Smith v. State

Citation915 So.2d 692
Decision Date16 November 2005
Docket NumberNo. 3D04-696.,3D04-696.
PartiesBenjamin Ryan SMITH, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida Supreme Court

Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General and Thomas C. Mielke, Assistant Attorney General, for appellee.

Before GERSTEN and GREEN, JJ. and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

The defendant appeals from his convictions after a jury trial for multiple offenses arising from an armed carjacking. We are compelled to reverse almost completely because of the trial court's erroneous denial of his motion to suppress adverse statements made after he asserted his right to remain silent.

The record shows that defendant's incriminating statements were made in response to police questioning which improperly (and admittedly without defendant's reinitiation of further conversation, see Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)) followed an unequivocal expression of his wish to remain silent. The state's sole contrary contention is that the defendant's invocation was ambiguous and that the police could therefore properly question him further. See Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); Owen v. State, 862 So.2d 687 (Fla.2003), cert. denied, ___ U.S. ___, 125 S.Ct. 494, 160 L.Ed.2d 370 (2004). There is nothing to this argument. The detective in question specifically testified that Smith stated in no uncertain terms that he had "nothing to say" to her.1 That expression is more than sufficient. See Arnold v. Runnels, 421 F.3d 859, 862 (9th Cir.2005)(defendant "unequivocally invoked his right not to speak on tape by saying he did not want to talk on tape"); United States v. Reid, 211 F.Supp.2d 366, 372 (D.Mass.2002)("Reid's statement that `I have nothing else to say' was a sufficiently pellucid invocation of his right to remain silent"); United States v. Stewart, 51 F.Supp.2d 1136, 1142-45 (D.Kan.1999)(defendant invoked his right to remain silent when he "indicated that he `did not want to talk about a robbery'" and stated "I don't want to talk to you m_____-f______"), reconsidered in part, 51 F.Supp.2d 1147, 1162 (D.Kan.1999), affirmed, 215 F.3d 1338 (10th Cir.2000)(unpublished opinion); Minnesota v. Day, 619 N.W.2d 745, 750 (Minn.2000)(defendant's statement, "[s]aid I don't want to tell you guys anything to say about me in court," is unambiguous and unequivocal invocation of right to remain silent); Minnesota v. Marshall, 642 N.W.2d 48, 53-54 (Minn.Ct.App.2002)(defendant "unequivocally and unambiguously invoked her right to silence" by stating "No. I don't wish to say anything"); New York v. Douglas, 8 A.D.3d 980, 778 N.Y.S.2d 622, 623 (N.Y.App.Div.2004)("I have nothing further to say" constitutes invocation of right to silence), appeal denied, 3 N.Y.3d 705, 785 N.Y.S.2d 33, 818 N.E.2d 675 (2004); see also United States v. Bushyhead, 270 F.3d 905, 912 (9th Cir.2001)(admission of defendant's statement that "I have nothing to say, I'm going to get the death penalty anyway" was improper comment on silence because that statement is "the invocation of silence itself"), cert. denied, 535 U.S. 1008, 122 S.Ct. 1586, 152 L.Ed.2d 504 (2002). Cf. Owen, 862 So.2d at 696-98 ("I don't want to talk about it" and "I'd rather not talk about it" are not unequivocal invocations of right to silence); Ford v. State, 801 So.2d 318, 319-20 (Fla. 1st DCA 2001)("Just take me to jail" is not unequivocal invocation of right to silence), review denied, 821 So.2d 295 (Fla.2002), cert. denied, 537 U.S. 1010, 123 S.Ct. 505, 154 L.Ed.2d 412 (2002); Sotolongo v. State, 787 So.2d 915 (Fla. 3d DCA 2001)(act of tearing up waiver form is not unequivocal invocation of right to silence), review denied, 816 So.2d 129 (Fla.2002). See generally Davis, 512 U.S. at 459, 114 S.Ct. at 2355 ("[A] suspect need not `speak with the discrimination of an Oxford don.'" (quoting Davis, 512 U.S. at 476, 114 S.Ct. at 2364, 129 L.Ed.2d at 382 (Souter, J., concurring in judgment))); Arnold, 421 F.3d at 865; Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir.1994), cert. denied, 514 U.S. 1086, 115 S.Ct. 1801, 131 L.Ed.2d 727 (1995); Reid, 211 F.Supp.2d at 374.

Because we cannot find this error harmless beyond a reasonable doubt, a new trial is required on the charges to which the statements were pertinent. This excludes only the count for fleeing and eluding the police, § 316.1935(3), Fla. Stat. (2001), as to which the defendant does not seek retrial. Each of the sentences below, however, is vacated.2

Affirmed in part, reversed in part.

1. Detective Zorsky testified:

I pretty much asked him if he wanted to talk to me and give me his side of the story. He said he had nothing to say, that he was facing life if he was caught with a firearm and he didn't want to talk. . . . He said he had nothing to say. When I asked if he wanted to tell me his side of the story he said there's nothing I could do to help him because he's facing life if he was charged with a firearm. . ....

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7 cases
  • Cuervo v. State
    • United States
    • Florida Supreme Court
    • July 12, 2007
    ...Both officers specifically testified that Cuervo stated he did not want to speak to them; that expression sufficed. See Smith v. State, 915 So.2d 692 (Fla. 3d DCA 2005) (dismissing State's contention that defendant's assertion was ambiguous). Courts have held that admitting statements after......
  • Alvarez v. State, No. 4D07-2629.
    • United States
    • July 15, 2009
    ...anything" in response to an initial request to waive a suspect's constitutional rights was unambiguous); Smith v. State, 915 So.2d 692, 693-94, 694 n. 1 (Fla. 3d DCA 2005) (suspect's statement in no uncertain terms that he had "nothing to say" to law enforcement when asked if he wanted to w......
  • Cuervo v. State
    • United States
    • Florida District Court of Appeals
    • May 12, 2006
    ...Both officers specifically testified that Cuervo stated he did not want to speak to them; that expression sufficed. See Smith v. State, 915 So.2d 692 (Fla. 3d DCA 2005) (dismissing State's contention that defendant's assertion was ambiguous). Courts have held that admitting statements after......
  • Scott v. State
    • United States
    • Florida District Court of Appeals
    • December 22, 2014
    ...(finding defendant's statement “I'm not saying anymore” was an unequivocal invocation of the right to remain silent); Smith v. State, 915 So.2d 692, 693 (Fla. 3d DCA 2005) (finding defendant's statement during interrogation that he had “nothing to say” was an unequivocal invocation of his r......
  • Request a trial to view additional results

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