against intimidation and trickery being

employed to compel the witness to give‘evidence against him-

self. It is our view that grand jury proceedings are not such

lend themselves to the coercive police tactics, isolated though

they may be, which prompted the Supreme Court to wield its

broad Miranda brush to affect’ questionable cures even where

no ills were present. . ‘

In the case at oH there is.no contention by the relator that

his waiver,was in any way coerced, either phy sically or psycho-

logically, by the grand jury or its agents nor ‘could such con-

tention be made for the recor¢cLof the preceedings refutes such

an argument ¢ even before it is made.

~ Relator cites Garrity V. ‘State of New Jersey, 385 U.S. 493,

87 S. Ct. 616, 17 L. Ed. 2d-562, in support of the proposition

that a waiver given by a witness appearing hefore the grand

jury was invalid, but that case is not persuasive here kor in

Garrity, it was held that the threatened loss of the witness's’

office should he: not testify. amounted to a coercion of the

witness's testimony. In the instant case,-no such, threat was

held over the relator’s head. Relator also relied on the applica-

tion of Miranda by the Court&. in Peaple v. Arnold, Cal., 58

Cal. Reptr. 115, 426 P. 2d 515 (1967); People v. Reason, 52

Misc. 2d 425, 276 N.YS. 2d 196 (N.Y. Dec. 1966); Common-’

Wealth v. Jefferson, 423 Pa. 541, 226 A. 2d 765: (1967): and

People v. Kelley, Cal., 57 Cal. Reptr. 363, 424 P. 2d 947 (1967).

Each of these’ cases were post Miranda decisions in which the

Court held that*Miranda w arnings: were necessary prior to

interrogation, but in-each of these cases the custody ,in which

the suspect was held was of a type during which unwitnessed

or coercive pressures could be used upon the suspect rather

‘than the type recognized by the Supreme Court in Miranda

F-6

at 384 US. 461, 86S. Ct. 1621, “° * ° where there are often

impartial observers to guard against intimidation or trickery.”

In a decision which straddled Miranda in point of time, our

own Supreme Court in Gordon v. -Gerstein, 189 So. 2d 873,

affirmed a decision of the Third District Court of Appeal,

. reported at 183 So. 2d 285, holding that a witness: summonsed

to give testimony before a prosecuting official was not entitled

to have counsel — The Supreme. Court's opinion in

Gordon was filed May 25, 1966, some twenty days before

Miranda, but denied rehearing in an opinion dated Septem-

ber 21, 1966, sometime after Miranda. In State v. Stallings,

154 Conn, 272, 224 A. 2d 718 (Nov. 1966), in a post Miranda

decision, the Supreme Gourt of that state held that under the

practice of that state proceedings before the grand jury are not

such a critical stage in the administration of criminal justice

so as to require that a witness's counsel be present with ‘him

while he appears before the grand jury. In United States v.

DiMichele, 375 F. 2d 959 (3d Cir. 1967), the Federal Court

in a post Miranda decision rejected the contention that a wit-

néss before the Federal Grand Jury was entitled to a warning

of his rights to counsel.

. The Courts of Florida have not fet held that Miranda is

applicable to. a witness appearing before: the gnad jury. We

are not inclined to make’that extension for the simple reason _

that the real or imagined reasons. underlying Miranda do- not

exist in pur grand jiiry proceedings. A court reporter and a

broad representative group of community citizens are present

to serve as impartial-observers to guard against intimidation

or trickery. Should safeguards not be*present, our view of the

non- -applicab: lity of Miranda might differ. — - ky

The suggestion for issuance of a rule nisi is therefore denied.

* WIGGINTON, C. J., concurs.

JOHNSON, J., dissents.

‘ JOHNSON, Judge, dissenting.

I cannot agree with the conclusions reached in the majority

opinion in this case for the reasons hereinafter enumerated.

‘ ‘

F-7

In alee to properly premise my opinion, I need to restate

some of the more pertinent facts as they actually existed. I

think this is necessary to demonstrate that the latest United

States Supreme Court decisions owthe question involved are

applicable and ‘determinative of a view contrary to that an- _

nounced in the majority opinion in this case.

