Cuervo v. State

We review Cuervo v. State, 929 So.2d 640 (Fla. 5th DCA 2006), which is in express and direct conflict with State v. Owen, 696 So.2d 715 (Fla.1997), Traylor v. State, 596 So.2d 957 (Fla.1992), and Dooley v. State, 743 So.2d 65 (Fla. 4th DCA 1999), on the admissibility of statements made by a suspect in response to police questioning-after the suspect has indicated that he or she wishes to remain silent. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained in this opinion, we quash Cuervo and approve Dooley.

FACTS AND PROCEDURAL HISTORY

Cuervo was convicted of attempted first-degree murder with a weapon and burglary of a conveyance with an assault or battery with a weapon following a trial in which his confession was introduced over defense objection. The evidence and testimony presented in the hearing on Cuervo’s motion to suppress his confession centered on his custodial interrogation at the Osceola County Sheriffs Office. Cuervo spoke only Spanish and Detective Deborah Pal-mieri, the lead investigator on the case, spoke only English. Therefore, a Spanish-speaking officer, Deputy David Garcia, was brought in to translate so that Palmieri and Cuervo could communicate. At Palmi-eri’s direction, Garcia read Cuervo his Miranda rights in Spanish, based on a pre-printed form in Spanish prepared by the Sheriffs Office. After reading him all of his rights, Garcia then asked Cuervo if he understood all of “the rights I have just explained to you? Yes or No?” * Cuervo responded “yes.” * Garcia then asked Cuervo, “Do you wish to talk about the matter and make a statement, yes or no?” * Cuervo replied, “No quiero declarar-nada,” which literally translates as “I don’t want to declare anything.” Garcia then confirmed to Cuervo, “You don’t want to say anything, okay.” *

Garcia then told Palmieri, “He does not wish to talk with us.” In response, Palmi-eri asked Garcia to have Cuervo initial each one of the rights to make sure that he understood them. Garcia told Cuervo to initial each statement of a right on the form and sign at the X near the bottom. Cuervo complied. It is at this point that the following exchange ensued:

Palmieri: You can explain to him that at this time if he does wish to speak with us, that he can give us his side of the story. If he doesn’t wish to, that’s his right. He does not have to. Just let him know that.

Garcia: Okay, she is explaining that now would be your opportunity if you wish to speak and explain your side of the story, your version of what happened. If you wish to talk, you don’t have to. You are not obligated to, but if you wish to talk there’s still time.*

■Cuervo: I don’t if she talked and made her story and her and her mother ... *

Garcia: Uh huh.

Cuervo: ... are people who have been in this country for thirty years and can use something against me (inaudible).*

Garcia: Okay.

Cuervo: Uh, I have (inaudible) the only thing I have to say that she and her mother (inaudible) ... *

Garcia: Mm hm.

Cuervo: ... and I (inaudible). That’s the only thing I have to say.*

Garcia: Okay, let me translate a little to her so that I can then tell you (inaudible).*

Um, he’s saying that um, he does, he does not wish to speak because he doesn’t know if the victim already said anything um, or the victim’s mother, ‘cause uh, he’s afraid that they’ve been here for thirty years or more and that they can use anything against him to um, (inaudible).

Palmieri: Okay. Does he have an attorney that we can speak with?

Garcia: Do you have a lawyer that you want to speak to?*

Cuervo: I don’t have a lawyer. I don’t know anyone in this country (inaudible).*

Garcia: Okay. He doesn’t know anybody in this country. He does not have an attorney. Um, he’s by himself in this country. He doesn’t have any family (inaudible).

Palmieri: Okay, so at this time, he’s refusing to talk?

Garcia: Okay, so at this time you don’t wish to talk to us or answer any questions?*

Cuervo: You can ask questions and I’ll answer if I (inaudible).*

Garcia: So you do wish to talk to us because we need to have that clear (inaudible).*

Cuervo: I want to talk to everyone.* Garcia: Okay.

