Kyser v. State

• Decision Date: 27 October 1988
• Docket Number: No. 69736,69736
• Citation: 533 So.2d 285,13 Fla. L. Weekly 633
• Parties: 13 Fla. L. Weekly 633 Walter Grant KYSER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 285

533 So.2d 285

13 Fla. L. Weekly 633

Walter Grant KYSER, Appellant, v. STATE of Florida, Appellee.

No. 69736.

Supreme Court of Florida.

Oct. 27, 1988.

Michael E. Allen, Public Defender and W.C. McLain, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Walter Grant Kyser appeals his conviction for first-degree murder and sentence of death imposed by the trial judge in accordance with the jury's recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Kyser raises nine issues in this appeal, arguing, inter alia, that the trial court erroneously admitted his statements obtained during custodial interrogations after he had requested counsel. We find this issue dispositive and hold that the United States Supreme Court decisions in Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), Edwards v. Arizona, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), require us to vacate Kyser's conviction and sentence and remand this cause for a new trial.

Kyser was convicted of the first-degree shooting murder of a deputy sheriff who was working off duty as a security guard at a Panama City apartment complex in Bay County, Florida. Following Kyser's arrest in the parking lot of a restaurant in Columbus, Georgia, he was read his Miranda rights in the patrol car before he was transported to the police station. When asked at that time for identification, Kyser gave the officers an alias. Kyser was interrogated by officials from Columbus and Bay County, Florida, during his detention at the Columbus police station. While one of the assigned Columbus officers, Detective Boren, was investigating Kyser's identity, Detective Miller of the Bay County sheriff's office began Kyser's questioning. He readvised Kyser of his Miranda rights and asked if he wanted to discuss the Panama City shooting. Kyser stated that he was scared and, when Miller asked why, Kyser responded, "[T]hat guy was a deputy sheriff, wasn't he?" Miller replied in the affirmative. Kyser also said, "Can we talk about something else, I think I want to talk to a lawyer before I talk about that and I hope you understand that." Miller conducted no further discussion concerning the Panama City shooting. Miller left the interview room and Detective Boren of the Columbus Police Department entered without speaking to Miller. Boren proceeded to question Kyser about the shooting for several hours. Miller had reentered the room at a later time and was present during a major portion of this interrogation. Hours later, Kyser advised Boren that another individual was involved and he wanted to speak with his wife before disclosing further information. Boren allowed Kyser to make the telephone call, during which Kyser's wife spoke to Boren and volunteered the name of the individual. Kyser then related a version of the shooting which had him present at the scene but implicated a third person as the triggerman.

After being transported back to Bay County, Florida, Kyser was interviewed by Detective McKeithen, who later testified that he had first advised Kyser of his rights before inquiring about the shooting. Detective McKeithen had not been informed of the prior conversation between Kyser and Miller in Georgia and Kyser's request for counsel. Kyser again gave a statement concerning the incident which Detective McKeithen related at trial.

The trial court held a hearing to consider Kyser's motion for suppression of his statements. Toward the end of the hearing, the trial judge noted that the state had not demonstrated that Kyser had initiated the conversation after requesting counsel, and the trial judge advised both sides that he had not "heard that question answered by any of the officers." The state apparently contended that Kyser had initiated the conversation when he spoke with his wife over the telephone and then had her furnish the name of the alleged triggerman to Detective Boren. We note that the telephone call occurred following a number of hours of interrogation which commenced after Kyser had said, "I think I want to talk to a lawyer before I talk about that." There is no dispute that Miller, who was present during portions of McKeithen's and Boren's interrogations of Kyser, failed to notify those detectives of Kyser's request to talk to a lawyer. The trial court summarily denied Kyser's motion to suppress.

This Court recently addressed a similar admission issue in Long v. State, 517 So.2d 664 (Fla.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988). In Long, the defendant's statement was "I think I might need an attorney." We held that this statement, while equivocal, put officers on notice that the only permissible further questioning could be questions attempting to clarify the suspect's request for counsel. See also 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); Waterhouse v. State, 429 So.2d 301 (Fla.), cert. denied, 464 U.S. 977, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983); Cannady v. State, 427 So.2d 723 (Fla.1983). We stated:

[T]he United States Supreme Court, in its decision in Edwards v. Arizona, [451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ] made clear that, once an accused invokes his right to counsel, all...