# Appendix — Mattox v. Carson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0016%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1970 - **Citation:** 400 U.S. 822 ## Text ME COURT, U.S... / a ee pa] Office Supra Coit Uae ; = » ee nm 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.- ai cL 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 ~~ : Sf » th AL 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 a a :: 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 - ° . : e 2 - “m, : ‘ ‘ = ° , “. : ia : F - « 7 : , . ‘ " - Se a a ‘ ’ -* ° : F . : e ® . = . "_ -- proceeding. °° eu . . - 2 . 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- ae . __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.* : ae : 2 : ye \ ‘ ‘ ? ; . | REVERSED with direction, to bes the petitions for - habeas corpus. : » es 3° 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 | é i ey ca: / 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 bo ti 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.” v ‘/: \ 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 é 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 | 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. oc 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. ‘ : e 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 2 custodial interrogation conducted pursuant to a grand jury _ investigation of suspected criminal activities. A properly con- structed adversary system of criminal justice must contain Ce "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 — - & D3 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. ¢ i ~ 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. vk 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 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. Pe Fl 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- o "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: “e.¢ © True, inv estigatians by a grand. jury. are secretly 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.” . B2 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 . 3 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 ?” 2 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?" es “a -_ s not retreat. : . ae E. ay ae - Therefore, I think the rule nisi should be issued.’ SS - » Gl _ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0016%3A1. Public record. Not legal advice.