Rivera v. State

• Court: Florida District Court of Appeals
• Writing for the Court: ANSTEAD; HERSEY, C.J., and FRANK, RICHARD
• Citation: Rivera v. State, 547 So.2d 140, 14 Fla. L. Weekly 1021 (Fla. App. 1989)
• Decision Date: 26 April 1989
• Docket Number: No. 4-86-2941,4-86-2941
• Parties: 14 Fla. L. Weekly 1021 Michael Thomas RIVERA, Appellant, v. STATE of Florida, Appellee.

Page 140

547 So.2d 140

14 Fla. L. Weekly 1021

Michael Thomas RIVERA, Appellant, v. STATE of Florida, Appellee.

No. 4-86-2941.

District Court of Appeal of Florida Fourth District.

April 26, 1989.

Rehearing and Stay Denied Aug. 30, 1989.

Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, Richard G. Bartmon, (on the brief) and John Tiedemann, Asst. Attys. Gen., West Palm Beach, for appellee.

ANSTEAD, Judge.

The appellant, Michael Thomas Rivera, appeals his multiple convictions in the Broward County Circuit Court. We reject Rivera's claim that the trial court improperly admitted statements he made to the police, and affirm his convictions for attempted murder and kidnapping. However, we reverse convictions for child abuse and aggravated battery which were based on the same act as the attempted murder.

DOUBLE JEOPARDY

Rivera was charged with and convicted of: (1) kidnapping, (2) attempted murder in the first degree, (3) aggravated child abuse, and (4) aggravated battery, all arising out of his alleged attack on an eleven-year-old girl. Rivera contends that his single act of choking the victim resulted in three convictions, contrary to his constitutional protection against double jeopardy.

Both the United States and Florida constitutions prohibit subjecting a defendant to multiple punishments for the same act. Carawan v. State, 515 So.2d 161, 163 (Fla.1987). In State v. Boivin, 487 So.2d 1037 (Fla.1986), the supreme court, although holding that attempted first-degree murder and aggravated battery were separate offenses, went on to find "no legislative intent or recognition that society needs multiple punishments for both aggravated battery and attempted first-degree murder where both the attempted murder and the aggravated battery caused no additional injury to another person or property." Boivin at 1038. The court thus approved the district court's reversal of Boivin's conviction for aggravated battery.

In Carawan the court emphasized that its holding applied only where two or more offenses were predicated on a single underlying act, as opposed to a transaction consisting of a related series of acts. Here, the aggravated child abuse, aggravated battery and attempted murder charges were all specifically alleged and proven to be the result of a single act--the choking of the victim. Thus, under the authority of Boivin and Carawan, the defendant could not be convicted of all three crimes.

The state's only response is that section 775.021(4), Florida Statutes, as recently amended on July 1, 1988, now controls this issue and mandates affirmance of the convictions. However, this court in Meadows v. State, 534 So.2d 1233 (Fla. 4th DCA 1988), ruled that this statute should not be applied retroactively. See also Johnson v. State, 535 So.2d 651, 653 n. 3 (Fla. 3d DCA 1988); Heath v. State, 532 So.2d 9 (Fla. 1st DCA 1988).

In State v. Barton, 523 So.2d 152, 153 (Fla.1988), the supreme court ruled that where a Carawan analysis is applied, the conviction of the highest sustainable crime should stand. Therefore, Rivera's conviction for attempted murder should stand, but the convictions for aggravated battery and aggravated child abuse must be reversed. Because the defendant must be resentenced, his claim of error in his sentence is rendered moot.

THE DEFENDANT'S STATEMENTS

Rivera contends that statements he made to the police were erroneously admitted into evidence at trial. To resolve this issue we must consider the underlying facts and circumstances considered by the trial court in denying Rivera's motion to suppress the statements. The record reflects that the victim, Jennifer Goetz, was on her way to summer day camp on July 10, 1985. She passed a man on a bench after walking down the stairs of her condominium complex in Coral Springs. As she walked toward a bus stop, she heard someone following her. She was grabbed around the neck and waist, picked up and put on the ground on her stomach. The man choked her. When she tried to kick him, he told her not to move or he would kill her. The man turned her over, and she saw his face. He put a tote bag over her head and she passed out. The approach of a maintenance man at the condominium scared the attacker away. No one was immediately identified or arrested as the assailant.

