Brown v. State

• Decision Date: 22 March 1990
• Docket Number: No. 70483,70483
• Citation: 565 So.2d 304
• Parties: 15 Fla. L. Weekly S165 Paul Alfred BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 304

565 So.2d 304

15 Fla. L. Weekly S165

Paul Alfred BROWN, Appellant, v. STATE of Florida, Appellee.

No. 70483.

Supreme Court of Florida.

March 22, 1990.

Rehearing Denied June 11, 1990.

James Marion Moorman, Public Defender, and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Paul Alfred Brown appeals his conviction of first-degree murder and sentence of death. ¹ We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm both his conviction and sentence.

Around 1:30 a.m., March 20, 1986 two gunshots woke Barry and Gail Barlow. Upon entering the Florida room of their home they found Gail's seventeen-year-old sister, Pauline Cowell, dead in her bed. Pauline's friend, Tammy Bird, had also been shot, but was still alive. The room's outside door stood open, missing the padlock with which it had been secured. Pursuant to information indicating Brown might be a suspect, sheriff's deputies began searching for him in places he was known to frequent and found him hiding behind a shed in a trailer park where Brown's brother lived. They arrested Brown and seized a handgun, later linked to the shootings, ² from his pants pocket.

Brown lived with the murder victim's mother, and the victim had only recently moved into her sister's home. Brown confessed after being arrested and, at the sheriff's office, stated that he had broken into the victim's room to talk with her about some "lies" she had been telling. Although he entered the room armed, Brown claimed that he had not intended to kill the girl, but that he planned to shoot her if she started "hollering."

The jury convicted Brown of armed burglary, first-degree murder, and attempted first-degree murder and recommended the death sentence. The trial court found that the mitigating evidence did not outweigh the aggravating circumstances and sentenced Brown to death.

As his first point on appeal, Brown claims that the detective who arrested him did not immediately advise him of his complete rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, he claims the detective failed to tell him that he could stop answering questions at any time. Therefore, Brown argues that his confessions should have been suppressed and that he should now be given a new trial.

At the suppression hearing the detective testified that, immediately upon apprehending him, the deputies directed Brown to lie on the ground, whereupon they removed the handgun from his pocket and handcuffed him. From memory the detective advised Brown of his rights, but did not tell Brown that he could cut off questioning at any time. Brown, however, appeared to understand his rights and immediately stated that he had committed a murder and an armed robbery. ³ Within minutes the deputies took Brown to a patrol car where the detective readvised him pursuant to Miranda from a printed rights card. He then arrested Brown for armed robbery and questioned him about the murder. Brown confessed again on the ride to the sheriff's office. After again being read his Miranda rights from a printed card at the sheriff's office, Brown agreed to make another statement, but asked that it be recorded rather than written.

On cross-examination the detective said he initially told Brown he did not have to speak with him, ⁴ but that Brown said he wanted to talk. Brown testified that he could not remember ever being given the Miranda warnings. ⁵ The court held that Brown had confessed freely and voluntarily and that, even if a line of the Miranda warning had been omitted initially, the confessions would not be suppressed because Brown never tried to stop talking and never requested an attorney.

In Miranda the United States Supreme Court held that a person

taken into custody or otherwise deprived of his freedom by the authorities in any significant way ... must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.

384 U.S. at 478-79, 86 S.Ct. at 1630. The right to cut off questioning is implicit in the litany of rights which Miranda requires to be given to a person being questioned. It is not, however, among those that must be specifically communicated to such a person. The rights card which the detective used contained no mention of cutting off questioning, but, because Miranda does not require such a warning, the warnings given Brown were sufficient.

Miranda was designed to deter police coercion and to ensure that confessions are given freely and voluntarily. "The prophylactic Miranda warnings are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory incrimination [is] protected.' " Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989), quoting Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974). There is absolutely no indication of coercion in this case. The United States Supreme Court has held that

absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.

Oregon v. Elstad, 470 U.S. 298, 314, 105 S.Ct. 1285, 1295, 84 L.Ed.2d 222 (1985). Brown did not begin to talk until after being told his rights. In the absence of any coercion his claim that he had been without sleep and was exhausted does not overcome the voluntariness of his statement. ⁶

Brown relies on Caso v. State, 524 So.2d 422, 425 (Fla.), cert. denied, 488 U.S. 870, 109 S.Ct. 178, 102 L.Ed.2d 147 (1988), where we held "that the failure to advise a person in custody of the right to appointed counsel if indigent renders the custodial statements inadmissible in the prosecution's case-in-chief." Caso is distinguishable because the detective told Brown at least three times that he could have appointed counsel if indigent. In Caso, however, we went on to state that Miranda violations are subject to a harmless error analysis. Even assuming that a technical Miranda violation occurred here, we find it harmless beyond any reasonable doubt. Within minutes of being given the allegedly incomplete list of his rights, Brown received them again in their entirety. Brown immediately began talking when apprehended and, apparently, never stopped. He also never requested an attorney, never asked that any questioning be stopped, and never refused to answer a question.

We therefore hold that the trial court did not err in refusing to suppress Brown's statements.

Brown also argues that the court erred in not excusing a prospective juror for cause, claiming that this person believed death the proper penalty for anyone convicted of premeditated murder unless mitigating circumstances existed. In Hill v. State, 477 So.2d 553, 556 (Fla.1985), we stated: "When any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial recommendation as to punishment, the juror must be excused for cause." Our review shows that the record does not support Brown's claim, but, rather, that this person would have been an impartial juror regarding the death penalty. ⁷ Therefore, we hold that the court did not err in refusing to excuse this prospective juror for cause.

As the last challenge to his conviction, Brown argues that the court erred in overruling defense counsel's objection to the standard jury instruction on reasonable doubt. ⁸ According to Brown the standard instruction dilutes the quantum of proof required to meet the reasonable doubt standard. We disagree. This Court has previously approved use of this standard instruction. In re Standard Jury Instructions (Criminal), 431 So.2d 594 (Fla.), as modified on other grounds, 431 So.2d 599 (Fla.1981). See also Rotenberry v. State, 468 So.2d 971 (Fla.1985), receded from on other grounds, Carawan v. State, 515 So.2d 161 (Fla.1987); Williams v. State, 437 So.2d 133 (Fla.1983), cert. denied, 466 U.S. 909, 104 S.Ct. 1690, 80 L.Ed.2d 164 (1984). The standard instruction, when read in its totality, adequately defines "reasonable doubt," and we find no merit to this point.

Turning to the sentencing portion of Brown's trial, the trial court found that three aggravating circumstances had been established, i.e., committed during commission of a felony, previous conviction of a violent felony, and committed in a cold, calculated, and premeditated manner. The court found several items of evidence in mitigation (mental capacity, mental and emotional distress, social and economic disadvantage, nonviolent criminal past), but considered them of so little weight as not to outweigh even any one of the aggravating factors. Brown now claims that: 1) the court erred in instructing the jury; 2) a seven-to-five vote for the death penalty is statistically unreliable; 3) the standard instruction does not adequately define the cold, calculated, and premeditated aggravating circumstance; 4) the cold, calculated, and premeditated aggravating factor should not be found in his case; and 5) death is a disproportionate penalty here.

Several of...