Taylor v. State

• Decision Date: 05 February 1999
• Docket Number: No. 97-4454,97-4454
• Citation: 726 So.2d 841
• Parties: Dennis J. TAYLOR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

726 So.2d 841

Dennis J. TAYLOR, Appellant, v. STATE of Florida, Appellee.

No. 97-4454

District Court of Appeal of Florida, First District.

February 5, 1999.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and Randy L. Havlicak, Assistant Attorney General, Tallahassee, for Appellee.

KAHN, J.

Appellant, Dennis J. Taylor, appeals his conviction after jury trial for dealing in stolen property. Taylor argues that the trial court erred by admitting into evidence a statement he made to police investigators after his Sixth Amendment right to counsel had attached on the charge of dealing in stolen property. He also argues the trial court erred by denying his motion for judgment of acquittal. We find no merit to the second argument, but do find that Taylor's Sixth Amendment right was violated by the use against him at trial of statements he made under questioning by the police after he invoked his right to counsel.

According to the testimony at trial, someone burglarized the Jacksonville home of Martez Curry sometime after 7:00 in the morning on April 28, 1997. Curry did not actually discover this until several days later when she found that eight items of jewelry and some men's clothes were missing. At that time, she reported the burglary, and, later, the missing items to the police. A burglary investigation by Detective Graham revealed that four pieces of jewelry belonging to Curry were pawned on the morning of April 28, 1997, at 9:16. Taylor's name and thumbprint were found on the pawn ticket for these items.

On June 26, an officer with the Jacksonville Sheriff's Office arrested Taylor and charged him with dealing in stolen property. The charge was based upon the act of pawning Miss Curry's jewelry. At a first appearance the next day, the court appointed the public defender to represent Taylor, and Taylor signed a notice that he would not agree to questioning outside the presence of his lawyer.

On July 2, Detective Graham asked to have Taylor brought to an interview room. Taylor's court-appointed lawyer was not present, nor was the lawyer notified of any prospective police questioning. Detective Graham then advised Taylor of his Fifth Amendment rights under the Miranda decision. Taylor waived his rights and, according to Detective Graham's testimony, the following transpired:

A: [By Detective Graham] I initially offered him or gave him a synopsis of why he was in jail so that there was no misunderstanding about the chain of items that we would be interested in.

Q: [By Asst. State Attorney] What did you tell him in regard to that, sir?

A: I told him initially that he was in jail for dealing in stolen property, and because he had pawned some property and the investigation led me to believe he had pawned the property at Value Pawn on Edgewood Avenue, and I told him I wasn't interested in any of that but I was interested in the burglary case from which the property initially came from. Then I began to ask him, `Did you have anything to do with the burglary of the home?'

* * * * * *

[H]e answered that by saying that he denied any involvement in the burglary case. And he also volunteered that he had never been to the above residence that is in my report, that he had never even been to the pawnshop.

Q: Did he say anything else?

A: That was all. At that point it was— concluded it. That's all the information he would offer in regards to the burglary investigation.

Q: Did you ever specifically ask him anything in regards to the pawnshop?

A: I never mentioned anything about the pawnshop other than the initial synopsis I gave his so that he would understand why he was in jail.

Taylor's statement that he had never been to the Curry residence or to the pawnshop was admitted against him in the prosecution for dealing in stolen property. In denying a defense motion to suppress the statement, the trial court made several findings:

The officer's testimony in this case is in fact that he deliberately and intentionally went there to discuss with him only the matters pertaining to the burglary offense. There wasn't any subterfuge or pretense pertaining to the other.

Now, just because Mr. Taylor elected to make some statements that has to do with the pawnshop—I don't think that's attributed to the conduct of the officers.

I would find that he was advised of his rights, and all the statements made by the defendant was done so freely and voluntarily without any promise or any threat or any coercion and were freely and voluntarily given.

The State used the statement in question against Taylor in the prosecution for dealing in stolen property, as to which his right to counsel had attached and for which he was in custody. The State did not prosecute the burglary charge. The issue in this case is whether Taylor's Sixth Amendment right to counsel was violated when Detective Graham conducted the interrogation, ostensibly on the inchoate burglary charge. Taylor agrees no separate Sixth Amendment right had attached as to that charge.

Under the Sixth Amendment to the United States Constitution, a criminal defendant is entitled to the aid of counsel, not only at trial, but prior to trial at critical periods of the proceedings. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). According to the United States Supreme Court, a criminal defendant is denied basic Sixth Amendment protections when the government uses against him at trial evidence of his own incriminating words, deliberately elicited from him after he has been indicted and in the absence of his lawyer. See Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Here, the State argues that the Sixth Amendment right to counsel, developed in Powell, Massiah, and other cases, was not violated because that right is offense-specific, and here the police told Taylor they only wanted to question him concerning the burglary charge.

On the facts of this case, we find that the Sixth Amendment right would be illusory were we to allow admission of Taylor's statements under questioning by Detective Graham, irrespective of Detective Graham's disclaimer concerning his lack of interest in the charge as to which the statements were ultimately admitted. In so holding, we are instructed by the pronouncement of the United States Supreme Court, characterizing the breadth of the Sixth Amendment right to counsel:

Once the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance. We have on several occasions been called upon to clarify the scope of the State's obligation in this regard, and have made clear that, at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.

Maine v. Moulton, 474 U.S. 159, 170-171, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) (footnote omitted).

Here the State correctly urges that the Sixth Amendment right to counsel is offense specific. See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); Smith v. State, 699 So.2d 629 (Fla.1997), cert. denied mem. ___ U.S. ____, 118 S.Ct. 1194, 140 L.Ed.2d 323 (1998). The State reasons that at the time Taylor made the statement concerning whether he had ever been to the pawnshop, his Sixth Amendment right to counsel had attached only to the pending charge of dealing in stolen property. Because Detective Graham stated to Taylor that Graham was not interested in the pending charge, but only wanted to ask questions about the burglary, the State concludes that such questioning did not violate the Sixth Amendment.

Appellant recognizes that if he has any right to counsel, it is bottomed upon the Sixth Amendment because he executed a free and voluntary waiver of his Fifth Amendment right to counsel pursuant to the Miranda decision. Appellant also recognizes that the Sixth Amendment right is offense specific. He argues, nevertheless, that police questioning concerning the burglary was unconstitutional because the offenses of burglary and dealing in stolen property were, on the facts of this case, inextricably intertwined.

Here, the facts reveal a burglary after 7:00 in the morning. The dealing in stolen property charge involved items taken in the burglary and pawned no later than 9:16 on the same morning as the burglary. Because Taylor was not prosecuted for the burglary, it is impossible to say with absolute certainty what the central items of evidence against him on that charge would have been; however, it is only fair to conclude that the jewelry he pawned, as well as the pawn ticket with his name and fingerprint, would have been crucial to any such prosecution.

In United States v. Arnold, the Third Circuit Court of Appeals noted that two exceptions to the offense-specific rule generally apply to the Sixth Amendment right to counsel. 106 F.3d 37 (3d Cir.1997). The court first reviewed Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), where the defendant was formally charged with the abduction of a small girl. After that charge had been lodged, the police, using a "Christian burial speech" to gain the defendant's trust, elicited from the defendant the location of the girl's body and subsequently charged the defendant with murder. The Supreme Court upheld reversal of the murder conviction, holding that the defendant's statements to the police about the location of the body were inadmissible in the murder case. The court also noted that in Moulton, the defendant's Sixth Amendment right was violated. After Moulton's indictment for theft, his co-def...