Cuervo: Who ever wants to talk to me talk.*

During the evidentiary hearing on Cuer-vo’s motion to suppress his confession, Pal-mieri explained why she did not stop the interview when Garcia told her that Cuer-vo said he did not want to talk to the officers:

Well, basically, understand that there was the communication barrier and it’s hard for me to understand what’s going on when someone else is speaking Spanish. Originally, I told Deputy Garcia to have him — read him the rights, and to have him initial to make sure he understands. And, I guess, at that point Deputy Garcia told me he does not want to talk. But when I looked down at the paperwork, it showed that he did not sign it. So I told him please go back, have him initial it, and make sure he understands. And I said make sure he understands this is his opportunity to ■ speak. But I just wanted to make sure that was clear, only because he didn’t speak [English] and I wanted to make sure he knew his rights, and I wanted it initialed.

The trial court first determined that the actual translation of what Cuervo stated to Garcia was “No, I don’t want anything.” The trial court then found, given this translation, that Cuervo’s response was equivocal and that the exchange that followed was only for clarification and did not amount to a violation of Cuervo’s constitutional rights.

Although the Fifth District translated Cuervo’s response as he did not want to “declare anything,” Cuervo, 929 So.2d at 641, the district court agreed with the trial court’s ruling:

At the very least, the brief exchange between Palmieri and Cuervo, with Garcia translating, was sufficiently uncertain to allow clarifying questions. The entire dialogue took only about five minutes and arose in the context of a translation. Cuervo began by responding that he. did not want to “declare anything.” The follow-up question elicited from him an odd narrative about his family that was the opposite of “not speaking” and which compounded the ambiguity about whether he wished “to speak” or not. In response to the question about whether he had counsel the police could talk to, he responded by volunteering to answer questions put to him — or not — as he chose. In the entire exchange, there was manifestly no coercion of any sort, no effort to overcome a settled decision to invoke his right to remain silent, no interrogation.

Bright lines are valuable tools in this area of the law, but there is nothing in this brief exchange, as it is communicated back and forth in two languages for which the protection of Miranda is required. When asked point blank if he was refusing to speak, Cuervo could simply have said, “yes.” He chose, instead, to hear the investigator’s questions and to respond — or not, as he chose.

Id. at 642-43. Accordingly, the Fifth District affirmed Cuervo’s convictions.

Judge Thompson dissented. He concluded that the majority improperly relied on State v. Owen, 696 So.2d 715 (Fla.1997), for the proposition that phrases such as “I don’t want to talk about it” and “I’d rather not talk about it” are equivocal:

In contrast to Owen, Cuervo made two statements that clearly showed he did not wish to speak to the police.... Both officers specifically testified that Cuervo stated he did not want to speak to them; that expression sufficed. See Smith v. State, 915 So.2d 692 (Fla. 3d DCA 2005) (dismissing State’s contention that defendant’s assertion was ambiguous). Courts have held that admitting statements after such an expression is error, even if improper questioning quickly leads a suspect to change his mind. See Dooley, 743 So.2d at 67-69.

Here, the State’s argument that Pal-mieri’s questions were clarifying rather than substantive is sleight of hand. Taken to its logical conclusion, an officer can testify that clarifying questioning continued because the defendant appeared confused or puzzled. An officer could also state that, in light of defendant’s minimal education, clarification was needed to be sure the defendant understood his rights. If nothing else, Miranda stands for the proposition that police questioning must stop when the defendant invokes his rights.

929 So.2d at 644 (Thompson, J., dissenting). We granted review based on express and direct conflict with our decisions in Traylor and Owen and the Fourth District’s decision in Dooley.

ANALYSIS

This case presents two interrelated issues regarding the admissibility of Cuer-vo’s confession. First, did Cuervo invoke his right to remain silent during custodial interrogation? Second, if Cuervo invoked the right, did the State scrupulously honor his choice? In the discussion that follows, we set out the applicable standard of review and the governing legal principles regarding invocation of the right to terminate custodial questioning, then apply these principles to explain our conclusion that the State impermissibly continued to question Cuervo after he had exercised his right to remain silent. Finally, we discuss why the error requires reversal of Cuer-vo’s convictions.

