McNeil v. State, AO-378

• Decision Date: 05 October 1983
• Docket Number: No. AO-378,AO-378
• Citation: 438 So.2d 960
• Parties: Jimmy Louis McNEIL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 960

438 So.2d 960

Jimmy Louis McNEIL, Appellant, v. STATE of Florida, Appellee.

No. AO-378.

District Court of Appeal of Florida First District.

Oct. 5, 1983.

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

Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.

ROBERT P. SMITH, Jr., Judge.

McNeil appeals from his convictions, after a jury trial, for grand theft, sec. 812.014(2)(b)1, Fla.Stat. (1981), and tampering with evidence, sec. 918.13(1)(a), Fla.Stat. (1981). We find no infirmity in the former conviction, see sec. 812.012(9)(a)1, Fla.Stat. (1981), but find that the latter conviction cannot be sustained.

On September 23, 1981, McNeil came to the Panama City police department at the request of Detective Michael Jones, who was investigating the theft of two automobile tires from Sylvester Stewart the month before. McNeil was advised of his Miranda rights and signed a rights waiver form in the presence of Jones and a second officer. In response to questioning, McNeil then stated that he had bought the two tires found on his car, which were in fact the stolen tires, from a fellow named Smith some two months earlier.

Suspending the interrogation, Detective Jones stepped out of the interview room to discuss the case with another officer. He left on the desk both the signed Miranda rights waiver form and the victim's purchase receipt for the tires, showing the amount and date of purchase. While Jones was out, Officer Winterman, who was watching McNeil, saw him throw something in the trash can. That something turned out to be the signed rights waiver form, torn into pieces. That act of shredding the form is the basis for charging that McNeil violated section 918.13(1)(a), Florida Statutes (1981):

No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting attorney (or) law enforcement agency ... is pending or is about to be instituted, shall:

(a) Alter (or) destroy ... any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation.

As the statute makes clear, "tampering with evidence" is a specific intent crime. See Rader v. State, 420 So.2d 110 (Fla. 4th DCA 1982); State v. News-Press Publishing Company, 338 So.2d 1313 (Fla. 2d DCA 1976). The Florida statute was adopted verbatim from the American Law Institute's MODEL PENAL CODE AND COMMENTARIES, section 241.7 (1980), which explains:

The limiting factor in Paragraph (a) is the requirement of specific intent. The statute punishes any kind of tampering with any document or thing but only if the defendant acts "with purpose to impair its verity or availability" in an official proceeding or investigation. This designation of specific purpose identifies the ultimate evil as obstruction of justice rather than destruction of property and restricts the scope of the offense to persons who consciously intend to commit the forbidden harm.

Thus, McNeil cannot be convicted of this offense unless it is proved beyond a reasonable doubt that he committed the act with the requisite specific intent "to impair its verity or availability" in a "criminal trial or proceeding or an investigation." The shredding of the form does not of itself raise a presumption that it was done with such a purpose. See Simpson v. State, 81 Fla. 292, 87 So. 920 (1921); Richard v. State, 181 So.2d 677 (Fla. 3d DCA 1966); Newman v. State, 174 So.2d 479 (Fla. 2d DCA 1965).

The statute is designedly broad in reach. Its principal limitation upon that reach is a requirement that the proscribed act or acts be done with the specified purpose. The statute cannot be extended in application to persons, things or acts not within its descriptive terms. Earnest v. State, 351 So.2d 957 (Fla.1977). The question, then, is whether the evidence of McNeil's purpose was susceptible of being regarded by a jury as proof of the forbidden purpose beyond a reasonable doubt. Here there is that reasonable doubt.

Signing a document such as this is generally deemed sufficient evidence of a voluntary and intelligent waiver of one's constitutional right not to be questioned, or not questioned without a lawyer present, concerning one's guilt of the offense suspected. See Witt v. State, 342 So.2d 497 (Fla.1977); Battle v. State, 338 So.2d 1107 (Fla. 3d DCA 1976); Dixon v. State, 305 So.2d 250 (Fla. 2d DCA 1974). Yet the act of signing a rights waiver form is not irrevocable; signing does not require the signer against his will to submit to questions. If a defendant at any time or in any manner indicates to the interrogating officers that he wishes to remain silent despite his prior waiver, interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694, 723 (1966). "The critical safeguard identified in (Miranda ) is a person's 'right to cut off questioning.' " Michigan v. Moseley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975).

The constitutional privilege against self-incrimination therefore includes a privilege to revoke its prior waiver. Revocation is not, of course, abrogation; to revoke a prior waiver, after answering interrogation, does not retrieve the answers again into a protected status. But the question is not what effect the shredding in law had upon McNeil's prior answers, but what McNeil in fact intended by the act, either insightfully or futilely.

On the critical issue we have both McNeil's testimony and circumstantial evidence. McNeil declared that his shredding of the paper was, he thought, the rough equivalent of revoking, or indeed abrogating, the waiver previously given. McNeil's act is commensurate with such a purpose, as his testimony reflects:

Well, I thought by signing the form that maybe I could give a statement of where I really got the stuff from and explain to him, you know, that I'm not guilty. I didn't know by me signing the form I was, you know, admitting guilt or anything....

When (Detective Jones) left the room after Detective...