The bide’ was a. city wnclihas: and had: been _for,.”

years. The Grand Jury of Duval County had been engaged. in

investigation .of certain rumored, at least, business irregularities

by the City officials. He was subpoenaed to.appear befote the

Grand Jury ‘at a certain hour of a certain day and to testify.

This subpoena’ carries with it the- power of compulsion—the

power to compel the witness to appear and to testify. He has

no alternative. It is true that in order to not render the statute

requiring the. witness to testify unconstitutional, . . . “under

the constitutional” . provisions against self-incrimination,

the statute provides that. when a person does so testify, he shall

not be subject to prosecution for or on account of any trans-

action, matter or thing concerning which -he so testifi ed, and

no. testimony or ev idence so given pr produced, shall be re-

ceived against him upon any criminal proceeding.

_ It appears from the transcript of the proceedings before tle

Grand Jury, that the State Attorney, told the defendant, after

he had been brought into the Grand Jury Room (which ex-

cluded all persons except the jurors ‘and State Attorney and

his assistants ) that the investigation was about certain larcenies ’

against the City of Jacksonv ille, with particular reference to

_ certain purchases from Harry Finkelstein Co., also, that the

investigation is into matters brought within the: terms and

provisions of our immunity statute. He, the State Attorney, also

pointed out that when a person is called before the G rand Jury

to testify in connection with certain enumerated offenses; the

law provides that since he can't refuse to testify on the grounds.

his testimony might incriminate him, the law gives complete

immunity. He then asked the defendant if-hé understood. The

defendant’s: answer. left some doubt, when ,he said: “Yes, sir, |

F-8

I think I do.” The State Attorney then handed the defendant -

a rather long typewritten paper and explained that said paper

was a waiver of immunity and was “about what he had just

explained to him” or similar words, and told him he wanted him

* to sign it. He also told him he could read it ifhe wanted to.

The record does not disclose whether the defendant read it or °

not. He’ further stated that this Grand Jury” does not.want to

give you a complete immunity.”

To me, the necessity for the waiver of immunity and state-

ment that the Grand Jury did not want to give the defendant

complete immunity, and the further fact the. Assistant State

Attorney while interrogating the defendant, reminded him of:

perjury, and_also pointed out that the State had purchase orders

‘from Finke Istein for the television and certain other articles,

all point to the one fact ‘that this defendant, at the time the’

subpoena was issued and at the time he first appeared in the

Grand Jury, was:more than just a witness, Te was a defendant—

a.definite suspect. This was no longer an inv estigation into an

~ unsolved crime. ‘This had ‘foeused wpon a definite suspect, as_

pointed out in Escobedo v.-StateXof Illinois.! Therefore, the - °

constitutional provision against self-incrimination is applicable.

Regardless of whether the answers to interrogatories were ex-

culpatory or inculpatory, the prosecution could not use state-

* ments stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective

to secure the privilege against. self-incrimination.*

This then brings to bear three questions:

(1) Was the interrogation by the State Attorney and.

Grand Jury .in “custody” interrogation, so that

- Miranda® is applicable? —

L ecciandi v. State of Illinois, 378 US. 478, 84 S. Ct 1758, 12 L

Ed. 2d 977:

2 State of Utah v. Ruggeri, Utah, 42% P. 2d 969, 973.

3. Miranda v. State of Arizona, 384 U.S! 436, 86 a of sisi 16 i.

- Ed, 2d 694.

— ¢

F-9

-(2) Were the requisite constitutional rights of the

defendant pointed out to him so that he could

_ intelligently waive immunity? ;

(3) Was the waiver of immunity valid?

The State contends, and-the majority of this panel of the

Court’ agree, that the inquisition by the Grand Jury was not a

“custodial interrogation” and therefore the United States Su-

preme Court tase of. Miranda does not apply. The contention

is that in Miranda and the other three cases combined for

consideration in the one opinion as found in 384 U.S. 444, 86

S. Ct. 1602, 16 L, Ed.2d 706, the defendants had been arrested

and interrogated in police. stations. This is true, but, before

getting to specifics of the four cases included in the Miranda

case, Chief Justice Warren specifically pointed out that the.

Court (the U.S. S. Ct.) should clear up the uncertainties left

suspended in. previous decisions including Escobedo, with ‘re-

ference to the defendant's rights under the Fifth, Sixth and.

Fourteenth Amendments to.the United States Constitution.

