Valle v. State, No. 61176

CourtUnited States State Supreme Court of Florida
Writing for the CourtADKINS; BOYD; EHRLICH, J., concurs with an opinion, in which OVERTON; SHAW; EHRLICH; OVERTON
Citation474 So.2d 796,10 Fla. L. Weekly 381
Parties10 Fla. L. Weekly 381 Manuel VALLE, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 61176
Decision Date11 July 1985

Page 796

474 So.2d 796
10 Fla. L. Weekly 381
Manuel VALLE, Appellant,
v.
STATE of Florida, Appellee.
No. 61176.
Supreme Court of Florida.
July 11, 1985.
Rehearing Denied Sept. 17, 1985.

Page 798

Michael Zelman, Miami, for appellant.

Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., Miami, for appellee.

ADKINS, Justice.

Appellant, Manuel Valle, appeals his conviction for first-degree murder and his sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and the death sentence.

On April 2, 1978, Officer Louis Pena of the Coral Gables Police Department was on patrol when he stopped appellant and a companion for a traffic violation. The events that followed were witnessed by Officer Gary Spell, also of the Coral Gables Police Department. Officer Spell testified that when he arrived at the scene, appellant was sitting in the patrol car with Officer Pena. Shortly thereafter, Spell heard Pena use his radio to run a license check on the car appellant was driving. According to Spell, appellant then walked back to his car and reached into it, approached Officer Pena and fired a single shot at him, which resulted in his death. Appellant also fired two shots at Spell and then fled. He was picked up two days later in Deerfield Beach. Following his jury trial, appellant was also found guilty of the attempted first-degree murder of Spell and after a non-jury trial, he was found guilty of possession of a firearm by a convicted felon.

CONVICTION

Appellant makes several challenges to his conviction. Specifically, he challenges (1) the admission of his confession to this murder, (2) the method of selection of the grand and petit jury venires, and (3) the trial court's refusal to grant a mistrial on the basis of the prosecutor's alleged comments on his constitutional right to remain silent.

Appellant argues that his confession, which was admitted at trial, should have been suppressed because it was allegedly obtained in violation of his Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), rights. Shortly after appellant was arrested he was informed of his rights to remain silent and to have counsel present during questioning and the record shows that he waived those rights. Nonetheless, appellant argues that certain events following this initial free and voluntary waiver indicate that he subsequently invoked his Miranda rights. We do not agree. The record reveals that pursuant to their established procedure, the Deerfield Beach Police Department contacted a public defender who spoke with appellant on the telephone. Later, when the interrogating officers arrived and informed appellant that they were there to conduct an interview, appellant stated that he had spoken with an attorney and she had advised him not to sign anything nor to answer any questions. The officer then stated that it was appellant's constitutional right to refuse to speak to him, that he did not have to speak if he did not want to, and

Page 799

that he had come to Deerfield Beach hopefully to talk with him.

Even assuming that appellant's statement was somehow an invocation of his Miranda rights, it was at most an equivocal one, and interrogating officers are permitted to initiate further communications for the purpose of clarifying the suspect's wishes. Thompson v. Wainwright, 601 F.2d 768 (5th Cir.1979); Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979). Thus, when the officer responded that "that was his constitutional right" and that he was there "hopefully to speak with him," he was not conducting further interrogation within the meaning of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), but was simply trying to determine whether or not the appellant wished to talk. Cf. Cannady v. State, 427 So.2d 723 (Fla.1983) ("I think I should call my lawyer" held to be an equivocal request for counsel); Waterhouse v. State, 429 So.2d 301 (Fla.) (interrogation does not have to cease when accused states "I think I want to talk to an attorney before I say anything else" because he did not express a desire to deal with the police only through counsel), cert. denied, 464 U.S. 977, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983). The right to counsel during questioning can be waived. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). After the officer's innocuous reply, appellant's next statement that he had had several experiences with police officers in the past and that he had cooperated in the past and was willing to do so at that time, clearly shows that he voluntarily waived his Miranda rights. Even if he had previously asserted his rights, the law accords a defendant the opportunity to voluntarily change his mind and talk to police officers. Witt, 342 So.2d at 500. This statement, combined with the previous oral waiver, a later express written waiver, and the fact that at not time before, during, or after questioning did appellant request an attorney, convinces us that he made a voluntary, knowing and intelligent waiver of his Miranda rights. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The trial judge was correct in admitting appellant's confession.

Appellant also contends that because the public defender instructed the Deerfield Beach officers not to question appellant and they agreed, that amounted to an invocation of his right to counsel. That is simply not true. The determination of the need of counsel is the defendant's prerogative. State v. Craig, 237 So.2d 737 (Fla.1970). Thus, just as his attorney would have no right to waive appellant's right to counsel, without his consent, she likewise would have no right to unilaterally invoke that right.

Appellant argues next that his rights to due process and equal protection of the law were violated by substantial underrepresentation of Latin Americans, blacks, and women on the grand and petit jury venires. Appellant's grand jury was selected in accordance with chapters 70-1000, 57-550, and 57-551, Laws of Florida. Pursuant to these laws, circuit judges of the Eleventh Judicial Circuit of Florida submit the names of approximately five hundred individuals believed to be morally fit for jury service. A venire of ninety persons is then formed by a random selection.

