McCoy v. State, AI-247

• Decision Date: 31 March 1983
• Docket Number: No. AI-247,AI-247
• Citation: 429 So.2d 1256
• Parties: Larry Ray McCOY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1256

429 So.2d 1256

Larry Ray McCOY, Appellant, v. STATE of Florida, Appellee.

No. AI-247.

District Court of Appeal of Florida First District.

March 31, 1983.

Rehearing Denied May 4, 1983.

Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Kathryn L. Sands, Asst. Atty. Gen., for appellee.

NIMMONS, Judge.

Pursuant to the jury's verdict, McCoy was convicted of two counts of third degree murder, he having been tried on charges of first degree murder.

The first issue raised by McCoy deals with the testimony of Detective Pruett, which McCoy claims amounted to an impermissible comment on his exercise of his Fifth Amendment right to remain silent. On direct examination by the prosecutor, Detective Pruett described his questioning of McCoy in an interview room at the Sheriff's Office during the early morning hours two days after the homicides. Pruett fully advised McCoy of his constitutional rights after which McCoy signed a "waiver of rights" form. Pruett testified concerning the oral incriminating statement made by McCoy. He then testified as follows:

Q. Detective Pruett, did you reduce this to writing?

A. No sir, I did not.

Q. Why didn't you?

A. I asked Mr. McCoy if he could put this in writing and he stated that he did not want to sign anything.

Defense counsel then objected and moved for a mistrial, which motion was denied. The defendant argues that Pruett's testimony was violative of his Fifth Amendment right to remain silent. We disagree with this contention.

The defendant freely and voluntarily discussed with the detective the events surrounding the homicides. At no time did the detective testify that McCoy refused to make any further statements. In fact, for aught that appears from the record, McCoy may have been perfectly willing to continue making oral statements. The detective's inquiry of McCoy as to whether he would put his statement in writing was a most reasonable request.

The accuracy and integrity of oral incriminating statements are frequent targets of defense counsel who often suggest the unfairness of the use of oral statements of an accused who has not been afforded the opportunity to put his statement in writing. It is only reasonable that the State be permitted to elicit the fact that the accused was given that opportunity and declined.

The defendant cites the line of cases exemplified by Lucas v. State, 335 So.2d 566 (Fla. 1st DCA 1976), which teach that it is a Fifth Amendment encroachment for a police officer to testify that the accused, after having freely discussed the case with him, refused to give any further statements. The situation in the case sub judice is patently distinguishable and does not offend the Fifth Amendment.

The defendant's reliance upon Bennett v. State, 316 So.2d 41 (Fla.1975), is also misplaced. There, the Supreme Court held that a defendant was entitled to a mistrial after an investigator testified that the accused refused to sign a written waiver of Miranda rights form. The testimony of the officer in Bennett is illuminating:

[A]t that point Sergeant Pakorny advised him of his rights and then we filled out a waiver form after we advised him of his rights and Mr. Bennett refused to sign the waiver, which would not permit us--.

It is significant that in Bennett, there was neither evidence of an oral waiver of rights nor evidence that the defendant gave a...