JG v. State

• Decision Date: 11 October 2004
• Docket Number: No. 1D03-2955., No. 1D03-2953
• Parties: J.G. a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

883 So.2d 915

J.G. a child, Appellant, v. STATE of Florida, Appellee.

Nos. 1D03-2953, 1D03-2955.

District Court of Appeal of Florida, First District.

October 11, 2004.

Nancy A. Daniels, Public Defender; and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General; and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

The State's petition charged that between July 9, 2001, and April 7, 2003, J.G. (Appellant), a juvenile, "did commit a sexual battery upon, or in an attempt to commit sexual battery injure the sexual organs of [D.E.], a person less than 12 years of age, by placing his penis in or upon the anus of [D.E.]." Appellant filed a motion to suppress oral statements, admissions, and confessions on the grounds they had been obtained in violation of his federal and state constitutional rights. Finding that Appellant's oral statements to the police were voluntarily given and that he was not coerced, the trial court denied the motion after a hearing. Appellant reserved the right to appeal the denial of the motion to suppress. Appellant's confession was introduced as substantive evidence against him. The trial court adjudicated Appellant delinquent of sexual battery and, pursuant to the parties' stipulation, considered the evidence presented at the adjudicatory hearing to support its finding that Appellant had violated the terms of his probation. The court revoked Appellant's probation and committed him to a high-risk residential program. Appellant appeals the adjudication of delinquency and the revocation of his probation. Because the trial court erred as a matter of law in finding that Appellant's written waiver of Miranda¹ rights was knowing, intelligent, and voluntary; and that his oral confession was freely and voluntarily made, the denial of the motion to suppress was erroneous. Absent a showing by the State that the error was harmless beyond a reasonable doubt, we are constrained to reverse the adjudication of delinquency and the probation revocation order and to remand for further proceedings. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986)

.

The trial judge acknowledged on the record that "the crucial evidence" in this case is Appellant's confession and testimony. Appellant argued in the trial court and on appeal that the police failed to comply with the parental notification statute, that his waiver of rights was invalid, and that his oral statements to the police were not freely, voluntarily given.

"The State bears the burden of proving that the waiver of the Miranda rights was knowing, intelligent and voluntary." Ramirez v. State, 739 So.2d 568, 575 (Fla.1999). Likewise, the State has the burden to show, by a preponderance of the evidence, that Appellant's oral confession was freely and voluntarily made. See Brewer v. State, 386 So.2d 232, 236 (Fla.1980)

. "[T]he ultimate issue of voluntariness is a legal rather than factual question." Ramirez, 739 So.2d at 575. Therefore, we have de novo review of these legal issues. See Brancaccio v. State, 773 So.2d 582, 583 (Fla. 4th DCA 2000). The following pertinent facts surrounding Appellant's receiving the Miranda rights and giving an oral confession were presented at the suppression hearing.

Facts

During the period in question, Appellant's mother was away in rehabilitation, and his father was not present in Appellant's day-to-day life. The victim's mother, Ms. McBride (who is Appellant's aunt) testified that on April 6, 2003, Appellant spent the night at the apartment where Ms. McBride and her daughter (who is Appellant's cousin) lived. On various occasions, Appellant had stayed in the living room at Ms. McBride's residence, and sometimes the victim had stayed at Appellant's residence. On April 6, Appellant was not expected to stay the night at Ms. McBride's place, but he did so because his grandmother's car broke down, she could not pick him up, and his sister was not at home. According to Ms. McBride, later that same night, Appellant and the young victim were "acting strange." When Ms. McBride asked the victim whether anyone had ever "messed" with her, the victim indicated that once, Appellant had pushed her down and had engaged in inappropriate sexual behavior with her. Ms. Hocker, who was Ms. McBride's lesbian partner, asked the victim whether anything else had happened. The victim answered "No" and did not want to talk about it anymore. Ms. McBride then dialed 911 but was too upset to talk. Instead, Ms. Hocker talked to the authorities. The police drove Appellant to the police station around 10:00-11:00 P.M. in a patrol car while the victim, accompanied by Ms. McBride and Ms. Hocker, followed.

