Kramer v. State, No. 4D18-88
| Decision Date | 08 April 2020 |
| Docket Number | No. 4D18-88 |
| Citation | 294 So.3d 343 |
| Parties | Lisa KRAMER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ima Ocasio-Yrady, Miami, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
Lisa Kramer appeals her convictions of DUI manslaughter, vehicular homicide, DUI with prior convictions, and possession of cocaine. She raises numerous arguments on appeal. We agree with her that the trial court should have granted her motion to suppress, and we reverse on that ground, rendering her other arguments moot.
Kramer was involved in a collision with a motorcyclist as Kramer drove her vehicle. The motorcyclist was killed. Kramer was arrested and interrogated. Kramer contends that incriminating statements she made during the interrogation should have been suppressed, as the statements were obtained after she asserted her rights to representation and to remain silent.
The first officer to interrogate Kramer, Deputy Steven Pollock, informed Kramer of her Miranda rights and asked whether she "wish[ed] to talk to me." Kramer answered affirmatively and signed the consent form. The form recites the Miranda rights, then asks, "Do you understand each of these rights I have explained to you?" and "Having these rights in mind, [d]o you wish to talk to me now?" The "Yes" box is checked off for each question, and Kramer's signature appears on the form. Deputy Pollock asked Kramer questions related to his determination of Kramer's impairment level, and Kramer revealed what medications she was prescribed.
Kramer was then escorted to another room where she waited for a period of time before Trooper Mark Zook and a prosecutor entered the room. Trooper Zook introduced himself and explained that he was a "traffic homicide" and "criminal investigator" and that his investigation would relate to her criminal charges. He confirmed that Kramer had previously been Mirandized , and he explained that Deputy Pollock did so in relation to what he "was doing," but that Trooper Zook was Mirandizing her for purposes of his criminal investigation. Trooper Zook then explained that he was conducting an investigation which could lead to an arrest "as early as tonight." Kramer interjected, "Please don't let that happen" and began to whimper.
Trooper Zook then read Kramer her Miranda rights. She indicated that she understood each right as read, answering "Yes" repeatedly. Trooper Zook then attempted to interview Kramer:
Trooper Zook persisted in asking clarifying questions even after Kramer's third "no" which then led to Kramer eventually acquiescing which produced a number of incriminating statements.
The trial court denied Kramer's motion to suppress, reasoning that under the circumstances, Trooper Zook was understandably confused when Kramer answered "No."
Pierre v. State , 22 So. 3d 759, 765 (Fla. 4th DCA 2009) (citation omitted). "However, this deference to the trial court's findings of fact does not fully apply when the findings are based on evidence other than live testimony." Id . (quoting Parker v. State , 873 So. 2d 270, 279 (Fla. 2004) ).
"The Fifth Amendment of the United States Constitution and Article I, Section 9, of the Florida Constitution both provide for a right against self-incrimination." Rigterink v. State , 66 So. 3d 866, 887 (Fla. 2011). "[T]he Self-Incrimination Clause of Article I, Section 9, Florida Constitution, requires that prior to custodial interrogation in Florida suspects must be told that they have a right to remain silent, that anything they say will be used against them in court, [and] that they have a right to lawyer's help ...." Traylor v. State , 596 So. 2d 957, 966 (Fla. 1992). Further, "[u]nder Section 9, if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin or, if it has already begun, must immediately stop." Id . A clarifying question is not permitted when an unequivocal invocation of rights is made. See Black v. State , 59 So. 3d 340, 346 n.6 (Fla. 4th DCA 2011) (). Additionally, a suspect cannot be said to have voluntarily reinitiated conversation after her invocation of rights where the interrogation did not cease upon the suspect's invocation of rights. Shelly v. State , 262 So. 3d 1, 17 (Fla. 2018).
"[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ " State v. Pitts , 936 So. 2d 1111, 1129 (Fla. 2d DCA 2006) (quoting Michigan v. Mosley , 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) ). A suspect's statements after a clear invocation of his rights may not be used to find that his invocation of rights was ambiguous. See id . at 1129-30 (quoting Smith v. Illinois , 469 U.S. 91, 91-92, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) ).
Based on our review of the testimony and police station video, we find that Kramer unequivocally invocated her right to remain silent at three separate points before the commencement of the interrogation. Clearly, any further questioning should have ceased and the admission of Kramer's statements was not harmless because her statements could be taken as admissions of guilt. It cannot be said beyond a reasonable doubt that the jury did not consider her statements in deciding her guilt on the DUI-related offenses. And because the evidence at trial overlapped to some extent as to all the charges, we find the evidence was also not harmless as to the non-DUI related offenses as well.
Our reversal on the suppression ground renders moot Kramer's arguments regarding any purported evidentiary ruling errors. However, we address one of the issues in order to provide guidance in the event of retrial.1 During trial, the state called Kramer's doctor as a witness and asked him why he was treating Kramer. Defense counsel objected based on the "physician-patient privilege." The state proffered the doctor's testimony. He testified as to specified diagnoses, the medications he prescribed Kramer, and the dosages, as well as the warning he gave her regarding driving under the influence of the medication. He also testified that he never changed Kramer's dosage or strength of a particular medication.
The state promised not to elicit testimony regarding Kramer's diagnoses but it sought to introduce the other testimony, mainly to contradict Kramer's statement to an officer that her doctor had "upped her dosage" of a particular medication, a statement the state had entered into evidence. The trial court found that Kramer's diagnoses were not relevant, but that the doctor could testify as to medications prescribed, dosages, and "effects on [Kramer's] body," and that he could also offer testimony rebutting Kramer's statement that her medication dosage was changed. The court relied on the "unique circumstances" of the case in finding the privilege did not apply, and also reasoned that the doctor would not "testify as to any communications or conversations or consultations he may have had between himself and [Kramer] relative to his treatment of her" or to any diagnoses. The court also found that the privilege did not apply because "there has already been testimony as to the amount of these substances found in [Kramer's] bloodstream, the types of drugs they are ... and that the amounts found in [Kramer's] bloodstream were in therapeutic range." The court further found that the privilege did not apply because the evidence was being used "to rebut her alleged statements ... to Trooper Zook at the jail." The doctor then testified as to the matters the court ruled were permissible but also testified without objection as to Kramer's diagnoses.
We begin with section 90.503, Florida Statutes (2017), which provides the following, in pertinent part:
§ 90.503(2), (4), Fla. Stat. A "confidential" communication is defined as one between the psychotherapist and patient that "is not intended to be disclosed to third persons" other than specified persons not relevant here. § 90.503(1)(c), Fla. Stat.
The court correctly excluded the testimony regarding diagnoses, albeit after engaging in a relevance analysis which we find to be an erroneous standard for the privilege objection. Further, the doctor's testimony, as permitted by the trial court, fell within the...
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