State v. Wininger, 82-1245

• Decision Date: 15 March 1983
• Docket Number: No. 82-1245,82-1245
• Citation: 427 So.2d 1114
• Parties: The STATE of Florida, Appellant, v. Walter Thomas WININGER, Appellee.
• Court: Florida District Court of Appeals

Page 1114

427 So.2d 1114

The STATE of Florida, Appellant, v. Walter Thomas WININGER, Appellee.

No. 82-1245.

District Court of Appeal of Florida Third District.

March 15, 1983.

Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellant.

Mark King Leban, Miami, Stephen J. Goldstein, North Miami, for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

Wininger, at the request of police officers investigating a homicide, went to the police station for questioning. He was given Miranda warnings and to a certain point in the interrogation freely answered questions. That certain point arrived when Wininger was informed he was a suspect. At that moment he stated to the interrogating officer: "I don't believe it. I want to go home. Can I?" The officer responded, "Sure, you will be able to go, but I want to talk to you about this. It's very serious. A man you lived with for 17 years is dead." The questioning immediately continued, and the defendant answered the questions.

The trial court found that the defendant's request to go home was the functional equivalent of an "announced desire to cease the interrogation," which was not, when the police continued the interrogation, scrupulously honored, as it had to be. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). It suppressed all statements made by the defendant following the defendant's request to go home. The State has appealed the trial court's suppression order. We affirm.

Our starting and, as will be seen, ending point is Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694, 723, 10 A.L.R.3d 974 (1966), in which the Court stated:

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise." (emphasis supplied).

Because it is clear that the questioning of the defendant did not immediately cease, see Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (where defendant's request to cut off questioning was honored, resumption of questioning with respect to a different crime after the passage of a significant period of time and fresh set of warnings did not violate Miranda ), the sole issue before us is whether the defendant's words, "I want to go home. Can I?" indicated in any manner that the defendant wished to invoke his right to remain silent.

We agree with the trial court's finding that the defendant's request manifested a desire to end the interrogation. The request, made on the heels of being informed for the first time that he was a suspect, was, at the least, an indication in some manner that the defendant did not want to answer further questions. See Thompson v. State, 386 So.2d 264, 267 (Fla. 3d DCA 1980). It thus significantly differs from a statement which merely evinces a desire to have someone present during the interrogation, see, e.g., Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (juvenile's request, "Can I have my probation officer here?" consistent with a desire to speak to police, not deemed to be invocation of right to remain silent); United States ex rel. Riley v. Franzen, 653 F.2d 1153 (7th Cir.1981) (defendant's request to see his father while being interrogated did not constitute an invocation of right to remain silent), or even one which evinces a desire to have an attorney present during the interrogation. See, e.g., Jennings v. State, 413 So.2d 24 (Fla.1982) (waiver of counsel, accompanied by express willingness to talk, does not implicate right against self-incrimination); Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) (en banc) (same--equivocal request for counsel, accompanied by express...