Durocher v. State

• Decision Date: 13 February 1992
• Docket Number: No. 74442,74442
• Parties: Michael Alan DUROCHER, Appellant, v. STATE of Florida, Appellee. 596 So.2d 997, 17 Fla. L. Week. S109
• Court: Florida Supreme Court

Page 997

596 So.2d 997

Michael Alan DUROCHER, Appellant, v. STATE of Florida, Appellee.

No. 74442.

596 So.2d 997, 17 Fla. L. Week. S109

Supreme Court of Florida.

Feb. 13, 1992.

Rehearing Denied April 29, 1992.

Nancy A. Daniels, Public Defender, and David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Virlindia Doss and Richard B. Martell, Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

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

While in jail awaiting sentencing on a conviction of first-degree murder, Durocher had a jail social worker contact a sheriff's detective regarding Durocher's willingness to confess to another murder if it could be guaranteed that he would receive the death penalty. The detective visited Durocher and told him that such penalty could not be guaranteed. Durocher then wanted to think about what he would do, and he and the detective agreed that the detective would come back the following Monday. On that day he confessed to robbing a Jacksonville store, killing the store's clerk, and taking his car. Durocher also related that he drove the car to Louisiana to see his father, then later brought the car back to Jacksonville, abandoned it, and returned to Louisiana. The state indicted Durocher for premeditated murder and armed robbery. The jury found him guilty of both premeditated and felony murder and armed robbery and recommended the death sentence, which the trial court imposed.

The public defender's office represented Durocher on the charge he was in jail for and had filed a so-called "Edwards notice" with the sheriff's office, the state attorney, and the jail. This letter asked that the authorities not have any conversations with Durocher without notifying the public defender's office. The detective, before responding to Durocher's request to come talk with him, did not notify the public defender. He did, however, take with him a copy of the defender's letter when he visited Durocher. The detective showed Durocher the letter and asked if he wanted to talk with the attorney appointed to represent him on the first murder charge. When Durocher responded in the negative, the detective wrote a waiver on the bottom of the letter, ¹ and Durocher signed it. The detective then read Durocher his Miranda ² rights, and Durocher wrote on the bottom of the rights form: "I understand I am represented by counsel but I wish to speak with Detective Bradley without their presence."

When the detective returned the following Monday, he again read Durocher the Miranda form, which Durocher again signed. After Durocher told him he wanted to confess to another murder, the detective had Durocher transported to the homicide office that afternoon. At that office, after again receiving and waiving his Miranda rights, Durocher confessed to killing and robbing the store clerk. In denying the motion to suppress the trial court found: Durocher made his statements freely and voluntarily; the detective made no improper inducements or promises to him; Durocher initiated contact with the detective; no state agent was involved in Durocher's decision; and when Durocher requested the contact he knew his rights, including that he could have counsel present.

Durocher now argues that the trial court erred in denying his motion to suppress his statements. As he did before the trial court, Durocher claims that the detective's taking his statements violated both his Sixth Amendment right to assistance of counsel and his Fifth Amendment right to remain silent. We disagree.

Durocher had exercised his Sixth Amendment right to counsel as to the murder charge for which he was awaiting sentencing. When Durocher confessed to the second murder, however, he had not been charged with that crime, and, therefore, no Sixth Amendment right to counsel had attached as to that second murder. McNeil v. Wisconsin, --- U.S. ----, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); Kight v. State, 512 So.2d 922 (Fla.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 262 (1988); Parham v. State, 522 So.2d 991 (Fla.3d DCA 1988). The Sixth Amendment right to counsel is "offense-specific" and "cannot be invoked once for all future prosecutions." McNeil, 111 S.Ct. at 2207; Kight (when sixth amendment has not attached to a second crime, invoking the right for a first crime has no effect on the second). Moreover, an attorney cannot unilaterally invoke a client's right to counsel for crimes for which the client has not been charged. Valle v. State, 474 So.2d 796 (Fla.1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986). Thus, the public defender's letter raised no impediment to Durocher's confession. Waterhouse v. State, 429 So.2d 301 (Fla.), cert. denied, 464 U.S. 977, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983); Rivera v. State, 547 So.2d 140 (Fla. 4th DCA 1989), review denied, 558 So.2d 19 (Fla.1990); Parham; Lofton v. State, 471 So.2d 665 (Fla. 5th DCA), review denied, 480 So.2d 1294 (Fla.1985). There is no merit to Durocher's argument regarding a Sixth Amendment violation.

