Sapp v. State

• Decision Date: 13 March 1997
• Docket Number: No. 86622,86622
• Citation: 690 So.2d 581
• Parties: , 22 Fla. L. Weekly S115 Robert SAPP, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 581

690 So.2d 581

65 USLW 2694, 22 Fla. L. Weekly S115

Robert SAPP, Petitioner, v. STATE of Florida, Respondent.

No. 86622.

Supreme Court of Florida.

March 13, 1997.

James T. Miller of Corse, Bell & Miller, P.A., Jacksonville, for Petitioner.

Robert A. Butterworth, Attorney General and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.

Raymond L. Marky, Special Assistant State Attorney, Special Counsel, Tallahassee; and Arthur I. Jacobs, General Counsel, Fernandina Beach, for The Florida Prosecuting Attorneys Association, Amicus Curiae.

GRIMES, Justice.

We have for review Sapp v. State, 660 So.2d 1146, 1151 (Fla. 1st DCA 1995), in which the district court certified the following question as one of great public importance:

WHETHER AN ACCUSED IN CUSTODY EFFECTIVELY INVOKES HIS [OR HER] FIFTH AMENDMENT RIGHT TO COUNSEL UNDER [MIRANDA v. ARIZONA, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),] WHEN, EVEN THOUGH INTERROGATION IS NOT IMMINENT, HE [OR SHE] SIGNS A CLAIM OF RIGHTS FORM AT OR SHORTLY BEFORE A FIRST APPEARANCE HEARING, SPECIFICALLY CLAIMING A FIFTH AMENDMENT RIGHT TO COUNSEL?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. ¹

Robert Sapp was originally arrested for a robbery unrelated to the charges at issue in this case. He was advised of his Miranda ² rights, waived them, and agreed to speak to the police. After his arrest, he was taken to jail. Within twenty-four hours, he was brought to a holding room (along with others who had been arrested) for a "chute speech," a talk in which an attorney from the Public Defender's Office gives advice and explains first appearance court procedures. During the chute speech, the attorney also passed out copies of a "claim of rights form." ³ Sapp signed one of these forms and it was filed with the clerk of the court. As was the custom, copies of the signed form were sent to the Public Defender and the State Attorney, and one was stapled to Sapp's jail papers.

A week later while Sapp remained in jail on the original robbery charge, he was taken to the "homicide office," where a police detective initiated an interrogation concerning the facts of the present case. Before being questioned by the detective, Sapp was again advised of his Miranda rights in writing, and he waived them in writing. Without requesting an attorney, Sapp talked about the circumstances that gave rise to the present case and signed a written statement. Twelve hours later he was approached again. He signed a waiver form, agreed to talk to the detective, and signed a second written statement.

The trial court denied the motion to suppress the statements. Sapp was convicted of attempted armed robbery and first-degree felony murder. On appeal, the First District Court of Appeal determined that Sapp's attempt to invoke his Fifth Amendment right to counsel through the claim of rights form was not effective because custodial interrogation had not begun when he signed the form, nor was it imminent at the time. The court affirmed the convictions but certified the question to this Court.

We first examine whether an accused may invoke the right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny when custodial interrogation is not at least imminent. ⁴ In Miranda, the United States Supreme Court ruled that statements made by an individual while under custodial interrogation may not be introduced as evidence against the individual unless he or she first has been informed of certain rights, including the right to have counsel present during custodial interrogation. Id. at 444, 86 S.Ct. at 1612. These rights, commonly known as Miranda rights, are designed to protect an individual's Fifth Amendment right against compelled self-incrimination by offsetting the "inherently compelling pressures" of custodial interrogation. Id. at 467, 86 S.Ct. at 1624. Under Miranda, if an individual indicates that he or she wishes to consult an attorney, police must cease interrogation until after an attorney is made available. Id. at 445, 86 S.Ct. at 1612-13.