We find the following language used in Miranda v. State of

Arizonia in’384 U.S. 467, and 86 S. Ct. at page 1624: |

“Today, then; there can be no doubt that the Fifth

Amendment ‘privilege is available outside of Criminal

Court proceedings and serves to protect persons in afl

settings in which their freedom ef action is curtailed

from b&ng compelled to incriminate themselves”

( Emphasis supplied. )

‘Also in Miranda v. State of Arizona i in 384 USS. at page 444

‘ and 86 S. Ct. at page’ 1612,.the court defined ° ‘custodial inter-

rogation” as follows:

“By custodial interrogation, we mean questioning initi- °

"ated by law enforcement officials after a person has

been taken into custody or otherwise deprived of his

freedom of ‘ction in any significant t way. (Emphasis

~ supplied.)

Ya i _. From this, we can definitely see that the Court was not

‘limiting the rule laid down, as ‘pointed out in Miranda, Esco-

: F-10_

bedo, Massiah* and other cases, with reference to the rights of

the "defendants to just those cases when an arrest had been

made by an officer. The Grand Jury is a law enforcement body

who investigates, inter alia, alleged violations of criminal law,

in a secret proceeding. When a potential defendant, and it —

eannot: be disputed that all the record before us definitely

the deféndant as a defendant, appears before a Grand Jury.and

_is subjected to a barrage of questions from Assistant State

NE ee the State Attorney and the Grand Jury considered |

Attorneys, State Attorney, and Grand Jury, alike, he is likely —

to become confused, nervous, and unable to think ‘clearly. -He

needs the help of counsel at .a time like this. 2

Since the Miranda case came down, the Supreme oe of

Utah in the case of State of Utah-v. Ruggeri, supra, dealt with

the question of custodial interrogation as used*in Miranda and

said this at page 973 of 429 P. 2d: “When Brady entered the

- grand jury room pursuant to a subpoena, he was in custody.

He could not leave: until he was excused.” This is almost an

exact statement as contained i in the Florida Statutes on this

subject.

So it seems very clear to me that when the defendant, in

response to the Grand Jury subpoena, entered the Grand Jury -

Room, he was from that time on “deprived of his freedom of

action in a significant way”.> He could notleave until released.

He could.not refuse to testify without being’in contempt. His

only right of protection was his immunity from. -prosecution

for the things he testified, about. We ,therefore come to: the

other two questions enumerated above namely: Were the

requisite procedural ‘safeguards set ‘out in Miranda as neces-

sary demonstrated and if not, did the waiver of immunity be-- -

come invalid by reason of a lack thereof. I answer the first of

the two latter questions in the negative and the last of the

questions in the affirmative.

- 4. Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L.

Ed, 246.

5. Miranda v. State of Arizona, 284 U.S. 444, 86 S. Ct. 1612.

Having determined in my mind that the defendant was in

a ¢riminal proceeding and in custody when he appeared before

the Grand Jury, and was.a potential defendant, any testimony

he gave was in violation of his constitutional privilege, regard-

less of whether he claims or asserts his privilege or not.®

Inasmuch, therefore, as the defendant has‘ no alternative

about testifying before the Grand Jury, the question of his

-waiver of immunity became a decisive stage in the proceeding.

In Escobedo, the United States: Supreme Court said a party

is entitled to the benefit of counsel at the beginning of a de-

"cisive stage of the proceeding and determined that “the decisive -

stage is reached: when the ee begun to focus on -

a particular suspect.”

There being no “question _ that the State heiowaey _

apparently the: Grand Jurors, had narrowed their proceeding

.. to further establishing a guilt in the defendant and his code-

fendant, George Robinson, with regard to the purchases of

‘merchandise from Finkelstein’s, the question of waiver of im-

munity became of greater significance to the rights of the

defendant than the actual interrogation. This was a decisive

stage. If the defendant refused to sign the waiver, he could not

_ be interrogated about any. matter which would be the subject

of a later criminal prosecution against him. The record discloses

that no warning was given to the defendant prior to the re-

quest for his signature to the waiver.-He was not advised as to

what his constitutional rights were or that he was entitled to |

counsel .at this stagé. We do not have to go into the question

‘of whether he would have had a right to y dounee! during the

interrogation—this is not a matter before us—the point is, he -

should have had advice of counsel as to the meaning of his

waiver and its ultimate dire effects upon him in.a subsequent

criminal trial. ‘

In Miranda v. ‘State of Arizona, supra, at page 1640 ai 86

S. Ct., at page 737 of 16 L. Ed. 2d, ~ Supreme Court said:

6. “ra v. Tomasello, 48 Misc. 2d 156, -264 N. Y. S. 2d 686, 690:

