Petition for Writ of Certiorari — Florida v. Dupont

Supreme Court, U.8.

FILED

9515 36 mar 18 1996

No. ___peeice of tHe crepx

IN THE

Supreme Court of the Gnited States

October Term, 1995

THE STATE OF FLORIDA

Petitioner,

v.

FRANCIS A. DUPONT,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

ROBERT A. BUTTERWORTH

Attorney General of Florida

MICHAEL J. NEIMAND

Assistant Attorney General

(Counsel of Record)

ROBERTA G. MANDEL

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

Suite N-921

401 N.W. 2nd Avenue

Miami, Florida 33128

(305) 377-5441

COUNSEL FOR PETITIONER

QUESTION PRESENTED

IS A DEFENDANT SUBJECT TO CUS-

TODIAL INTERROGATION WHEN HE

GOES TO A POLICE STATION ON

HIS OWN VOLITION, IS GIVEN MI-

RANDA WARNINGS, IS PERMITTED

TO RETURN HOME AND THEN VOL-

UNTARILY RETURNS TO THE POLICE

STATION THE NEXT MORNING.

TABLE OF CONTENTS

QUESTION PHERSINEME. ie eA i

TABLE GU ARRIGO TEE = 6 6h 4 i078 are ee Ei Tee oe ii

TARAS GREED 3 oc kc es baa eee 8 ili

OPINIONS Gente fc ot SRE GAAS. .. 1

SUTEE. 6s 64h ROE COREE Ee 1

CONSTITUTIONAL AND STATUTORY

TORPURNEUEEE 6 6 a ek ee as ee 2

STATOR 6 Ge REGU 6 6 656 eee ose sw ee 2

REASON FOR GRANTING THE WRIT

THE DECISION OF THE COURT BELOW

THAT THE INCRIMINATING STATEMENTS

WHICH WERE MADE WHEN THE RE-

SPONDENT WAS NOT IN CUSTODY WERE

OBTAINED IN VIOLATION OF MIRANDA

V. ARIZONA CONFLICTS WITH DECI-

SIONS OF THIS COURT, DECISIONS OF

THE UNITED STATES COURTS OF AP-

PEAL, OR DECISIONS OF APPELLATE

COURTS OF OTHER STATES. ........ 5

CONCLUSION... 12

ii

aT eR Re

TABLE OF CITATIONS

Cases Page

Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612,

nee eee 5

Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138,

| ee RED 7 Se ew we sc 5, 6, 7

| California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517,

Oe Eee Oe NO) «gg cc ce eee ee 5, 6, 7

Davis v. United States, 512 U.S.__, 114 S.Ct. 2350,

SP ae Cg kc ck cee wee ee 7,11

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

ON, 11

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

Dp cia EU os ee we we ee 3, 5, 11

McNeil v. Wisconsin, 501 US. 171, 182 n.3, 111 S.Ct. 2204,

2211 n.3, 115 L.Ed. 2d 158, 171n.3(1991) ...... 6

Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711,

Pee Seeteerer as SSS. 5, 7, 8

People v. McCue, 362 N.E. 2d 760 (Ill. 1977). ...... 10

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682,

SEO SSG a A ee ke se 6

Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358,

a 5

Stewart v. United States, 431 U.S. 932, 97 S.Ct. 2640,

Ry 5 a ee ae ee 6

United States v. Carter, 884 F. 2d 368 370

SE RGR or ac 6

No.

IN THE

Supreme Court of the Anited States

October Term, 1995

THE STATE OF FLORIDA

Petitioner,

v.

FRANCIS A. DUPONT,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

OPINIONS BELOW

The order of the Supreme Court of Florida declining juris-

diction is not reported. [A-1].'

The opinion of the District Court of Appeal of Florida,

Second District is reported at 659 So. 2d 405 (Fla. 2nd DCA

1995). [A-2].

The opinion of the District Court of Appeal of Florida, Second

District denying the motion for rehearing is not reported.

The order of the trial court granting the motion to suppress

statements is not reported. [A-9].

JURISDICTION

The Supreme Court of Florida rendered its order declining

to exercise discretionary jurisdiction on December 19, 1995.

This Court has jurisdiction under 28 U.S.C. § 1257(a).

1- The symbol “A” followed by the appropriate number represents a

citation to the materials contained in the Appendix to this pleading.

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Amendment V,United States Constitution, provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, ex-

cept in cases arising in the land or naval forces,

or in the Militia, when in actual service in time

of War or public danger; nor shall any person

be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

Amendment XIV, Section 1 United States Constitution,

provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person

of life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Francis A. Dupont, was the Respondent before the Su-

preme Court of Florida, the Appellee in the District Court of

Appeal of Florida, Second District, and the defendant in the

ae

criminal trial proceedings before the Sixth Judicial Circuit,

in and for Pinellas County, Florida.

Dupont voluntarily went to the police station on July 6,

1992 to answer questions concerning a murder. He was

advised of his Miranda” warnings, and signed a waiver form.

| [A-3]. Dupont was told that he was not under arrest and could

leave at any time. At one point during the questioning,

Dupont indicated that he wanted to leave. Officer Jack Soule

told Dupont at least three times that he could leave if he

wished, even standing and pointing to the door. When Dupont

did not move, the officer sat back down and the two began

conversing. [A-4]. After questioning, Dupont left the police

station, and voluntarily returned to the police station the

next morning to take a polygraph examination. The poly-

graph operator asked Dupont if he had been given his Miranda

rights; Dupont responded affirmatively. The polygraph exam-

iner informed Dupont the rights he had been given the night

before applied to any statements that Dupont might make

during the examination. Dupont was also advised that pur-

suant to the rights waiver form he had signed, any statements

that he made would be given to the detectives. [A-5]. Dupont

subsequently confessed by giving several statements.

