Almeida v. State

We have on appeal the judgment and sentence of the trial court imposing the death penalty on Osvaldo Almeida. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse the conviction and vacate the death sentence.

I. FACTS

Chiquita Counts was found shot to death outside a Days Inn hotel in Fort Lauder-dale on October 13, 1993. Two other murders took place in Broward County within a month- — -one in Sunrise (Frank Ingargio-la) and one in Fort Lauderdale (Marilyn Leath) — and police suspected that all three were related. Sunrise police took Almeida into custody on November 29, 1993, questioned him concerning the Ingargiola murder, and notified Fort Lauderdale police that they had arrested a suspect in the murders. Almeida confessed to the Sunrise Police that he had committed the In-gargiola murder and later confessed to the Fort Lauderdale Police that he had committed the Leath and Counts murders. He was charged with and convicted of first-degree murder for the killing of Counts. The court followed the jury’s nine-to-three vote and sentenced him to death based on one aggravating circumstance, two statutory mitigating circumstances, and several nonstatutory mitigating circumstances.

Almeida raises seventeen issues on appeal, but we find a single claim disposi-tive. Almeida was picked up by police November 29, 1993, and was taken to headquarters where he was questioned beginning at 5:16 p.m. He initially was read his rights and signed a waiver form. Several minutes later, in response to questioning by Detective Mink he made a brief inculpatory statement concerning an unrelated killing, i.e., the murder of Prank Ingargiola (Almeida said simply, “I fucking killed him.”). At that point, Detective Mink prepared to conduct a formal recorded session. Officers turned on the tape recorder at 5:30 p.m. and the following discussion transpired:

Q. Do you mind if we call you Ozzie during this, or do you prefer your own name?

A. That is okay.

Q. Ozzie’s okay?

A. Okay.

Q. Can you read and write the English language?

A. Can I read English?

Q. Can you read and write the English language?

A. Yes.

Q. Did you graduate high school?

A. No, not yet. I was still finishing.

Q. All right. Prior to us going on this tape here, I read your Miranda rights to you, that is the form that I have here in front of you, is that correct? Did you understand all of these rights that I read to you?

A. Yes.

Q. Do you wish to speak to me now without an attorney present?

A. Well, what good is an attorney going to do?

Q. Okay, well you already spoke to me and you want to speak to me again on tape?

Q. (By Detective Allard) We are, we are just going to talk to you as we talked to you before, that is all.

A. Oh, sure.

Q. (By Detective Mink) Ozzie, this is a statement taken in reference to an incident that occurred at in front of Hig-gy’s on November 15th, 1993, in the morning hours. Where the night manager by the name of Frank Ingargiola was shot in the parking lot, directly out in front of Higgy’s. In your own words can you tell me what took place on this night and your involvement in this?

A. Yes. Me and a couple of friends went to Higgy’s after work.

Almeida then confessed again to the Ingar-giola murder and later in the same session confessed to another unrelated murder (i.e., the killing of Marilyn Leath) and to the present murder (i.e., the killing of Chiquita Counts).

The State contends that Detective Mink was not required to answer Almei-da’s question concerning counsel (“Well, what good is an attorney going to do?”) before continuing the interrogation. The State argues that this issue is controlled by State v. Owen, 696 So.2d 715 (Fla.), cert. denied, — U.S. -, 118 S.Ct. 574, 139 L.Ed.2d 413 (1997). We disagree.

II. STATE v. OWEN

This Court in Long v. State, 517 So.2d 664, 667 (Fla.1987), held that if in the course of custodial interrogation a suspect makes an utterance that may be an attempt to invoke his or her rights, police may “continue questioning for the sole purpose of clarifying the equivocal request.” Subsequent to Long, the United States Supreme Court in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), held that if a suspect initially waives his or her rights, the suspect thereafter must clearly invoke those rights during the ensuing interview. That Court based its ruling on the following rationale:

[T]he primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. “[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.” [Moran v. Burbine, 475 U.S. 412, 427, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).] A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted.

Davis v. United States, 512 U.S. 452, 460-61, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). This Court was then faced in State v. Owen, 696 So.2d 715 (Fla.), cert. denied, — U.S. -, 118 S.Ct. 574, 139 L.Ed.2d 413 (1997), with the issue of whether to adopt the Davis rationale in Florida.

