Battle v. State, 75--1357

• Decision Date: 26 October 1976
• Docket Number: No. 75--1357,75--1357
• Citation: 338 So.2d 1107
• Parties: Glenn BATTLE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1107

338 So.2d 1107

Glenn BATTLE, Appellant, v. The STATE of Florida, Appellee.

No. 75--1357.

District Court of Appeal of Florida, Third District.

Oct. 26, 1976.

Rehearing Denied Nov. 23, 1976.

Phillip A. Hubbart, Public Defender and Paul Morris, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

PER CURIAM.

Defendant appeals a judgment finding him guilty of robbery, assault with intent to commit rape and aggravated battery. He was sentenced to 150 years in the state prison on the robbery count. The adjudication was based upon a jury verdict.

On the night of the incident in question, the victim (a young woman) and her boyfriend were in the Miami Greyhound Bus Station. While sitting in the waiting room, the victim decided to go upstairs to the ladies room to change into warmer clothes in preparation for her bus trip north. As she was entering the ladies room, she was confronted by the defendant, who pushed her inside, hit her with his fists, pulled her into a shower stall, kicked her repeatedly and pulled down her brassiere and pants. While this was taking place, two police officers and a security guard entered the ladies room in search of persons involved in a completely separate matter. At this point, the defendant came out of the shower stall and was apprehended by the police officers.

We are presented with three questions, the first of which concerns the trial court's denial of defendant's motion to suppress statements made soon after the incident, allegedly in violation of defendant's Miranda rights. A review of the record shows that two of the three statements sought to be suppressed were made at the scene of the crime and the third statement made shortly thereafter at the police station. Defendant's position alleging error in the denial of his motion to suppress rests on the significance of the lack of affirmative responses to each of the Miranda warnings given to him. We note, however, that defendant did respond at the conclusion of the warnings, indicating that he understood them. The fact that the defendant once asked for the presence of an attorney and, thereafter, was permitted to provide police with inculpatory statements is also emphasized on this appeal as a ground for error in the trial court's denial of defendant's motion to suppress.

We cannot agree with the defendant. It plainly appears that the questioned statements were not coerced and were voluntarily made by the defendant at or near the scene of the crime. As stated in U.S. v. Anthony, 474 F.2d 770 (5th Cir. 1973):

'* * * (W)e disagree with Appellant's appraisal of the effect of the dialogue between him and the arresting officer at the time of the arrest. There is no evidence that the FBI agent persisted in the interrogation after (appellant) invoked his right to counsel * * * Nor is there evidence that (appellant) manifested inconsistent conduct because of confusion * * * The Judge could conclude that (appellant) himself initiated further conversation with the officer.'

See also United States v. Hodge, 487 F.2d 945 (5th Cir. 1973), United States v. Grady, 423 F.2d 1091 (5th Cir. 1970).

'A defendant has as much right to waive his right to be silent as he has to insist on the right. The validity of the waiver depends upon it being voluntarily, knowingly, and intelligently made. Nunez v. State, 227 So.2d 324. (Fla.App.4th, 1969).'

* * * Franklin v. State, 324...