The same is true as to his claimed Fifth Amendment violation. In Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981), the Court held that someone who has "expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Therefore, "Edwards does not foreclose finding a waiver of Fifth Amendment protection ... provided the accused has initiated the conversation or discussions with the authorities." Minnick v. Mississippi, --- U.S. ----, 111 S.Ct. 486, 492, 112 L.Ed.2d 489 (1990). The invocation of one's Sixth Amendment right to counsel regarding one crime, however, does not invoke one's Fifth Amendment right to remain silent and deal with the police only through counsel regarding another crime. McNeil.

Here, Durocher, not the police, initiated the confession. Both he and the detective knew that Durocher had invoked his Sixth Amendment right to counsel on the first murder charge and that he had counsel available, but Durocher adamantly expressed his desire not to invoke his Fifth Amendment rights regarding the second murder. Nothing prevents an accused from changing his mind and volunteering information after previously invoking the right to counsel, and no Fifth Amendment violation occurred here. Accord Kight.

The control of prosecutorial comments is within a trial court's discretion, and that court's ruling will not be overturned unless an abuse of discretion is shown. Occhicone v. State, 570 So.2d 902 (Fla.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2067, 114 L.Ed.2d 471 (1991); Hooper v. State, 476 So.2d 1253 (Fla.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1501, 89 L.Ed.2d 901 (1986). Durocher claims that the prosecutor's closing argument mandates a mistrial. He has, however, shown no abuse of discretion in the trial court's refusal to grant a mistrial.

Durocher also argues that the trial court erred in granting the State's challenge for cause to a prospective juror. Determining a juror's competency is within a trial court's discretion, and we will not reverse a trial court's ruling as to a juror unless that discretion has been abused. Pentecost v. State, 545 So.2d 861 (Fla.1989); Cook v. State, 542 So.2d 964 (Fla.1989). No abuse of discretion has been shown here.

After reviewing this record, we find that Durocher's conviction is supported by competent, substantial evidence. Therefore, we affirm his conviction of first-degree murder.

The trial court found that several aggravating factors had been established: previous conviction of violent felony; ³ committed during commission of a felony; committed for pecuniary gain; committed to avoid or prevent arrest; and committed in a cold, calculated, and premeditated manner with no pretense of moral or legal justification. In mitigation the court acknowledged that Durocher had a loving relationship with his mother and retarded brother. Durocher now argues that the evidence does not support finding cold, calculated, and premeditated in aggravation and that the trial court improperly doubled up the felony murder and pecuniary gain aggravators.

Contrary to Durocher's claim, we find the evidence sufficient to support finding the cold, calculated, and premeditated aggravator. Durocher told the detective that he wanted to rob someone and steal a car so that he would have money and transportation for a trip to Louisiana. When he walked by the store where the victim worked, he decided to rob it. He then walked back to his mother's house, packed his clothes, picked up a shotgun he had previously purchased, and walked back to the store. At the store the clerk told Durocher that the business operated solely on credit and that there was no money on the premises. Durocher stood there for a few minutes and then shot the clerk and took thirty to forty dollars and his car keys from him. He told the detective: "I was going to rob the man but after thinking about it I decided it would probably be better to go ahead and kill him then that way the police could not pin it to me." Durocher then wiped his fingerprints off things he had touched, locked the store's front and back doors, and drove away in the victim's car. This sequence of events demonstrates the calculation and planning necessary to the heightened premeditation required to find the cold, calculated, and premeditated aggravator. Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988).

In the sentencing order the trial...