The defendant in Owen had initially waived his Miranda rights and during the ensuing interrogation session made two equivocal statements. First, when one of the detectives asked whether he had deliberately targeted the victim’s house, Owen responded, “I’d rather not talk about it.” Later, when the officer asked him where he had put a bicycle, Owen said, “I don’t want to talk about it.” In both statements it was unclear whether Owen was referring to the immediate topic of discussion, i.e., the house and the bicycle, or to the underlying right to cut off questioning. Officers did not stop to clarify either statement. The district court affirmed the trial court’s order suppressing the confession but certified to this Court a question asking whether Davis was applicable in Florida. This Court answered in the affirmative and held as follows:

Thus, we hold that police in Florida need not ask clarifying questions if a defendant who has received proper Miranda warnings makes only an equivocal or ambiguous request to terminate an interrogation after having validly waived his or her Miranda rights.

Owen, 696 So.2d at 719. We quashed the district court decision.

The impetus underlying our decision in Owen was that the “equivocal request” standard announced in Long had proven unworkable — it placed “too great an impediment upon society’s interest in thwarting crime.” Owen, 696 So.2d at 719. Custodial utterances are extraordinarily rich in diversity and include not only statements affirmatively invoking a suspect’s rights but also statements prefatory to the invoking of a right. Police under Long were required to stop an interview and clarify each such statement that was equivocal in any way. This rule resulted in otherwise admissible confessions being suppressed based on the most tenuous statements. In Owen, we were confronted with an utterance of the first type, i.e., a statement allegedly invoking a right, and our ruling was simple: In such a case, the suspect must invoke the right clearly.

That issue is not presented in the instant case. Here, we are confronted with a custodial utterance that was prefatory to — and possibly determinative of — the invoking of a right. In analyzing the present utterance, we first must ascertain whether Almeida was in fact referring to his right to counsel. As noted above, Detective Mink asked Almeida, “Do you wish to speak to me now without an attorney present?” and Almeida replied, “Well, what good is an attorney going to do?” Almei-da’s utterance was made under the following conditions: (1) at the very beginning of the taped interrogation session; (2) in the midst of a general discussion concerning his rights; and (3) in direct response to a police question concerning the right to counsel. In light of these circumstances, it is indisputable that the defendant was referring to his right to counsel.

We next must determine whether the utterance was a bona fide question which — under normal circumstances— would call for an answer. The audio taped version of the encounter sheds further light on the exchange. On the tape, Al-meida had answered each of the preceding questions without hesitation and without equivocation, and then, when asked the above question, he came to an abrupt halt, paused for many seconds (about 5 seconds on the tape), and made a pensive, probing response: “Well ... [pause] ... what ... [another pause] ... good is an attorney going to do?” It was a genuine question. It was not a rumination or a rhetorical question. Almeida was seeking a frank answer. The officers, however, ignored the question and never attempted to give an answer.

This scenario is not embraced within our holding in Owen. The type of utterance at issue in Owen was an equivpcal statement which — pursuant to Davis — required no clarification and could not trump the clear waiver of rights Owen had made earlier. The type of utterance at issue here, on the other hand, was an un equivocal question that was prefatory to — and possibly determinative of — the invoking of a right and which cast doubt on the knowing and intelligent nature of the prior waiver. Detec-five Mink plainly asked Almeida if he wanted to proceed without a lawyer, and Almeida just as plainly asked the officer what good a lawyer would do. There was nothing equivocal about this exchange and certainly nothing unclear about Almeida’s question — it was a simple, direct question, susceptible of but a single interpretation. Almeida very clearly was asking the officer for fundamental information concerning his right to counsel.

III. TRAYLOR v. STATE

This Court nearly a century and a half ago defined the abiding standard for determining the admissibility of a confession. Officers are not allowed to delude the suspect as to his or her rights or to exert a coercive influence:

To render a confession voluntary and admissible as evidence, the mind of the accused should at the time be free to act, uninfluenced by fear or hope. To exclude it as testimony, it is not necessary that any direct promises or threats be made to the accused. It is sufficient, if the attending circumstances, or declarations of those present, be calculated to delude the prisoner as to this true position, and exert an improper and undue influence over his mind.

Simon v. State, 5 Fla. 285, 296 (1853) (emphasis omitted and added).

