Davis v. State, 5D05-2173.
| Decision Date | 10 March 2006 |
| Docket Number | No. 5D05-2173.,5D05-2173. |
| Parties | John Edward DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
John Edward Davis appeals his convictions for first degree (premeditated and felony) murder and robbery. He argues first that the trial court erred in denying his requested jury instruction on taking property of the victim as an afterthought, which constitutes theft, as opposed to taking property in the course of a robbery. Second, Davis, who was 16 years old at the time of the murder, claims that the trial court erred in failing to suppress his confession because police continued to interrogate him after he asked to speak to his mother.
We find that the trial court abused its discretion in denying Davis's requested afterthought instruction where there was some evidence presented to support his theory. Consequently, the robbery conviction is reversed and we remand for a new trial on that charge. However, we affirm the first degree murder conviction. Any error relating to the felony murder charge, which was based on the robbery charge, was harmless because the jury also found Davis guilty of premeditated murder.
Regarding the confession, the trial court properly denied Davis's motion to suppress. Davis's mother was properly notified that he was being interrogated and did not ask to see him, did not ask for questioning to cease and did not ask that Davis have an attorney present. Additionally, the trial court correctly concluded that Davis's requests to speak to his mother after the interview was finished were not an invocation of his right to stop the interview until a parent could be present.
Davis was charged as an adult by grand jury indictment with the first degree murder and robbery of Paul Prescott on or about December 13 or 14, 2003. The indictment alleged that Davis killed Prescott by shooting him several times, acting from a premeditated design to kill or while engaged in robbing Prescott. The robbery charge alleged that Davis robbed Prescott of a "motor vehicle, and/or a cell phone, and/or cash or currency."
A week before the murder, Davis told his girlfriend, Alix Fideli, that he planned to rob someone for money. He needed money to give to his mother's boyfriend. About that same time, Davis obtained a handgun. Davis told Fideli he was going to use the gun as a prop in the robbery.
One or two days before the murder, Davis went with Fideli and Christopher Sunter to a pawn shop where Sunter purchased a box of .380 caliber bullets for Davis. The night before the murder, Davis was with Andrew Pine. Davis showed Pine a handgun that night. Pine identified the murder weapon as the gun that Davis showed him the night before the murder.
On the night of the murder, Davis, his 13-year-old brother, Torrey, and Paul Prescott were hanging out together at the Davis home. They were drinking alcohol and smoking marijuana. Davis, Torrey and Prescott went to buy beer and look for a boat launch in Sanford. They returned to the Davis home and continued drinking. Around 11:30 p.m., Davis and Prescott left without Torrey.
About 11:50 p.m., Torrey called Davis on his cell phone and told him to come pick him up. Davis returned in Prescott's pickup truck and took Torrey to French Landing, a nearby boat launch. Davis told his brother that Prescott had "tried him and he had to do it." Torrey observed Prescott lying on his stomach. Davis asked Torrey for help disposing of Prescott's body but Torrey did not help Davis because he was scared. Davis took Torrey back home. Torrey told their mother, who called 911.
Torrey disavowed several portions of a written statement he made to police shortly after the murder, including his comments that (1) Prescott had a lot of money in his truck; (2) Davis told Torrey he was going to rob Prescott; and (3) Davis showed Torrey a .380 caliber handgun.
After dropping off his brother, Davis drove Prescott's truck to his girlfriend's house. Fideli observed blood on the truck. Police arrived at Fideli's house and Davis ran into the nearby woods. Police later apprehended Davis and seized from him $136 in currency, Prescott's truck and house keys, and five .380 caliber bullets. They later found the handgun and a cell phone nearby in the woods.
The medical examiner testified that Prescott had been shot four times. He classified Prescott's death as a homicide resulting from multiple gunshot wounds. After his arrest, Davis told Fideli he shot Prescott four times. He also told Fideli what to say to police and that she lied to police "about the whole Manny thing."
Case agent Greg Seymour interrogated Davis. The interview was videotaped and transcribed. Initially, Davis told Seymour that a friend named Ryan picked him up in Prescott's truck, then he dropped Ryan off and drove the truck to his girlfriend's house where he was apprehended. After Seymour advised Davis that he knew Prescott was dead, Davis became upset and stated, "I wanna talk to my mom before I leave." Seymour responded, "Okay, alright."
