Opposition Brief — Florida v. Franklin

No. 04-568

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF FLORIDA,

Petitioner,

e

MYRON FRANKLIN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE FOURTH DISTRICT

COURT OF APPEAL OF THE STATE OF FLORIDA

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE FOURTH DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

Richard B. Greene

Assistant Public Defender

Ian Seldin

Assistant Public Defender

Office of the Public Defender

15" Judicial Circuit of Florida

421 Third Street/ Sixth Floor

West Palm Beach, Florida 33401

(561)355-7600

Counsel for Respondent

QUESTION PRESENTED

® Whether the decision by the Fourth Distnct Court of Appeal

in Franklin v. State, 876 So. 2d 607 (Fla. 4" DCA 2004), conflicts

with Miranda v. Anzona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966), and California v. Prysock, 453 U.S. 355, 360, 101 S.Ct.

2806, 69 L.Ed.2d 696 (1981), by violating the Court’s holding that no

talismanic incantation is required in conveying to a suspect what his

rights are under Miranda?

TABLE OF CONTENTS

QUESTION PRESENTED

Be Whether the decision by the Fourth District Court of Appeal

in Franklin v. State, 876 So. 2d 607 (Fle 4" DCA 2004), conflicts

with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966), and California v. Prysock, 453 U.S. 355, 360, 101 S.Ct.

2806, 69 L.Ed.2d 696 (1981), by violating the Court’s holding that no

talismanic incantation is required in conveying to a suspect what his

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POT Aaa hin i han hp a a a ee 1

SEATIIIIIE OF TH CAE io os A a a eee 2

SETI Oe Te i a sk iS a 2

REASONS FOR DENYING THE WRIT PETITION ............--0.0ceceeeeeeeeeeeeee 2

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TABLE OF CITATIONS

Cases Page(s

Brown v. Crosby, 249 F.Supp.2d 1285

ES I a ssn a6 s Via Assays aks s OWRRRAD MSM AS NA ON ea baekeen 11,15

California v. Prysock, 453 U.S. 355,

101 S.Ct. 2806, 69 L.Ed.2d 696

EE ke A URES ANS Kd Oke os aed SCORN ARR a RRO KkEeRAE eRe ane bee 3, 4, 11, 12, 14, 16

Coleman v. Thompson, 501 U.S. 722,

111 S.Ct. 2546, 115 L.Ed.2d 640

Connecticut v. Barrett, 479 U.S. 523,

107 S.Ct. 828, 93 L.Ed.2d 920

NE a SWa-a ook Wk a ee a ae Gide Na eee RRR eee en cee bakes 5

Cooper v. California, 386 U.S. 58,

87 S.Ct. 788, 17 L.Ed.2d 730

SOUND os «Sab y sagan ah Ch WANR AS ERAEAREASE LAC EDA RENE RCE Rw eRe EO UNEUSE Cea Os 2

Coyote v. United States, 380 F.2d 305

PIS MER ci oa cael yn ot eee ee ee ae eer ea, 13

Davis v. United States, 512 U.S. 452,

114 S.Ct. 2350, 129 L.Ed.2d 362

Se EE eee ee ey Per Se Cee Ty oe oe ey OTe ert Terre 6

Dickerson v. United States, 530 U.S. 428,

120 S.Ct. 2326, 147 L.Ed.2d 405

GE kc sas dea rhuenle cas kOe es esd ence pCR RIAA ee Uae eee shee e 5, 6,9

Duckworth v. Eagan, 492 U.S. 195,

109 S.Ct. 2875, 106 L.Ed.2d 166

SOU ai & Ac kahwRbw ae OOS O wh k eee Cae te Ee ee fia canes 4,11

Edwards v. Arizona, 451 U.S. 477,

101 S.Ct. 1880, 68 L.Ed.2d 378

ERED 5 bk. Sakuka bok SEK GS RG Re Mae wh eee aa as Peedes bt ene 7,9

Fare v. Michael C., 442 U.S. 707,

99 S.Ct. 2560, 61 L.Ed.2d 197

CUNO cima wkaeaw ca eK els bbe es eke ete er eah ees So reee ni ene ks 6

Franklin v. State, 876 So. 2d 607

(Fla. 4" DCA 2004)