This method of grand jury selection and the legislation authorizing grand jury selection have been consistently upheld by this Court as both constitutional and effective. See Dykman v. State, 294 So.2d 633 (Fla.1973); Rojas v. State, 288 So.2d 234 (Fla.1973), cert. denied, 419 U.S. 851, 95 S.Ct. 93, 42 L.Ed.2d 82 (1974); Seay v. State, 286 So.2d 532 (Fla.1973), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974); Calvo v. State, 313 So.2d 39 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 15 (Fla.), cert. denied, 429 U.S. 918, 97 S.Ct. 309, 50 L.Ed.2d 283 (1976). However, this method is constitutional only if there is a random selection of jurors by the circuit judges.

Page 800

As we stated in State v. Silva, 259 So.2d 153, 160 (Fla.1972):

The tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. This does not mean, however, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community, for such complete representation would frequently be impossible. But it does mean that prospective jurors must be selected at random by the proper selecting officials without systematic and intentional exclusion of any of these groups.

(emphasis in original).

Appellant claims that the venire selection process used to select the grand jury which indicted him and prior grand juries was not random with regard to Latin Americans. The Supreme Court of the United States has stated that "in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. Casteneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977).

Appellant, by his characterization of himself as a Latin American, has failed to prove that he belongs to an identifiable group. "The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied." Id. The term "Latin American" encompasses people from too many different countries and different cultural backgrounds and attitudes to constitute a single cognizable class for equal protection analysis. Accord, United States v. Rodriguez, 588 F.2d 1003 (5th Cir.1979). See also United States v. Duran de Amesquita, 582 F.Supp. 1326 (S.D.Fla.1984) (holding that "hispanics" do not constitute a recognizable class). Appellant also urges a due process violation in the grand jury selection process. The first prong of the test for a due process violation requires that defendant show "that the group alleged to be excluded is a 'distinctive' group in the community...." Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). For the same reason, appellant has failed to prove that Latin Americans are a "distinctive" group in the community.

Appellant has also failed to prove that this method of grand jury selection was anything other than random with respect to blacks and women. In this case, the petit jury venire was randomly selected by computer from Dade County's voter registration list. Appellant argues that although section 40.01, Florida Statutes (1981), requires that all jurors be registered voters, it is...

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34 practice notes
  • Downs v. Moore, No. SC00-2186.
    • United States
    • United States State Supreme Court of Florida
    • September 26, 2001
    ...does not apply where the defendant does not invoke his Fifth Amendment privilege against self-incrimination. See Valle v. State, 474 So.2d 796 (Fla.1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986). In Valle, this Court found that where a defendant refuse......
  • People v. Lucero
    • United States
    • United States State Supreme Court (California)
    • March 28, 1988
    ...that the expert testimony was cumulative since one could infer good future behavior from past behavior. (Valle v. State of Florida (1985) 474 So.2d 796, 801.) The United States Supreme Court granted certiorari and remanded, citing Skipper. (Valle v. Florida (1986) 476 U.S. 1102 [106 S.Ct. 1......
  • Hutchinson v. State, No. SC01-500.
    • United States
    • United States State Supreme Court of Florida
    • July 1, 2004
    ...commenting on a defendant's silence does not apply when the defendant does not invoke his Fifth Amendment right. See Valle v. State, 474 So.2d 796, 801 (Fla.1985). Ashley's testimony only told the jury that Hutchinson was interviewed by the police. There was no comment about the content of ......
  • State v. Owen, No. 85781
    • United States
    • United States State Supreme Court of Florida
    • May 8, 1997
    ...procedural safeguards triggered by a request for an attorney). 7 See, e.g., Long v. State, 517 So.2d 664, 667 (Fla.1987); Valle v. State, 474 So.2d 796, 799 (Fla.1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986); Waterhouse v. State, 429 So.2d 301, 305 (F......
  • Request a trial to view additional results
34 cases
  • Downs v. Moore, No. SC00-2186.
    • United States
    • United States State Supreme Court of Florida
    • September 26, 2001
    ...does not apply where the defendant does not invoke his Fifth Amendment privilege against self-incrimination. See Valle v. State, 474 So.2d 796 (Fla.1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986). In Valle, this Court found that where a defendant refuse......
  • People v. Lucero
    • United States
    • United States State Supreme Court (California)
    • March 28, 1988
    ...that the expert testimony was cumulative since one could infer good future behavior from past behavior. (Valle v. State of Florida (1985) 474 So.2d 796, 801.) The United States Supreme Court granted certiorari and remanded, citing Skipper. (Valle v. Florida (1986) 476 U.S. 1102 [106 S.Ct. 1......
  • Hutchinson v. State, No. SC01-500.
    • United States
    • United States State Supreme Court of Florida
    • July 1, 2004
    ...commenting on a defendant's silence does not apply when the defendant does not invoke his Fifth Amendment right. See Valle v. State, 474 So.2d 796, 801 (Fla.1985). Ashley's testimony only told the jury that Hutchinson was interviewed by the police. There was no comment about the content of ......
  • State v. Owen, No. 85781
    • United States
    • United States State Supreme Court of Florida
    • May 8, 1997
    ...procedural safeguards triggered by a request for an attorney). 7 See, e.g., Long v. State, 517 So.2d 664, 667 (Fla.1987); Valle v. State, 474 So.2d 796, 799 (Fla.1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986); Waterhouse v. State, 429 So.2d 301, 305 (F......
  • Request a trial to view additional results

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