Dupont was charged with Murder in the Second Degree.”

He filed a motion to suppress his statements and a hearing

was conducted. Officer Jack Soule testified that Dupont

voluntarily came to the police station for questioning. [A-17].

Detective Gary Gibson also testified that Dupont came to the

police station voluntarily and that he was not under arrest

at the time of the interview. The police gave Dupont his

Miranda rights even though he was never placed in custody

or under arrest. Dupont signed the rights waiver form. De-

2 Miranda v. Arizona, 384 US. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).

3 TheSecond District Court of Appeal mistakenly stated that the charge

was first degree murder. [A-2).

tective Gibson testified that before questioning began, Du-

pont was told that he was not under arrest and that he could

leave at any time. [A-18].

The trial court granted Dupont’s motion to suppress. [A-9].

The State appealed the lower court’s orders suppressing

Dupont’s statements and confession.

The Second District Court of Appeal held that some of the

statements made by Dupont were obtained in violation of

Miranda. The Court held that Dupont voluntarily went to

the police station for questioning. The Court also found that

Dupont was in custody and that Dupont’s request to end the

interrogation it was unequivocal. [A-4]. The Court held that

the fact that Dupont answered questions after he asked to

leave did not validate the failure of the police to scrupulously

honor his request. The Court found that Miranda warnings

should have been read to Dupont before the interview re-

sumed. The Court therefore upheld the lower court’s sup-

pression of Dupont’s confession. [A-6].

The Second District Court of Appeal also acknowledged

that Dupont voluntarily returned to the police station the

next day to take a polygraph examination. [A-5]. The Court

however found that the detective’s statement to Dupont that

his Miranda rights still applied was not a proper Miranda

warning. According to the Court, Dupont should have been

advised of his Miranda rights again before the polygraph

exam. [A-5].

Based upon the foregoing analysis, the Second District

Court of Appeal then held that any statements made by

Dupont during the polygraph exam and the interview follow-

ing the polygraph exam were properly suppressed. [A-6].

The State filed a notice to invoke the discretionary review

of the Florida Supreme Court on October 3, 1995. [A-7]. The

Florida Supreme Court declined jurisdiction on December

19, 1995. [A-7].

REASON FOR GRANTING THE WRIT

THE DECISION OF THE COURT BELOW

THAT THE INCRIMINATING STATE-

MENTS WERE OBTAINED WHEN THE

RESPONDENT WAS NOT IN CUSTODY

IN VIOLATION OF MIRANDA V. ARIZONA

CONFLICTS WITH DECISIONS OF THIS

COURT, DECISIONS OF THE UNITED

STATES COURTS OF APPEAL OR DE-

CISIONS OF APPELLATE COURTS

OF OTHER STATES.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.

2d 694 (1966), this Court held:

The prosecution may not use statements...

stemming from custodial interrogation of the

defendant unless it demonstrates the use of

procedural safeguards effective to secure the

privilege against self-incrimination. By custo-

dial interrogation, we mean questioning initi-

ated by law enforcement officers after a person

has been taken into custody or otherwise de-

prived of his freedom of action in any signifi-

cant way.

Id. at 444, 86 S.Ct. at 1611, 16 L.Ed. 2d at 706.

Miranda warnings are necessary only on those occasions

when a suspect is undergoing actual custodial interrogation.

Where the suspect is not in cr ‘ody, Miranda warnings are

not required. Miranda v. Arizona, 384 US. at 444, 86 S.Ct.

at 1612, 16 L.Ed. 2d at 706; see also Berkemer v. McCarty, 468

US. 420, 104 S.Ct. 3138, 82 L.Ed. 2d 317 (1984); California v.

Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed. 2d 1275

(1983); Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358,

63 L.Ed. 2d 622 (1980); Oregon v. Mathiason, 429 US. 492,

97 S.Ct. 711, 50 L.Ed. 2d 714 (1977); Beckwith v. United

rar

States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed. 2d 1 (1976). In

McNeil v. Wisconsin, 501 U.S. 171, 182 n.3, 111 S.Ct. 2204,

2211 n.3, 115 L.Ed. 2d 158, 171 n.3 (1991), the Court stated:

“We have in fact never held that a person can invoke his

Miranda rights anticipatorily, in a context other that ‘custo-

dial interrogation’....” And, in Rkode Island v. Innis, 446 U.S.

291, 301, 100 S.Ct. 1682, 64 L.Ed. 2d 297 (1975) the Court

observed: “The Miranda safeguards come into play whenever

a person in custody is subjected to either express questioning

or its functional equivalent.” Thus, a claim of a Miranda

violation is without merit unless there was custodial interro-

gation. Further, the defendant has the initial burden of

showing that he was subjected to custodial interrogation.

Stewart v. United States, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.

2d 249 (1977).

The Court in Miranda established that custody occurs

either upon formal arrest or under any other circumstances

where the suspect is deprived of his freedom of action in any

significant way. Miranda, 384 US. at 444, 86 S.Ct. at 1612.

In determining whether a suspect is “in custody” at a par-

ticular time, a Court must examine the extent of the physical

or psychological restraints placed on the suspect during

interrogation in light of whether a “reasonable person in the

suspect’s position would have understood his situation” to be

one of custody. Berkemer v. McCarty, 468 U.S. 420, 442, 104

S.Ct. 3138, 3151, 82 L.Ed. 2d 317 (1984); United States v.