The Court subsequently in Traylor v. State, 596 So.2d 957 (Fla.1992), set forth a series of guidelines for use in Florida'— similar to those announced in Miranda— that were designed to ensure the volun-tariness of confessions. The Court expressly addressed the right to counsel:

Under [article I, section 9, Florida Constitution], if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin, or, if it has already begun, must immediately stop. If the suspect indicates in any manner that he or she wants the help of a lawyer, interrogation must not begin until a latvyer has been appointed and is present, or, if it has already begun, must immediately stop until a lawyer is present. Once a suspect has requested the help of a lawyer, no state agent can reinitiated interrogation on any offense throughout the period of custody unless the lawyer is present....

Traylor, 596 So.2d 966 (emphasis added). A statement obtained in violation of this proscription cannot be used by the State. Id.

The Court in Traylor thus held that if a suspect indicates in any manner that he or she wants the help of a lawyer the interrogation must cease. This proscription necessarily embraces a scenario such as the present, for the defendant here was seeking basic information on which to make an informed decision concerning his right to counsel. No valid societal interest is served by withholding such information. Indeed, both sides can only benefit from disclosure: Disclosure ensures that any subsequent waiver will be knowing and intelligent, and it reaffirms those qualities in a prior waiver. Nondisclosure, on the other hand, is doubly harmful: It exacerbates the inherently coercive atmosphere of the interrogation session, and it places in doubt the knowing and intelligent nature of any waiver — whether prior or subsequent.

Accordingly, we hold that if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer. To do otherwise — i.e., to give an evasive answer, or to skip over the question, or to override or “steamroll” the suspect — is to actively promote the very coercion that Traylor was intended to dispel. A suspect who has been ignored or overridden concerning a right will be reluctant to exercise that right freely. Once the officer properly answers the question, the officer may then resume the interview (provided of course that the defendant in the meantime has not invoked his or her rights). Any statement obtained in violation of this proscription violátes the Florida Constitution and cannot be used by the State. See Traylor, 596 So.2d at 966.

In the present case, we conclude that Detective Mink should have made an honest effort to answer Almeida’s question concerning his right to counsel. Both Al-meida and the State would have benefitted from the dissemination of basic, common sense information concerning this right. Instead, by ignoring the question and continuing the interrogation — i.e., by “steamrolling” the defendant — the officers did two things. First, they exacerbated the inherently coercive atmosphere of the interrogation session. (How could Almeida feel free to exercise his rights when police had just overridden his question concerning those rights?) And second, they placed in doubt the validity of the prior waiver. (How could Almeida have knowingly and intelligently waived his rights earlier if he did not know “what good ... an attorney [is] going to do?”)

IV. CONCLUSION

Custodial interrogation is an extraordinarily useful and important practice that can make, or break a trial prior to the trial’s inception. Our holding today works hand-in-hand with our decision in Owen in defining a few basic rules governing custodial utterances. We held in Owen that police must honor a clear statement invoking a suspect’s rights. See generally Owen, 696 So.2d at 719. We hold today that police similarly must answer a clear question concerning a suspect’s rights. These twin rulings establish an unmistakable bright line for law enforcement. We recognize, of course, that no rigid set of guidelines — no matter how simple or clear. — .will work in every case.' Accordingly, when enforcing the above standards, Florida courts should bear in mind several overarching principles.

First, the raison d’etre of the interrogation room is to promote society’s quest for the truth, and the only permissible means to achieve this end is in conformity with the law. The constitution— both state and federal — has focused the bright light of the law on this heretofore dark room. Article I, section 9, Florida Constitution, requires that whenever a suspect’s rights are clearly raised in the interrogation room — whether by police or the suspect — officers must pursue the matter in an open and forthright manner. In such a situation, gamesmanship of any sort by the officers is forbidden. Second, as we noted in Traylor, “the state’s authority to obtain freely given confessions is not an evil, but an unqualified good.” Traylor, 596 So.2d at 965. Imperfections and technical flaws will inevitably occur in the course of any interrogation, but a court should not suppress a confession based on a trivial or insubstantial violation. In sum, whenever constitutional rights are in issue, the ultimate bright line in the interrogation room is honesty and common sense.

Based on the foregoing, we conclude that the trial court erred in admitting Al-meida’s inculpatory statement. On the present record, we are unable to say beyond a reasonable doubt that the error did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). We reverse the conviction and vacate the death sentence.