I. STANDARD OF REVIEW

An appellate court reviewing a ruling on a motion to suppress presumes that a trial court’s findings of fact are correct and reverses those findings only if they are not supported by competent, substantial evidence. Connor v. State, 803 So.2d 598, 608 (Fla.2001). Appellate review of the trial court’s application of the law to the historical facts is de novo. Id. Accordingly, “appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the ... Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.” Fitzpatrick v. State, 900 So.2d 495, 510 (Fla.2005) (quoting Nelson v. State, 850 So.2d 514, 521 (Fla.2003)).

In this case, the entire interrogation, including the Miranda colloquy, was recorded on an audiotape which we have reviewed. This assists us in assessing whether the trial court’s finding that Cuer-vo failed to unequivocally invoke his right to remain silent is based on competent, substantial evidence.

II. APPLICABLE LAW

Article I, section 9 of the Florida Constitution provides in pertinent part that “[n]o person shall ... be compelled in any criminal matter to be a witness against oneself.” This fundamental right is mirrored in the Fifth Amendment to the United States Constitution. Statements obtained from a defendant in violation of the right against self-incrimination (also known as a “privilege”) cannot be used against the defendant at trial. “The State bears the burden of proving by a preponderance of the evidence that a confession is voluntary and thus admissible.” Davis v. State, 859 So.2d 465, 482 (Fla.2003).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court instituted certain procedural safeguards to protect suspects’ Fifth Amendment right against self-incrimination:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.

Id. at 444-45, 86 S.Ct. 1602. The Court emphasized that an individual who communicates that he or she wishes to remain silent invokes the Fifth Amendment right, requiring that questioning cease:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

Id. at 473-74, 86 S.Ct. 1602 (footnote omitted). The Court has stated that the prophylactic rule of Miranda “sweeps more broadly than the Fifth Amendment itself,” Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), and encompasses statements that may not have been “involuntary in traditional terms.” Miranda, 384 U.S. at 457, 86 S.Ct. 1602.

In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Supreme Court concluded that a suspect who had invoked his right to counsel was not interrogated within the meaning of Miranda when, in the suspect’s presence, officers discussed the danger of a child finding a gun the suspect might have discarded. The Court defined interrogation for these purposes as follows:

[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Id. at 300-02, 100 S.Ct. 1682 (footnotes omitted).

This Court has interpreted article I, section 9 of the Florida Constitution as standing for the simple proposition that “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.” Traylor, 596 So.2d at 966. Similarly, the United States Supreme Court has held that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). However, that Court has also concluded that once a defendant waives his or her right to remain silent, subsequent equivocal requests to terminate an interrogation do not automatically require police to cut off all questioning. Davis v. United States, 512 U.S. 452, 459-62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Although recognizing that it might “often be good police practice for the interviewing officers to clarify whether or not” the defendant wants an attorney, the Court declined to “adopt a rule requiring officers to ask clarifying questions” rather than continue with the interrogation. Id. at 461-62, 114 S.Ct. 2350.

We followed Davis in Owen, in which we held 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 Miranda rights.” 696 So.2d at 719 (emphasis supplied). During the actual interrogation, the police asked about what this Court “characterized as relatively insignificant details of the crime.” Owen, 696 So.2d at 717. In response to the specific questioning, Owen stated, “I’d rather not talk about it.” Id. n. 4.

In Almeida v. State, 737 So.2d 520 (Fla.1999), we again emphasized that the holding in Owen regarding equivocal requests “applies only where the suspect has waived the right earlier during the session.” Id. at 523 n. 7. We also reaffirmed the statement in Owen that “police similarly must honor a clear statement invoking a suspect’s rights” and further held that “police must answer a clear question concerning a suspect’s rights.” Id. at 526. We stated that these “twin rulings” in Owen and Almeida “establish an unmistakable bright line for law enforcement.” Id.

III. THIS CASE

A. Invocation of the Right to Remain Silent

Because Cuervo did not speak English, a Spanish-speaking police officer, Garcia, translated for the interrogating police officer, Palmieri. Garcia proceeded to explain to Cuervo each of his rights in Spanish and asked him if he understood. After reading and translating all of the rights, Garcia asked the suspect, “Do you understand all of the rights I have just explained to you? Yes or no?” * to which Cuervo responded in the affirmative. Garcia then asked Cuervo if “you wish to talk about the matter and make a statement, yes or no?” * to which Cuervo answered, “No quiero declarar nada,” which literally translates as “I don’t want to declare anything.” Importantly, it is uncontroverted that Garcia then told Palmieri that “[h]e does not wish to talk with us.”