Carter, 884 F2d 368, 370 (8th Cir. 1989). If a person believes

his freedom of action has been curtailed to a “degree associ-

ated with formal arrest,” and that belief is reasonable from

an objective viewpoint, then that person is being held in

custody during the interrogation. See California v. Beheler,

463 US. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed. 2d 1275

(1983) (a person is ‘in custody’ when the police have formally

arrested the person or restricted his or her freedom in any

significant way). Whether the police restrict a person’s free-

dom of action in any significant way is determined by the

totality of the circumstances. California v. Beheler, 463 U.S.

at 1125, 103 S.Ct. at 3520.

The most obvious and effective means of demonstrating

that a suspect has not been “taken into custody or otherwise

deprived of...freedom of action,” Miranda, 384 US. at 444,

86 S.Ct. at 1612, is for the police to inform the suspect that

an arrest is not being made and that the suspect may termi-

nate the interview at will. Where a suspect has been so

advised custody has frequently been found to not exist.‘

Moreover, the lack of restraint on a suspect’s freedom of

movement during questioning is also a factor indicating the

absence of custody” and the fact that questioning occurs in a

police station does not necessitate a finding of custody unless

the objective circumstances suggest that the suspect is being

held against his will. Berkemer v. McCarty, 468 U.S. at 442,

4 Davis v. Alisbrooks, 778 F2d 168, 171 (4th Cir. 1985) (informing a

suspect that he was not under arrest is one factor frequently considered

to show lack of custody, citing, Oregon v. Mathiason, 429 US. at 495, 97

S.Ct. at 714)); United States v. Helmel, 769 F.2d 1306 (8th Cir. 1985)

(significant to finding lack of custody was that the suspect was specifically

informed that he was not under arrest). See, e.g., United States v. Goudreau,

854 F2d 1097 (8th Cir. 1988) (finding of custody mitigated where agents

explained that the interview was voluntary and suspect was not placed

under arrest); United States v. Hocking, 860 F2d 769, 773 (7th Cir. 1988)

(Finding of custody mitigated where suspect was aware he was not com-

pelled to answer questions). See also Leviston v. Black, 843 F2d 302, 304

(8th Cir. 1988) (no custody where suspect was unaware that he was free

to leave upon his own request).

5 See, State v. Phipps, 331 N.C. 427, 418 S.E.2d 178 (N.C. 1992) (no

custody where suspect had come to police station on his own several times,

and was permitted to return home each time); Chao v. State, 604 S.2d 1351

(Del. Super. Ct. 1992) (no custody where suspect was told that she could

leave at any time, suspect was not restrained in any way and upon

completing the interview the police left suspect in the public lobby free to

go); People v. Holmes, 626 N.E.2d 412 (Ill. App. 5th Dist. 1994), cert. denied,

638 N.E.2d 1120 (no custody where suspect was not compelled to come to

the sheriff's office. A request was made and suspect went voluntarily.

There was no indication that suspect was induced to accompany the

officers to the sheriff's office against his will).

104 S. Ct. at 3151.° For example, in Oregon v. Mathiason, a

burglary suspect was invited to come to the police station,

6 In Commonwealth v. Morgan, 610 A.2d 1013 (Pa. Super. 1992), Alloc.

denied, 619 A.2d 700, the suspect was found not to be in custody where

she came to and remained at the police station of her own volition. She

was also repeatedly advised, as in the instant case, that she was free to

leave at any point. She was also advised of her Miranda rights while at the

police station. The fact that makes the instant case unique also occurred

in Commonwealth v. Morgan. The police officers involved in both cases

took the precautionary step of reading Miranda rights to a non-custodial

suspect. After the rights were read, the defendant then exercised his rights.

The trial court, in Commonwealth v. Morgan, held that it was this fact that

rendered the confession presumptively coerced. The Superior Court of

Pennsylvania did not agree. The Court held that the failure to honor a

non-custodial suspect’s request for an attorney, made after Miranda rights

have been read to a suspect does not render a subsequent confession

presumptively coerced. In finding that the suspect in Commonwealth v.

Morgan, was not legally in custody the Court noted that the “mere giving

of Miranda warnings does not render an investigatory detention custo-

dial.” 610 A.2d at 1015, citing Commonwealth v. Douglass, 372 Pa. Super.

227, n.9, 539 A.2d 412, 423, n.9 (1988), Alloc. denied, 552 A.2d 250.

In Hughes v. Commonwealth of Virginia, 431 S.E.2d 906, 916 (Va.

App. 1993), a suspect was drive to the police station by police after officers

asked if he would come with them to “help them out.” The defendant in

Hughes testified that he did not even know the police were taking him to

the police station. He further testified that if he had known that he would

not have gone with the police officers. At the end of the interview the police

asked Hughes if they could have the clothes that he had worn to the party

where the child victim had disappeared. The police drove Hughes to his

home where Hughes took his clothes and sneakers out of the dryer, and

gave them to the police officers. Later that day after the police had

searched Hughes’ automobile they telephone Hughes and asked him to

come back to the police station. Hughes agreed to do so if his wife could

come with him and if the police would transport them to the police station

because the police had his car. A police officer picked Hughes and his wife

up and drove them to the police station. At the station Hughes took a

polygraph examination. The officer performing the examination informed

Hughes that he was not under arrest and that he did not have to take the

polygraph test, and that he was free to leave at any time. Hughes was still

not advised of his Miranda rights. The Court held that the incriminating

statements made during the pre-test interview before the polygraph

examination were admissible as the conditions surrounding the defen-

dant’s return to the police station for the polygraph examination did not

indicate any significant deprivation of his freedom of action. The Court

concluded that the statements Hughes made were not the result of a

custodial interrogation.

where he sat across a desk from his interrogator and behind

closed doors. The police interrogator falsely stated that the

suspect’s fingerprints had been found at the burglary scene.