8 |

. F-12

“In dealing with custodial inferrogation, we will not

presume that a defendant has been effectively apprised

of his rights and that his privilege against self-incrimina-

_ tion*has been adequately safeguarded on a record thit

does: not show that any warnings. have been’ given or

that any effective alternative has been employed. Nor

can a knowing and intelligent waiver of these. rights be

-assumed on a silent record.”

The question has been raised that the Dekel Was in-

telligent and experienced and that the rule applied to persons

who were ignorant of their rights. The court said in Miranda,

supra, “The privilege against self-incrimination secured by the

Federal Constitution applies to all individuals, the indigent as.

well as the affluent.”

In Miranda v. State of Arizona, supra, it is said:

“The absolute requirement of informing a person held

for interrogation by a law enforcement officer of his

right to consult with a lawyer and to have the lawyer

with him during interrogation cannot be met by any

amount of circumstantial evidence that he may have

been aws are of this right.”

We further find that the court said in Miranda, that. ihe

Fifth Amendment privilege is, fundamental to our system of

- constitutional rule and the expedient of giving: an adequate °

. warning. Assessments of the knowledge the defendant . pos-

sessed, based on information. as to his age, education, intelli-

gence or priér contact with authorities, can never be more than

speculation; a warning is a clear-cut fact: “More important, —

whatever the background of. the person interrogated, a warning

at the time of the interrogation is indispensable to overcome

its pressures and to insure that the individual knows he is free

to exercise the privilege at that point in time.”

“Therefore, the right to have counsel present at the in-

terrogation is indispensable to the — of the Fifth

Amendment privilege ° ° °.”- 3

; ae ome

"And in ’ summary, the Gaius said d (page 1630, 86 S.Ct., page

726, 16L. Ed. 2d):

“To summarize, we hold that when an individual is

taken: into custody or otherwise deprived of his freedom

by the . authorities in any significant way and is ‘sub-

jected to questioning, the privilege: against self-incrim-

ination, is jeopardized. Procedural safeguards must be

employed to protect the privilege; and unless other fully -

effective means are adopted to-notify the person of his

right of silence and to assure that the exercise of the right

will be ‘scrupulously honored, the following measures

are required. He must be warned’ prior to any ques-

tioning that he has the right to remain silent, that any-

thing he says can be used against him in a court of law,

that he has the right to the-presence of an attorney, arid

_ that*if he cannot’ afford. an. attorney ane will, be ap-

pointed for him prior to any questioning if he’so desires.

Opportunity to exercise these rights must be: afforded .

to him throughout the interrogation. After sucli warn-

ings have been given, and. such oy ‘gortunity .afforded

him, the ‘individual may know ingly: and _ intelligently

waive’ these rights and agree to answer questions or

make a ‘statement. But unless and until such warnings

and waiter are demonstrated by the prosecution at trial,

‘no evidence obtained as a resuilt-of. interrogation ‘can be’

i used against him.” (Emphasis supplied. )

Therefore, the crucial question. inv olved here is abe validity

of the waiver and whether it was intelligently waived. The an--

swer to the request for the signature of the defendant to the

waiver, in its overall éffect,' was determinative of whether the

defendant could or would be criminally prosecuted. The rec-

ord before us conclusively shows that the fight to: counsel: at

this crucial or decisive stage was neither offered, nor the de- |

fendant advised of his right to have one, and therefore; pur-

suant to the Escobedo and Miranda decisions, the defendant's

_rights, under, the Fifth and Sixth Amendments to:the United

States Constitution have been violated and the w rongful inter-

a of the defendant precludes’ further ‘prosecution.