After further discussion, Davis changed his version of the events, stating that he was acting as the middleman in a drug deal. He was supposed to buy three pounds of marijuana from Prescott for another guy. Prescott tried to rob him of the guy's money. Prescott then tried to pull away. Davis shot Prescott because he did not want Prescott to get away with the money and have the guy who owned the money kill him. Davis figured sitting in jail alive was better than getting killed.
Seymour explained to Davis that there was a big difference between a cold hearted killing and a drug deal gone bad. At that point, the following exchange occurred:
Davis: Man, I'll tell you the whole story.
Seymour: Okay.
Davis: But when I'm done, I wanna talk to my mom.
Seymour: Okay.
Davis: Are you callin' my mom?
Seymour: Yes, we're getting' in touch with her now.
Davis: What do ya wanna know?
Davis elaborated on his drug deal story. He explained that the name of the guy involved in the drug deal was "Manny." Then, the following exchange occurred:
Willis: [another police investigator] Let me interject somethin' real fast here, okay.
Seymour: Mm hmm.
Willis: We are attempting to get ahold of your mother, okay. You mentioned before you wanted to try and get ahold of her before you left here and, then, you asked about her just a few minutes ago, okay. So, we are attempting to get ahold of her. It's my understanding, but I'm not sure, she knows you are here. With that in mind, you're still comfortable talkin' to us, right?
Davis: Yeah. Just so I can talk to my mom when I'm done.
Willis: When you're done, you wanna talk to 'er?
Davis: Yeah.
Willis: Okay.
Seymour: You can talk to 'er any time, you know what I mean. When you're done is your thing.
Davis: I just want talk to my mom tonight before I go to jail.
After more questioning, the following exchange occurred:
Seymour: How do ya feel right now about all this?
Davis: I don't feel good. I feel like I'm goin' to jail for life and, now, I have nothin' to worry about (unintelligible), so really, I'm at the end of my rope. All I wanna do is talk to my mom.
Seymour: Okay.
Davis: That's all I want. I just wanna talk to my mom.
Seymour: Okay. We're gonna make that happen. The reason I'm askin' all that though is.
Davis: Can I see 'er again, too.
Seymour: Can you what?
Davis: Can I see 'er again before I leave?
Seymour: Yeah.
Davis: Can she come here?
Seymour: Well, I think she's on her way here now, okay.
Davis: I wanna see 'er before I go.
Shortly after that, the following exchange occurred:
Davis: I wanna talk to my mom. Do you have the number to call her?
Willis: I'll write it down.
More questioning occurred. Then, the following exchange occurred:
Davis: Can I talk to my mom?
Willis: That's why (unintelligible) stepped in so he can get everybody lined up and get contact with everybody.
Davis: Will I be able to talk to everybody before I leave?
Davis filed a motion to suppress his confession. He argued that his confession was involuntary, in pertinent part because police did not honor his request to speak to his mother before continuing to question him. At the suppression hearing, Deputy Robert Carrow testified that he was dispatched to Davis's house where he spoke with Davis's mother. He told her that her son was in police custody. She did not ask to speak to Davis or invoke any type of parental rights. Investigator John Eckersen also spoke to Davis's mother. He advised her that Davis was at the operations center. She did not ask to speak with Davis or request that an attorney be present. Investigator Seymour testified that he interpreted Davis's statements regarding his mother to mean that he wanted to speak with her at the end of the interview. The lower court denied the motion to suppress.
The standard for reviewing a trial court's denial of a motion to suppress is mixed. Dewberry v. State, 905 So.2d 963, 965 (Fla. 5th DCA 2005). Its fact findings will be upheld if supported by competent, substantial evidence. Id. In reviewing the trial court's fact findings, the appellate court must construe all the evidence, and reasonable inferences therefrom, in a manner most favorable to upholding the trial court's decision. Id. The trial court's application of the law to the facts is reviewed de novo. Id.
Davis argues that the trial court erred in denying his motion to suppress because police continued to question him after he asked to speak to his mother. If, during a custodial interrogation, a juvenile "indicates to police that he or she does not wish to speak to them until he or s...
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