At the end of the interrogation, the suspect was not arrested

and was released. The Oregon Supreme Court reversed a

suvsequent conviction, holding that “the interrogation took

place in a coercive environment of the sort to which Miranda

was intended to apply.” This Court reversed, holding that the

situation was non-custodial:

(There is no indication that the questioning

took place in a context where respondent’s

freedom to depart was restricted in any way.

He came voluntarily to the police station, where

he was immediately informed that he was not

under arrest. At the close of a half hour inter-

view respondent did in fact leave the police

station without hindrance. It is clear from

these facts that Mathiason was not in custody

‘or otherwise deprived of his freedom of action

in any significant way.’

429 US. at 495, 97 S.Ct. at 714.

Francis Dupont was not subjected to a “custodial interro-

gation” within the meaning of Miranda. He voluntarily went

to the police station for questioning, and was told that he was

not under arrest and that he could leave at anytime. The

police nevertheless read Dupont his Miranda rights and

Dupont signed the Miranda rights waiver form. At one point

during questioning, Dupont indicated that he wanted to

leave. Officer Jack Soule got out of his chair and pointed to

the door, told Dupont at least three times that he could leave

if he wanted, and pointed Dupont to the door. Only after

Dupont failed to move, the officer sat back down and began

the questioning again. After the questioning, Dupont left the

police station, and voluntarily returned the next day to take

a polygraph examination. Detective Jerry Davis informed

Dupont that his Miranda warnings from the night before

applied during the polygraph examination.

The Second District Court of Appeals erroneously held that

Detective Davis’s statement to Dupont the next morning that

his Miranda rights still applied from the night before was not

a proper Miranda warning. The Court held that even though

Dupont went home after he invoked his right to remain

silent, he should have been properly advised of his Miranda

rights again before the polygraph examination. The Court

found that the lower court properly suppressed Dupont’s

statements made during the polygraph exam and the inter-

view immediately following the polygraph exam.

Miranda warnings were not required because Dupont was

not “in custody” and was not being “interrogated” within the

meaning of Miranda. For example, in People v. McCue, 362

N.E. 2d 760 (Ill. 1977) the Court held that the failure of the

polygraph examiner to administer Miranda warnings to a

defendant prior to the polygraph examination did not render

inadmissible a confession made following polygraph exami-

nation. The Court noted the defendant voluntarily came to

the sheriff's office for the polygraph test and, although free

to leave at any time, continued to answer questions until he

ultimately confessed. V. iere a person is not in custody or

otherwise deprived of his freedom in any significant way,

Miranda warnings were found unnecessary.

The Second District Court of Appeal acknowledged that

“Dupont voluntarily went to the police station for question-

ing. During questioning, Dupont indicated that he wanted to

leave. After Dupont’s unequivocal request to end the inter-

rogation, the police erroneously failed to stop the interview

for a significant period of time. See Mosley.” [A-4]. The Court

further observed: “The next morning, Dupont voluntarily

returned to the station at approximately 10:00 a.m. for a

polygraph. Detective Jerry Davis, the polygraph operator,

testified, ‘I reminded him that his Miranda rights still ap-

plied during the polygraph examination’.” [A-5].

10

The District Court of Appeal erroneously held that Du-

pont’s request to end the interrogation was unequivocal.

[A-4]. In Davis v. United States, 512 U.S._, 114 S.Ct. 2350,

129 L.Ed. 2d 362 (1994), the Court held that, if a suspect’s

statement is not an unambiguous or unequivocal request for

counsel, the officers have no obligation to stop questioning

him. The Davis decision was based upon the rule announced

in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.

2d 378 (1981), which held that law enforcement officers must

immediately cease questioning a suspect who is subject to

custodial interrogation, who received Miranda warnings,

and who waived the rights to remain silent and to have

counsel present during a custodial interrogation. Because

Dupont was never subjected to a custodial interrogation, he

was never a suspect in custody, unlike the situations in

Davis v. United States and Edwards v. Arizona. Those cases

therefore have no applicability.

There are compelling reasons to grant the petition. The

decision below is the end result of a mistaken interpretation

of the rights to counsel provided by the Fifth and Fourteenth

Amendments to the United States Constitution. The Mi-

randa litany is a palliative only against the unique pressures

inherent in a custodial interrogation.

11

CONCLUSION

The petition for writ of certiorari should be granted because

the decision below of the Second District Court of Appeal of

Florida directly conflicts with the decision of this Court in

Miranda v. Arizona, Davis v. United States, and Edwards v.

Arizona. The decision incorrectly interprets the right to

counsel provided by the Fifth and Fourteenth Amendments

to the United States Constitution. The State of Florida

respectfully requests that this Court grant its Petition for a

Writ of Certiorari to the Supreme Court of Florida and

summarily reverse based on the authorities cited.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

MICHAEL J. NEIMAND

Assistant Attorney General

(Counsel of Record)

ROBERTA G. MANDEL

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

401 N.W. 2nd Avenue

Suite N-921

Miami, Florida 33128

(305) 377-5441

Counsel for Petitioner

12

IN THE

Supreme Court of the United States

October Term, 1995

THE STATE OF FLORIDA

Petitioner,

v.

FRANCIS A. DUPONT.