Subsequent Supreme Court cases have added to the original safeguards set out in Miranda. For example, the Court made clear in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), that once an individual has invoked the Miranda right to counsel, a valid waiver of this right can be found only if the individual is the one responsible for reinitiating contact with the police. Id. at 484-85, 86 S.Ct. at 1633-34. The Court further ruled in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), that the "Fifth Amendment" right to counsel under Miranda is not offense-specific; that is, once an individual invokes the right to counsel for interrogation with respect to one offense, the police may not question the individual regarding any offense unless an attorney is present. ⁵ Id. at 677, 108 S.Ct. at 2095-96.

The cases summarized above address the consequences of an individual's invocation of the Fifth Amendment right to counsel under Miranda and its progeny. Yet none squarely addresses the question before us today of whether an individual may effectively invoke this right when custodial interrogation has not begun or is not imminent. The closest the Supreme Court has come to addressing this issue is in McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). In McNeil, the Court held that an accused's request for counsel at his initial appearance on a charged offense, while effective to invoke his Sixth Amendment right to counsel, did not constitute an invocation of his Miranda right to counsel that would preclude police interrogation on unrelated, uncharged offenses under Edwards. McNeil, 501 U.S. at 177-78, 111 S.Ct. at 2208-09. In so holding, the Court refused to merge the Sixth Amendment right to counsel, which is offense-specific, with the non-offense-specific Miranda right to counsel during interrogation. ⁶

The portion of McNeil that is relevant to this case appears in the majority's response to Justice Stevens' dissent, in which he criticized the majority for maintaining a distinction between the right to counsel under the Fifth and Sixth Amendments. Justice Stevens predicted that a competent attorney could easily avoid the consequences of the majority holding by having clients in future preliminary hearings make a statement on the record invoking the right to counsel under both the Fifth and the Sixth Amendments. In a footnote, the majority responded:

We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than "custodial interrogation"--which a preliminary hearing will not always, or even usually, involve. If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect.

McNeil, 501 U.S. at 182 n. 3, 111 S.Ct. at 2211 n. 3 (citations omitted). Although this statement constitutes dictum, at least three federal courts of appeal agree in the wake of McNeil that the Supreme Court, if presented with the issue, would not permit an individual to invoke the Miranda right to counsel before custodial interrogation has begun or is imminent. United States v. LaGrone, 43 F.3d 332 (7th Cir.1994); Alston v. Redman, 34 F.3d 1237 (3rd Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995); United States v. Wright, 962 F.2d 953 (9th Cir.1992); accord United States v. Grimes, 911 F.Supp. 1485 (M.D.Fla.1996); Cullen v. State, 687 So.2d 44 (Fla. 3d DCA 1997). We agree with this interpretation of McNeil.

The facts of Alston are particularly analogous to the case before us. In Alston, the defendant had been arrested for a series of robberies. He confessed to these and six other robberies after validly waiving his Miranda rights and was sent to prison for pretrial detention. A few days later, he was interviewed by someone from the public defender's office, during which time the defendant signed a form letter which stated that he would not speak to police without the presence of counsel. Nevertheless, when brought to the police station for processing on the six new robberies, the defendant was again read his Miranda rights for further questioning. The defendant waived his rights, and it was during this interrogation that the defendant confessed to yet another robbery. Alston, 34 F.3d at 1240-41.

The defendant attempted to exclude this second confession on the ground that the executed form letter was sufficient to invoke his Miranda right to counsel and prevent further police-initiated questioning. The Third Circuit Court of Appeals disagreed, concluding on the basis of McNeil that the Miranda right to counsel cannot be invoked outside the context of custodial interrogation. The court continued:

The antipathy expressed in McNeil towards the anticipatory invocation of the Miranda rights is consistent with Miranda 's underlying principles. The Miranda right to counsel is a prophylactic rule that does not operate independent from the danger it seeks to protect against--"the compelling atmosphere inherent in the process of in-custody interrogation"--and the effect that danger can have on a suspect's privilege to avoid compelled self-incrimination.

Alston, 34 F.3d at 1246 (quoting Miranda, 384 U.S. at 478, 86 S.Ct. at 1629-30). Because the defendant had signed the form while sitting in his jail cell with a representative...