Kurecka v. State, No. 4D08-2154 (Fla. App. 3/24/2010)
| Decision Date | 24 March 2010 |
| Docket Number | No. 4D08-3221.,No. 4D08-2154.,4D08-2154.,4D08-3221. |
| Parties | CHARLES KURECKA, Appellant, v. STATE OF FLORIDA, Appellee. STATE OF FLORIDA, Appellant, v. JAMES J. POWER, Appellee. |
| Court | Florida District Court of Appeals |
Consolidated appeals from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Timothy McCarthy, Judge, L.T. Case No. 502007AP900052AXXXMB and James L. Martz, Judge, L.T. Case No. 502008AP900038AXXXMB.
Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for Appellant Charles Kurecka
Bill McCollum, Attorney General, Tallahassee, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for Appellee State of Florida (Case No. 4D08-2154).
Bill McCollum, Attorney General, Tallahassee, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for Appellant State of Florida (Case No. 4D08-3221).
Ira D. Karmelin, West Palm Beach, for Appellee James J. Power.
These consolidated appeals present the same issue concerning whether the defendants' refusal to submit to a breath test, following their arrest for driving under the influence (DUI), should have been suppressed. The defendants, Charles Kurecka and James J. Power, moved to suppress evidence of their refusal, based on their mistaken belief that they had a right to counsel before deciding whether to submit to breath testing. A circuit court denied Kurecka's motion to suppress, and Kurecka subsequently appealed his DUI conviction. A county court granted Power's motion, and the state appealed the suppression order and agreed to Power's motion to transfer the appeal to our court. Both trial courts certified the issue as involving a question of great public importance. We accepted jurisdiction in these cases and consolidated them for review.
Charles Kurecka was involved in an automobile accident on August 24, 2005. Officer Joseph Rubin of the Greenacres Department of Public Safety responded to the scene of the accident and conducted a DUI investigation. After performing field sobriety exercises, Kurecka was arrested for DUI and transported to the Greenacres Public Safety Department. At the police station, he refused to submit to an alcohol breath test. Kurecka later filed a pre-trial motion to suppress his refusal.
At the hearing on Kurecka's motion to suppress his refusal to submit to breath testing, the parties stipulated to the facts recited in the order denying the motion to suppress:
On August 24, 2005, after being arrested for DUI, Defendant was requested by law enforcement to submit to breath testing. Upon hearing the request, Defendant requested to speak with an attorney. Prior to requesting Defendant to submit to breath testing, law enforcement had not advised Defendant of his Miranda rights. As such, Defendant's desire for counsel was not premised upon law enforcement advice, but his own belief that he needed to speak with an attorney. Law enforcement did not inform Defendant that he did not have a right to speak with counsel prior to deciding to take or refuse breath testing. Because he wanted to speak with counsel first, Defendant refused to submit to breath testing.
During argument on the motion to suppress, defense counsel conceded that Kurecka did not have a right to a lawyer before deciding whether to take a breath test. He further acknowledged that Kurecka was not misled by law enforcement regarding his right to speak with an attorney and that his confusion stemmed from his own misunderstanding of the law. Nonetheless, he argued that Kurecka's refusal should not be admitted at trial as evidence because his refusal does not show consciousness of guilt, but mere confusion on his part.
In denying the motion to suppress, the court declined to apply the confusion doctrine to Kurecka's refusal to submit to breath testing since his confusion about the right to counsel did not derive from any action by law enforcement. Citing State v. Wymer, 4 Fla. Supp. 113a (Fla Hillsborough Cty. Ct. 1995), the court denied the motion to suppress and certified a question of great public importance. We rephrase the question as follows:
IF THE CONFUSION DOCTRINE EXISTS IN fLORIDA, DOES IT APPLY WHEN LAW ENFORCEMENT FAILS TO ELIMINATE A DEFENDANT'S CONFUSION ABOUT THE RIGHT TO COUNSEL BEFORE SUBMITTING TO A BREATH TEST EVEN THOUGH LAW ENFORCEMENT DID NOT CAUSE THE CONFUSION?
We answer the question in the negative and affirm the order denying Kurecka's motion to suppress his refusal to submit to the breath test.