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

APPENDIX

ROBERT A. BUTTERWORTH

Attorney General of Florida

MICHAEL J. NEIMAND

Assistant Attorney General

(Counsel of Record)

ROBERTA G. MANDEL

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

Suite N-921

401 N.W. 2nd Avenue

Miami, Florida 33128

(305) 377-5441

COUNSEL FOR PETITIONER

TABLE OF CONTENTS

Page

Supreme Court of Florida Order declining jurisdiction

filed on December 19,1995 ............. A-1

District Court of Appeal of Florida, Second District,

decision filed on August 2,1995 ........... A-2

Notice to Invoke Discretionary Jurisdiction of the Florida

IS oS cis ig eg ee wa as A-7

In the Circuit Court of the Sixth Judicial Circuit, in and

for Pinellas County, Florida, order granting defendant’s

motion to suppress dated November 19,1992... . A-9

Excerpts from August 26, 1993 Transcript of hearing on

motion to suppress, in State of Florida us. Francis A.

Dupont, Case No. 92-10456-CFANO-I, in the Circuit

Court of the Sixth Judicial Circuit, Pinellas County,

WON ete ee Clee ee ew ae A-14

=

— |

<>»

A-ii

SUPREME COURT OF FLORIDA

TUESDAY, DECEMBER 19, 1995

STATE OF FLORIDA,

Petitioner,

CASE NO. 86,595

v. DISTRICT COURT OF APPEAL

2nd District — No. 93-04221

FRANCIS A. DUPONT,

Respondent.

This cause having heretofore been submitted to the Court

on jurisdictional briefs and portions of the record deemea

necessary to reflect jurisdiction under Article V,Section 3(b),

Florida Constitution (1980), and the Court having detev-

mined that it should decline to accept jurisdiction, it is

ordered that the Petition for Review is denied.

No Motion for Rehearing will be entertained by the Court.

See Fla.R.App.P 9.330(d).

GRIMES, C.J. OVERTON, SHAW, KOGAN and ANSTEAD,

JJ., concur

A True Copy

Test:

/s/ SID J. WHITE

Clerk, Supreme Court

Hon. William A. Haddad, Clerk,

Hon. Karleen F. DeBlaker, Clerk

Hon. Claire K. Luten, Judge

Ms. Roberta G. Mandel

Ms. Deborah K. Brueckheimer

NOT FINAL UNTIL TIME EXPIRES TO

FILE REHEARING MOTION AND, IF

FILED, DETERMINED.

IN THE DISTRICT COURT OF APPEAL

SECOND DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA,

Appellant,

vs. CASE NO. 93-04221

FRANCIS A. DUPONT,

Appellee.

Opinion filed August 2, 1995

An Appeal from a nonfinal order of the Circuit Court for

Pinellas County; Claire K. Luten, Judge.

Robert A. Butterworth, Attorney General, Tallahassee, and

Roberta G. Mandel, Assistant Attorney General, Miami for

Appellant

WHATLEY, Judge.

The Stat2 of Florida challenges several trial court orders

suppressing statements Francis A. Dupont made to police in

connection with his charge for first-degree murder. On ap-

peal, we review three rulings made by the trial court: police

psychologically coerced Dupont to make involuntary state-

ments; police violated Dupont’s Miranda” rights during his

interrogation; and police violated Dupont’s due process rights

2 Miranda v. Arizona, 384 U.S. 436, 836 S. Ct. 1602, 16 L.Ed. 2d 694

(1966).

A-2

by failing to record his interrogation. We affirm in part and

reverse in part.

First, we conclude that Dupont’s statements were not the

product of coercive police conduct. To establish that a state-

ment is not voluntary, there must be a finding of coercive

police conduct. Colorado v. Connelly, 479 U.S. 157, 107 S. Ct.

515, 93 L. Ed. 2d 473 (1986) (A defendant’s perception of

coercion, which is solely caused by his unique mental status,

is not a factor). Dupont was given food, drink, and cigarettes.

He was provided with sufficient opportunity to sleep. The

atmosphere was conversational. No promises or threats were

made to Dupont, and his questioning was not excessively

lengthy.® See State v. Sawyer, 561 So. 2d 278 (Fla. 2d DCA

1990). Based on the totality of the circumstances, we find that

the police did not psychologically coerce Dupont into making

involuntary statements. See State v. Chavis, 546 So. 2d 1094

(Fla. 5th DCA 1989), cert. denied, 493 U.S. 1046, 110 S. Ct.

845, 107 L. Ed. 2d 839 (1990).

Second, we conclude that some of the statements made by

Dupont were obtained in violation of Miranda. On July 6,

1992, Dupont was asked to accompany detectives to the police

station to answer questions. Dupont was read Miranda at

approximately 10:00 p. m. At the motion to suppress hearing,

Dupont stipulated to the sufficiency of these warnings.

3 Dupont did not testify at the hearing. However, he presented experts

who testified as to what Dupont told them happened during the interviews.

We note that experts may base their opinion on facts which are not

necessarily admissible into evidence. Department of Corrections, State of

Florida v. Williams, 549 So. 2d 1071 (Fla. 5th DCA 1989). However, an

expert may not be used as a conduit to introduce otherwise inadmissible

hearsay evidence. 549 So.2d at 1072; Walker v. State, 353 So. 2d 968 (Fla.

3d DCA 1978). Dupont’s statements to the experts were hearsay and were

not otherwise admissible. Consequently, the experts should not have been

allowed to testify regarding the substance of these statements.

A-3

Dupont was questioned for approximately two hours. Around

midnight, Dupont became angry and said that he wanted to

leave. At this point, Detective Jack Soule stood up and

pointed to the door. Detective Soule told Dupont at least three

times that he could leave if he wanted to leave. Dupont did

not move or make any statements. After a brief pause, the

conversation resumed. Miranda was not again read to Du-

pont. No inquiry or clarification was made regarding Du-

pont’s wish to leave. The interview concluded at 12:35 a.m.

Once a suspect indicates a desire to remain silent, question-

ing must cease. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321,

46 L. Ed. 2d 313 (1975). Following an equivocal request to

remain silent, police may only question a suspect to clarify

the invocation of the right to remain silent. In State v.

