State v. Powell

• Decision Date: 29 September 2008
• Docket Number: No. SC07-2295.,SC07-2295.
• Citation: 998 So.2d 531
• Parties: STATE of Florida, Petitioner, v. Kevin Dewayne POWELL, Respondent.
• Court: Florida Supreme Court

998 So.2d 531

STATE of Florida, Petitioner, v. Kevin Dewayne POWELL, Respondent.

No. SC07-2295.

Supreme Court of Florida.

September 29, 2008.

As Revised on Denial of Rehearing December 23, 2008.

Bill McCollum, Attorney General, Tallahassee, Florida, and Robert J. Krauss, Senior Assistant Attorney General, Bureau Chief, and Susan M. Shanahan, Assistant Attorney General, Tampa, Florida, for Petitioner.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public

Defender, Tenth Judicial Circuit, Bartow, Florida, for Respondent.

QUINCE, C.J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA¹ WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER "BEFORE QUESTIONING" AND (B) THE "RIGHT TO USE" THE RIGHT TO CONSULT A LAWYER "AT ANY TIME" DURING QUESTIONING?

Id. at 1067-68. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we answer the question in the affirmative and approve the decision below.

FACTS AND PROCEDURAL HISTORY

In Powell, 969 So.2d 1060, the Second District Court of Appeal summarized the facts as follows:

On August 10, 2004, Tampa Detectives Salvatore Augeri, Randy Estevez and other officers went to a residence in Tampa to investigate Mr. Powell. Shazeena West, Mr. Powell's girlfriend, allowed the officers to enter her apartment. Mr. Powell was one of at least four adults present in the apartment when police arrived. He was in the upstairs hallway coming from near the southeast corner bedroom. The officers searched that bedroom and under the bed found a loaded nine-millimeter handgun. Mr. Powell was arrested and transported to Tampa Police headquarters where he was questioned after being advised of his rights under Miranda. According to police, Mr. Powell agreed to talk.

During the direct examination of Detective Augeri, prior to his testimony concerning statements that Mr. Powell allegedly made, defense counsel objected on the ground that the Miranda warning was invalid. The trial court allowed defense counsel to voir dire the witness. The subsequent testimony revealed that the standard police department Form 310 used during the interrogation of Mr. Powell did not explicitly indicate that he had the right to have an attorney present during questioning. Detective Augeri testified that he witnessed another officer read Form 310 verbatim to Mr. Powell. The written warning, which was introduced at trial as an exhibit, states as follows:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

A bench conference was held, and the court ruled that the recitation concerning the right to an attorney before questioning was adequate. The detective then testified that Mr. Powell said the firearm was his and that he had purchased it on the street and carried it for protection, even though he was a convicted felon. Defense counsel renewed her objection to admitting Mr. Powell's custodial statement. The trial court overruled this objection. Mr. Powell then testified in his own defense. He said that he did not live at the apartment on August 10, 2004, but he heard a commotion when the officers entered. He said he was handcuffed and taken into custody. He testified he did not know the gun was present under the bed because he only stayed at that address every once in a while. Mr. Powell was convicted and sentenced to ten years in prison.

Powell, 969 So.2d at 1063-64 (footnotes omitted).

On appeal, the Second District reversed Powell's conviction. See Powell, 969 So.2d at 1068. The court held that the Miranda warnings that were given to Powell were deficient under the Fifth Amendment of the United States Constitution and article I, section 9 of the Florida Constitution. See Powell, 969 So.2d at 1061. The warning did not comply with the dictates of Miranda and its progeny. See Powell, 969 So.2d at 1064. The court reasoned that to advise a suspect that he "has the right `to talk to a lawyer before answering ... any of our questions' constitutes a narrower and less functional warning than that required by Miranda." Powell, 969 So.2d at 1064. The court further noted that Miranda requires that a suspect be "clearly informed" of his right to have a lawyer with him during questioning. See Powell, 969 So.2d at 1067 (citing Miranda, 384 U.S. at 471, 86 S.Ct. 1602). The court further reasoned that the warning given to Powell was constitutionally flawed because "the right to talk to or consult with an attorney before questioning is not identical to the right to the presence of an attorney during questioning." Id. The court further reasoned that the language, "right to use any of these rights at any time ... during this interview," cannot cure the deficiency because Powell was never unequivocally informed that he had the right to have an attorney present at all times during his custodial interrogation. Id. Moreover, concerning the language used in the warning, the court focused on whether at the moment given the language clearly communicated the right to have an attorney present during questioning and not how the words might be analyzed afterwards. See id.

Pursuant to article V, section 3, subsection (b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), the Second District certified the question as one of great public importance. See Powell, 969 So.2d at 1067-68. We granted review to answer the certified question.

ANALYSIS

The issue before this Court is whether the failure to provide express advice of the right to the presence of counsel during custodial interrogation violates the principles espoused in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Powell argues that the trial court erred in failing to grant his motion to suppress because the Miranda warnings that were given were inadequate. In reviewing a motion to suppress, this Court has explained:

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. Appellate review of the trial court's application of the law to the historical facts is de novo. 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."

Cuervo v. State, 967 So.2d 155, 160 (Fla. 2007) (citations omitted) (quoting Fitzpatrick v. State, 900 So.2d 495, 510 (Fla. 2005)).

The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." To ensure compliance with the privilege against self-incrimination, the United States Supreme Court outlined in Miranda v. Arizona four procedural safeguards that must be employed to protect the privilege when an individual has been deprived of freedom during a custodial interrogation:

He must be warned prior to any questioning that [1] he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

384 U.S. at 479, 86 S.Ct. 1602 (emphasis added). In explaining the reasons for an expansive reading of the Fifth Amendment, the Supreme Court said:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process.... Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.

Id. at 469-70, 86 S.Ct. 1602 (emphasis added). The Court unequivocally said that "an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation." Id. at 471, 86 S.Ct. 1602. The Court noted that the individual's opportunity to exercise these rights must be afforded throughout the interrogation. See id.

1. The General Scope of the Miranda Warnings

In applying the Miranda principles, the Supreme Court has said that Miranda does not mandate that the warnings be a "virtual incantation of the precise language contained in the Miranda opinion." California v. Prysock, 453 U.S. 355, 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). Moreover, in Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989), the Supreme Court further said that "[r]eviewing courts ... need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably `conve[y] to [a suspect] his rights as...