Frasier v. Cupp, 394 U.S. 731,

89 S.Ct. 1420, 22 L.Ed.2d 684

Globe v. State, 877 So.2d 663 (Fla),

rehearing denied, 29 Fla. L. Weekly S345

Ss I ee rl bs ain )s Oek oh sak On cab ea bs eekabenenens 11

Johnson v. New Jersey, 384 U.S. 719,

86 S.Ct. 1772, 16 L.Ed.2d 882

McNeil v. Wisconsin, 501 U.S. 171,

111 S.Ct. 2204, 115 L.Ed.2d 158

Michigan v. Harvey, 494 U.S. 344,

Michigan v. Tucker, 417 U.S. 443,

94 S.Ct. 2357, 41 L.Ed.2d 182

Ne a i ae a een see 9

Minnick v. Mississippi, 498 U.S. 146,

111 S.Ct. 486,112 L.Ed.2d 489

Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694

Missouri v. Seibert, US. ,

Rhode Island v. Innis, 446 U.S. 291,

100 S.Ct. 1682, 64 L.Ed.2d 297

NOU os 8 os nc oe cc Gegban ree rkens aSankanwseksctatuas sctetenes seus rebent 13

Sweeney v. United States, 408 F.2d 121

I Se rs Lod a gan wo Et | eee ema ee al 11, 12

iV

Thompson v. State, 548 So.2d 198

eT rea ATOR RS MN at MORE et NO ey Laan Ld 11

Traylor v. State, 596 So. 2d 957

Sy En fs ui eae ek aa SO a koe eae ae ee es cae 2

United States v. Adams, 484 F.2d 357 _

Se OR engl eur nuh te cds ooh pena nu cws dew pennains Nias eee 11

United States v. Burns, 684 F.2d 1066

ee I es skeen Geek cakes ee ee eee 11,12

United States v. Caldwell, 954 F.2d 496

ee as or ceu ew henoin aca iwets nan eenn chbass oie eee 12

United States v. Contreras, 667 F.2d 976

Ca I ec ee ee Oe er ea eens bo) ee eee cee 9,10

United States v. Cusumano, 429 F.2d 378

(2™ Cir. 1970)

United States v. Fox, 403 F.2d 97

eT PN Se Sek ns bob kwscas chs ek uns aeas uhh oases ee 11

United States v. Frankson, 83 F.3d 79

rN WIN Pio 60s See Aileen deka dae machenubase ae eas 12

United States v. Hemandez, 93 F.3d 1493

TR a in eee. ae Sy eee tg nh Geen eee 14

United States v. McCoy, 200 F.3d 582

ge FR eee ee en PR es ON am Re sa orde nA 14

United States v. Noo, 443 F.2d 144

ST: PPE og sa poke 565 op Khuen ea oe ee eee 12

United States v. Noti, 731 F.2d 610

eT Wh Os 8k ore 5G bik GA Kd cya dwn ek Ue eee 14

United States v. Ortiz-Santiago, 211 F.3d 146

Ce Ge EE hdd cba ea eben Kook rea es Cee 7

United States v. San Juan-Cruz, 314 F.3d 384

Oe ls BON 5d on Ss caved Eas a de He ee ee 6

United States v. Vanterpool, 394 F.2d 697

re I is es os as as oe as SOT ene ka Rae AEA ERED 14

West v. State, 876 So. 2d 614

Ee eras De renr Carr Es rier rr ry Ey see rere 15

Windsor v. United States, 389 F.2d 530

Se I 6 ile ce es oa AEs Ab ee eA a ad eee ee 14

Constitutional Provisions

Florida Constitution

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Other Authorities

po eM En eT ere me Tre ee eS Or rer rT rere rr a. Tere r ye 3

Rule 10 of the Rules of the Supreme Court of the United States ..............--- 2+ ee eeee 3

vi

Case No. 04-568

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF FLORIDA, Petitioner

vs.

MYRON FRANKLIN, Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE FOURTH

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

OPINION BELOW

The opinion below has been reported at Franklin v. State, 876 So. 2d 607 (Fla. 4" DCA

2004).

CONSTITUTIONAL PROVISIONS

Respondent accepts Petitioner’s advancement of relevant constitutional provisions.

JURISDICTION

Respondent opposes Petitioner’s invocation of this Court’s jurisdiction as there are

independent state grounds for denying it. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115

L.Ed.2d 640 (1991). Article I, §9, Fla. Const. Provides that,

No person shall be deprived of life, liberty or property, or be twice

put in jeopardy for the same offense, or be compelled in any criminal

matter to be a witness against oneself.