Wininger, 427 So. 2d 1114 (Fla. 3d DCA 1983), the defendant

volunteered to answer questions at the police station. When

the police told Wininger that he was a suspect, he indicated

that he wanted to go home. The police continued questioning

Wininger. The Wininger court held that when the defendant

said that he wanted to go home, police should have either

clarified the defendant’s wishes or stopped the interview.

Similarly, Dupont voluntarily went to the police station for

questioning. During questioning, Dupont indicated that he a

wanted to leave. After Dupont’s unequivocal request to end

the interrogation, police erroneously failed to stop the inter-

view for a significant period of time. See Mosley. If police were

in doubt as to the meaning of Dupont’s request to leave, then

further inquiry should have been limited to clarify Dupont’s

wishes. See Wininger. The fact that Dupont answered ques-

tions after he asked to leave does not validate the failure of

police to scrupulously honor his request. See Christopher v.

State of Florida, 824 F. 2d 836 (11th Cir. 1987), cert. denied,

Dugger v. Christopher, 484 U.S. 1077, 108 S. Ct. 1057, 98 L.

Ed. 2d 1019 (1988).

The State argues that detectives could properly initiate a

conversation with Dupont when he did not leave. The state

A-4

correctly asserts that, after initially invoking Miranda rights,

a suspect may again waive those rights by initiating conver-

sation with police. Durocher v. State, 596 So. 2d 997 (Fla.

1992). However, in the present case, Dupont did not initiate

the conversation with police. When Dupont did not leave, the

police again initiated the interview. Furthermore, Miranda

warnings were not read to Dupont before the interview

resumed as required by Mosley. See State v. Chavis, 546 So.

2d 1094 (Fla. 5th DCA 1989). Consequently, any statement

that Dupont made on July 6, after he indicated that he

wanted to leave, was properly suppressed.

. oe al

The next morning, Dupont voluntarily returned to the

station at approximately 10:00 a.m. for a polygraph. Detec-

tive Jerry Davis, the polygraph operator, testified, “I re-

minded him that his Miranda rights still applied during the

polygraph examination, as far as any statements he made to

me could be used—given back to the detectives as, per se, to

the waiver.” No additional Miranda warnings were given to

Dupont.

At around 12:03 p.m., Detective Soule observed Dupont

leaving the polygraph room. They spoke briefly in the breeze-

way of the police station and went back to the interview room,

where Detective Gary Gibson joined them. The interview

concluded at approximately 2:30 p.m. Dupont was not given

tranda warnings during this interview.

Detective Davis’s statement to Dupont, that

his Miranda ri till applied, was not a proper Miranda

warning. Although Du went home after he invoked his

right to remain silent, he shovid have been properly advised

of his Miranda rights again before

United States v. Skinner, 667 F. 2d 1306 ( Cir. 1982), cert.

denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed. 2d 1410

(1983); Durocher; Perry v. State, 522 So. 2d 817 (Fla>1988);

Keys v. State, 606 So. 2d 669 (Fla. 1st DCA 1992). }

ETO si

A-5

The polygraph exam was conducted more than 12 hours

after Dupont was first read Miranda. In addition, when

Dupont attempted to invoke his right to remain silent, his

request was not scrupulously honored nor clarified. Conse-

quently, it was important that Dupont’s Miranda rights be

explained to him, including his right to remain silent, before

the polygraph exam. Further, Miranda should have been

explained to Dupont before the interview, which immediately

followed the polygraph exam. We hold that any statements

made by Dupont during the polygraph exam and the inter-

view immediately following the polygraph exam were prop-

erly suppressed.

Third, the trial court found that the failure of police to

record the interviews with Dupont violated his due process

rights. We disagree. While the better practice would be to

record interviews and confessions, police are not required to

do so. State v. Williams, 386 So. 2d 27 (Fla. 2d DCA 1980).

Therefore, the failure of police to record Dupont’s statements ;

did not per se violate his due process rights. |

Accordingly, based on Miranda violations, we affirm the

suppression of Dupont’s statements to police on July 6, after

he invoked his right to remain silent, and all statements that

Dupont made to police on July 7 during the polygraph exam.

We reverse the suppression of Dupont’s remaining state-

ments to police insofar as his statements were not involun-

tarily made as a result of police coercion. Finally, we reverse

the trial court’s finding that the failure of police to record

Dupont’s statements violated his due process rights.

CAMPBELL, A.C.J., and FRANK, J., concur.

IN THE DISTRICT COURT OF APPEAL

SECOND DISTRICT, STATE OF FLORIDA

THE STATE OF FLORIDA,

Appellant,

vs. CASE NO. 93-04221

FRANCIS A. DUPONT,

Appellee.

NOTICE TO INVOKE DISCRETIONARY

JURISDICTION OF THE FLORIDA

SUPREME COURT

Notice is hereby given that the State of Florida, the Appel-

lant in the District Court of Appeal, invokes the discretionary

jurisdiction of the Supreme Court to review the decision of

this Court rendered on August 2, 1995. The decision expressly

and directly conflicts with the Florida Supreme Court’s deci-

sion in State v. Traylor, 596 So. 2d 957 (Fla. 1992).

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

/s/ Roberta G, Mandel

ROBERTA G. MANDEL

Assistant Attorney General

Florida Bar No. 0435953

OFFICE OF THE ATTORNEY GENERAL

401 N.W. 2nd Avenue

PO. Box 013241

Miami, Florida 33101

(305) 377-5441 Fax No. 377-5655

mls/

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing NOTICE TO INVOKE DISCRETIONARY JURIS-

DICTION OF THE FLORIDA SUPREME COURT was furnished

by mail to DEBORAH K. BRUECKHEIMER, Assistant Pub-

lic Defender, Public Defender’s Office, Polk County Court-

house, PO. Box 9000—Drawer PD, Bartow, Florida 33831, on

this 3rd day of October, 1995.

