State v. Modeste

• Citation: 987 So.2d 787
• Decision Date: 08 August 2008
• Docket Number: No. 5D07-2010.,5D07-2010.
• Parties: STATE of Florida, Appellant, v. Joseph MODESTE, Appellee.
• Court: Court of Appeal of Florida (US)

987 So.2d 787

STATE of Florida, Appellant, v. Joseph MODESTE, Appellee.

No. 5D07-2010.

District Court of Appeal of Florida, Fifth District.

August 8, 2008.

Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.

Frank J. Bankowitz of Frank J. Bankowitz, P.A., Orlando, for Appellee.

EN BANC

PER CURIAM.

The State appeals from an order suppressing certain inculpatory statements made by Modeste. The trial court found that the Miranda¹ warnings given to Modeste were insufficient to apprise him of his right to have counsel present during interrogation. We find that Modeste was adequately advised of his rights and, accordingly, reverse.

Arthur and Betty Williams were shot to death in Orlando, Florida, on August 28, 2003. A witness identified Modeste as the individual who had shot them. Modeste was arrested in Indiana over a year later. During his videotaped interview with two officers from the Orange County Sheriff's Department, Modeste made certain inculpatory statements. Modeste was later indicted for two counts of first degree murder.

Modeste subsequently filed his first motion to suppress. In his motion, Modeste contended, inter alia, that he had expressly invoked his right to counsel prior to the commencement of videotaping and that he had been improperly coerced into giving a statement. At the ensuing evidentiary hearing, the trial court heard testimony from Modeste and the two police officers who questioned him. A portion of the videotape pertaining to the Miranda warnings given to Modeste was admitted into evidence, as well as a Miranda waiver form executed by Modeste. The videotape reflects that the officers advised Modeste that he had a right to remain silent and that anything he said could be used against him in a court of law. With regard to the right to counsel, the police told Modeste:

Q. You're entitled to talk to an attorney and if you want one you can ask for an attorney. If you can't afford one, you know, they can appoint you one. You know. Of course you ... you can talk to an attorney first before talking to us.

The officers subsequently re-emphasized that Modeste did not have to talk to them:

Q. If at anytime you feel uncomfortable or you think we're trying to persuade you to say something you stop talking bro. This is all on you. We're gonna give you ... we're giving you an opportunity to, you know, to say what you gotta say. You know. You know. You ... you understand what those things are ... the things ...

A. Yes.

Q. ... I told you? Okay. You got ... do you understand that we're not trying to force you to talk either.

A. Right.

Q. That is totally up to you. You know.

A. Alright.

Q. So I'm gonna ask you straight up do you want ... do you wanna talk to us?

A. I ain't got no problem.

In denying Modeste's initial motion to suppress, the trial judge expressly rejected Modeste's claim that he had invoked his right to counsel prior to the onset of questioning. The trial judge also found that Modeste was adequately advised of his Miranda rights, that he affirmatively acknowledged that he understood those rights, and that he voluntarily waived those rights.

Modeste then filed a second motion to suppress, claiming that the officers' failure to expressly advise Modeste of his right to counsel during interrogation necessitated suppression of his statements. In support of his motion, Modeste cited to this court's decision in Maxwell v. State, 917 So.2d 404 (Fla. 5th DCA 2006).

A different trial judge heard the second motion to suppress. No new evidence was presented at the hearing, although it is clear from his order, that the successor trial judge had reviewed the videotape and the written waiver form. The trial court found that Modeste had not been adequately apprised of his right to counsel during interrogation. The successor trial judge further concluded that the officers' warnings were affirmatively misleading based on the trial judge's conclusion that while Modeste had been expressly advised of his right to counsel prior to interrogation he had not been advised of his right to counsel during interrogation. The trial judge also concluded that the allegedly defective verbal Miranda warnings were not cured by the written waiver form because the written waiver form was not read aloud to Modeste and it was not clear that he was able to read the waiver form in light of his statement that he was dyslectic. The State seeks appellate review of that order.