At the hearing on the motion to suppress, questions arose both as to what Cuervo stated in Spanish and the exact translation of his statement in English. Garcia, who was present during the actual interrogation, testified that the tape indicated Cuervo said, “No quiero declarar nada,” which means “I don’t want to declare anything.” However, the trial judge found, based on the testimony of the interpreter who was present at the hearing, that the correct translation was “No, I don’t want anything.”

We conclude that the trial court’s finding of fact that Cuervo stated, “I don’t want anything” is not supported by competent, substantial evidence. As noted by Justice Bell in his dissenting opinion, the audiotape reveals that Cuervo stated, “No quiero declarar nada,” which means “I don’t want to declare anything.” Dissenting op. at 172. Garcia, who was present during the actual interrogation, testified that the tape indicated Cuervo said, “No quiero declarar nada.” The Fifth District used the translation that Cuervo did not want to “declare anything.” Cuervo, 929 So.2d at 641. And it is undisputed that at the time the statement was made, Garcia and Palmieri both understood that Cuervo did not wish to talk to them. Accordingly, for purposes of our review, we conclude that Cuervo’s statement to Garcia was “No quiero declarar nada,” or “I don’t want to declare anything.”

The statement by Cuervo, as translated by Garcia for Palmieri, constituted a clear invocation of the right to remain silent. Garcia understood Cuervo’s response as an election not to talk to the officers and clearly conveyed that understanding to Palmieri. Courts have concluded that similar responses constituted an exercise of the right under Miranda to terminate the interrogation. See Mosley, 423 U.S. at 104, 96 S.Ct. 321 (stating that officers “fully respected” defendant’s right to cut off questioning when he stated that he did not want to discuss robberies with which he had been charged); Moore v. State, 798 So.2d 50, 52 (Fla. 1st DCA 2001) (treating suspect’s indication to police after receiving Miranda warnings that he did not wish to speak as invocation of right to silence); Dooley, 743 So.2d at 68 (concluding that defendant’s statement that he did not wish to waive his rights “certainly qualifies as an indication that he did not want to be interrogated”); Segarra v. State, 596 So.2d 740, 741 n. 1 (Fla. 2d DCA 1992) (concluding that in stating that he did not want to talk about a particular robbery until his lawyer was present, the defendant “was seeking the protection guaranteed by Article I, Section 9, and the Fifth Amendment”).

We disagree with the Fifth District’s characterization of Cuervo’s response as “sufficiently uncertain to allow clarifying questions.” Cuervo, 929 So.2d at 642. The Fifth District’s reliance on Owen as containing analogous statements is misplaced. In Almeida, we clarified that the defendant’s statements in Owen, “I don’t want to talk about it” and “I’d rather not talk about it,” were equivocal in that they could have been referring to specific questions about the crime or to the underlying right to cut off all questioning. 737 So.2d at 523 (citing Owen, 696 So.2d at 719). The statements in Owen were made during the course of an interrogation and not given in response to a specific question regarding whether the defendant wanted to give a statement or talk' after he was read his Miranda rights.

In this case, Cuervo’s invocation of his right to remain silent came solely in response to the inquiry concerning his Miranda rights, before any questions specific to the crime were asked. In the context in which he stated, “No quiero declarar nada,” he could only have been exercising his right under Miranda and Traylor to terminate questioning.' Indeed, Garcia’s next statement to Palmieri — “He does not wish to talk with us” — clearly conveys this understanding.

At that point, the police officer’s obligation was clear: to immediately cease questioning and scrupulously honor Cuer-vo’s exercise of his right to remain silent. It is uncontested that at the officers’ request, Cuervo initialed each line and signed the Miranda form after he invoked his rights and before the officers continued with the follow-up questions. The rights were read to him in Spanish, he said he understood them, he was given the opportunity to read them himself in Spanish, and he signed the form confirming that he understood.