/s/ Roberta G, Mandel

ROBERTA G. MANDEL

Assistant Attorney General

!

4

|

A-8

IN THE CIRCUIT COURT OF THE

SIXTH JUDICIAL CIRCUIT

PINELLAS COUNTY, FLORIDA

THE STATE OF FLORIDA,

Appellant,

vs. CASE NO. CRC92-10456CFANO

FRANCIS A. DUPONT,

Appellee.

ORDER GRANTING DEFENDANT’S MOTION TO

SUPPRESS #2

THIS MATTER was heard by the Court on August 26, 1993.

Having received testimony and heard arguments of counsel,

the Court finds:

FACTS

On July 6, 1992, the Defendant was interviewed asa strong

suspect in a murder. He was advised of Miranda with the

additional caveat that the giving of those rights did not mean

he was under arrest or was going to be arrested.

During a confrontation, the Defendant stated that he felt

the police were trying to make him admit to something he

did not do. He said he wanted to leave.

There is a conflict whether the Defendant was advised he

could simply go if he wanted, or was additionally told that if

he did leave he would not be helping the police solve this case.

It is clear, however, that no attempt was made by police to

clarify the Defendant’s statement. Nor was Miranda reread.

The interrogation simply continued.

On July 7, 1992, the Defendant returned to take a poly-

graph. The polygraph operator asked if he had been given

Miranda; the Defendant said yes; the operator reminded him

the rights applied during the polygraph examination. No new

Miranda warnings were given either before the polygraph or

before the subsequent interrogation.

The Defendant argues when he stated he felt he should

leave, this constituted an equivocal invocation of his 5th

Amendment rights. He argues that it was incumbent on the

police to readvise him or to otherwise clarify his request

before questioning was continued.

It is clear that the Defendant believed he was being pres-

sured to confess, and considered leaving because of this

pressure. The fact that he did not leave in and of itself does

not indicate a waiver. If a suspect indicates in any manner

that he does not wish to be interrogated, questioning must

stop. Traylor v. State, 596 So. 2d (Fla. 1992). See also Martinez v.

State, 564 So. 2d 1071 (Fla. 1990). Even if the Defendant

initiates conversation, police are required, if they choose to

reinterrogate, to make certain the purported waiver if fully

and voluntarily made. Oregon v. Bradshaw, 462 U.S. 1039,

103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983).

The case law is clear that where such an equivocal invoca-

tion occurs, “...further questioning must be restricted to

clarify that request....” U.S. v. Pena, 897 F2d 1075 (11th Cir.

1990); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.

Ed. 2d 313 (1975).

When a defendant expresses apparently conflicting desires

to cooperate and to remain silent, there must be clarification

to establish that law enforcement “scrupulously honor” the

defendant assertion of his rights. U.S. v. Pena, infra.

Mosley indicates that there are four factors to be considered

in determining if the Defendant’s right have been scrupu-

lously honored:

A-10

a) did the interrogation cease immediately?

b) did a significant period of time pass before

questioning resumed?

c) did the police give fresh Miranda warnings?

d) did the later questioning relate to a differ-

ent case?

See also State v. Belcher, 530 So. 2d 303 (3d DCA 1988); Henry

v. State, 574 So. 2d 66 (Fla. 1991).

Clearly none of these conditions was met; the interrogation

about the murder continued immediately without any addi-

tional Miranda warnings and without any clarification of the

Defendant’s statement.

It is not enough that the Defendant responds to question-

ing. There must be a knowing and intelligent waiver of a

“known right, or privilege.” Edwards v. Arizona, 451 US.

477, 101 S.Ct. 1880, 68 L. Ed. 2d 378 (1981).

In looking at the totality of the circumstances, this Court

is not persuaded that there was a knowing and voluntary

waiver by the Defendant of his 5th Amendment rights.

On July 7th, the Defendant, now even a stronger suspect,

appeared for a polygraph. He was not re-Mirandized before

the examination. Following the examination he was again

interrogated. No Miranda warnings were given before this

questioning.

The State contends that it was sufficient to simply tell a

defendant that the rights read the previous day still apply.

But even that was not done here. The Defendant was simply

told the rights carried over to the polygraph. He was never

readvised then o: before interrogation.

A-11

In Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L.

Ed. 2d 977 (1964), the Supreme Court concluded that in-cus-

tody interrogations contain inherently compelling pressures

“which work to undermine the individuals’ will to resist and

to compel him to speak where he would not otherwise do so.”

Id at 467, 86 S. Ct. 15 1624. It is precisely this pressure that

caused the defendant to state he felt he should leave. And on

the second day, where the defendant without new Miranda

warnings, takes a polygraph, and is told he has failed the

polygraph, how much more compelling pressure can be placed

on him? Nor can it be presumed that on the second day, the

defendant knew his rights—especially when viewed with

police action of the first day. The Defendant could well believe

that even though he wanted to stop the questioning, the

police would not honor his request. See Tukes v. Dugger, 911

F 2d 508 (11th Cir. 1990); ft nt 11, at 576.

The burden is upon the State to show the Defendant

knowingly and intelligently waived his Miranda warning. It

has not done so.

Even had the comments by Davis met the requirements of

Miranda—and this Court does not believe they do—such

comments limited the application of the Miranda warnings

to the polygraph test. It is incumbent upon the St. Petersburg

Police Department to readvise the defendant of his Miranda

warnings; they failed to do this.