The Supreme Court of the State of Florida has held that this state constitutional provision mandates

that a criminal suspect, prior to being questioned during a custodial interrogation, be warned that he

or she has “a right to a lawyer’s help,” and that such a right means that the suspect has the night,

under the Florida Constitution, to consult with a lawyer before being interrogated and to have the

l

lawyer present during interrogation. Traylor v. State, 596 So. 2d 957, 965-66 n.13 (Fla. 1992). The

instant case is a direct review of a state court decision and, thus, this Court is reviewing the

judgment. Coleman v. Thompson, supra at 730, 111 S.Ct. at 2554. Consequently, there is nothing

for this Court to do, with regard to the judgment at bar, since this Court’s resolution of the federal

constitutional question regarding Miranda’ rights and the United States Constitution Fifth

Amendment will leave unaffected the decision, below, under Florida constitutional principles. See

Cosper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730, 734 (1967) (State’s are

free to establish higher standards for police practices which impact on individual rights).

STATEMENT OF THE CASE

Respondent accepts Petitioner’s Statement of the Case.

STATEMENT OF THE FACTS

Respondent accepts Petitioner’s Statement of the Facts, subject to additions or qualifications

to be addressed by Respondent in his Reasons for Denying the Writ Petition.

REASONS FOR DENYING THE WRIT PETITION

Contrary to the assertion by the State of Florida (hereinafter referred to as the “State”), the

case at bar will not provide this Court with an opportunity to resolve any apparent conflicts of law

among the United States Circuit Courts of Appeal concerning the adequacy of Miranda warnings.

This is so for two reasons. First, there is no substantive split among the Circuit Courts of Appea’

with regard to the necessity that a Miranda rights recitation must impart a warning, without any

' Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2

limiting language, that a criminal suspect has a nght to the presence of a lawyer during a custodial

interrogation. Second, the facts at bar, concerning the Miranda rights provided to Mr. Franklin,

failed to comport with the minimum necessary requirements of either Miranda v. Arizona, supra, or

California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). The warning given to

him, “You have the nght to talk with a lawyer before any questioning,” was an improper limitation

on the warning mandated by Miranda and wrongly informed Respondent that he did not have the

right to have a lawyer present during his custodial interrogations. The decision of the Fourth District

Court of Appeal of the state of Florida (hereinafter referred to as the “Fourth District”), with regard

to the Miranda warning at bar, is consistent with the requirements of Miranda v. Arizona, supra, and

the standard of review of Miranda warnings, as announced in California v. Prysock, supra. This

Court need not issue a writ of certiorari, because there is no important question of federal

constitutional law to be resolved; nor is there any actual conflict among the United States Circuit

Courts of Appeal. C.f. 28 U.S.C. § 1257; Rule 10 of the Rules of the Supreme Court of the United

States.

Pd

In Miranda v. Arizona, supra, this Court specifically stated that,

Accordingly we hold that an individual held for interrogation must be

clearly informed that he has the right to consult with a lawyer and to

have the lawyer with him during interrogation under the system of

protecting the privilege we delineate today. As with the warnings of

the right to remain silent and that anything stated can by used in

evidence against him, this warning is an absolute prerequisite to

interrogation. No amount of circumstantial evidence that the person

may have been aware of this right will suffice to stand in its stead.

Only through such a warning is there ascertainable assurance that he

accused was aware of this right.

Id., at 471-472, 86 S.Ct. at 1626. Based on this holding, the State’s complaint that the Fourth

District’s decision “artificially inflates the significance of the word ““‘during’” is wholly without

merit.

Petitioner wrongly contends that this Court’s dictate of California v. Prysock, supra, that ““‘no

talismanic incantation is required’ to satisfy the Miranda requirement,” id.. at 359, 101 S.Ct. at 2809,

supports a warning which limits the right to speak to a lawyer only before the commencement of a

custodial interrogation. The facts of Prysock show that the accused, in that case, had been

specifically warned, “You have the right to a lawyer before you are questioned, have him present

with you while you are being questioned, and all during the questioning. Do you understand this?”

Id. at 357, 101 S.Ct. 2808. Similarly, the defendant in Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct.

2875, 106 L.Ed.2d 166 (1989), was warned that he had, “a right to talk to a lawyer for advice before

we ask you any questions and to have him with you during questioning,” that, “If you wish to answer

questions now without a lawyer present, you have the right to stop answering questions at any time,”

and “You have a right to stop answering at any time until you’ve talked to a lawyer.” Id. at 198, 109

S.Ct. at 2877-2878. Both in Prysock and in Eagan, this Court held that to determine the validity of

a Miranda warning, “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect]

his rights as required by Miranda. Duckworth v. Eagan, supra at 203, 109 S.Ct. at 2880; California

v. Prysock at 361, 101 S.Ct. at 2810. While the facts of both Prysock and Eagan comply with this

holding, because suspects in these cases had been warmed of their right to have counsel present

during their custodial interrogations, those of the present case do not.

