State v. Manning, No. 86-189

• Court: Court of Appeal of Florida (US)
• Writing for the Court: JORGENSON
• Citation: 506 So.2d 1094,12 Fla. L. Weekly 1155
• Docket Number: No. 86-189
• Decision Date: 05 May 1987
• Parties: 12 Fla. L. Weekly 1155 The STATE of Florida, Appellant, v. William MANNING, Appellee.

Page 1094

506 So.2d 1094 12 Fla. L. Weekly 1155 The STATE of Florida, Appellant,
v.
William MANNING, Appellee. No. 86-189. District Court of Appeal of Florida,
Third District. May 5, 1987.

Page 1095

Robert A. Butterworth, Atty. Gen., and Debora J. Turner, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellee.

Before BARKDULL, HENDRY and JORGENSON, JJ.

JORGENSON, Judge.

This is a state appeal of an order of the trial court suppressing the confession of William Manning. We have jurisdiction. Fla.R.App.P. 9.140(c)(1)(B).

Manning's wife, Margaret, took their five-year-old daughter to a physician who diagnosed the child as having contracted gonorrhea. HRS investigated the incident and asked law enforcement officials to further investigate the apparent sexual battery upon the child. Manning became a suspect, eventually confessed, and was charged with sexual battery upon a person less than twelve years of age. The trial court suppressed his confession on the stated basis that the officers "failed to advise the Defendant as to his true situation" and "exerted undue influence upon the Defendant to obtain a confession or admission." The State appeals, and we reverse.

Manning, a 33-year-old college graduate and former school teacher, was interviewed twice in noncustodial circumstances by Detective Osborn. Osborn informed Manning at the first interview that he was a suspect, and, at both interviews, Osborn informed Manning of his Miranda rights. Manning made no inculpatory statements at these two interviews but did give his written authorization to check his medical records. At the conclusion of his investigation, Osborn secured an arrest warrant for Manning for the offense of sexual battery. On the morning of November 15, 1984, at 10:00 a.m., Osborn located Manning at his place of employment and told Manning that he needed to question him further. He did not tell Manning that he had a warrant for his arrest or that he was under arrest.

At the police station at 10:40 a.m., Manning was advised of his rights, and he signed a waiver of rights form. The interview began. Initially, Manning denied everything, including having a venereal disease. Osborn told him that there was evidence in his medical records that he had had a venereal disease. Including occasional rest breaks, approximately an hour and a half of questioning by Osborn occurred before Manning admitted that he had previously had a venereal disease and that he was currently taking ampicillin for gonorrhea. In fact, there was no definite evidence of venereal disease in his medical records. According to one of the records, Manning had been treated for urinary frequency the year before. The problem was tentatively diagnosed as a kidney infection. A question mark was written next to the initials V.D., and a form of penicillin was prescribed.

At approximately 11:30 a.m., Detective Osborn informed Manning that he was under arrest and showed him the arrest warrant. Following a break for lunch, the interview continued at 12:50 p.m. Manning was again advised of his rights by a new investigator, Lieutenant Brooks. Manning once again signed a waiver of rights form. Brooks told Manning that his wife and daughter had implicated him in the sexual battery of his daughter. Though Manning's wife and daughter did give statements to that effect, Brooks did not know of those statements at the time he spoke to Manning. Like Detective Osborn, Lieutenant Brooks also gave Manning several rest breaks during the questioning that afternoon. During this session, Manning, in response to Brooks' questions as to how his daughter might have become infected with gonorrhea, admitted to an incident when he placed his penis on his daughter's vagina.

Page 1096

At 4:00 p.m., the police took a formal statement from Manning in which he admitted committing sexual battery on his daughter. In that statement, he also responded that he had not been threatened, that he had been treated well, that he felt okay, that he knew what was going on, and that he knew what he had done to his daughter was wrong. The statement was typed up and read back to Manning page by page. He actually signed the statement at 6:15 p.m.

Manning moved to have his confession suppressed. The trial court granted the motion to suppress, making the following findings:

1. The police officers in this case failed to advise the Defendant as to his true situation. Although they had secured an arrest warrant for him and taken him into custody, they failed to tell him he was under arrest. The Court finds the Defendant was under constructive arrest and had he known this he may have refused to answer questions and may have requested an attorney.

2. The officers who testified at the Motion to Suppress misled the Defendant into thinking they had medical records indicating the Defendant had gonorrhea, when in fact they did not have such records. The Defendant was advised that the victim, his daughter, had gonorrhea.

3. The Court finds that because of the above police actions the interrogating officers exerted undue influence upon the Defendant to obtain a confession or admission.

The suppression of the confession was not based on any finding regarding statements made to Manning that his wife and daughter had implicated him in the offense. We now address each of the court's findings in turn.

I. Waiver of Rights

The court's first finding, that if Manning had known he was under arrest he might have refused to answer questions and might have requested an attorney, although not stated in such terms, is a determination that Manning's waiver of his rights was not a valid waiver. There is no question on this record that Manning was in custody and waived his Miranda rights, both orally and in writing. A defendant may waive his fifth amendment privilege against self-incrimination provided the waiver is made knowingly and intelligently and the waiver is made voluntarily without being coerced from the defendant. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966). The Supreme Court explained further in Moran v. Burbine, 475 U.S. 412, ---, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410, 421 (1986), that two separate inquiries regarding the waiver must be made. The first is whether the waiver was a free choice on the part of the defendant and not the product of intimidation, coercion, or deception. The second is whether the waiver was made with a full awareness of the nature of the right being abandoned and the consequences of its abandonment. Both determinations are made by considering the...