N.J.O. v. State

• Decision Date: 28 February 2020
• Docket Number: Case No. 2D18-2444
• Citation: 292 So.3d 491
• Parties: N.J.O., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

292 So.3d 491

N.J.O., Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-2444

District Court of Appeal of Florida, Second District.

Opinion filed February 28, 2020

Howard L. Dimmig, II, Public Defender, and Stephania A. Gournaris, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

N.J.O. seeks review of the disposition order that found him guilty of one count of attempted robbery with a deadly weapon and one count of possession of marijuana, contending that the trial court erred by denying his motion to suppress the statements he made to the police. We affirm the disposition order to the extent that it finds N.J.O. guilty of possession of marijuana. However, based on the entirety of the record, we conclude that the trial court erred by denying N.J.O.'s motion to suppress the statement he made to law enforcement officers after N.J.O. expressed his intent to invoke his Miranda ¹ rights by requesting that he be allowed to have "someone" with him during questioning. And given the trial court's comments at the disposition hearing that resulted in a sentence harsher than that recommended by the Department of Juvenile Justice (DJJ), the admission of the statement was not harmless. Therefore, we reverse the remainder of the disposition order and remand for a new trial on the attempted robbery charge and a new disposition hearing.

N.J.O. was arrested after he allegedly pointed a gun at a former classmate in an attempt to rob him of cash.² At the police station, a detective and two other officers sought to interview N.J.O. At the start of the interview, the detective read N.J.O. his rights. During that process, the following occurred:

DETECTIVE SABINA: Okay. So you have the right to remain silent. Do you understand that?

N.J.O.: Yes.

DETECTIVE SABINA: If you give up the right to remain silent, anything you say can be used against you in court. Do you understand that?

N.J.O.: Yes.

DETECTIVE SABINA: You have the right to consult with an attorney before you make a statement or answer any questions, and the right to have an attorney present during questioning. Do you understand that?

N.J.O.: Yes.

DETECTIVE SABINA: Okay. If you want an attorney but cannot afford to hire an attorney, one will be appointed to represent you before, during questioning, free of charge. Do you understand that?

N.J.O.: (There was no audible response.)

DETECTIVE SABINA: You have the right to use any of these rights at any time you want during the interview. You may stop the interview at any time. Do you understand that?

N.J.O.: Yes.

DETECTIVE SABINA: Okay. I just need you to initial here, "I, [N.J.O.], have—have read these rights to me. I understand them and I am willing to talk at this time. No threats or promises of any kind have been made to coerce me to make a statement." Is that correct?

N.J.O.: Can you repeat that?

DETECTIVE SABINA: Sure, of course. "I, [N.J.O.], have read these rights—have read these rights read to me. I understand them and am willing to talk at this time." Are you willing to talk at this time?

....

N.J.O.: I don't know what all these legal questions mean, so I want to, like have somebody with me. I'm not trying to be difficult or anything. Like, I just don't know, because you guys word stuff funny sometimes.

DETECTIVE SABINA: Well—

N.J.O.: Not funny, but you guys just use big words sometimes, that I don't understand.

DETECTIVE SABINA: And we're not trying to trick you up, that's why I'm asking you. I need to ask you some questions about this case, but before I do so, I need to read you your rights.

N.J.O.: Yes, sir. I do understand.

OFFICER KLOTZBACH: And you understand your rights?

DETECTIVE SABINA: So basically, what I'm reading to you in this last line is basically, saying that you are willing to talk to me and I have read these rights—these rights have been read to me, which you understand, and you understand them and are willing to talk to me at this time.

N.J.O.: Yes.

DETECTIVE SABINA: Okay. So you are willing to talk to me at this time?

N.J.O.: Not answer every question because I—I mean—

SERGEANT BISHOP: You can pick and choose what you want to answer. If you decide you don't want to, and if you decide at some point that you decided you no longer wanted to—didn't want to answer any more questions, you may, okay? And coerced;—

DETECTIVE SABINA: All right.

SERGEANT BISHOP: —It isn't to trick you or to—to force you to answer the questions. And nobody's done that, right?

DETECTIVE SABINA: So nobody's—nobody's made a threat to you; nobody's made any promises to you. Nobody has tricked you; coerced you to make a statement right now.