Palmieri testified during the suppression hearing that she asked the follow-up questions because Cuervo had not signed the rights form. She stated that until he signed the form, “as far as I[was] concerned, he didn’t understand it.” However, by that point, he had already verbally asserted his right to remain silent without conveying any misunderstanding about the right he was exercising. Thus, Palmieri’s stated concern that Cuervo did not understand a right he had already exercised was not supported by the audiotape or the transcript of the interrogation.

Accordingly, we conclude that Cuervo clearly asserted his right to remain silent when he told the officers, “No quiero dec-larar nada,” and clearly confirmed his understanding of the right he was exercising when he initialed and signed the Spanish-language Miranda form. No further questioning should have ensued.

B. Police Response to Invocation

After a suspect invokes his or her Miranda rights, police officers are prohibited from engaging in words or actions that the officers “should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682 (footnote omitted). The prohibition on further questioning applies not only when the defendant requests counsel, but also when the defendant exercises his or her right to remain silent. See Traylor, 596 So.2d at 966.

In this case, the officers engaged in conduct they could reasonably anticipate would elicit an incriminating response. After Cuervo invoked his right to remain silent and signed the rights form, Palmieri instructed Garcia to tell Cuervo that he could give “his side of the story.” Garcia then told Cuervo, “[N]ow would be your opportunity if you wish to speak and explain your side of your story, your version of what happened.” * Garcia added that although Cuervo was not obligated to talk, if he wished to talk “there’s still time.” * These remarks undermined the warning to Cuervo that anything he said could be used against him in a court of law. In addition, the officer’s statement created the impression that, despite his expressed desire not to talk, Cuervo had a brief window in which to vindicate himself. Cuervo again declined to talk, but significantly, he felt compelled to provide an explanation for foregoing this “opportunity” to tell his “side of the story.”

Although the Fifth District characterized Cuervo’s response as “an odd narrative,” Cuervo, 929 So.2d at 642, Garcia clearly understood it to be a renewed indication that he wished to remain silent. Garcia told Palmieri that Cuervo “does not wish to speak because he doesn’t know if the victim already said anything or the victim’s mother ‘cause he’s afraid that they’ve been here for thirty years or more and that they can use anything against him.” In fact, both Palmieri and Garcia admitted during the suppression hearing that Cuervo said, “No, two times.”

Even after Garcia told Palmieri a second time that Cuervo did not want to talk, Palmieri persisted. Palmieri told Garcia to ask Cuervo, “Does he have an attorney that we can speak with,” to which Cuervo replied, “I don’t have a lawyer. I don’t know anyone in this country.” * This additional questioning was unaccompanied by a reaffirmation of Cuervo’s right to have an attorney present and have an attorney appointed before any questioning if he could not afford one. As with the advice that “now” was his time to tell his side of the story, this exchange may have confused Cuervo about the meaning of his Miranda rights, specifically the right to appointed counsel before questioning. Ultimately, when asked yet again whether he wanted to talk or answer questions, Cuer-vo relented. The persistence in asking Cuervo whether he wished to talk, unaccompanied by a reiteration of his Miranda rights, was reasonably designed to elicit a waiver of those rights and an incriminating response.

In Dooley, the Fourth District ruled inadmissible a confession elicited under analogous circumstances. After explaining to Dooley his rights and confirming that he understood those rights, an officer asked, “Do you wish to waive your rights and speak to me without the presence of an attorney?” Dooley, 743 So.2d at 67. Dooley stated that he did not wish to waive his rights, but the officer told him that in waiving his rights at that point, he would not be waiving them in the future. Dooley then waived his rights and confessed. Id. In reversing the resulting conviction of sexual battery, the Fourth District stated that the officer’s remark “indicated that the defendant could speak with the officer without risk, that his later invocation of rights would prevent the statement from being used in court. The police may not use misinformation about Miranda rights to nudge a hesitant suspect into initially waiving those rights and speaking with the police.” Id. at 69. As in Dooley, the officers in this case failed to scrupulously honor Cuervo’s decision to remain silent and persisted in questioning him in a manner that nudged him into waiving his Miranda rights.