The State’s argument, citing this Court’s summary in the Miranda decision, id. at 478-479,

86 S.Ct. at 1630, is misleading. While the summary states the requirement of an attorney to “be

appointed for [a suspect] prior to any questioning if he so desires,” id, Petitioner confuses the

appointment of counsel before the start of an interrogation with the right to the presence of counsel

during such an interrogation. Furthermore, this summary in no way qualifies the requirements of

Miranda, that is, the right to have a lawyer present during the custodial interrogation. Id. at 471-472,

86 S.Ct. 1626. In Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405

(2000), this Court clarified that the Miranda decision’s ‘summary’ of rights included the right to “the

presence of an attorney” “during custodial interrogation.” Id. at 435, 120 S.Ct. 2331.

Although Petitioner advances that the Miranda summation should be read in a common

sense manner, as applied to the warning presently at issue, it fails todo so. The State argues that

an average person would understand that the phrases;

“You have the nght to talk with a lawyer and have a lawyer present

before any questioning’ followed by “[i]f you cannot afford a lawyer,

one will be appointed to represent you before any questioning if you

wish,” to mean an attorney will be provided before questioning for

the purpose of having the attorney present during questioning.

However, the phrases quoted by Petitioner is a distortion of the actual warning given to Respondent.

The undisputed facts are that Mr. Franklin was not given a general warning that he had the “night to

talk with a lawyer,” rather; he was specifically warned that he had “the right to talk to a lawyer

before any questioning.” Even when coupled with the subsequent warning, that if he could not

“afford a lawyer, one will be appointed to represent [him] before any questioning,” his opportunity

to talk to his appointed lawyer was limited to a period of time before the interrogation began and the

warnings given to Respondent provide no discernable inference that his interrogators would have

allowed the lawyer to be present during the interrogation.

Petitioner’s contention that the warning given to Mr. Franklin was acommon sense recitation

of what is required by Miranda ignores the obvious ambiguity within language of that warning. This

Court has repeatedly asserted that the Miranda warnings are a general prophylaxis, Connecticut v.

Barrett, 479 U.S. 523, 528, 107 S.Ct. 828, 831, 93 L.Ed.2d 920 (1987), against abuses inherent in

custodial interrogations, Miranda v. Arizona, at 439, 468-469, 86 S.Ct. 1602, 1625, and, once

properly given, provide a legal foundation upon which a statement given during a custodial

interrogation may be deemed voluntary. Dickerson v. United States, supra at 437-438, 120 S.Ct.

2333. So long as the waiver of these rights are valid, litigation concerning the voluntariness of such

a statement ends with the fact that a proper recitation of the rights was provided to the suspect.

Missouri v. Seibert, U.S. , 124 S.Ct. 2601, 2608, 159 L.Ed.2d 643 (2004). To the extent that

the giving of a proper Miranda warning is a bright line rule, Fare v. Michael C., 442 U.S. 707, 99

S.Ct. 2560, 61 L.Ed.2d 197 (1979), it protects the Fifth Amendment rights of a criminal suspect,

while providing a benefit to law enforcement in establishing the per se voluntariness of a custodial

statement. Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486, 490, 112 L.Ed.2d 489 (1990).

Once a suspect is properly informed of his rights, any invocation of those rights must be done

in an unambiguous manner. In order for a suspect, once properly warned of his Miranda rights, to

invoke his right for the presence of a lawyer during custodial interrogation, he must do so

unambiguously and “articulate his desire to have counsel present sufficiently clearly that a reasonable

police officer in the circumstances would understand the statement to be a request for an attorney”

for the interrogation to cease until an attorney is provided. Davis v. United States, 512 U.S. 452,

459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). The underlying purpose of requiring an

unambiguous invocation of counsel is to prevent the Miranda safeguards from becoming an irrational

obstacle to legitimate police investigations by forcing the interrogators to guess whether the suspects

actual wants a lawyer or not. Id. at 460, 114 S.Ct. at 2355-2356.

But just as police are entitled to have an unambiguous invocation of the right to counsel in

order for the cessation of questioning, there can be no ambiguity in the initial warning, to the extent

that the suspect fails to be put on notice what his rights actually are, so that he may chose to invoke

them. Id.; United States v. San Juan-Cruz, 314 F.3d 384, 387 (9" Cir. 2002)(Miranda requires

meaningful advice in comprehendible language upon which a suspect can knowingly act. A valid

warning cannet-be misleading; but rather, it must be clear and not susceptible to equivocation). In

terms of what is necessary before a suspect can make a knowing waver of this Miranda rights, what

is sauce for the government’s goose, in terms of the no ambiguity in the invocation, is sauce for the

suspect’s gander, in that the warming, too, must leave no ambiguity as to the suspect’s full

compliment of rights. See, generally, United States v. Ortiz-Santiago, 211 F.3d 146, 151 (1* Cir.

