Powell v. State

• Decision Date: 10 October 2007
• Docket Number: No. 2D05-646.,2D05-646.
• Citation: 969 So.2d 1060
• Parties: Kevin Dewayne POWELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

969 So.2d 1060

Kevin Dewayne POWELL, Appellant, v. STATE of Florida, Appellee.

No. 2D05-646.

District Court of Appeal of Florida, Second District.

October 10, 2007.

Rehearing Denied November 28, 2007.

James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

Kevin Dewayne Powell, pro se.

Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

In this Anders¹ appeal from his judgment and sentence for felon in possession of a firearm, Kevin Dewayne Powell raised an issue of arguable merit in his pro se brief. Upon order from this court, Mr. Powell's attorney briefed the following issue: whether the trial court erred in permitting the use of Mr. Powell's statements at trial. After Miranda² warnings that Mr. Powell claims did not adequately inform him of his right to have counsel present during questioning, Mr. Powell told Tampa police detectives that he had purchased the firearm off the street and carried it for protection, in spite of the fact that he was a convicted felon. We hold that the warnings were deficient under the Fifth Amendment of the Constitution of the United States and Article I, Section 9 of the Constitution of the State of Florida. We reverse Mr. Powell's conviction and remand for further proceedings.

The issue in this case, as in the recent case of M.A.B. v. State, 957 So.2d 1219 (Fla. 2d DCA 2007) (en banc), is whether the warning given to Mr. Powell complied with Miranda. In M.A.B., our court considered the adequacy of this identical warning and was evenly divided in a seven-to-seven tie. Per Florida Rule of Appellate Procedure 9.331(a), "the panel decision of the district court shall stand as the decision of the court. If there is no panel decision, a tie vote will affirm the trial court decision." In M.A.B., there was no prior panel decision; therefore, the evenly divided en banc opinion simply affirmed the trial court's decision and certified a question to the Florida Supreme Court. However, because M.A.B. lacked a majority, it is neither a binding decision nor a binding precedential opinion. See State v. McClung, 47 Fla. 224, 227, 37 So. 51 (Fla. 1904) (explaining that when a question of law is decided by an evenly divided court, the "judgment possesses no dignity as a judicial precedent" and it "carries on its face a badge which precludes any application" of it in the "future under the doctrine of stare decisis."); Lee v. State, 854 So.2d 709, 716 (Fla. 2d DCA 2003) (noting that "under the Florida Constitution, both a binding decision and a binding precedential opinion are created to the extent that" a majority of the court have joined in an opinion and a decision). Accordingly, this panel is free to address this issue.

We also note that because a majority of this court did not reach a decision on the adequacy of the Miranda warnings in M.A.B., an argument can be made that the supreme court will not have jurisdiction to answer the question we certified to it in that case.³ We recognize that at least one other district court faced a similar situation with an en banc tie vote and relied on the flexibility inherent in the appellate rules of procedure to address it at the district court level.⁴ Either way, because this court was evenly divided in M.A.B., we did not actually resolve the certified question and M.A.B. may be deficient for Florida Supreme Court review.⁵ The recent case of Speedway Superamerica LLC v. Dupont, 955 So.2d 533 (Fla.2007), demonstrates exactly such a scenario. Speedway Superamerica came before the Florida Supreme Court based on that court's jurisdiction to review a question certified by the district court to be a matter of great public importance. The district court had sat en banc in Speedway Superamerica, as in M.A.B. Although it initially accepted the case, the Florida Supreme Court ultimately concluded that it did not have jurisdiction to review Speedway Superamerica and dismissed the review proceedings. Id. at 534-35. Justice Pariente noted in her concurrence, "the constitution also requires that the [district] court `pass[ ] upon a question certified by it to be of great public importance.'" Id. (citing art. V section 3(b)(4)). Justice Pariente opined that it was "questionable" whether the district court had answered the question. Id. Because of our split in M.A.B., the en banc court did not answer the certified question.

The present case contains the identical Miranda warning that was involved in M.A.B. See 957 So.2d at 1220. Because this case is being resolved by the assigned panel, we necessarily address the issue certified in M.A.B. Our determination will "pass upon" the certified question on this point of law.

In M.A.B., every judge of this court concurred in the certification of the following question of great public importance pursuant to Article V, section 3(b)(4), of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

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?

We again certify the question as one of great public importance and, for the reasons set forth herein, answer the question in the affirmative, finding the warning is constitutionally deficient. Because the Miranda warnings given to Mr. Powell contain limiting language as to "before questioning" and the right to consult with a lawyer, we hold such warnings failed to comply with state and federal constitutional requirements to adequately inform the accused of his or her right to have an attorney present throughout interrogation.

STATEMENT OF THE FACTS

On August 10, 2004, Tampa Detectives Salvatore Augeri, Randy Estevez and other officers went to a residence in Tampa to investigate Mr. Powell. Shazeena West, Mr. Powell's girlfriend, allowed the officers to enter her apartment. Mr. Powell was one of at least four adults present in the apartment when police arrived. He was in the upstairs hallway coming from near the southeast corner bedroom. The officers searched that bedroom and under the bed found a loaded nine-millimeter handgun.⁶ Mr. Powell was arrested and transported to Tampa Police headquarters where he was questioned after being advised of his rights under Miranda. According to police, Mr. Powell agreed to talk.

During the direct examination of Detective Augeri, prior to his testimony concerning statements that Mr. Powell allegedly made, defense counsel objected on the ground that the Miranda warning was invalid. The trial court allowed defense counsel to voir dire the witness. The subsequent testimony revealed that the standard police department Form 310 used during the interrogation of Mr. Powell did not explicitly indicate that he had the right to have an attorney present during questioning. Detective Augeri testified that he witnessed another officer read Form 310 verbatim to Mr. Powell. The written warning, which was introduced at trial as an exhibit, states as follows:

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.

A bench conference was held, and the court ruled that the recitation concerning the right to an attorney before questioning was adequate. The detective then testified that Mr. Powell said the firearm was his and that he had purchased it on the street and carried it for protection, even though he was a convicted felon.⁷ Defense counsel renewed her objection to admitting Mr. Powell's custodial statement. The trial court overruled this objection. Mr. Powell then testified in his own defense. He said that he did not live at the apartment on August 10, 2004, but he heard a commotion when the officers entered. He said he was handcuffed and taken into custody. He testified he did not know the gun was present under the bed because he only stayed at that address every once in a while.⁸ Mr. Powell was convicted and sentenced to ten years in prison.

ANALYSIS

Although decisional law has not prescribed talismanic warning language, we conclude the warning given to Mr. Powell did not comply with the dictates of Miranda and its progeny. Critical in this analysis is Miranda's mandate that a suspect be told that he or she has the right to the presence of an attorney. This is the overarching right from which the right to talk to or consult with an attorney flows. Advising a suspect that he or she has the right "to talk to a lawyer before answering ... any of our questions" constitutes a narrower and less functional warning than that required by Miranda.⁹

The Fifth Amendment to the United States Constitution specifies that no person "shall be compelled in any criminal case to be a witness against himself." To ensure compliance with the protections of the Self-Incrimination Clause when a suspect has been deprived of freedom during a custodial interrogation, the Court identified four essential warnings in Miranda:

[1] [A suspect:] must be warned prior to any [custodial] questioning 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.

384 U.S. at 479, 86 S.Ct. 1602.

Clearly, suspects must be specifically informed that they possess these constitutional rights before law...