Although the written waiver form was more than adequate,² we agree, that in this case, the State cannot rely on the form. The videotape reflects that Modeste was told that the document simply stated "that we read you your rights." Modeste was given virtually no opportunity to read the waiver form prior to signing same.

In finding that the Miranda warnings given to Modeste were inadequate, the trial court understandably relied on our decision in Maxwell. In Maxwell, we rejected the State's argument that "implicit in the warning to [the suspect] that he had a right to an attorney is the warning that he had the right to have the attorney present during questioning and that one would be appointed in the event he could not afford to hire one." Id. at 407-408.

We continue to adhere to the view that a Miranda warning which fails to advise a defendant of his right to appointed counsel if he cannot afford to hire his own attorney is inadequate. See Thompson v. State, 595 So.2d 16 (Fla. 1992). However, we recede from our suggestion in Maxwell that a Miranda warning is inadequate when the suspect is not expressly advised that the right to counsel includes the right to have counsel present during interrogation.³ In doing so, we recognize that the Fourth District Court of Appeal has taken a contrary position. See West v. State, 876 So.2d 614 (Fla. 4th DCA 2004); Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004). In those cases, the Fourth District Court of Appeal concluded that a Miranda warning is inadequate when the suspect is informed generally of the right to an attorney but not when the attorney can assist. In reaching this conclusion, the Court relied on the following language from Miranda:

[W]e hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.... As with the [other] warnings ... this warning is an absolute prerequisite to interrogation.

Roberts, 874 So.2d at 1227 (citing Miranda, 384 U.S. at 471-72, 86 S.Ct. 1602). While this language might indicate that a suspect must be expressly advised that he has the right to have counsel present during interrogation, we agree with Judge Canady's opinion in M.A.B. v. State, 957 So.2d 1219 (Fla. 2d DCA), rev. granted, 962 So.2d 337 (Fla.2007), that a close reading of Miranda strongly suggests a contrary conclusion.

In M.A.B., the defendant was advised:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering ... any of our questions. If you cannot afford to hire a lawyer, one will [be] appointed for you without cost and before any questioning. You have the right to use any of these rights at anytime you want during this interview.

957 So.2d at 1220. M.A.B. filed a motion to suppress his post-arrest statements alleging, that the Miranda warnings he received were inadequate because they failed to inform him of his right to have an attorney present during questioning. The trial court denied M.A.B.'s motion to suppress. The Second District Court of Appeal considered the case en banc. Seven judges voted to affirm and seven judges voted to reverse. In writing for the judges who voted to affirm, Judge Canady recognized that in Miranda, the Supreme Court tacitly approved warnings that did not expressly reference a suspect's right to counsel during interrogation. Specifically, the Supreme Court found that the FBI's standard warnings were consistent with the requirements imposed by its decision.

[T]he present pattern of warnings and respect for the rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today.

Miranda, 384 U.S. at 483-84, 86 S.Ct. 1602. The FBI policy did not require a suspect to be specifically advised that he had the right to have counsel present during interrogation. The FBI's policy, at the time, required its agents to advise a criminal suspect at the onset of an interview "that [the suspect] is not required to make a statement, but any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice and, ... that he has a right to free counsel if he is unable to pay." Id. at 483, 86 S.Ct. 1602.

Notwithstanding Miranda's approval of warnings which did not specifically reference the right to have counsel present during interrogation, some federal courts appear to require a suspect to be expressly apprised of the right to have counsel present during interrogation. See, e.g., United States v. Noti, 731 F.2d 610 (9th Cir.1984); Windsor v. United States, 389 F.2d 530 (5th Cir.1968). However, other federal courts have upheld the validity of Miranda warnings notwithstanding the lack of an express statement concerning the right to have counsel present during questioning. See, e.g., United States v. Frankson, 83 F.3d 79 (4th Cir.1996); United States v. Adams, 484 F.2d 357 (7th Cir.1973); United States. v. Lamia, 429 F.2d 373 (2d Cir.1970).

As noted by Judge Canady, Lamia is significant because it was subsequently cited by the United States Supreme Court for the proposition that Miranda does not require a "precise formulation" of the warnings to be given a criminal suspect. California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). In Prysoc...