M.A.B. v. State

• Decision Date: 27 April 2007
• Docket Number: No. 2D05-1367.,2D05-1367.
• Citation: M.A.B. v. State, 957 So.2d 1219 (Fla. App. 2007)
• Parties: M.A.B., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

957 So.2d 1219

M.A.B., Appellant, v. STATE of Florida, Appellee.

No. 2D05-1367.

District Court of Appeal of Florida, Second District.

April 27, 2007.

Rehearing Denied June 21, 2007.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

EN BANC

PER CURIAM.

M.A.B. challenges his adjudications of delinquency for grand theft of a motor vehicle and burglary of a conveyance. M.A.B. argues that his postarrest statements should have been suppressed because the Miranda¹ warnings he received failed to inform him of his right to have an attorney present during questioning. M.A.B. also argues that he did not knowingly and voluntarily waive his Miranda rights.

Prior to the issuance of a panel decision, the court on its own motion, pursuant to Florida Rule of Appellate Procedure 9.331(a) and (c), by majority vote ordered en banc consideration with respect to this case on the ground that the case is of exceptional importance. Upon en banc consideration, the court is evenly divided concerning the disposition of the appeal, Judges Altenbernd, Whatley, Stringer, Davis, Kelly, Canady, and Villanti voting to affirm and Judges Fulmer, Northcutt, Casanueva, Salcines, Silberman, Wallace, and LaRose voting to reverse. Pursuant to rule 9.331(a), the adjudications are affirmed.

We certify pursuant to article V, section 3(b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) that the following question upon which this decision passes is one of great public importance²:

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER "BEFORE QUESTIONING" AND (B) THE "RIGHT TO USE" THE RIGHT TO CONSULT A LAWYER "AT ANY TIME" DURING QUESTIONING?

FULMER, C.J, and ALTENBERND, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, CANADY, KELLY, VILLANTI, WALLACE, and LaROSE, JJ., Concur.

CANADY, J., Concurs with opinion, in which ALTENBERND, WHATLEY, STRINGER, DAVIS, KELLY, and VILLANTI, JJ., Concur.

WALLACE, J., Dissents with opinion, in which FULMER, C.J., and LaROSE, J., Concur, and in which NORTHCUTT, J., Concurs in part.

LaROSE, J., Dissents with opinion, in which FULMER, C.J., NORTHCUTT, SALCINES, and SILBERMAN, JJ., Concur.

NORTHCUTT, J., Dissents with opinion.

CASANUEVA, J., Dissents with opinion, in which NORTHCUTT, SALCINES, and SILBERMAN, JJ., Concur.

CANADY, Judge, Concurring.

I. Background

At the time of his arrest, M.A.B. was transported to the Tampa Police Department in handcuffs and placed in a holding room. Approximately thirty to forty minutes later, a police detective came into the holding room to question M.A.B. At that time, M.A.B. was read his Miranda rights. At a hearing on M.A.B.'s motion to suppress, the detective who read the Miranda rights and participated in questioning M.A.B. testified that he read the warnings from a standard form. According to the detective's testimony, M.A.B. was advised:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering . . . any of our questions. If you cannot afford to hire a lawyer, one will [be] appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

(Emphasis added.) The detective testified that M.A.B. stated he understood his rights. M.A.B. also signed a waiver of rights form which sets forth the Miranda warnings in the same manner as the oral warnings described in the detective's testimony. The written waiver form contains an express acknowledgment by M.A.B. that he understood his rights as well as a statement that he was "willing to talk" to the police. The interrogation, which was not recorded and lasted about ten minutes, resulted in M.A.B.'s admitting that he committed the crimes for which he was subsequently adjudicated.

The detective testified that he did not remember asking M.A.B.'s age, though he believed he was probably fifteen or sixteen. (It is undisputed that on the day of his confession, M.A.B. was within a few days of being 15 1/2 years of age.) The detective also testified that he did not know M.A.B.'s experience, background, school grade level, or intelligence or if M.A.B. had prior contact with law enforcement. The detective did testify, however, that M.A.B. appeared mature for his age. He further testified that he made no promises to M.A.B.