Under the totality of the circumstances, the Court cannot

find the Defendant’s statements were freely, voluntarily and

knowingly made based upon the failure of law enforcement

officers to clarify the Defendant’s equivocal request of July

6th, and to re-Mirandize the Defendant on July 7, 1992. It is

therefore

A-12

ORDERED AND ADJUDGED Defendant’s Motion to Sup-

press #2 be, and the same is hereby granted.

DONE AND ORDERED in chambers, at Clearwater, Pinellas

County, Florida, this 19 day of November, 1992.

ls/ Claire K. Luten

CLAIRE K. LUTEN, Circuit Judge

Copies furnished to:

Richard Sheinis, Assistant State Attorney

Chris E. Thom, Assistant Public Defender

Counsel for Defendant, Francis Dupont

A-13

IN THE CIRCUIT COURT OF THE

SIXTH JUDICIAL CIRCUIT

PINELLAS COUNTY, FLORIDA

STATE OF FLORIDA,

vs.

CIRCUIT CRIMINAL

NO. 92-10456-CFANO-I

FRANCIS A. DUPONT,

Defendant.

PROCEEDINGS: MOTION TO SUPPRESS

BEFORE: Honorable Claire K. Luten,

Circuit Judge

DATE: August 26, 1993

PLACE: Courtroom B

Criminal Court Complex

REPORTED BY:

APPEARANCES:

5100 144th Avenue North

Clearwater, Florida 34620

Robin S. McCormick, RPR

Deputy Official Court Reporter

MR. RICHARD SHEINIS

and

GARRY POTTS

Assistant State Attorneys

Attorneys for State of Florida

5100 144th Avenue North

Clearwater, Florida 34620

MS. CHRIS THOM

Assistant Public Defender

Attorney for Defendant

5100 144th Avenue North

Clearwater, Florida 34620

[112] JACK SOULE, the witness herein,

having been first duly sworn, was examined and testified as

follows:

(THE COURT]: You may proceed.

[118]Q. Was Miranda given to the defendant?

A. Yes.

Q. And who was present at this time,

ten o’clock?

A. Myself and Detective Gibson.

Q. And the defendant?

A. And the defendant, of course.

Q. Who actually went over Miranda with

the defendant?

A. Detective Gibson.

Q. But were you present for that?

A. Yes, I was.

Q. And did you sign as a witness on the

Miranda form?

A-15

A. Yes, I did.

[120]Q. During the course of the interview,

now, was there a point where the defendant became angry

with you, expressed that he was angry?

A. Yes.

|

;

[121]Q. And what happened then? )

A. I stood up out of my chair and | |

pointed to the door, and I told him at least three times he

could leave if he wanted to right now, that there is the door

right there. “You could leave.”

Q. Actually physically pointing to the

door?

A. Yes.

Q. And what did the defendant do?

A. He sat there.

Q. What did you do? cad

A. After there was no movement, I sat

back down, and we started talking again.

Q. And at that point, did the defendant

resume the conversation with you when you asked him

questions?

A. Yes.

A-16

eS

Q. How long did the interview continue

until that Monday night?

[122]A. The interview was terminated at 12:35

AM.

Q. And at this point had the defendant

been placed under arrest?

A. No.

Q. How did the defendant get home that

evening?

A. Myself and Detective Gibson took him

home in our car.

Q. Was the defendant informed that you

wanted to give him a polygraph the next morning?

A. Yes.

{123]Q. And how did he get back to the sta-

tion the next day?

A. He showed up on his own. I don’t

know if he walked or took—I assumed he walked.

Q. But yourself or Detective Gibson did

not pick him up?

A. No.

A-17

[129}Q. At what point was this interview con-

A. 2:30 PM. on the same day.

Q. And was Francis Dupont placed un-

der arrest at that time?

A. Yes, he was.

[269] GARY GIBSON, the witness herein,

having been first duly sworn, was examined and testified as

follows:

[273]Q. ...who was present when you read

him Miranda?

(275]Q. At this point what was his custody

status?

A. He was there in a voluntary basis. I

just read him his rights because we were going to ask him

questions.

Q. Did you explain—either before or af-

ter the Miranda, did you explain to the defendant what his

status was in regards to custody or freedom to leave?

A. Detective Soule, I believe, told him

he was free to go at any time.

Q. Was anything else said to him in or-

der to explain Miranda or qualify Miranda in any way?

A-18

a Oi i

A. No. I said, “Simply because I’m read-

ing the Miranda form, doesn’t mean you are under arrest at

this time.”

(277]Q. Did there come a time when the de-

fendant ever indicated his desire to leave that room?

A. Yes, sir.

[278]Q. And what happened exactly?

A Basically, Detective Soule was speak-

ing to Mr. Dupont. Mr. Dupont went on to say that the police

were trying to get him to say something that he didn’t feel

was correct. At which time Detective Soule stood up and

pointed to the door. I just stood up, like this, and just scooched

my chair back a little bit. Detective Soule pointed to to door,

and said, “You are free to go at any time.”

Q. Why did you stand up?

A. Basically, Detective Soule—as soon

as Mr. Dupont got done speaking, he stood up and pointed to

the door. I stood up, basically, reacting to Detective Soule

standing up, and I just stood, as well.

Q. Did the interview terminate at that

time?

A. No.

Q. Why not?

A. The conversation just broke up.

A-19

Q. Did the defendant take any action?

A. No. He just sat there.

Q. Did he ever stand up?

A. No.

(279)Q. How did the interview end? )

A. Basically, he advised Detective Soule

that he would volunteer to come to the station the following

morning around ten o’clock for a polygraph. .

ee

A-20