Gonzalez v. State

Decision Date10 April 1984
Docket NumberNo. 82-1837,82-1837
Citation449 So.2d 882
PartiesJuan Laureano GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender and Paul Morris, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.

Before HUBBART, FERGUSON and JORGENSON, JJ.

FERGUSON, Judge.

Appellant asserts as points on appeal: (1) it was error to deny his motion to suppress a statement obtained from him by officers who knew that he was represented by counsel, after he had invoked his right to counsel, where the interrogation was initiated by the officers in violation of his fifth amendment rights; and (2) it was error to sentence him for felony murder and the underlying felony. By way of cross-appeal, the state asserts that it was error to grant appellant a new trial on the robbery count of the six-count indictment.

Appellant was charged with six felonies: Count 1, premeditated or felony (robbery) murder of Perez; Count 2, premeditated or felony (robbery) murder of an unidentified person; Count 3, robbery of marijuana belonging to Perez; Count 4, attempted premeditated or felony (robbery) murder of Garcia; Count 5, possession of in excess of 2,000 pounds but less than 10,000 pounds of marijuana; Count 6, carrying a concealed firearm. A jury returned verdicts as follows: as to Counts 1 and 2, guilty of third-degree murder, a lesser offense; Counts 3 and 5 guilty as charged; Count 4, guilty of attempted third-degree murder; Count 6, not guilty. Appellant was sentenced to fifteen years each on Counts 1 and 2, five years on Count 4, and twenty-five years on Count 5, all to run concurrently. On Count 3, charging robbery, the verdict was set aside and new trial granted on a finding that:

1. The verdict as to count three was irreconcilably in conflict with counts one, two, four and five.

2. The verdict as to count three was contrary to the weight of the evidence.

The distilled facts are as follows.

On August 21, 1981, at about 1:00 a.m., Officers Petow and Perez, while headed toward a South Dade nursery in response to a burglar alarm, stopped a truck which appeared to be without a tag. Appellant was the driver. Two others, later identified as Martinez and Capote, occupied the front passenger seats. The three were instructed to exit the vehicle.

Officer Perez inquired of Gonzalez what he was doing in the area at that hour of night and asked for a driver's license. Gonzalez produced his driver's license, and in response to a question about the missing tag, responded that the truck had a tag which was obstructed by a lifter. Officer Petow observed a black purse on the front seat. He touched the bag and upon feeling what he believed to be a weapon he opened the bag, discovering a gun which he unloaded. Officer Perez inquired as to whether any of the others had weapons. Capote produced a weapon from under his shirt. Both Gonzalez and Capote were arrested for carrying concealed firearms. The third person, Martinez, who had been sitting in the middle nearest the purse containing the firearm, fled from the scene. Gonzalez and Capote were placed in the police car. Because of the strong smell of marijuana, Officer Petow opened the rear door of the truck. He discovered bales of marijuana. Appellant was advised of his Miranda rights but no questions were asked.

Later that morning, still on August 21st, appellant was again advised of his Miranda rights at police headquarters. Officer Riley informed appellant that he was under arrest for trafficking in narcotics, and that two bodies were found near the area where he was arrested. Appellant responded that he had accepted an offer to go to the farm to move furniture and that he knew nothing of what was going on, as he had remained outside the farm while the truck was driven onto the premises by two other men who later returned to pick him up. When questioned about the double homicides, which Officer Riley believed to be related to the marijuana-ladened truck, Gonzalez said that he did not wish to talk.

The next contact with Gonzalez was at his home on October 28, 1981. He had not been in custody for some time. When he was asked by Officer Torres whether he was willing to cooperate in the investigation of the homicides, Gonzalez declined to cooperate and informed the officers that he was represented by counsel. Officers Torres and Sessler next saw Gonzalez sometime between December and April 1st the next year, at which time Gonzalez told them that he would call Officer Torres at some later date. The officers did not attempt to communicate with appellant's counsel because they knew that she was representing another suspect who could pose a threat to Gonzalez if that client were made aware that Gonzalez was willing to cooperate with authorities.

On April 1, 1982, after a lengthy investigation which connected Gonzalez to the homicides, he was arrested by Torres and Sessler at his home pursuant to a warrant. As Officer Torres took Gonzalez away, he observed Mrs. Gonzalez attempting to reach appellant's attorney on the telephone. Officer Torres testified that on April 1st, at the station, he advised Gonzalez of his Miranda rights as required in light of the new arrest--just as had been done on August 21, 1981. Gonzalez expressed a willingness to talk, signed a rights waiver form, and gave an inculpatory statement. Gonzalez, according to Torres, did not ask for an attorney during the time they were together. Gonzalez was provided with coffee and cigarettes and taken to a restaurant while the statement was being transcribed. The statement was the subject of a motion to suppress, denial of which presents the first issue on this appeal.

I. PRIVILEGE AGAINST SELF-INCRIMINATION

In support of the contention that his statement was illegally obtained, appellant relies on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) which held:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having 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. 451 U.S. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386.

The Edwards court relied upon the fifth amendment right identified in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which is the right to have counsel present at any custodial investigation. Appellant argues here that according to Edwards, his assertion of the right to counsel following the arrest for drug trafficking and firearm possession was still effective to preclude questioning about the murder and robbery charges which were the subject of a later arrest, even though he was not in continuous custody. We must consider the continued efficacy of the Edwards principle in light of events subsequent to appellant's assertion of the right to counsel made on August 21, 1981 and October 28, 1981, namely (1) appellant was not in custody during the five-month interval between the last invocation of the right and the taking of the statement, (2) appellant's subsequent arrest was on different charges, which required police to again advise him of his rights.

No Florida case seems to have considered this precise question, and those which have applied the Edwards teaching to find that statements were illegally obtained are easily distinguishable on their facts. See State v. Padron, 425 So.2d 644 (Fla. 3d DCA 1983) (continuous custody); Silling v. State, 414 So.2d 1182 (Fla. 1st DCA 1982) (continuous custody, same offense); Porter v. State, 410 So.2d 164 (Fla. 3d DCA 1982) (continuous custody, same offense).

We hold that Edwards is not applicable to preclude the admission into evidence of a defendant's statement where he, having exercised the right to remain silent, and having obtained the services of counsel, leaves police custody, is later arrested on other charges, then, following an intelligent waiver of the right against self-incrimination, gives an inculpatory statement. There is no practical reason for a different result where, as here, an accused has had several months to reassess the earlier asserted right to counsel. 1

Our holding is consistent with two recent decisions of the United States Supreme Court which, on revisitation of Edwards, have rejected the notion that it states a "per se" rule which can be universally applied. Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). Instead, the high court has interpreted Edwards to require an examination of the "totality of the circumstances" in order to determine if a fifth amendment violation has occurred. Wyrick, 459 U.S. at 47, 103 S.Ct. at 396, 74 L.Ed.2d at 218. These cases, however, focused on the issue of what constitutes a "defendant-initiated" conversation under Edwards, and did not discuss the tempering effect of a no-continuous-custody situation.

Two reported cases have decided this exact issue. We find highly persuasive the decision in United States v. Skinner, 667 F.2d 1306 (9th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983), in which Edwards was held distinguishable. The court relied heavily on the fact that Skinner, unlike Edwards, was not in continuous custody between the time he invoked the right to counsel and the next day when he gave a full confession. It was noted that Skinner arrived at the police station...

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