2000).

Contrary to the State’s contention, the warning given to Respondent was not legally

sufficient, because it was ambiguous as to when Mr. Franklin had a right to counsel. The warning

that he had the right to talk to a lawyer before questioning did not provide the meaningful advice

upon which Respondent could have knowingly acted. The warning also failed to convey that

Petitioner could stop talking or request an attorney, even after having had talked without counsel

earlier. Missouri v. Seibert, supra, 124 S.Ct. at 2610. A suspect must be provided with the

knowledge of his or her rights, as such is essential to the suspect’s ability to understand the nature

of his or her rights, as well as the consequences of abandoning them. Id. 124 S.Ct. at 2611. Unless

the warning conveys to a suspect, who is about to be interrogated that he or she has a choice on when

to invoke the right to counsel, the Miranda warning carries no force and fails to effectuate the per

se voluntariness of a custodial statement. See Id., 124 S.Ct. at 2610. Mr. Franklin, having been told

that he had the right to merely talk to a lawyer prior to the interrogation, was improperly kept

ignorant of his right to the presence of counsel during questioning. This warning prevented

Respondent from knowing of his right to counsel during the interrogation, which he could have

evoked even after he had initially agreed to speak to police without counsel. Edwards v. Arizona,

451 U.S. 477, 483, 101 S.Ct. 1880, 1883-1884, 68 L.Ed.2d 378 (1981).

In Edwards, a suspect, after having been provided with a proper Miranda warning, which

included the right to have counsel present during a custodial interrogation, waived that night and

answered questions. Thereafter, during the interrogation, although he requested a lawyer, his request

was ignored by police, the interrogation continued and he confessed to the crime of which he was

subsequently convicted. Id. at 478-479, 101 S.Ct. at 1881-1882. This Court, in Edwards,

recognized that a proper Miranda warning provides an accused with the right to the presence of

counsel during a custodial interrogation. Id. at 482, 101 S.Ct. at 1883. To waive this right of

counsel, the accused must necessarily do so knowingly and intelligently, to the extent that he has

actual knowledge of the right he is abandoning. Id. at 483, 101 S.Ct. at 1884. Based on the

foregoing, this Court went on to hold that;

[W]hen an accused has invoked his right to have counsel present

during custodial interrogation, a valid waiver of that right cannot be

established by showing only that he responded to further police-

initiated custodial interrogation even if he had been advised of his

rights. We further hold that an accused... having expressed his desire

to deal with police only through counsel, is not subject to further

interrogation by authorities until counsel has been made available to

him, unless the accused himself initiates further communications,

exchanges, or conversations with the police.

Id. at 484, 101 S.Ct. 1884-1885. This holding has been subsequently recognized as a “second layer

of prophylaxis for the Miranda right to counsel,” McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.Ct.

2204, 2208, 115 L.Ed.2d 158 (1991), and is “designed to prevent police from badgering a defendant

into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350, 110

S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990).

However, where, as in Respondent’s situation, a defendant is merely told that he or she has

the right to talk to a lawyer before questioning, the defendant’s basis of knowledge concerning his

or her rights is improperly limited. A defendant who is told that he or she can consult with a lawyer

only prior to the commencement of the interrogation cannot knowingly and intelligently waive the

night to have a lawyer on during the interrogation and certainly cannot take advantage of or even

waive the second layer of Miranda prophylaxis; to invoke right to counsel after initially agreeing to

speak to police without the presence of a lawyer. Hence, contrary to Petitioner’s contention, a

waiver of Miranda rights based on a warning which limits a suspect’s right to counsel to a time

period prior to the start of questioning cannot be voluntary. Edwards v. Arizona, supra at 483, 101

S.Ct. at 1884.

Petitioner's discussion concerning “compulsory self incrimination”” and the lack of coercion

against Mr. Franklin by police has no relevancy to this Court’s determination. This Court has made

it quite clear that a proper Miranda warning establishes a threshold determination of voluntariness

and renders admissible a statement taken during a custodial interrogation. Dickerson v. United

States, supra at 434-435, 120 S.Ct. at 2331. Not only is the State’s point without merit, its citation

to Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) is of no value as

applied to the present issue, since it was a decision based on pre-Miranda law. Also, its reliance on

Michigan v. Tucker, 417 U.S. 443, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), is irrelevant, as this case

concerns whether the fruit of the poisonous tree doctrine should apply to custodial statements which

are suppressed due to a Miranda, violation.