N.J.O.: No.

DETECTIVE SABINA: Okay, perfect. So if you understand that and you're willing to talk to me, I need you to place your initials right here and then put your name right there. Put your initials on that line.

(Emphasis added.) Following this colloquy, N.J.O. made incriminating statements concerning the attempted robbery.

During pretrial proceedings, N.J.O. moved to suppress his statement, arguing that the comment he made after the detective asked if he was willing to talk to them showed that he had invoked his rights by requesting that "someone" be with him during questioning and that this invocation of his rights had been ignored by the officers when they continued to question him. The trial court denied the motion to suppress.

At the subsequent bench trial, the court heard testimony from the victim, who knew N.J.O. from school. The court also heard testimony from the officers, and it heard the remainder of N.J.O.'s taped statement, during which he admitted to planning the robbery and attempting to carry it out by luring the victim to the area of the robbery. Ultimately, the robbery was foiled because the victim did not have any cash on him. Based on this evidence, the trial court found N.J.O. guilty and sentenced him to a harsher sentence than that recommended by DJJ because of the portion of N.J.O.'s statement in which he explained the planning that went into the attempted robbery.

In this appeal, N.J.O. contends that the trial court erred by denying his motion to suppress his statement because his request to have "somebody" with him was an invocation of his right to counsel which was ignored by the officers and because the officers' actions in continuing to question him resulted in him involuntarily waiving his rights. Having listened to the recording of the interaction between N.J.O. and the officers, we agree.

As a general rule, law enforcement officers must give suspects the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before conducting a custodial interrogation. If, having been properly given those warnings, the suspect waives the right to remain silent and the right to counsel, officers may then proceed with questioning. However, if the suspect invokes his rights rather than waiving them, questioning must not begin. See Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992) ("Under Section 9 [of the Florida Constitution], if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin or, if it has already begun, must immediately stop. If the suspect indicates in any manner that he or she wants the help of a lawyer, interrogation must not begin until a lawyer has been appointed and is present or, if it has already begun, must immediately stop until a lawyer is present." (emphasis added)); State v. Venegas, 79 So. 3d 912, 914 (Fla. 2d DCA 2012) (affirming trial court's ruling that Venegas invoked his right to counsel rather than waiving it and that detectives' failure to stop questioning him after he requested to speak with an attorney or his wife constituted a violation of Miranda ); Green v. State, 69 So. 3d 351, 353 (Fla. 2d DCA 2011) (finding that when Green said he did not want to proceed without counsel, the police action of continuing to question him violated Miranda and required suppression of his subsequent statements).

To invoke Miranda rights at the inception of questioning, a suspect must make a statement that indicates that he or she wishes to do so. The Florida Supreme Court has held that the suspect may indicate "in any manner" that he or she wishes to invoke his or her rights. See Traylor, 596 So. 2d at 966. "The words ‘in any manner’ simply mean that there are no magic words that a suspect must use in order to invoke his or her rights." State v. Owen, 696 So. 2d 715, 719 (Fla. 1997). And since there are no "magic words" that must be intoned, the question is whether the suspect's statement was sufficiently clear to advise the officers that he or she was invoking those rights.

Here, the record shows that after being informed of his Miranda rights, N.J.O. invoked his right to have counsel present with him. When the detective asked N.J.O. whether he wanted to waive his rights and speak with the officers, N.J.O. clearly stated that he did not understand the legal questions that were being asked and clearly stated that he wanted somebody to be with him. N.J.O. also indicated that he was concerned that questions would be "worded funny," he expressed his concern that the detective was using "big words" that N.J.O. did not understand, and he apologized for being difficult. This statement was sufficiently clear to inform the officers that N.J.O. wanted to invoke—not waive—his Miranda rights.

At that point, the officers should have stopped questioning N.J.O. because once a suspect has invoked his or her rights, it is improper for officers to attempt to coax or cajole a suspect into waiving those rights. See, e.g., Shelly v. State, 262 So. 3d 1, 17 (Fla. 2018) (holding that it was a violation of the suspect's Miranda rights for the police to attempt to coax the suspect into permitting further interrogation after the suspect had asserted his right to remain silent); Gree...