Sapp v. State

• Decision Date: 22 September 1995
• Docket Number: No. 94-1938,94-1938
• Parties: 20 Fla. L. Weekly D2186 Robert SAPP, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1146

660 So.2d 1146

20 Fla. L. Weekly D2186

Robert SAPP, Appellant, v. STATE of Florida, Appellee.

No. 94-1938.

District Court of Appeal of Florida First District.

Sept. 22, 1995.

James T. Miller and Thomas M. Bell of Corse, Bell & Miller, P.A., Jacksonville, for Appellant.

Robert A. Butterworth, Attorney General; Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.

REVISED ON MOTION FOR CLARIFICATION

BENTON, Judge.

Robert Sapp appeals convictions and sentences for attempted armed robbery and first degree (felony) murder. We affirm. We believe one of his arguments raises a question of great public importance, however, which we certify as such to the Supreme Court of Florida. The question concerns the scope of the prophylactic rule designed to safeguard a criminally accused citizen's right to counsel under the Fifth Amendment.

Mr. Sapp was initially arrested on charges other than those for which he was convicted and sentenced in the proceedings below. At the time of his arrest on a separate robbery charge, he was advised of his Miranda ¹ rights, waived them, and agreed to speak to the police. After his arrest, he was taken to jail. Within 24 hours, he was led from his jail cell to a holding room for a "chute speech," a talk in which an assistant public defender gives advice and explains first appearance court procedures. Among other topics, the assistant public defender discusses a claim of rights form, copies of which bailiffs distribute. This form reads:

DEFENDANT'S CLAIM OF RIGHTS

1. The Defendant, together with the undersigned counsel, the Public Defender for the Fourth Judicial Circuit of Florida, hereby asserts his/her right not to make any statements, oral or written, regarding the facts or circumstances of the offense(s) with which he/she is charged, or regarding the facts or circumstances of any criminal offenses for which he/she is not charged (but is merely a witness or suspect), unless his/her attorney is present during any questioning and/or making of any such statements. The Defendant claims his/her right to counsel and the right to remain silent pursuant to Amendments 5 and 6 of the Constitution of the United States.

2. Defendant further asserts that any future waiver of the right to have counsel present or to remain silent must be in writing (with reference to this notice), and only after notice has been given to his/her attorney of the Defendant's intention to waive this right and an opportunity provided for the Defendant and his/her attorney to discuss the waiver of these rights.

Prisoners sign these forms (before they appear in court, as a matter of "judicial convenience") and bailiffs give the signed forms to the assistant public defender, who sees to it that the original is filed with the Clerk of the Court. The Public Defender's office keeps a copy, a copy goes to the State Attorney, and a copy is stapled to the accused's jail papers. Mr. Sapp signed such a claim of rights form, which was duly distributed in the customary fashion.

Still in jail a week later, awaiting trial on the original robbery charge, Mr. Sapp was taken to the "homicide office," where a police detective initiated an interrogation, on the morning of June 9, 1993, concerning the facts of the present case. Before he was questioned, Mr. Sapp was again advised of his Miranda rights, ² and again signed a form waiver. Without requesting an attorney, he talked about the circumstances that gave rise to the present case and signed a written statement. After talking to other suspects, the same detective approached Mr. Sapp a second time twelve hours later. Again Mr. Sapp signed a form waiver of constitutional rights, agreed to talk to the detective, and signed a (second) written statement.

By motion to suppress filed before trial, Mr. Sapp argued that his statements to the detective should not be admitted at trial, on grounds that he had invoked his Fifth Amendment right to counsel when he signed the claim of rights form. He contended that his subsequent police-initiated custodial interrogation, without counsel present, was unlawful under Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), and that evidence obtained as a result should be excluded. The trial court denied the motion to suppress, and allowed the extrajudicial statements in evidence at trial, over objection.

Fifth Amendment Prophylaxis

The United States Supreme Court has outlawed custodial interrogation, defined as "questioning initiated by law enforcement officers after a person has been ... deprived of his freedom of action in any significant way," unless the suspect has been informed of certain Fifth Amendment rights, including the privilege against self-incrimination and the right to counsel during interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966).

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28 (footnote omitted). Once invoked, the Supreme Court has since held, the Fifth Amendment right to counsel cannot be waived simply by responding to further police questioning.

[A]lthough we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, supra, 441 U.S. , at 372-376, 99 S.Ct. [1755], at 1757-1759 [60 L.Ed.2d 286 (1979) ], the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378, 386 (1981) (footnote omitted). The Court has made clear that the Edwards rule applies even where "the police want to interrogate a suspect about an offense that is unrelated to the subject of their initial interrogation." Roberson, 486 U.S. at 677, 108 S.Ct. at 2096. In this connection, the Court "attach[ed] no significance to the fact that the officer who conducted the second interrogation did not know that respondent had made a request for counsel." Id. at 687, 108 S.Ct. at 2101.

Offense-Specific Sixth Amendment Rights Not Implicated

In McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158, 166 (1991), the Court distinguished between the Fifth Amendment right to counsel and the Sixth Amendment right to counsel, in addressing a question originally certified to the Wisconsin Supreme Court by the Wisconsin Court of Appeals:

Does an accused's request for counsel at an initial appearance on a charged offense constitute an invocation of his fifth amendment right to counsel that precludes police interrogation on unrelated, uncharged offenses?

When McNeil was arrested on charges of armed robbery and advised of his Miranda rights, he refused to answer any questions, and the interview was terminated, but he did not ask for a lawyer at that time. McNeil, 501 U.S. at 173, 111 S.Ct. at 2206. After an attorney had been appointed at his initial appearance, McNeil was questioned in jail regarding unrelated crimes, signed a waiver of his Miranda rights, and answered the questions, without counsel's presence or knowledge. Id. McNeil argued that his request for an attorney on the armed robbery charge was an invocation under Miranda of his Fifth Amendment right to counsel and that the subsequent, uncounseled waiver was invalid. Id. at 174, 111 S.Ct. at 2207.

The McNeil Court reaffirmed the rule that "once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present." McNeil, 501 U.S. at 177, 111 S.Ct. at 2208, citing Roberson, 486 U.S. 675, 108 S.Ct. 2093. But the Court ruled that McNeil's request for counsel invoked only his rights under the Sixth Amendment and held that " '[t]o find that [the defendant] invoked his Fifth Amendment right to counsel on the present charges merely by requesting the appointment of counsel at his arraignment on the unrelated charge is to disregard the ordinary meaning of that request.' " McNeil, 501 U.S. at 178-79, 111 S.Ct. at 2209, quoting State v. Stewart, 113 Wash.2d 462, 471, 780 P.2d 844, 849 (1989), cert. denied, 494 U.S. 1020, 110 S.Ct. 1327, 108 L.Ed.2d 502 (1990). The Court ruled that an invocation of the Miranda right to counsel ...