The Fourth District’s decision does not evince a “talismanic” incantation regarding Miranda

wamings. Contrary to Petitioner’s argument, Prysock does not stand for the proposition that “a

Miranda warning is adequate if it fully informs the accused of his right to consult with an attorney

only prior to questioning.” In fact, as discussed, above, Prysock holds for exactly the opposite, id. at

360-361, 101 S.Ct. at 2810, and the Eleventh Circuit, in United States v. Contreras, 667 F.2d 976,

979 (11" Cir. 1982), citing to Prysock, recognized that a warning which conveyed to a suspect his

right to the presence of counsel during the interrogation was a necessary component of a Miranda

warning.

The State’s assertion that, “It is axiomatic that Miranda jurisprudence demands that the

totality of the circumstances be considered in determining whether a Miranda warning is adequate

to inform a suspect of this rights,” is plainly wrong. In fact, it was the Miranda decision, itself,

which cast aside the totality of the circumstances, or due process, analysis concerning the threshold

determination whether a custodial statement was voluntary and replaced it with the four part

warning. This Court in Miranda held that the four warnings are

[A]n absolute prerequisite to interrogation. No amount of

circumstantial evidence will suffice to stand in its stead. Only

through such a warning is there ascertainable assurance that the

accused was aware of this right.

Id. at 471-2, 86 S.Ct. at 1626. The Miranda court went on to hold that unless the prosecution can

show that the four warnings are given and a valid waiver of rights obtained, the results of a custodial

interrogation cannot be used against an accused. Id. at 479, 86 S.Ct. 1630. In Prysock, this Court

“stressed” that “one of the virtues of Miranda [is] the fact that the giving of the warnings obviates

the need for a case-by-case inquiry into the actual voluntariness of the admission of the accused.”

Id, at 359, 101 S.Ct. at 2809. Then, in Dickerson, this Court reaffirmed that the due process, totality

of the circumstances test to determine threshold voluntariness of a custodial statement has been

replaced by the four Miranda rights warning. Id. at 434, 120 S.Ct. at 2331. While the due process

jurisprudence remains available to prove that a confession was elicited involuntarily, such an

analysis is undertaken only after it is proven that a proper Miranda warning was given. Id.

The authority cited by Petitioner fails to support its proposition that Miranda jurisprudence

requires a totality of the circumstances test to determine a warning’s adequacy. Its reliance on Frasier

v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) is of no consequence, since it

10

concerned pre-Miranda law, id. at 738, 89 S.Ct. at 1424, and Miranda does not have retrospective

application. Johnson v. New Jersey, supra at 733, 86 S.Ct. 1781. United States v. Fox, 403 F.2d 97

(2™ Cir. 1968), was a case where the Second Circuit held that the Miranda warning given to the

accused was legally insufficient and reversed a conviction, holding that his confession was

inadmissible as to both direct and collateral evidence of the accused’s guilt. Id. at 102-103. The

remaining cases authorize the utilization of a totality of the circumstances analysis to determine the

adequacy of a Miranda rights waiver, not the adequacy of the warning, itself. Brown v. Crosby, 249

F.Supp.2d 1285 (U.S.S.D. Fla. 2003); Globe v. State, 877 So.2d 663 (Fla), rehearing denied, 29 Fla.

L. Weekly S345 (Fla. March 18, 2004); Thompson v. State, 548 So.2d 198 (Fla. 1989). The

adequacy of a Miranda warning is determined by its content. As stated, “The inquiry is simply

whether the warnings reasonably conve[y] to [a suspect] his nghts as required by Miranda.”

Duckworth v. Eagan, supra at 203, 109 S.Ct. at 2880; California v. Prysock, supra at 361, 101 S.Ct.

at 2810. The warning given to Mr. Franklin, which limited his ability to talk with a lawyer to a time

period before the interrogation, failed to reasonably convey his Miranda rights.

Petitioner cites to various Circuit Courts of Appeal decisions which hold that a proper

Miranda warning need not explicitly include language stating that the suspect has a right to counsel

present during questioning. The Fourth District’s decision, however, does not conflict with the

decisions of these Circuit Courts of Appeal. Based on these lines of precedent, those same federal

appellate courts would also hold that the warning given to Mr. Franklin, that he could speak to a

lawyer before questioning, was contrary to Miranda and legally inadequate.