According to the testimony of another officer who participated in interrogating M.A.B. after the Miranda rights had been read to him, M.A.B. never expressed any desire for a parent or guardian to be present and the officer did not remember attempting to contact M.A.B.'s parents. The officer testified that although the department's standard operating procedure was to contact a parent before questioning or to have a parent present at questioning, the procedure was merely preferred and not required. The officer testified that at some point M.A.B. did contact his mother, but the officer could not remember whether this occurred prior to or after the interrogation.

The officer also testified that no threats or promises were made during his interrogation of M.A.B. and that M.A.B. did not appear to be under the influence of drugs or alcohol. The officer further testified that M.A.B. appeared to understand the questions posed to him during the interrogation.

There is no suggestion in the record that M.A.B. was subjected to any cajolery or trickery.

In his motion to suppress, M.A.B. contended that "he was not properly advised of his right to consult with an attorney during questioning or of his right to stop the questioning at any time." He also asserted that "the State cannot prove by a preponderance of the evidence that the statements [he] made to law enforcement . . . were knowingly, voluntarily[,] and intelligently made." At the hearing on the motion to suppress, the defense focused on factors relevant to the validity of M.A.B.'s waiver of Miranda rights.³

The trial court first determined that the Miranda warnings were adequate to inform M.A.B. of his rights. Regarding the validity of M.A.B.'s waiver of his Miranda rights, the trial court's oral ruling included findings (1) that "[t]he defendant appeared mature for his age," (2) that the defendant "did not appear to be under the influence of any alcohol or drugs," and (3) that the defendant "appeared to understand questions that were being asked to him in the interview."

The trial court also noted that there was no evidence concerning M.A.B.'s intelligence and educational background or whether M.A.B. had prior experience with law enforcement.⁴ The findings of the trial court also included this statement: "[T]he court would note that the manner in which the Miranda rights were administered to [M.A.B.] were sufficient and did involve any [sic] cajoling or trickery." (Emphasis added.) It is apparent from the whole context that the trial court intended to find that the administration of Miranda rights "did [not] involve any cajoling or trickery." The trial court determined—based on the totality of the circumstances—that M.A.B. voluntarily, knowingly, and intelligently waived his Miranda rights.

Ultimately, M.A.B. was adjudicated delinquent on both charges. This appeal followed.

II. Analysis

First, I will address M.A.B.'s argument on appeal that the Miranda warnings given by the police were defective because they did not contain express advice concerning the right to the presence of counsel during questioning. Second, I will turn to the argument that M.A.B.'s waiver was invalid because the State failed to establish that it was knowing and voluntary. In reviewing both issues, "a presumption of correctness [is accorded] to the trial court's rulings" concerning the "determination of historical facts"; however, "the determination of whether the application of the law to the historical facts establishes an adequate basis for the trial court's ruling is subject to de novo review." Connor v. State, 803 So.2d 598, 608 (Fla.2001).

A. The Adequacy of the Miranda Warnings

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that prior to custodial interrogation, law enforcement officers must inform a suspect of certain rights in order to protect the suspect's Fifth Amendment privilege against self-incrimination from the pressures associated with in-custody interrogations.

[The suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Id. at 479, 86 S.Ct. 1602. The Supreme Court described the right to have counsel present during interrogation as "indispensable to the protection of the Fifth Amendment privilege under the system we delineate today." Id. at 469, 86 S.Ct. 1602.

1. The General Scope of Miranda's Requirements: No Talismanic Incantation

The Supreme Court in Miranda specifically recognized, however, that the requirement to inform a suspect of his rights could be satisfied not only by the precise warnings delineated but also by "a fully effective equivalent": "The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant." Id. at 476, 86 S.Ct. 1602 (emphasis added).

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