Black v. State

• Decision Date: 27 April 2011
• Docket Number: No. 4D09–1052.,4D09–1052.
• Citation: 59 So.3d 340
• Parties: Kimon BLACK, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

59 So.3d 340

Kimon BLACK, Appellant,

v.STATE of Florida, Appellee.

No. 4D09–1052.

District Court of Appeal of Florida, Fourth District.

April 27, 2011.

Carey Haughwout, Public Defender, and Emily Ross–Booker, Assistant Public Defender, West Palm Beach, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.CIKLIN, J.

Kimon Black appeals his convictions for two first-degree murder charges and the resulting two life sentences. We review whether the trial court erred in denying Black's motion to suppress the statements he made to police after his Miranda¹ rights were administered. Because Black clearly and unequivocally invoked his right to counsel, we hold that the police were required to immediately stop questioning him, and any statements that resulted from continued questioning should have been suppressed. Because the error was not harmless, we must reverse and remand for a new trial.

On August 8, 2003, Stanley Johnson and Otis Hayes were shot to death outside a party in Broward County during a fray involving multiple individuals. Almost three years later, on June 2, 2006, Kimon Black was arrested for the murders and taken into custody by detectives of the Broward County Sheriff's Office. After leaving Black in an interrogation room by himself and with a video camera recording all activities within the room, Detectives Timothy Duggan and Frank Ilarraza entered. Following some preliminary questioning of Black relating to his name and ability to read, the detectives had Black read a Miranda form out loud, including Black's answers to each Miranda inquiry. As to Black's Miranda rights, the following exchange between Black and Detective Duggan took place:

THE DEFENDANT: You have the right to remain silent. That is, you need not talk to me nor answer any questions that you do not want to. Do you understand that?

THE DETECTIVE: Do you understand?

THE DEFENDANT: Yes.

THE DETECTIVE: Okay. What about number three?

THE DEFENDANT: ² Should you talk to me, anything you say can and may be used against you in a court of law. Do you understand? Yes.

You have the right to talk to an attorney or a lawyer before you talk to—and have an attorney/lawyer here with you during any questioning—during questioning now or in the future, do you understand? Yes.

If you cannot afford to retain your own attorney/lawyer and you want an attorney/lawyer, one will be appointed for you before we ask any questions. Do you understand that? Yeah, I understand that.

If you decide to answer the question now without any attorney present, you will have—you will still have the right to stop answering at any time until you talk to an attorney. Do you understand? [No audible answer]

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney? No.

Have you previously requested any lawyer enforcement—have you previously requested any law enforcement officer to allow you to speak to any lawyer? Not yet.

THE DETECTIVE: Okay, put no. Sign your name.

THE DEFENDANT: I, Kimon Black, have read or have had it read to me and I understand my rights. Were these rights (inaudible)—a statement and answer questions regarding an attorney present.

I understand that I can stop answering any questions at any time. No threats or promises have been made to me. I understand and know that I'm (inaudible)—and this statement will be used in a court of law. Put in the time here?

THE DETECTIVE: Sure, it's 9:42. Sign your name here and print your name here. I will witness it. Thank you. Kimon, do you want to talk to either Frank or I about the double murder? ³

At this point, Black began a lengthy narrative response which directly addressed the events surrounding the double homicide. Recognizing that Black had, minutes earlier, unequivocally invoked his right to counsel, Detective Ilarraza asked Black whether he was “still willing to talk to us now about this?” This time, Black replied, “Yeah, I'll talk to you briefly about it; briefly.” The detective inquired one last time, “Without an attorney?” and Black responded, “Yeah.” After this exchange, the detectives questioned Black extensively about the double slaying. While Black did not specifically confess or make any directly inculpatory statements, he detrimentally contradicted himself numerous times and made statements that became the centerpiece of the state's case against him.

Defense counsel filed a motion to suppress any statements that Black made after he invoked his right to counsel. The trial court held a suppression hearing at which the detectives testified and a DVD recording of the entire interrogation was played. The trial court issued a written order denying the motion to suppress, stating that one of the detectives had testified that he did not comprehend Black's response of “no” (to the question of answering questions in the absence of an attorney) and that the same detective had been up for an extended period of time and “missed” Black's responses to the Miranda questions. A thorough review of the suppression hearing transcript reveals no evidence to support these findings by the trial court. Neither detective testified about being tired and neither detective used the word “missed” when describing their comprehension of Black's answers. As a matter of fact, Detective Duggan testified repeatedly on cross-examination that he clearly understood Black's responses to each Miranda question the first time. Finally, the trial court found that Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)—in which the United States Supreme Court held that after a defendant waives his Miranda rights, he can only reassert them with clear and unequivocal language—controlled this case. The trial court concluded that, notwithstanding Black's clear invocation of his right to counsel, he waived his Miranda rights when he continued to speak with the detectives anyway.

Ordinarily, “when reviewing a ruling on a motion to suppress, an appellate court presumes the trial court's findings of fact are correct and reverses only those findings not supported by competent substantial evidence.” Pierre v. State, 22 So.3d 759, 765 (Fla. 4th DCA 2009) (citation omitted). Additionally, the trial court's findings of law are reviewed de novo. Id. However, “this deference to the trial court's findings of fact does not fully apply when the findings are based on evidence other than live testimony.” Id. (quoting Parker v. State, 873 So.2d 270, 279 (Fla.2004)). In this case, the main issue before us relates back to the administration of Miranda warnings to Black and the exchange that occurred afterward—all of which was captured by a video camera and preserved on DVD. This DVD was played in its entirety at the suppression hearing and it appears to be largely on what the trial court based its findings. The trial court also based its order (denying the motion to suppress) on testimony offered by both detectives at the suppression hearing. As such, we review the trial court's findings that are based on hearing each detective's live testimony under the ordinary “competent and substantial evidence” standard. However, to the extent that the trial court's findings are based on viewing the interrogation DVD, which this court of course has also viewed, we utilize a much less deferential standard.

To protect suspects' constitutional right against self-incrimination,⁴ law enforcement officers are required to inform them of their right to remain silent and to have counsel present at any custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444–45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once an individual has invoked his or her right to counsel, police questioning of the person must cease immediately. Id. at 474, 86 S.Ct. 1602 (“If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”); Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (“We ... emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.”); Davis, 512 U.S. at 458, 114 S.Ct. 2350 (reiterating the Miranda and Edwards holdings that the police must cease interrogation of a person once he or she has clearly invoked the right to counsel). The United States Supreme Court has explained why police must immediately halt any questioning of the suspect upon the suspect's invocation of the right to counsel:

[A]ny 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.Miranda, 384 U.S. at 474, 86 S.Ct. 1602.

Any statements that are produced as a result of a Miranda violation must be suppressed. Id. at 479, 86 S.Ct. 1602 (“[U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”).

“The safeguards provided by Miranda apply only if an individual is in custody and subject to interrogation.” Timmons v. State, 961 So.2d 378, 379 (Fla. 4th DCA 2007). Black was clearly in custody as he had been arrested and placed in an interrogation room by law enforcement officials. The detectives intended to interrogate Black about his involvement in the double homicide, so Miranda warnings were obviously required. This factor is undisputed. The interrogating detectives were also aware of this necessity as they dutifully administered Black's Miranda warnings prior to interrogating him. Accordingly, the issue here is not whether Miranda warnings were...