We have noted that “the requirement of giving Miranda warnings before custodial interrogation is a prophylactic rule intended to ensure that the uninformed or uneducated in our society know they are guaranteed the rights encompassed in the warnings.” Davis v. State, 698 So.2d 1182, 1189 (Fla.1997). In this case, police negated the Miranda prophylaxis by continuing to seek a statement from Cuervo after he invoked his right to silence, and by doing so in a manner that could have misled him regarding his rights.

Because police continued to question Cuervo after he invoked his right to silence, precedent from the United States Supreme Court and this Court on the admissibility of a confession after questioning is discontinued and then resumed is inapplicable. • The United States Supreme Court decision in Mosley involved a second round of questioning commenced several hours after police had honored the defendant’s decision to cut off questioning about a different crime. In ruling the confession during the second interrogation admissible, the Court specified that “[t]his is not a case ... where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Mosley, 423 U.S. at 105-06, 96 S.Ct. 321. In Globe v. State, 877 So.2d 663 (Fla.2004), we relied on Mosley in approving the admission of a confession obtained during questioning commenced approximately seven hours after police discontinued an earlier interrogation in response to the defendant’s invocation of his .right to silence. Id. at 670. Following Mosley, we considered the length of time between the first and second interrogations, whether the questioning took place in different locations, whether fresh Miranda warnings were given, and whether the second interrogation concerned a different crime. Id. (citing Mosley, 423 U.S. at 105-06, 96 S.Ct. 321).

Neither Mosley nor Globe support admission of Cuervo’s confession. Unlike those cases, police failed to honor Cuervo’s decision to cut off questioning and instead asked additional questions concerning his willingness to talk. In Mosley, the Court explained the rationale for its requirement that police “scrupulously honor” the invocation of the right to remain silent:

Through the exercise of his option to terminate questioning [the suspect] can control the time at which questioning occurs,' the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting.

423 U.S. at 103-04, 96 S.Ct. 321. Further, the Court in Mosley rejected a literal interpretation of Miranda that would “require only the immediate cessation of questioning and ... permit a resumption of interrogation after a momentary respite,” concluding that such a rule “would lead to absurd and unintended results.” Id. at 102, 96 S.Ct. 321. In this case, officers did not provide even the “momentary respite” contemplated in Mosley after, he invoked his right to remain silent.

This conclusion compels the suppression of Cuervo’s confession from the State’s case-in-chief, despite the absence of actual coercion. The Fifth District’s opinion indicates that during “the entire exchange, there was manifestly no coercion of any sort,” pointing to the brief duration of the interrogation. Cuervo, 929 So.2d at 642. However, when a statement is obtained in violation of the prophylactic rule of Miranda, further inquiry into whether the statement was voluntary and free from improper coercion is unnecessary. This is clear from Miranda itself, in which the Court reviewed four different cases:

In these cases, we might not find the defendants’ statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest.... To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to im sure that the statements were truly the product of free choice.

Miranda, 384 U.S. at 457, 86 S.Ct. 1602. Thus, the State “must not be allowed to build its case against a criminal defendant with evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections,” Michigan v. Harvey, 494 U.S. 344, 351, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), such as the “prophylactic Miranda rules.” Id. at 350, 110 S.Ct. 1176. It is the violation of Miranda and its progeny that requires the suppression of the statements, independent of whether the statements were coerced or “involuntary in traditional terms” under the Fifth Amendment.

Accordingly, the officers in this case violated Cuervo’s right to remain silent, requiring suppression of the statements he then made in response to custodial questioning.

C. Reversible Error

To justify affirmance of a conviction despite error at trial, the State must prove beyond a reasonable doubt that the error “did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The harmless error test is

not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-'of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Id. at 1139.

Under the facts of this case, the trial court’s failure to suppress Cuervo’s confession was not harmless. The confrontation resulting in the attempted murder and burglary charges took place in the victim’s car, with no other witnesses present. Even though Cuervo knew the victim for several months and was living in her garage at the time of the incident, the State produced no forensic evidence connecting Cuervo to the crime and no additional pretrial confession. Moreover, although Cuervo relied on statements in his confession concerning his mental state to challenge the element of premeditation for attempted first-degree murder, the defense might have pursued a different theory of defense had the trial court granted its motion to suppress his confession.

