State ex rel. Lowe v. Nelson

• Decision Date: 15 September 1967
• Docket Number: No. J--241,J--241
• Citation: 202 So.2d 232
• Parties: STATE of Florida ex rel. Cecil F. LOWE, Relator, v. Warren A. NELSON, as Judge of the Criminal Court of Record, Duval County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 232

202 So.2d 232

STATE of Florida ex rel. Cecil F. LOWE, Relator, v.Warren A. NELSON, as Judge of the Criminal Court of Record, Duval County, Florida, Respondent.

No. J--241.

District Court of Appeal of Florida, First District.

Sept. 15, 1967.

Walter G. Arnold, Jacksonville, for relator.

Earl Faircloth, Atty. Gen., David U. Tumin, Asst. Atty. Gen., for respondent.

SPECTOR, Judge.

The relator has filed a suggestion for the issuance of a rule nisi in prohibition against the respondent to prohibit the latter from further prosecution of the relator on a charge of grand larceny.

As grounds for his suggestion, the relator contends that he has become immunized from prosecution on that charge by operation of the State's immunity statute, Section 932.29, Florida Statutes, F.S.A., by reason of having been required under subpoena to testify before the Grand Jury, Spring Term, 1966, of Duval County, Florida, concerning the grand larceny charge now faced by him in the Criminal Court of Record of Duval County.Although a written waiver of the immunities afforded by Section 932.29 was executed by the relator, it is his contention that said waiver is a nullity because it was executed without benefit of the warnings prescribed by the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided June 13, 1966.

The facts underlying the instant proceeding are briefly the following.Mr. Cecil Lowe, the relator, at the time of the incident complained of was a member of the City Council of Jacksonville, Florida, an office to which he had initially been elected almost twenty years earlier and held continuously since.On July 13, 1966, one month after Miranda, a witness subpoena was served on Mr. Lowe commanding him to appear before the Grand Jury as a witness on the following day.

The transcript of the proceedings before the Grand Jury reveals that Mr. Lowe was advised that the Grand Jury '* * * is engaged in an investigation relating to larcenies of money from the City of Jacksonville, Florida, concerning purchases of various merchandise from the Harry Finkelstein Company of Jacksonville, Florida.'He was further advised that '* * * this investigation is brought within the terms and provisions of our immunity statute.

'Under the laws of the State of Florida, when a person is called before the Grand Jury in connection with certain enumerated offenses, the law provides a person as called to testify cannot refuse to testify on the grounds his testimony might incriminate him.* * * The law gives complete immunity to such person from any prosecution.* * * Do you understand?

'Yes, sir, I think I do.

'* * * are you willing to waive your immunity?'

At this point in the proceedings, the State Attorney advised Mr. Lowe that the Grand Jury would not be interested in granting him complete immunity.It seems to us that this statement was enough to put the witness on notice that if he did not sign the waiver of immunity, he would not be interrogated by the Grand Jury.

The written waiver of immunity which was thereupon executed by the relator sets forth that under the laws of this State a person may not be prosecuted for offenses questioned upon by the Grand Jury unless such immunity is waived and said instrument concludes with language which imports on its face that it was given voluntarily.

The full thrust of relator's suggestion is that the waiver of immunity made by him both in writing and orally before the Grand Jury is constitutionally tainted, and thus a nullity, for the reason that the Miranda warnings were not given to the witness prior to the waiver.This contention is advanced by the relator even though the record fails to reveal any factual coercion leading to the execution of the waiver.

Accordingly, this Court is faced with the need to determine whether the principles enunciated by the United States Supreme Court in Miranda are applicable to proceedings before a state grand jury; and, secondly, if they are not so applicable, whether this Court will extend Miranda to such a proceeding.

In its opinion deciding Miranda and the three companion cases, the Supreme Court summed up its holding at 384 U.S. 444, 86 S.Ct. 1612, 16 L.Ed.2d 706, in the following language:

'* * * 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 had 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. * * *'

The record before us indicates that no statements were made to the relator to the effect that he had a right to counsel, retained or appointed, before he executed the waiver and responded to questions put to him by the Grand Jury.If Miranda is applicable here, then that single omission would be sufficient to make out the relator's case.An examination of Miranda and its companion cases shows that in each of the four casesthe defendants made either written or oral confessions during the course of interrogation by police.In each case, the interrogation and confession occurred while the accused was in the physical custody of the police.Miranda was interrogated while held in custody in the Phoenix police station and confessed.Vignera was interrogated while held in two separate detective squad headquarters in New York and confessed.Westover was interrogated by both the local police and F.B.I. while held in the Kansas City police station and confessed.Stewart was interrogated while held in custody at the Los Angeles police station and confessed.In each of the cases, the confession was admitted against the defendants.In each instance, the defendant had been subjected to custodial interrogation while in the custody of the Police.In the instant case, the interrogation complained of did not occur while Mr. Lowe was in the custody of the police nor in the private office of a prosecuting official.On the contrary, the interrogation occurred before a Grand Jury composed of the relator's fellow citizens as prescribed by statute.A court reporter was present and the Grand Jury was operating under the direct supervision of the Circuit Court.

The Court in Miranda at 384 U.S. 477, 86 S.Ct. 1629, 16 L.Ed.2d 725, stated:

'The principles announced today deal with the protection which must be given to the privilege against self-incrimination When the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.'(Emphasis supplied.)

Earlier in 384 U.S. 461, 86 S.Ct. 1620and16 L.Ed.2d 716, we find the following:

'We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning.An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak.As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, Where there are often impartial observers to guard against intimidation or trickery.'(Emphasis supplied.)

It is our opinion that the above language taken from Miranda serves to distinguish police custodial interrogation from interrogation by the grand jury even though the Presence of the witness before the grand jury is compelled.From what we gather, Miranda is applicable to interrogations in the 'isolated setting of the police station' and not those occurring 'in courts or other official investigations' where there are impartial observers to guard against intimidation and trickery being employed to compel the witness to give evidence against himself.It is our view that grand jury proceedings are not such lend themselves to the coercive police tactics, isolated though they may be, which prompted the Supreme Court to wield its broad Miranda brush to affect questionable cures even where no ills were present.

In the case at bar, there is no contention by the relator that his waiver was in any way coerced, either physically or psychologically, by the grand jury or its agents nor could such contention be made for the record of the proceedings refutes such an argument even before it is made.

Relator cites Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, in support of the proposition that a waiver given by a witness appearing before the grand jury was invalid, but that case is not persuasive here for in Garrity, it was held that the threatened loss of the witness's office should he not testify amounted to a coercion of the witness's testimony.In the instant case, no such threat was held over the relator's head.Relator also relied on the application of Miranda by the Courts in People v. Arnold, Cal., 58 Cal.Rptr. 115, 426 P.2d 515(1967);People v. Reason, 52 Misc.2d 425, 276 N.Y.S.2d 196(N.Y. Dec.1966);Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765(1967);andPeople v. Kelley, Cal., 57 Cal.Rptr. 363, 424 P.2d 947(1967).Each of these cases were post Miranda decisions in which the Court held that Miranda warnings were necessary prior to interrogation, but in each of these cases the custody in which the suspect was held was of a type during which unwitnessed or coercive pressures could be used upon the suspect rather than the type...