Murdock v. State

• Decision Date: 12 June 2013
• Docket Number: No. 4D10–2246.,4D10–2246.
• Citation: 115 So.3d 1050
• Parties: Michael Anthony MURDOCK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

115 So.3d 1050

Michael Anthony MURDOCK, Appellant,

v.STATE of Florida, Appellee.

No. 4D10–2246.

District Court of Appeal of Florida, Fourth District.

June 12, 2013.

Carey Haughwout, Public Defender, Nan Ellen Foley and Stacey Kime, Assistant Public Defenders, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

Fresnel Atilus was shot and killed while operating his ice cream truck in Lake Park, Florida. At trial, the State's theory of the case was that appellant, Michael Murdock, was guilty of first-degree murder and attempted robbery with a firearm as a principal.¹ A jury found Murdock guilty as charged. We reverse because the police misinformed Murdock about his Fifth Amendment rights and failed to correct the misinformation before Murdock gave an incriminating statement.

There were no eyewitnesses to the actual shooting, but two witnesses saw men flee from the scene of the crime. The victim's cousin saw two men run away from the ice cream truck after hearing shots fired; he then watched as they jumped into a parked car and drove away. Another resident who lived in an apartment overlooking the parked ice cream truck came outside after hearing shots fired, at which point she saw one man run away from the truck.

The deputy sheriff who first responded to the crime scene testified that the ice cream truck was “fortified” with locked doors and metal screens covering the windows. The deputy had to break a window and unlock a door to enter the truck. The crime scene investigator collected DNA and fingerprint evidence from the crime scene, but her testing did not link Murdock to the offense.

The primary evidence against Murdock came from his statements to the police. At the station house, a detective conducted two interviews with Murdock separated by a 20–minute break.

The first interview began at approximately 1:48 a.m. Before the detective read him his Miranda² rights at the beginning of the interview, Murdock said he did not want to talk to the detective. The detective ignored the invocation, silenced Murdock, and continued the interrogation:

[Murdock]: ... But I just want to go home, man. I don't wanna ... I don't wanna talk to nobody until I know what's going on.

[Detective]: So, you volunteered to come up here. Ok, let me lay it out for you-

[Murdock]: Yeah ... I want to know my situation—I wanna know the witness ... I wanna know-

[Detective]: Listen, I'm gonna be very frank with you.

[Murdock]: I want to say ... ya'll won't listen to my side. I know ya'll got a job to do-

[Detective]: Listen, I can't talk to you right now, okay? I want to talk to you but it's hard for me to talk to you when you're talk[ing] over me.

...

You understand I want to hear everything you have to say. I'm not gonna ask you any questions. Okay. Here's where you sit. You were driving the vehicle in which somebody entered the vehicle after a homicide, after they lit up a guy. They got into your vehicle and fled the scene. Okay? I'm not asking you questions, I'm telling you.

...

Okay? Right now, depending on what you tell me, determines your situation. And what I'm gonna do right now is I'm gonna read you your rights.

(Emphasis added).

Around 1:57 a.m., the detective read Murdock his Miranda rights. Murdock paused to inquire into his right to counsel:

[Murdock]: Yes, sir. Can you go back to that thing about the lawyer? I just said, yes, sir.

[Detective]: Okay. Which one?

[Murdock]: You said I ... uh ... you got [to] appoint me a lawyer?

[Detective]: Okay.

[Murdock]: Or something like that.

[Detective]: If you cannot afford a lawyer, you're entitled to the presence and representation of court appointed lawyer before you make any statement and during any questioning.

[Murdock]: So I can talk to a lawyer before I talk to ya'll?

[Detective]: Well, that means after you're charged ... (talk over) ...

[Murdock]: Oh. Oh.

[Detective]: ... you'll be given a Public Defender.

[Murdock]: See, that's what I'm saying ... (talkover) ... [Detective]: Okay? You're not charged. Relax. I told you you're not under arrest ... (talkover) ...

[Murdock]: Yeah. Yeah, I ain't.

(Emphasis added). The detective thus misinformed Murdock that he could consult with an attorney only after he was charged.

By 2:30 a.m., Murdock became hysterical. He offered to implicate others in the crime if the detective would let him go home:

[Murdock]: God, God help me man! I didn't do nothing, man! [Gets onto his knees, facing the wall and leaning his upper body onto the seat of the chair he has been sitting i[n] (praying) ].

[Detective returns to the room at 2:31 a.m.]

[Detective]: Are you praying? Have some water. It's gonna be OK. I have one question for you: are you gonna help us find these two guys?

...

[Murdock]: Are ya'll gonna release me?

[Detective]: Write it down. Cause the next words out of my mouth are gonna hurt you.