Upon arrival at the police station, Ms. McBride talked to Detective White and to someone from the Child Protection Team. The detective asked Ms. McBride to sit in on the interview with Appellant because the detective wanted another adult present. When Ms. McBride said she was too upset to sit through the questioning of Appellant, the detective asked Ms. Hocker to sit in instead. According to Ms. McBride, when the questioning of Appellant was over, Ms. Hocker came out of the interview room and asked Ms. McBride to tell Appellant that she loved him and did not hate him. As Appellant cried and remarked that everyone was going to hate him, Ms. McBride walked to the doorway of the interview room and told Appellant: "I don't hate you, I still love you." She testified that Appellant had not looked sleepy, hurt, afraid, or disoriented at the time. On cross-examination, Ms. McBride testified that she had told the detective that Ms. McBride's mother was Appellant's guardian and custodian.

Ms. Hocker, age 23, testified that the victim, her goddaughter, is like a daughter. Ms. Hocker had known Ms. McBride and the victim for a year and a half or less. The witness testified that at the commencement of the interview late that night or early on the morning of April 7, Detective White handed Appellant a piece of paper with Miranda rights and had Appellant read it aloud. The detective asked whether Appellant understood what he had read, and Appellant answered affirmatively and was instructed to sign the form. The lighting in the interview room was "normal." Ms. Hocker testified that Appellant's rights were not actually read to him.

According to Ms. Hocker, questioning began with whether Appellant had any idea why he was at the police station, and he answered "No." When the detective asked: "So you don't know why you're here?" Appellant answered: "I think it's something about me touching my cousin." When the detective asked several times whether Appellant had touched his cousin, Appellant kept answering "No." When Ms. Hocker asked him the same question, Appellant again said "No." For about thirty minutes, he continued to deny having inappropriately touched his cousin.

The witness testified that Appellant's answers changed upon a new line of questioning. Specifically, Ms. Hocker said to him: "If I was to show you a videotape with you touching [the victim], you would say it wasn't you." Appellant continued to deny any wrongdoing. When Appellant asked whether "you" had videotapes, Detective White, responding to the new direction in questioning initiated by Ms. Hocker, answered "Yes." When Appellant asked twice whether he could see the videotapes, the detective said "No," stating that the videotapes were "in evidence." When Appellant asked whether he could go home if he told the truth, the detective answered that it was not up to her to decide. At some point during the interview, the detective told Appellant that she thought he was lying. Ms. Hocker testified that Appellant eventually broke down, said he would tell the truth, and admitted entering the victim's anus.

According to Ms. Hocker, Appellant then started crying for the first time and said that his grandmother and his aunt were going to hate him. Ms. Hocker said that she had reassured Appellant that everything was going to be O.K. Ms. Hocker testified that although she told Appellant that he was wrong to do what he had done, she reassured him that nobody was going to hate him. At that point, Ms. Hocker had left the interview room and asked Ms. McBride to tell Appellant that she (Ms. McBride) did not hate him. Ms. McBride complied.

Ms. Hocker denied ever becoming confrontational during Appellant's interview. She testified that Appellant had seemed alert and did not look sleepy or indicate that he was scared, hungry, or mistreated. Ms. Hocker said that no one ever threatened Appellant, called him names, or made promises in exchange for his admissions. Ms. Hocker estimated that the interview lasted close to two hours. Appellant gave his confession about thirty minutes into the questioning. On cross-examination, Ms. Hocker acknowledged (over an objection questioning relevance) having been sexually abused by a relative during childhood.

Officer Crotty, of the Jacksonville Sheriff's Office, testified that he had driven Appellant to the police station around 12:30 A.M. and placed him in the interview room, which had normal fluorescent lighting. The room is about eight feet square and has a table and several office-type chairs. Appellant sat in the interview room for about 2-½ hours before the questioning commenced. He was in the room for a total of three or four hours before being taken to the juvenile assessment center. The officer said that he had remained in an office immediately outside the interview room and never heard any arguing or commotion inside. After the interview, the officer arrested Appellant around 5:00 A.M. The arrest docket listed the grandmother, Ms. Anderson, as Appellant's guardian. The officer testified that he had received Ms. Anderson's name, address, and telephone number from the two complainants, one of whom he understood to be Appellant's custodial guardian and relative with whom Appellant was...