Subsequently, Detectives Scheff and Amabile sought to question Rivera regarding an investigation of a case involving a young girl, Staci Jazvac, who had been kidnapped and murdered. The detectives arrested Rivera under outstanding warrants for his failure to appear in court on misdemeanor charges of lewd and lascivious acts. At that time, Scheff was not familiar with the Goetz case, although Amabile had hypnotized Jennifer to obtain a description of her assailant for a forensic artist. The detectives did not advise the defendant of his Miranda ¹ rights at the time of his arrest and did not attempt to question him while transporting him to the police station. However, while enroute to the police station, Rivera spontaneously said that if he spoke to the detectives, he would spend the next twenty years in jail.

At the station, the defendant was read his Miranda rights and he agreed to talk to the police. The detectives then told Rivera that they wanted to talk to him about the Jazvac case. Rivera admitted that he had made some anonymous phone calls in which he took credit for abducting and murdering Staci Jazvac. However, he denied committing the crime. The police then asked him to take a lie detector test, and he agreed, stating that the test would vindicate him.

Detective Eastwood, who had no knowledge of the Goetz incident, then administered the lie detector examination. Eastwood did not re-advise Rivera of his Miranda rights at the start of the lie detector questioning. Subsequently, when the detective told Rivera that he was not doing well on the polygraph, Rivera stated that he remembered seeing a young girl pushing a bicycle, and that he had thought many times about abducting and sexually assaulting young girls. At this point Eastwood read Rivera his Miranda rights again, because he believed Rivera was making statements similar to the Jazvac incident. Rivera then signed a waiver of rights card indicating his willingness to talk and to waive the presence of counsel.

Eastwood continued the testing, and Rivera made statements which led Eastwood to comment that if the defendant hadn't abducted Staci Jazvac, he had done something very similar. Eastwood asked Rivera for an explanation as to why he was getting certain readings, and asked Rivera what he was thinking about during his answers. Rivera indicated he was thinking about several young girls he had indecently exposed himself to at about the same time Staci Jazvac disappeared. Eastwood asked Rivera if that was the reason he was holding back information, and Rivera said yes. Eastwood told him tha the "could care less" about the exposures, and that his assignment was Staci Jazvac. Eastwood told Rivera that he could not be charged with anything that the police had no specific complaint, location, time, or date on. Subsequently, Rivera began talking about exposures in Cypress Creek and Coral Springs. Rivera complained of how the exposures bothered him, but that he couldn't stop.

At this point, Eastwood advised Scheff and Amabile of what he had been told by Rivera, and Amabile recalled the Goetz incident. Scheff and Amabile then resumed questioning Rivera but did not re-advise him of his Miranda rights. Rivera was willing to talk with them, but did not wish to be taped. In his subsequent statement to the detectives Rivera confessed to committing the attack on Jennifer Goetz. Rivera's statement in the police car and his subsequent statements at the station were all admitted into evidence at trial over Rivera's objection, the trial court having denied Rivera's pretrial motion to suppress.

STATEMENTS IN THE POLICE CAR

Rivera intially contends that his statement in the police car that if he spoke to the police he would spend the next twenty years in jail, was inadmissible, as he was in police custody at the time, and had not yet been advised of his Miranda rights. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held:

the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way ... Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.

86 S.Ct. at 1612. (emphasis added) (footnote omitted). The procedural safeguards pertinent to the Miranda rule are required where a suspect is taken into custody, and subjected to interrogation. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). See also Spikes v. State, 405 So.2d 430 (Fla. 3d DCA 1981). The term interrogation refers not only to express questioning, but also to any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). See Lewis v. State, 509 So.2d 1236 (Fla. 4th DCA), rev. denied, 519 So.2d 987 (Fla.1987). In this case it is undisputed that Rivera uttered the statement in the police car on the way to the...