In United States v. Burns, 684 F.2d 1066 (2™ Cir. 1982), United States v. Adams, 484 F.2d

357 (7" Cir. 1973), and Sweeney v. United States, 408 F.2d 121 (9" Cir. 1969), the courts similarly

held that a general warning that a suspect had a right to an attorney, a right to counsel or that he was

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entitled to an attorney, was not deficient to convey a Miranda warning, because such a general

statement concerning the right to a lawyer, when taken on a whole with the other warnings, United

States v. Burns, supra at 1074, and specifically the warning that anything said can be used as

evidence against the accused, was sufficient to infer that the right to counsel also applied during the

interrogation. Sweeny v. United States, supra at 124. The general admonisiment of ‘the right to a

lawyer,’ within the context of the remaining three warnings sufficiently “communicate{s] to [the

suspect] that his right to an attorney began immediately and continue[s] forward in time without

qualification.” United States v. Frankson, 83 F.3d 79, 82 (4" Cir. 1996). Am unqualified right to a

lawyer is sufficient to apprise a suspect of this right to counsel during custodial interrogation and

complies with the Prysock adequacy analysis, id. at 81-82, which forbids limitations being placed

on the right to have an attorney present before and/or during questioning. California v. Prysock,

supra at 360-361, 101 S.Ct. 2809-2810; United States v. Caldwell, 954 F.2d 496, 501 (8* Cir.

1992)(a general, unqualified warning of an unlimited right to a lawyer sufficiently conveys the right

to have counsel present during interrogation).

The foregoing decisions, which hold that a generalized and unqualified Miranda warning is

legally adequate, are inapplicable to the facts at bar. The words used to convey the warning to

Respondent improperly placed qualifications and limitations on his “‘right to a lawyer before [being]

questioned... [and] while... being questioned, and all during the questioning.” Id. at 360-361, 101

S.Ct. at 2810 [citation omitted].’ The warning specifically limited Mr. Franklin’s right to a lawyer

to a period of time prior to the start of the interrogation. Once told, “You have the right to talk to

? It appears, according to Prysock, that a Miranda warning which explicitly or inferentially

excludes the right to have a lawyer during questioning is invalid. Quoting from United States v.

Noo, 443 F.2d 144 (9" Cir. 1971), acase consisting of similar facts, the Prysock Court remarked that

“*(t}his is not a case in which the defendant was not informed of his right to the presence of an

attorney during questioning.”” Id, at 361, 101 S.Ct. 2810; United States v. Noo, 443 F.2d at 146.

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SL OMA TAGE. ——

a lawyer before any questioning,” there is no basis to infer that this lawyer will also be present during

questioning. Its content leaves the impression that a suspect may only speak with counsel before the

interrogation begins and, thereafter, the lawyer is not going to be permitted into the interrogation

room to hear the questions being asked or protect the suspect from its inherently coercive

atmosphere. Miranda v. Anzona, at 446-458, 86 S.Ct. 1612-1619.

The state’s citation to Coyote v. United States, 380 F.2d 305 (10" Cir. 1967), and United

States v. Cusumano, 429 F.2d 378 (2™ Cir. 1970), also fail to support its contention. In Coyote, the

suspect was warmed, “that before making any statement he could consult with a lawyer of his own

choice and in the event he was without funds to hire a lawyer, the judge would appoint or provide

one for him.” Id. at 307. The Tenth Circuit found this warning was adequate, since it conveyed

meaningful advice as to the Miranda nights to the extent that an accused could act knowingly

regarding these rights. Id. at 308. In Cusumano, the defendant and his co-defendant were warned

that “They are entitled to an attorney to be present while they made any statements.” Id. at 379. The

Second Circuit found that this warning inferred that the suspects had an unqualified right to the

presence of counsel which included during the custodial interrogation. Id. at 380. While these cases

were pre-Prysock decisions, the results, now, would be the same. These warnings are adequate, not

necessarily because they infer the right to counsel during question, but because they explicitly

provide for such. Within the context of an interrogation, questions are asked and answers are given.

The nght to consult with counsel before making a statement necessitates the presence of counsel

when the question that elicits the statement is asked. Statements made by suspects which are not

prompted by police custodial interrogation questioning are not subject to Miranda protection. Rhode

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Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 1689-1690 64 L.Ed.2d 297 (1980); see also

United States v. McCoy, 200 F.3d 582, 584 (8" Cir. 2000).’

