Alvarez v. State

• Court: Florida District Court of Appeals
• Writing for the Court: Maass
• Citation: Alvarez v. State, 15 So. 3d 738 (Fla. App. 2009)
• Decision Date: 15 July 2009
• Docket Number: No. 4D07-2629.
• Parties: Mark Anthony ALVAREZ, Appellant, v. STATE of Florida, Appellee.

15 So.3d 738

Mark Anthony ALVAREZ, Appellant, v. STATE of Florida, Appellee.

No. 4D07-2629.

District Court of Appeal of Florida, Fourth District.

July 15, 2009.

Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

MAASS, ELIZABETH T., Associate Judge.

Curtis Tenney and Elizabeth Johnson were murdered on January 8, 2006. Mark Alvarez confessed to the murders. He was convicted of two counts of first degree murder with a firearm and one count of second degree arson following a jury trial. He raises five points on appeal. First, he argues that his Miranda¹ warning failed to tell him he had the right to appointed counsel before questioning. Second, he argues that his confession occurred only after he unambiguously invoked his right to remain silent. Third, he claims that there was insufficient evidence to support the standard jury instruction on principals, which the state then used to make an improper closing argument. Fourth, he maintains that the trial court failed to inquire into an apparent conflict of interest between his counsel and him. Finally, he argues that the trial court improperly threatened a witness with prosecution for perjury. We affirm, but write to address Alvarez's contention that the trial court erred in denying the motion to suppress his confession and giving the standard principals instruction.

I. Motion to Suppress

A. Adequacy of Constitutional Warning

Tenney and Johnson died of single gun shots to the head the night of January 8, 2006. Their bodies were found in Elizabeth's burned out car on an isolated stretch of road in Okeechobee County. Law enforcement sought Alvarez for questioning early in the investigation. He was located April 3, 2006.

He was first questioned by Detective T.J. Brock, the murder investigation's lead detective, early that afternoon. Detective Brock had Alvarez confirm that he was not under the influence of alcohol or drugs, spoke English, and could read. Brock told Alvarez that "before you answer any questions, the [Constitution requires me to inform you that you have the right to remain silent." Alvarez indicated that he understood. Brock then gave Alvarez a preprinted Okeechobee County rights form and asked him to read it aloud. The form read:

You have the right to remain silent. Do you understand that right?

Anything you say may be used as evidence against you in Court. Do you understand?

You have the right to call or obtain an attorney at this time and have one present now or at any time during questioning. Do you understand that right?

If you cannot afford to hire an attorney, the Court will appoint one for you without cost. Do you understand?

If you decide to answer questions now, you have the right to stop answering at anytime during questioning. Do you understand that right?

Knowing these rights, do you wish to talk with me or us at this time?

Alvarez responded "yes" to each question.

(Emphasis added).

Alvarez then submitted to a 54 minute interview with Brock. During that interview Alvarez said he had smoked pot with Curtis the night of the murders, but denied having killed him or knowing who did.

After that interview, Alvarez was asked to take a voice stress test with Detective Marty Faulkner. He agreed. The voice stress test began mid-afternoon and lasted 2 hours and 35 minutes. At the beginning of the interview Alvarez was once again given the preprinted Miranda rights form and asked to waive his rights. In addition, Faulkner told Alvarez:

Let me advise you of your Miranda Warnings. You have the right to remain silent. Anything you say may be used against you in court. If you-you have the right to call an attorney (indiscernible) have him present any time during questioning. If you decide—if you cannot afford an attorney one will be appointed to you without cost. If you decide to answer any questions (indiscernible) stop answering questions. Do you understand your rights?

Alvarez answered "yes, sir."

After the Faulkner interview Brock again spoke to Alvarez, beginning in the late afternoon. This final interview last 3 hours, 11 minutes. Brock did not reread Alvarez his Miranda rights or ask again that he waive them. Alvarez confessed at the end of this third interview.

Alvarez moved to suppress his confession. At the hearing on the motion, defense counsel expressly limited his argument to two points, indicating he was waiving all other grounds. First, he claimed that the Miranda warning was legally insufficient because it did not tell Alvarez he had the "right to have counsel appointed for him prior to his interrogation." Second, he claimed that Alvarez unambiguously invoked his right to remain silent after initially waiving his rights and questioning should have stopped. The trial court denied the motion after an evidentiary hearing.