It is so ordered.

ANSTEAD and PARIENTE, JJ., and KOGAN, Senior Justice, concur.

HARDING, C.J., dissents with an opinion, in which WELLS, J., and OVERTON, Senior Justice, concur.

WELLS, J., dissents with an opinion, in which OVERTON, Senior Justice, concurs.

. Almeida gave the following details concerning the Counts murder: On the night of the murder, he asked Counts, who was a prostitute, for sex; Counts entered the front seat of his car and performed a sexual act on him; afterwards, Counts asked Almeida to drop her off at a Days Inn hotel; once they arrived at the hotel, Counts asked for more money than she had initially agreed upon; when Almeida refused, Counts exited the car and insulted him; before driving away, Almeida called Counts over to the driver’s side of the car and shot her once in the chest.

. The court found that Almeida had been convicted a prior capital felony, i.e., the murder of Marilyn Leath.

. The court found the following statutory mit-igators: Almeida was extremely disturbed; and Almeida was nineteen at the time of the crime.

. The court found the following nonstatutory mitigators: Almeida has a capacity for rehabilitation; Almeida exhibited good behavior while incarcerated; Almeida cooperated with police when arrested; Almeida voluntarily gave statements concerning the crime; Almei-da has a history of alcohol abuse; Almeida was physically, emotionally, and sexually abused as a child; Almeida has shown remorse; and Almeida has exhibited genuine religious beliefs.

.Almeida makes the following claims: (1) the trial court erred in denying his motion to suppress due to his equivocal request made during the giving of Miranda rights; (2) the trial court erred in denying his motion to suppress because the Miranda warnings were given for an interrogation involving a separate victim, not the victim in this case; (3) the trial court erred in denying his motion for mistrial; (4) the trial court erred in ruling that the State had a right to introduce his statement regarding a collateral murder if he attempted to elicit evidence that his confession for the present crime was not voluntary; (5) the death penalty is disproportionate in this case; (6) the trial court failed to exercise discretion in evaluating the mitigating circumstances; (7) the conviction relied on as the basis for the prior violent felony aggravator has been overturned; (8) the trial court gave undue weight to the jury’s recommendation of death; (9) the trial court failed to make the findings required for the death penalty; (10) the trial court erroneously applied a presumption of death; (11) the trial court erred in denying his motion for supplemental voir dire; (12) the trial court erred in failing to consider life without parole as an option and failed to instruct the jury on this option; (13) the trial court erred in allowing the State to introduce details of the prior violent felony conviction; (14) the trial court allowed the prior violent felony convictions to become a feature of the case; (15) the trial court admitted hearsay evidence in violation of his Confrontation Clause rights; (16) the trial court erred in allowing the State to elicit evidence regarding his sanity; and (17) electrocution is cruel and unusual punishment.

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

. As noted above, this ruling applies only where the suspect has waived the right earlier during the session. See State v. Owen, 696 So.2d 715, 719 (Fla.), cert. denied, - U.S. -, 118 S.Ct. 574, 139 L.Ed.2d 413 (1997).

. In contrast, the statements in Owen were made under the following conditions: (1) long after interrogation had begun; (2) in the midst of discussion on topics other than Owen’s rights; and (3) in direct response to a police question that was unrelated to the right to cut off questioning. Under these circumstances, the likelihood that Owen was referring to his right to cut off questioning was decreased.

. Detective Mink testified that Almeida’s question was “[a] comment, not a question,” and the trial court found that the question was "no more than a rhetorical question at best. As such, it did not require a response from law enforcement.” Both these views, however, are belied by the audiotape. The contents of the tape are unmistakable — Almeida asked a genuine question. The trial court had no special vantage point in reviewing this tape. Based on our review of the transcript and tape, we conclude that the record evidence is legally insufficient to support the trial court's finding. See generally Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) ("Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.”).

. See Traylor v. State, 596 So.2d 957, 966 (Fla.1992) ("A waiver of a suspect's constitu-lional rights must be voluntary, knowing, and intelligent....”).

. Cf. Almeida v. State, No. 89,432, - So.2d -, 1999 WL 506965 (Fla. July 8, 1999) ("Almeida II") (finding admission of the same taped statement harmless in Almeida’s trial for the murder of Frank Ingargiola).