At Kurecka's trial, the state argued during closing that appellant's refusal to submit to the breath test showed consciousness of guilt, stating:
And, why does he refuse the breath test? Because he knows, he knows he's over the legal limit, he knows he's impaired, he knows his normal faculties are impaired and that's why he refuses to give a sample of his breath for testing.
In his closing argument, Kurecka offered the following explanation for refusing to submit to a breath test:
DEFENSE ATTORNEY: The State wants you to believe and wants you to use the evidence of the refusal to submit to testing as an indication of guilt. I'm sorry, that's not what the evidence supports. Rubin asked Chuck Kurecka to submit to the breath test. He asked him, something that has a legal ramification. And, Chuck Kurecka made an intelligent, rational, sober, request. I'd like to talk to a lawyer.
Now, whether he was or wasn't entitled to talk to a lawyer at that point is not at issue here. What is at issue, is his state of mind. I'd like to talk to a lawyer. Did Rubin say to him, sir you can't talk to a lawyer. You're not allowed to talk to a lawyer? Did he say wait, let me go get a phone, you can talk to whoever you want? No, he said nothing about it. And, simply said if you refuse your license is suspended etcetera.
The jury found Kurecka guilty of DUI causing injury to person or property.
James J. Power was arrested for DUI on December 23, 2000 after he was stopped for speeding. He was taken to the Breath Alcohol Testing Center for breath testing and questioning. In response to routine booking questions and a request to submit to breath testing, Power responded that he wanted a lawyer. He moved to suppress the questionand-answer session and his refusal to submit to breath testing.
At the hearing on Power's motion to suppress, the state played a videotape of the events that took place at the breath testing facility. The video recording showed that Sergeant Gray asked Power, a former police officer, his name, current address, date of birth, and height and weight. To each question Power responded either, "I want a lawyer" or simply "A lawyer." Then the following exchange took place:
The sergeant read the implied consent law to Power and advised him of the consequences of refusing the test, including suspension of his license and admission of his refusal as evidence in any criminal proceeding. Sergeant Gray did not repeat his request for Power to take the breath test; however, he interpreted Power's actions as a refusal to submit to breath testing. The officer then read Power his Miranda rights. After ascertaining that Power understood them, he asked him if he wanted to answer any questions. Power shook his head to indicate a negative response, and when asked if he had anything to add, he stated, "Yea, I want a lawyer."
At a continuation of the suppression hearing, Sergeant Gray testified that Power was not read Miranda warnings before his arrest or before the request for a breath test. He said that he knew Power was not entitled to counsel prior to submitting to breath testing, but acknowledged that he did not advise Power of this fact when he requested counsel. Sergeant Gray testified that Power was briefly employed as a police officer; however, he did not know the length of Power's law enforcement service or the extent of his training and experience.
The trial court granted Power's motion to suppress. First, the court ruled that the question-and-answer session that followed the Miranda warnings had to be suppressed because Power had previously invoked his right to counsel. Then, as to Power's refusal to submit to breath testing, the court stated the following:
There is no question that Defendant, in the Instant Cause, made his belief that he was entitled to counsel known to Sergeant Gray. However, it is equally without question that Sergeant Gray did not cause Defendant's incorrect belief. Thus, the Court must determine if a mistaken belief in the right to counsel prior to breath testing, not created by law enforcement but made known to law enforcement, results in the suppression of the refusal to submit to breath testing, if law enforcement does not correct the Defendant's mistaken belief. The Court believes this question can only be answered in the affirmative.
The trial court, in essence, applied the confusion doctrine and expanded it, reasoning that there was no logical basis for distinguishing between defendants who were confused by law enforcement and those whose internal confusion was left uncorrected by law enforcement. The court then certified the following as a question of great public importance:
DOES A DEFENDANT'S MISTAKEN BELIEF IN THE RIGHT TO COUNSEL PRIOR TO BREATH TESTING, NOT CREATED BY LAW ENFORCEMENT, BUT MADE KNOWN TO LAW ENFORCEMENT, REQUIRE THE SUPPRESSION OF THE REFUSAL TO SUBMIT TO BREATH TESTING IF LAW ENFORCEMENT DOES NOT CORRECT THE DEFENDANT'S MISTAKEN BELIEF?
We answer the question in the negative and...
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