! Fl ‘

I do not consider that’ the case. il judice. comes. within

some of the borderline cases about which there is considerable

debate wherein the warnings must be given toa crimina}: sus-

pect when picked up by police, In this case, the State appar-

ently had enoiigh evidence upon w hich to’ base an indictment,

if found to be true, but: was .insisting on’ what was probably |

intended to, be a lock and key job against the defendant. ‘The :-

right of the defendant here violated, does not stem from the

recent more liberal decisions above, but is one W hich basically

has been an established right for years.

The majority opinion sugeests that there are two: main

*Guestions to be answered, namely: (1) Was the waiver of

immunity constitutionally tainted and therefore a nullity be-

cause the w arnings required ‘by Miranda were not civen-prior

to the waiver rand ( 2) Are the guidelines laid: down in Miranda

applicable to proceedings before a Grand Jurv and if not —

‘should this Court: extend Miranda to such proceeding?

I. believe I have fairly w ell pointed. out supra that interro-

gation before a Grand. Jury is in “ctistodial interrogation” and

that the warnings as prov ided in Miranda should be given. It

iss not -a question of ‘extending Miranda to cover TG rand Jury

procecdings. , | |

; fee: :

The majority opinion cites the recent Florida Supreme Court

case of Gordon v. Gerstein, 189 So. 2d 873, decided on May 25

1966,, which was some 18 days prior to Miranda, and a rehear-

ing denied September 21, 1966, so that the Florida Supreme

Louw did not have Miranda before ‘it. But it is significant to

note that the Hon. Justice Thomas; who authored that opinon,

stated:

held because the statute requires that they. be secret.

but there is sli¢ht if.any analogy between such pro-

cédure and that followed under Section 27.04 (F.S.).

Eventually in his brief the petitioner, himself, subntits

that there is clearly no analogy between such inquests

before a prosecutor and before a grand jury, citing Sec-. >

tions 905.17, 905.24 and 905.27, Florida Statutes, F.S.A.”

While Miranda was dealing specifically, as to the four cases

‘before it, -consolid ted, where the interrogation was in police

station and other isolated setting, it did not preclude the rule

therein laid down from applying equally in a setting where the .

defendant was confronted by a hostile barrage of State At-

torneys and Assistant State’ Attorneys, but shes. at least, some

unfriendly jurors.. The - transcript of the proceedings hefore

~ Grand Jury clearly shows that the State Attorney was not

overly friendly nor overly zealous in advising the defendant

of his rights. True, this occasion occurring within 30 days

after Miranda was decided, the’ State Attorney probably had.

Not seen the guidelines laid down in Miranda, but definitely,

he did not adele the defe ndant that he. had a right to advice.

of CONSE | before s signify the w aiver. |

It is farfetched to conceive that the deferidant intelligently

W2ir.ec be immunity when he had all, to lose and nothing to

gain thereby. . Did the defendant, really understand that by’

refusing to sign’ the -w aiver he -was protected against. prose-

cution stemming out of matte rs* eabout which "i was to be

inte rrogated ?”

As pomted Sail supra, we are not’ ca ‘led up here to ils:

~ whether a-witness is entitled to an-attornéy atthe interroga--

tion before the Grand Jury, but we should decide’ that at.a

crucial time prior to interrogation by the Grand Jury the de-

te “ndant, and definitely he was a defendant, had a right to be - ’

advised of his right. of counsel: before being requested to place

himself in a se Mei incr! iminating position: from which he pen?"

“a

not retreat. : . ae E. ay ae

- Therefore, I think the rule nisi should be issued.’

_ APPENDIX G

OPINION OF THE DISTRICT COURT OF APPEAL ~

ie OF FLORIDA FIRST DISTRICT

(Rendered September 15, 1967) -

-_ Before WIGGINTON, SPECTOR and.

: _ JOHNSON, Judges |

PER CURIAM.

The Suggestion for Writ of Prohibition filed by Relator

herein is denied on the authority of the opinion filed thiy date.

in the companion case of State of Florida ex rel. Lowe v.

ahi 202 So. 2d 232.

WIGGINTON, C. J., and SPECTOR, J., concur.

JOHNSON, ]., dissents. '

JOHNSON, Judge (dissenting). °

I dissent from the conclusion, reached by the majority .and

_ Would grant the Writ of Prohibition for the reasons and upon

the authorities, cited in the dissenting opinion filed by me in

the companion case of State of Florida ex rel. Lowe v. Nelson,

| 202 So. 2d 232.

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.