967 So.2d 155 (Fla. 2007), SC06-1156, Cuervo v. State

Docket Nº:SC06-1156.
Citation:967 So.2d 155, 32 Fla. L. Weekly S 469
Opinion Judge:PARIENTE, J.
Party Name:Juan Raul CUERVO, Petitioner, v. STATE of Florida, Respondent.
Attorney:James S. Purdy, Public Defender, Thomas J. Lukashow and Leonard R. Ross, Assistant Public Defenders, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner., Bill McCollum, Attorney General, Tallahassee, FL, Kristen L. Davenport and Kellie A. Nielan, Assistant Attorneys General, Daytona Beac...
Case Date:July 12, 2007
Court:Supreme Court of Florida

Page 155

967 So.2d 155 (Fla. 2007)

32 Fla. L. Weekly S 469

Juan Raul CUERVO, Petitioner,


STATE of Florida, Respondent.

No. SC06-1156.

Florida Supreme Court

July 12, 2007

Rehearing Denied Oct. 15, 2007.

Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Fifth District - Case No. 5D04-3879 (Osceola County)

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[Copyrighted Material Omitted]

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James S. Purdy, Public Defender, Thomas J. Lukashow and Leonard R. Ross, Assistant Public Defenders, Seventh Judicial Circuit, Daytona Beach, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Kristen L. Davenport and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, Florida, for Respondent.


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.


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 Sheriff's Office. Cuervo spoke only Spanish and Detective Deborah Palmieri, 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 Palmieri's direction, Garcia read Cuervo his Miranda 1 rights in Spanish, based on a preprinted form in Spanish prepared by the Sheriff's 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?"* 2 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, Palmieri 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

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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 Cuervo's motion to suppress his confession, Palmieri explained why she did not stop the interview when Garcia told her that Cuervo 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

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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 Palmieri'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.


This case presents two interrelated issues regarding the admissibility of Cuervo's confession. First, did Cuervo invoke

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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...

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