Shriner v. State, 51749

• Decision Date: 22 May 1980
• Docket Number: No. 51749,51749
• Citation: 386 So.2d 525
• Parties: Carl Elson SHRINER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 525

386 So.2d 525

Carl Elson SHRINER, Appellant, v. STATE of Florida, Appellee.

No. 51749.

Supreme Court of Florida.

May 22, 1980.

Rehearing Denied Aug. 27, 1980.

Daniel T. O'Connell of O'Connell & Hulslander, Gainesville, for appellant.

Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant, Carl Elson Shriner, was convicted of one count of murder in the first degree. The jury recommended and the trial judge imposed a sentence of death. Jurisdiction vests in this Court pursuant to article V, section 3(b) (1), Florida Constitution. We affirm the conviction and sentence. ¹

The following facts came to light at trial. At approximately 1:30 a. m. on Friday, October 22, 1977, two young women entered a Gainesville convenience store (Majik Market). Two other persons were in the store at that time, the store clerk, Judith Carter, and a male customer. The women made their purchases ahead of the male customer and departed. The man was in his mid-twenties, of medium height, slender; he had a receding hairline, medium to dark brown collar-length hair, dark eyes, a mustache and a three-to-four-day-old beard.

At 6:15 a. m. the same morning, James Grills went into the Majik Market and discovered the dead body of Judith Carter. He summoned police who arrived at about 6:30 a. m. Gainesville police investigator Mason photographed the scene and recovered three projectiles from the store. Associate district medical examiner Clark later recovered two projectiles from the body.

Alachua County deputy sheriff Denson went on duty Saturday at 3:30 p. m., October 23, 1976, and received a be-on-lookout bulletin (BOLO) with a written description and two composite sketches attached. The description and sketches were based in part on information obtained from the two young women at the Majik Market and on an eyewitness account of an armed robbery which took place early Friday morning at an 8 Days Inn. At 4:00 p. m. that Saturday, deputy Denson stopped opposite a car at a stop sign. The passenger in the car matched the description in the BOLO. Denson stopped the car, advised the passenger of his Miranda ² rights and asked him some questions. After learning that the passenger had recently been released from prison, Denson took him into custody. The passenger was Carl Shriner.

Upon arrival at the Alachua County sheriff headquarters, detectives readvised appellant of his Miranda rights. Appellant signed in four separate places a form constituting an acknowledgment of understanding of Miranda rights, a waiver of the right to have an attorney present during questioning, a consent to be interviewed and a consent to make a statement. Shriner gave his local address as 1223 Northeast Eighteenth Avenue, where he and Carol Griffis lived at the home of John and Nancy Rapp. John Rapp was the driver of the car in which appellant was apprehended. Shriner had an Arizona driver's license bearing the name Carl Elson Shriner and the address 514 W. Buist, Phoenix, Arizona, and $338 in his wallet.

A gunman robbed the 8 Days Inn in Gainesville at about 3:00 a. m. Friday, October 22, 1976, ³ under the following circumstances. While waiting for the security guard to leave the immediate area, a man asked the clerk for a room and filled out a guest registration form. He robbed the clerk and took the form with him, but not before the clerk had removed two of the five copies. It was signed "Rob E. Williams, 514 W. Buist, Phoenix, Ariz." The motel clerk identified appellant as the culprit in a photo lineup and at trial. ⁴

At the sheriff's office appellant signed a written consent to search the portion of the Rapp residence occupied by him. After John and Nancy Rapp consented in writing to a search of the remainder of their home, the police discovered a Smith and Wesson .38 caliber revolver hidden in a chair in the Rapp children's living room. FBI firearms identification expert Bollenbach took possession of the gun and the five projectiles found in the Majik Market and determined conclusively that the projectiles were fired from that gun. ⁵

Appellant was taken to the Gainesville Police Department at 7:30 p. m., Saturday, October 23, 1976. He signed a waiver and consent form after being readvised of his Miranda rights. Numerous law enforcement officers and an assistant state attorney participated in the ensuing interrogation, which continued from 9:00 p. m. until 2:45 a. m. the following morning. Appellant first offered to Sergeant Blitch a number of inconsistent accounts of his knowledge of the murder and confessed only to the 8 Days Inn robbery. At approximately 1:00 a. m. Sunday, October 24, 1976, during questioning by assistant state attorney Nilon and with Blitch out of the room, Shriner made some equivocal statements evincing an apparent desire to terminate questioning about the 8 Days Inn robbery. ⁶ Nilon proceeded to other subjects and the interrogation continued. At 2:00 a. m., with Sergeant Blitch present, appellant confessed to the murder of Judith Carter.

Appellant presents a plethora of issues for our consideration, several of which do not merit discussion. His first colorable contention is that his arrest was illegal because of a lack of probable cause. We disagree. A law enforcement officer has probable cause to arrest if he has reasonable grounds to believe that the person arrested has committed a felony. State v. Outten, 206 So.2d 392, 397 (Fla.1968). The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based. Id. Here, the sketches attached to the police BOLO bore a striking resemblance to appellant, thus furnishing deputy Denson with reasonable grounds to believe that appellant had committed the robberies.

Of considerably greater difficulty is whether, although otherwise voluntary, Shriner's confession must be suppressed because of his claim that the police persisted in questioning him after he indicated an unwillingness to answer questions on a particular subject. Appellant relies upon the following language in Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-1628, 16 L.Ed.2d 694:

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. (Footnote omitted.)

Miranda required exclusion of any statements stemming from custodial interrogation unless the prosecution demonstrated compliance with its specific prophylactic safeguards. ⁷ If law enforcement officers fail to give the specified warnings before interrogation or fail to follow the Miranda guidelines during interrogation, the statement thus derived may be suppressed, even though otherwise "wholly voluntary." Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

In Michigan v. Mosley, police questioning was held proper even though the accused had earlier indicated his desire to remain silent. The Supreme Court rejected a strict rule which would totally preclude all further custodial interrogation. ⁸ At the same time it observed that to construe Miranda to require only a pause in questioning, with a resumption of interrogation after only a momentary respite, would effectively undermine the will of the accused:

Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.

A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt "fully effective means . . . to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . . ." 384 U.S., at 479, 86 S.Ct. at 1630. The critical safeguard identified in the passage at issue is a person's "right to cut off questioning." Id., at 474, 86 S.Ct. at 1627. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his "right to cut off questioning" was "scrupulously honored."

423 U.S. at 102-04, 96 S.Ct. at 326 (Footnotes omitted).

Turning to the facts here, it appears that during interrogation by assistant state attorney James Nilon, Shriner indicated a desire to stop talking about the 8 Days Inn robbery. At the hearing on the motion to suppress Nilon described the episode in this way:

Direction Examination :

Q. During any of that period of time that you were in his presence did he ever ask to have an attorney present?

A. No, sir, he did not.

Q. Did he ever ask to stop talking or remain silent?

A. Yes, to a certain extent. What he did, in the first conversation that I had with him after Investigator Blitch had left the room, particularly in reference to the 8 Days Inn robbery, he told me certain things that had happened...