[Murdock]: Ya'll are gonna release me? If I help ya'll, are you gonna release me?

[Detective]: Hmm-mmm, No.

...

[Murdock]: So what am I going to jail for?

[Detective]: First degree murder. Now it's up to you how you want to play your cards. Do you want to show yourself as a person who is sorry for what he's done—which you're much doing because you're crying. I don't know if it's for yourself or for this guy and his 5 or 6 kids.

Soon thereafter, Murdock asked to stop the interview. The detective, however, leaned on Murdock for more information:

[Murdock]: Alright, can I talk to you tomorrow ?

[Detective]: I'm gonna give you my business card, if you want to contact me tomorrow, you can contact me ... But, you're going to be given a public defender in the morning.

[Murdock]: Why?

[Detective]: Because we're going to book you.

[Murdock]: But, I just need time to ...

[Detective]: We all need time buddy. The time you need is the next five minutes before we leave here and go back up to Lake Park. This is your magic five minutes, buddy. Either cooperate ... and show that you're trying to help and that you didn't mean for this to happen cause you were supposed to be just the getaway driver ... or you swallow all that information you have—

[Murdock]: But you said, when you read me my rights, I don't have to talk right now. You said I could talk later.

[Detective]: That's one of your rights. I explained that to you.

[Murdock]: And I said, ‘Can I talk to you later?’ Did I not sir? And you said, ‘Yeah, you can talk later.’

[Detective]: When was that?

[Murdock]: Earlier.

...

[Murdock]: It don't have to be today or nothing?

[Detective]: Ok, but you agreed to talk to me today.

... [Murdock]: This stuff is over-whelming me ... my thoughts ... my head is not-

[Detective]: You don't have to have thoughts right now ... you have to spit those two names out.

(Emphasis added).

Before concluding the interview, the detective emphasized to Murdock that the clock was ticking on his chance to “help himself” in the case:

[Detective]: Sit down! Do you want to talk to me anymore?

[Murdock]: I'd rather talk to you tomorrow.

[Detective]: Ok. Well, ok, good luck with that. I have a feeling that goodbye tonight [will] be the last time that we talk about this case.

After the end of the first interview, Murdock was placed in a holding cell. Approximately 20 minutes later, Murdock asked to speak with the detective again. At 3 a.m., the detective conducted a second interview.

At the beginning of the second interview, the detective attempted to reread Murdock his Miranda rights, however, Murdock told the detective to forego the recitation, indicating that he would rely on his understanding of his rights from the previous interview.³ The detective declined the offer and reread Murdock his rights. One by one, Murdock stated that he understood each right.

In the second interview, Murdock incriminated himself, stating the following:

• Frank Collins and “Chopper” had called Murdock for a ride.

• Collins told Murdock they were “fixin' to try and lick the ice cream truck.”

• Murdock thought Collins and Chopper wanted to rob the ice cream truck.

• Murdock picked up Collins and Chopper and drove them to the truck. He then waited for them in his car in a nearby alleyway.

• After hearing shots fired, Murdock saw Collins return with a gun in his hand.

• Murdock then dropped the men off at another location.

The trial court suppressed the first interview because the detective “gave an incorrect response” when Murdock inquired into his right to counsel. However, the trial court denied Murdock's motion to suppress the second interview. After struggling with this “close question,” the trial court ruled that the State had overcome the defect from the first interview because the detective gave Murdock an uninterrupted rereading of his Miranda rights and Murdock indicated that he understood each right.

A jury convicted Murdock of first-degree murder and attempted robbery with a firearm. He was sentenced to concurrent terms of life and 15 years in prison.

This Court reviews a motion to suppress under a mixed standard of review. Peraza v. State, 69 So.3d 338, 340 (Fla. 4th DCA 2011). We are “bound by the trial court's findings of historical fact if those findings are supported by competent, substantial evidence.” Rozzo v. State, 75 So.3d 409, 412 (Fla. 4th DCA 2011) (citing Pagan v. State, 830 So.2d 792, 806 (Fla.2002)); Hunter v. State, 32 So.3d 170, 173 (Fla. 4th DCA 2010). However, we “appl[y] a de novo standard of review to the mixed questions of law and fact that ultimately determine constitutional issues.” Ferguson v. State, 58 So.3d 360, 363 (Fla. 4th DCA 2011).

“Both the United States and Florida Constitutions provide that persons shall not be ‘compelled’ to be witnesses against themselves in any criminal matter.” Ross v. State, 45 So.3d 403, 412 (Fla.2010) (citing U.S. Const. amend. V; art. I, § 9, Fla. Const.). “To give effect to the Fifth Amendment right against...