IV. CONCLUSION

For the reasons we have stated, we conclude that the trial court committed reversible error in denying the motion to suppress Cuervo’s confession, which was elicited in disregard of his invocation of the right to remain silent guaranteed by the Fifth Amendment to the United States Constitution and article I, section 9 of the Florida Constitution. We therefore quash the Fifth District’s decision affirming Cuervo’s convictions and remand with directions to grant Cuervo a new trial in which the confession is excluded. We reiterate that Owen concerned equivocal requests to terminate questioning after a valid waiver of Miranda rights and that the defendant’s statements in Owen were equivocal because they were made during the course of an interrogation and therefore could have been referring either to specific questions about the crime or to the right to terminate questioning. In addition, we reaffirm our statement in Traylor that “[i]f [a] suspect indicates in any manner that he or she does not want to be interrogated, interrogation must ... immediately stop,” 596 So.2d at 966, and approve the Fourth District’s holding in Dooley that once a suspect has invoked the right against self-incrimination, a potentially misleading elaboration of the right by police renders a resulting waiver invalid.

It is so ordered.

LEWIS, C.J., and ANSTEAD and QUINCE, JJ., concur.

BELL, J., dissents with an opinion, in which WELLS and CANTERO, JJ., concur.

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

. Statements with asterisks are translated from Spanish to English.

. “No person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V.

. Prior to Owen, this Court required law. enforcement officers to clarify equivocal statements made in the course of interrogation regarding Miranda rights. See Long v. State, 517 So.2d 664, 667 (Fla.1987).

. Apparently, the interpreter simply did not hear or omitted an English translation of the word "declarar.”

.If Cuervo had actually stated in Spanish "I don't want anything,” or if the officer had understood that to be Cuervo's response, this would be a closer case on whether the response was equivocal and whether the officers were justified in asking further clarifying questions to determine if Cuervo intended to invoke his right to remain silent. However, these are not the facts of this case.

. Although the trial judge concluded that the translation given by the interpreter at the time of the hearing governed, the question of whether Cuervo's response was equivocal is an objective one based on the circumstances that existed at the time of interrogation and not an after-the-fact justification for continued interrogation.

. Further, as we have noted, Owen concerns equivocal requests to terminate questioning after a valid waiver of Miranda rights, which is not the case here.

. The dissent concludes that our decision departs from Florida law, and the federal standard on which it is based, on the issue of whether police questioning must immediately cease upon the invocation of the right to remain silent. Justice Bell asserts that our decision in Globe v. State, 877 So.2d 663 (Fla.2004), and the United States Supreme Court's decisions in Mosley and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), stand for the proposition that interrogation must immediately cease only if the right to counsel, as opposed to the right to silence, has been invoked. See dissenting op. at 175. However, as discussed in more detail below, it is only when police attempt to reinitiate questioning after a defendant invokes his or her rights under the Fifth Amendment to the United Statutes Constitution and article I, section 9 of the Florida Constitution that a distinction between the right to remain silent and the right to counsel becomes relevant. As we explained in Tray-lor, and reiterated in Globe, "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.” Globe, 877 So.2d at 669 (quoting Traylor, 596 So.2d at 966); see also Mosley, 423 U.S. at 104, 96 S.Ct. 321 ("[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning’ was 'scrupulously honored.’ ").

. Even if we were to apply the other factors that contributed to the determination in Mosley that the invocation of silence was scrupulously honored, we would reach the same conclusion. In addition to the passage of time, the Court in Mosley pointed to the fact that the second round of questioning was conducted by a different police officer in a different location, concerned a different crime, and was preceded by a fresh set of Miranda warnings. 423 U.S. at 104-05, 96 S.Ct. 321. In contrast, after Cuervo invoked his right to remain silent, police continued to question him at the same location concerning the same crime. Cuervo was told he did not have to answer and could stop the interview at any point, but was not given a fresh set of Miranda warnings.