State v. Hoggins

• Decision Date: 17 September 1998
• Docket Number: No. 90121,90121
• Parties: 23 Fla. L. Weekly S467 STATE of Florida, Petitioner, v. Ronnie HOGGINS, Respondent.
• Court: Florida Supreme Court

Page 761

718 So.2d 761

23 Fla. L. Weekly S467

STATE of Florida, Petitioner, v. Ronnie HOGGINS, Respondent.

No. 90121.

Supreme Court of Florida.

Sept. 17, 1998.

Robert A. Butterworth, Attorney General, Celia A. Terenzio, Assistant Attorney General, Chief, West Palm Beach Bureau, and Melynda L. Melear and Joseph A. Tringali, Assistant Attorneys General, West Palm Beach, for Petitioner.

Richard L. Jorandby, Public Defender, and Paul E. Petillo, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for Respondent.

KOGAN, Justice.

We have for review Hoggins v. State, 689 So.2d 383 (Fla. 4th DCA 1997), in which the district court certified the following question as one of great public importance:

DOES FLORIDA CONSTITUTION, ARTICLE I, SECTION 9, PREVENT THE IMPEACHMENT OF A TESTIFYING DEFENDANT WITH THE DISCLOSURE OF A DEFENDANT'S PRE-MIRANDA [ ¹] SILENCE WHILE IN CUSTODY?

Id. at 386-87. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We rephrase the question as follows:

DOES FLORIDA CONSTITUTION, ARTICLE I, SECTION 9, PREVENT THE IMPEACHMENT OF A TESTIFYING DEFENDANT WITH THE DEFENDANT'S SILENCE MAINTAINED AT THE TIME OF ARREST BUT PRIOR TO THE RECEIPT OF MIRANDA WARNINGS?

We answer the question as rephrased in the affirmative and approve the decision of the district court for the reasons stated herein.

On September 10, 1993, a man entered a convenience store with a gun and threatened to kill the two store clerks if they did not hand over the money in the register. The man absconded with the cash register drawer and a cigar box containing lottery tickets. As he left the store, the man fired two shots in the direction of one of the store clerks.

At approximately 12:30 a.m. that same evening, police officers observed a man on a bicycle carrying a cash register drawer and a cigar box. When the officers pursued the man, he wrecked the bicycle and fled into an apartment complex, carrying with him the cash register drawer and cigar box. The officers followed a trail of lottery tickets and food stamps to an apartment in the complex. The mother of Ronnie Hoggins' child lived in the apartment. She answered the door and permitted the officers to search the apartment.

The officers found Ronnie Hoggins in an upstairs bedroom, handcuffed him, and brought him downstairs. One of the robbery victims, whom officers had transported to the apartment, identified Hoggins as the perpetrator. The robbery victim started yelling, "I want to kill you," and the officers had to restrain him. As the officers placed Hoggins under arrest, he began to struggle. The police then removed Hoggins from the apartment and read him Miranda warnings while placing him in the patrol car. The officers continued to search the apartment and uncovered the cash drawer and cigar box in the attic.

Hoggins testified at trial that on the night of the arrest he was visiting his child at the apartment where the officers found him. Hoggins said his bike had been stolen from the porch of the apartment earlier in the evening. ² While sitting on the front steps, he saw someone run through the complex and hide something in the playground. He investigated and found the drawer and cigar box. He took the items back to the apartment, put them in the attic, and then lay down in another upstairs bedroom.

Over objection, the prosecution cross-examined Hoggins as to whether he previously had offered this account of events. Initially, the prosecutor asked: "You never told them, the police, this story that you just told the jury, did you?" Although the trial court overruled an objection raised by Hoggins, the prosecutor thereafter rephrased the question as: "You never told anyone at that time [after the burglary victim identified you] the story you just told us here today?" The trial court sustained an objection to the characterization of Hoggins' testimony as a "story," and the prosecutor again rephrased the question. This time the prosecutor asked: "You never told that to your counsel when you were identified as the guy that tried to kill him or rob the store, did you?" Hoggins responded: "No."

While the prosecutor's last question is somewhat confusing, due to the use of the term "to your counsel," the preceding questions imply that the prosecutor was trying to elicit whether Hoggins told the arresting officers the account of events he had given at trial. This interpretation is further supported by Hoggins' redirect examination, during which defense counsel asked Hoggins why he did not offer an explanation to the police in the apartment. Specifically, the following exchange occurred between Hoggins and his defense counsel:

Q. Why didn't you say something then about the cash drawer?

A. At that particular time I was scared. I mean, this guy had to do something big for like, six or seven cops to come in the house like that. All I could think about was that I needed a lawyer.