Petitioner accuses the Circuit Courts of Appeal, which hold that an adequate Miranda

warming must explicitly impart the right to the presence of a lawyer during the interrogation, of

having chosen “to unjustly expand Miranda.” This is simply preposterous. ‘Vhat these federal

appellate courts, such as the Ninth Circuit, in United States v. Noti, 731 F.2d 610 (9" Cir. 1984), and

the Fifth Circuit, in Windsor v. United States, 389 F.2d 530 (5" Cir. 1968), require is no less than

what is required by a plain, literal reading of both Miranda and Prysock, that a suspect, during a

custodial interrogation, must be informed that he or she has the unqualified right to the presence of

a lawyer. Id, at 471-472, 86 S.Ct. at 1626; California v. Prysock, at 360-361, 101 S.Ct. 2810. These

lines of authority do not require, as Petitioner ridiculously asserts, that the warning include the nght

to counsel “every single minute of every day that [the accused’s] case is pending.” But more

mapouanity, while the decisions in Noti, Windsor, and the like may superficially conflict with

holdings in Sweeny, Burs, and Adams, substantively they all agree that a Miranda warning must

be unqualified and without limitation with regard to a suspect’s right to the presence of a lawyer

during custodial interrogation. This is what is required by Miranda, and Prysock.

> The State also relies on United States v. Vanterpool, 394 F.2d 697 (2™ Cir. 1968), and

United States v. Hernandez, 93 F.3d 1493 (10" Cir. 1996). The precedential value of Vanterpool

is dubious, since the statement, elicited by a prosecutor’s interrogation of the defendant in his office,

prior to the effective date of Miranda, was not used to prove the defendant’s guilt, but only to

impeach his credibility. Id, at 698-699;see also Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176,

108 L.Ed.2d 293 (1990)(statements elicited in violation of the prophylactic Miranda warning, while

not admissible to prove guilt, are admissible to attack the accused’s credibility by impeaching his

trial testimony which may be false or inconsistent with a former police statement). In Hemmandez,

while a Miranda warning was less than artfully translated from English to Spanish, its substance

explicitly conveyed to the suspect that he had the right to the presence of counsel before and during

questioning. Id, at 1497, 1502.

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While the decision at bar of the Fourth District is in line with Noti and Windsor, strictly

construed Miranda as requiring an explicit warning concerning an accused's right to the presence

of counsel during an interrogation, there is no conflict with the authority which approves of a

general, unqualified and unlimited warning, which implicitly conveys the suspect's right to the

presence of counsel during questioning. The warning given to Mr. Franklin limited and qualified

his nght to speak with a lawyer to only before he was interrogated. Under both lines of authority,

the warning was legally inadequate to convey to him his Miranda rights and decision of the Fourth

District was correct.

Interestingly, the Broward Sheriff's Office Miranda warning, see West v. State, 876 So. 2d

614 (Fla. 4* DCA 2004), did not always limit a suspect’s right to speak to counsel to a time period

prior to questioning. Franklin v. State, supra. Back in 1991 and at least through 1996, this law

enforcement agency’s standard Miranda warning provided that an accused had the rigiit to speak to

a lawyer before speaking to police and the right to have a lawyer present during questioning. Brown

y. Crosby, supra at 1305 n.11. The Broward Sheriff's Office subsequently changed its Miranda

warming sometime prior to 2001 to the form given to Respondent. Id. While the change may have

been due to an innocent oversight, it could have also been by nefarious design to circumvent the

requirements of Miranda by limiting suspects knowledge of the scope of their right to counsel during

custodial interrogation. See Missouri v. Seibert, supra, 124 S.Ct. at 2612-2613 (police strategies

which are designed to remove the substance out of Miranda warnings are improper and will not be

tolerated by this Court). If the Broward Sheriff's Office Miranda warning given to Respondent was

changed in order to circumvent the requirements of Miranda, then there would be no validity in the

warning given to Mr. Franklin and his statement would necessarily be deemed involuntary. Id.

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The warning given to Mr. Franklin did not track Miranda requirement that an accused must

be informed of his or her right to the presence of counsel during questioning; nor did it track those

general, unqualified warnings which implicitly imparted this right. The language did not impart to

Mr. Franklin his right to the presence of counsel during questioning, because it specifically limited,

to before questioning only, his right to speak to and have contact with a lawyer. The decision of the

Fourth District does not conflict with any Circuit Court of Appeal and this Court should decline

review and deny the Petitioner's request for a writ of certiorari.

CONCLUSION

The decision of the Fourth District Court of Appeal of Florida is consistent with this Court's

holdings in Miranda v. Arizona, supra and California v. Prysock, supra. It does not conflict with any

decision in any Circuit Court of Appeal. This Court’s certiorari review is unwarranted and should

be denied.

Respectfully submitted,

KyAirh Go 2or0

RICHARD B. GREENE, ESQ.

Assistant Public Defender

LAN SELDIN, Eso.

Assistant Public Defender

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