A trial court's ruling on a motion to suppress is presumed correct. See Connor v. State, 803 So.2d 598, 605 (Fla.2001); Murray v. State, 692 So.2d 157, 159 (Fla. 1997). Factual findings are disturbed only if clearly erroneous because not supported by substantial, competent evidence. See Herrera-Fernandez v. State, 984 So.2d 644, 646 (Fla. 4th DCA 2008). The application of the law to those facts, though, is reviewed anew. See Owen v. State, 862 So.2d 687, 695 (Fla.2003); Connor, 803 So.2d at 605-08; Alvarez v. State, 890 So.2d 389, 392 (Fla. 1st DCA 2004). Specifically, the adequacy of a Miranda warning, once any factual disputes are resolved, is a question of law subject to review without a presumption of correctness. See Roberts v. State, 874 So.2d 1225, 1227 (Fla. 4th DCA 2004).

Courts "need not examine Miranda warnings as if construing a will or defining the terms of an easement." Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). The warning, though, must convey that (1) the individual has the right to remain silent; (2) anything he says can be used against him in court; (3) he has the right to the presence of an attorney; and (4) if he cannot afford an attorney, one will be appointed for him prior to questioning, if he wishes. Miranda, 384 U.S. at 467-473, 479, 86 S.Ct. 1602.

The Florida Self-incrimination Clause, article I, section 9 of the Florida Constitution, provides that "[n]o person shall be ... compelled in any criminal matter to be a witness against oneself." Under Florida law, then, prior to custodial questioning a suspect must be told (1) he has the right to remain silent; (2) that anything he says may be used against him in court; (3) that he has a right to a lawyer's help, which means the right to consult a lawyer before being questioned and to have a lawyer present during questioning; and (4) if he cannot afford a lawyer one will be appointed for him. See Traylor v. State, 596 So.2d 957, 965-66 (Fla.1992). These rights must be given so that a person of average, ordinary intelligence can understand them. See State v. Powell, 998 So.2d 531, 540 (Fla.2008).²

Here, the warning, given both orally and in writing, adequately informed Alvarez that he had the right to a court-appointed attorney at all times, both prior to and during questioning. Specifically he was told he had the right to an attorney "at this time," which was before the questioning started. Police officers need not give a talismanic incantation of a suspect's constitutional rights, provided the statement given is a fully effective equivalent. See California v. Prysock, 453 U.S. 355, 359-360, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). The warning sufficiently told Alvarez he had the right to counsel both prior to questioning "and to have one present now or at any time during the questioning." (Emphasis added). See also Chavez v. State, 832 So.2d 730, 750 (Fla.2002); Johnson v. State, 750 So.2d 22, 25 (Fla. 1999).

Alvarez's reliance on Thompson v. State, 595 So.2d 16 (Fla.1992) is misplaced. There, the defendant was not told he was entitled to court-appointed counsel if he could not afford to hire one himself. Id. at 17-18.

B. Revocation of Waiver of Right to Remain Silent

In the second attack on his confession's admissibility, Alvarez claims that he unambiguously invoked his right to remain silent midway through his second interrogation; that questioning should have ceased; and that his later confession should have been suppressed.

Alvarez was given his Miranda rights, both orally and in writing, before his first interview. During this initial 54 minute interview he repeatedly denied knowing anything about the crimes. He was given Miranda rights, again both orally and in writing, before Faulkner began the voice stress test. About two thirds through that second interview he asked to use the bathroom. Faulkner responded, "yeah, give me one second, okay? You are sure you don't want to talk to me?" Alvarez responded "I really don't have nothing to say."

Alvarez had steadfastly maintained he knew nothing about the crimes during his initial interview with Brock and before his alleged revocation of his silence waiver to Faulkner. Immediately preceding the allegedly unambiguous revocation he was asked "[d]o you want to sit here and talk with me and let's talk about this?," to which he responded "I just don't know what to say." He was asked "[c]an you answer some questions for me?," to which he replied "I can try." He was asked where he had gotten the gun and responded he did not have a gun. He was asked who got the gun and responded he did not know. He was asked why he did not want to help himself and responded "[y]ou know, it's cause I have nothing to offer ..." He was asked how well he knew Elizabeth and responded he did not know her. He was asked who burned up the car and said he did not know. He was asked how the crime occurred and responded "I don't know, that's what I'm saying.... I don't know what...