Q. And you know that it is your constitutional right to have a lawyer?

A. Yes.

On re-cross examination, the prosecutor first established that the police did not read Hoggins his Miranda rights in the apartment. The prosecutor then continued to question Hoggins as to whether he offered an explanation to the arresting officers.

Q. Okay. That's [the reading of Miranda warnings] not the issue here. The issue here is that you have just been involved in something very serious, and you didn't say anything?

A. I wasn't involved. [objection to question overruled]

Q. Isn't it true that you never told them your version of what happened on those two occasions?

A. I don't understand.

....

Q. Now, when you were in the upstairs bedroom and the police came up there, you never gave them the version that you have just given us today?

A. No, I didn't.

Q. When you were downstairs with the victim after the crime, you never gave that version either?

A. No, I guess-- In closing argument, the prosecutor again pointed out that Hoggins failed to tell his version of events to the police on the night of his arrest.

Now, when Mr. Hoggins gives his story--When you remember the story that he gave the other day, remember one thing, that the police arrived at that apartment to conduct a search. It was then that they found him hiding in the upstairs bedroom in the apartment of his girlfriend. Remember, he doesn't tell them that story at that time.

Now, when they bring him downstairs and have him confronted face to face with the victim, who is so outraged, ... saying "You tried to kill me," and that victim when confronted with him tries to go after this man, he never mentioned his story. [Objection overruled.]

Mr. Hoggins did not give them that story. Ronnie Hoggins, never did at that point say anything like, "Man, I didn't try to shoot you. I didn't rob your store. I just found that money and stuff and picked it all up and ran into the apartment."

Finally, during rebuttal closing argument, the prosecutor emphasized Hoggins' failure to come forward with the exculpatory explanation at any time prior to trial.

Not once does this Defendant give the police the count [sic] that he came up with when he took the witness stand today. He gave this statement under oath, but never anytime previous to today did he ever say this story to the police about how he came across this money and stuff. .... Having been advised of his constitutional right he never mentioned one time this story he has said here today. ³

Hoggins was convicted of attempted first-degree murder with a firearm, armed robbery, aggravated assault with a firearm, and resisting arrest without violence. On appeal, the court recognized that the Fifth and Fourteenth Amendments to the United States Constitution do not preclude the use of pre-Miranda silence for impeachment purposes; however, the court, relying on Webb v. State, 347 So.2d 1054 (Fla. 4th DCA), cert. denied, 354 So.2d 986 (Fla.1977), held that the prosecutor's improper comments on Hoggins' custodial, pre-Miranda silence violated the due process guarantees found in article I, section 9 of the Florida Constitution. ⁴ Hoggins, 689 So.2d at 384-86. The court recognized that its decision might be construed as conflicting with Rodriguez v. State, 619 So.2d 1031 (Fla. 3d DCA 1993), review denied, 629 So.2d 135 (Fla.1993), which found that impeachment with a defendant's prearrest, pre-Miranda silence did not violate the Fifth Amendment of the United States Constitution. Accordingly, the court certified the question of whether using custodial, pre-Miranda silence for impeachment purposes violates Florida's Constitution. Id. at 386. In addition, the court determined that Florida's evidentiary rules precluded the use of Hoggins' custodial, pre-Miranda silence for impeachment purposes, where Hoggins' silence was not inconsistent with the explanation offered by Hoggins at trial. Id. at 387-88. The court reversed Hoggins' convictions and remanded for a new trial. Id. at 388.

The State maintains this Court should construe Florida's Constitution consistently with the federal constitution and answer the certified question in the negative. Specifically, the State alleges that this case should be decided in accord with Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), in which the Court held that where the record does not demonstrate when Miranda warnings were given, no due process violation occurs if a defendant takes the stand and is cross-examined as to his or her postarrest, pre-Miranda silence. ⁵

The State correctly asserts that the use of pre-Miranda silence for impeachment purposes does not violate the federal constitution. The United States Supreme Court has found that using prior silence to impeach a defendant's explanation subsequently offered at trial violates the Fourteenth Amendment only when the silence followed Miranda warnings. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); see also Fletcher, 455 U.S. at 606, 102 S.Ct. 1309, ...