Zeigler v. State
| Decision Date | 18 June 1985 |
| Docket Number | No. AM-383,AM-383 |
| Citation | 10 Fla. L. Weekly 1521,471 So.2d 172 |
| Parties | 10 Fla. L. Weekly 1521 Deguster Blake ZEIGLER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant's prior conviction for the second degree murder of Sheila Smith was appealed to this court, which reversed on the authority of Tascano v. State, 393 So.2d 540 (Fla.1980). Zeigler v. State, 396 So.2d 1 (Fla. 1st DCA 1981). Prior to the commencement of his new trial, appellant filed a motion to suppress an inculpatory statement he made to Jacksonville Sheriff's Department deputies. Following the trial court's denial of that motion, appellant pled nolo contendere to the offense of manslaughter, reserving his right to appeal the trial court's denial. The state stipulated below that the issue is dispositive. Because the trial court erred in denying the motion to suppress appellant's statement, we reverse and remand with directions to discharge appellant.
Sheila Smith was found shot to death in her Jacksonville apartment. Their investigations led police to believe appellant, who had lived with the victim, was responsible. Police subsequently learned that appellant was in Quincy acting strangely, and attempting to conceal his automobile. The Jacksonville police sent a dispatch to Quincy requesting that officers in that town pick appellant up. Appellant was arrested in Quincy that evening, informed of his Miranda rights, and placed in a county jail cell. At the time of his arrest appellant advised Quincy officers that he did not wish to make a statement until he had talked to his lawyer.
The next morning Detective Parker of the Jacksonville Sheriff's Department and his partner arrived in Quincy to transport appellant to Jacksonville. Appellant was removed from his cell, and the detectives introduced themselves and again advised appellant of his rights. Detective Parker then requested that appellant sign a waiver of rights form which included the statement, "I do not want to talk with a lawyer at this time." Detective Parker testified that he was not seeking a waiver of appellant's rights at that time, but that he asked appellant to sign the form merely to acknowledge that he had read and understood it. After appellant signed the form, he told the detectives that he did not want to make a statement until he talked with his lawyer. Shortly thereafter appellant was placed in a police car and taken to Jacksonville. 1
As is frequently the case, the evidence concerning the matters discussed on the trip back to Jacksonville was in sharp dispute. Appellant testified that the detectives discussed the number of individuals on death row who, because they refused to talk to police, were charged with first degree murder instead of some lesser crime. Detective Parker testified that the conversation was general and pleasant, and only touched on the subject of murder when appellant inquired concerning the penalties for that offense. Upon arrival in Jacksonville, according to the testimony of Detective Parker:
I pulled up behind the Duval County Jail and told them [sic] him that this was the county jail, that if he wanted to make a statement or say anything he could at this time because there wasn't going to be no tomorrow, the ballgame was over, he was going to be booked in jail. And he made the return comment that--as I recall, you boys or you guys have been good to me, let's go to the office and I'll tell you what you want to know. And then we drove over underneath the Police Memorial Building and went to an interview room at the homicide division.
Thereafter appellant gave the statement sought to be suppressed. Detective Parker did not advise appellant of his rights after leaving Quincy, and appellant gave the statement without again requesting to see his attorney. Detective Parker's testimony, on cross-examination, reveals the following:
Q. When you arrived at the rear of the Duval County Jail, who broached the subject of a statement?
A. I did.
Q. And your purpose was, of course, to obtain a statement, right?
A. If he desired to make one.
Q. And did you desire him to make one?
A. I would have been derelict if I hadn't solicited a statement in the performance of my duties.
Q. I mean, he didn't just out of the blue say, "may I give a statement," or anything like that?
A. No.
The exchange behind the Duval County Jail was not initiated by appellant and was clearly "interrogation," Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), conducted after appellant had invoked his right to counsel, without counsel having been furnished to him, and without any showing that, subsequent to invoking his right to counsel, he knowingly and voluntarily waived that right. Accordingly, the trial court erred in denying appellant's motion to suppress. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Silling v. State, 414 So.2d 1182 (Fla. 1st DCA 1982). Compare, Barfield v. State, 402 So.2d 377 (Fla.1981).
We have considered and find wholly without merit the state's contention that our prior decision in Zeigler v. State, 404 So.2d 861 (Fla. 1st DCA 1981), decided the constitutional admissibility of appellant's statement adversely to him, thus, under the principle of collateral estoppel precluding relitigation of the same issue here. The prior decision involved Zeigler's conviction of manslaughter for the unrelated killing of one Diane Williams, in which the sole dispositive issue was the Williams Rule (Williams v. State, 110 So.2d 654 (Fla.1959) ) error of the trial court in allowing the state to introduce Zeigler's statement concerning the shooting of Sheila Smith. In that opinion we said: "We find merit in only one point raised by appellant." Id. at 862. The state argues here that since the court found only one error, it obviously must have rejected Zeigler's contention in that appeal that the statement regarding the Smith shooting was inadmissible for constitutional reasons, although the opinion does not mention that issue. Aside from other reasons which would preclude our giving "collateral estoppel" effect to the prior ruling as urged by the state, we find that the threshold requirement that there must be a determination of material fact by a valid and final judgment has not been met. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In the prior case the "one point" having merit was the question of admissibility of the collateral crime evidence, which we decided favorably to appellant based on the Williams Rule violation. Whether it was also inadmissible because obtained in violation of appellant's Fifth, Sixth, and Fourteenth Amendment rights thus became moot, and neither required nor received consideration by this court.
One other issue needs to be addressed. After consideration of the briefs and the record, this court sua sponte raised the question whether testimony given by appellant at his first trial would be admissible against him in a subsequent trial, notwithstanding any illegality in obtaining appellant's inculpatory statement. We further inquired as to what effect, if any, would the state's stipulation as to dispositiveness have on this court's disposition of this appeal. 2 Appellant had testified in response to the testimonial and written evidence of his confession introduced at the first trial. Appellant's testimony regarding the events for which he stood trial was essentially the same in most material respects as that introduced by the state by means of the confession, as appellant himself acknowledged from the witness stand. If appellant's testimony from his first trial would be admissible at any subsequent trial, then the issue he raises here concerning his confession would not necessarily be dispositive to his case, and hence would not be a proper ground for appeal on a plea of nolo contendere. Brown v. State, 376 So.2d 382 (Fla.1979); Leisure v. State, 429 So.2d 434, 435 (Fla. 1st DCA 1983).
We focus first upon the fact (as previously noted) that this case is here by way of a joint stipulation between appellant and the state that the issue of the voluntariness of the confession absent the presence of counsel was in fact dispositive of the prosecution's case. This court has previously held that such a stipulation is sufficient to establish the dispositiveness of an issue concerning a confession, even though such issue would otherwise be deemed not dispositive as a matter of law. Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff'd, 392 So.2d 1324 (Fla.1981). Therefore, unless this court is prepared to "go behind" the stipulation of the parties in an effort to ascertain whether the issue is truly dispositive, we would be bound to decide the issue reserved for review by the defendant, and thus would have no occasion for independent examination of the record to determine whether, even if the trial court erred in denial of the motion to suppress, other evidence in the record could be used equally as well to establish guilt. After consideration of the supplemental briefs and oral argument, the court finds no basis for questioning the parties' stipulation that the issue originally briefed is dispositive.
Appellee suggests that the question of whether an issue preserved for review upon a nolo contendere plea is dispositive is jurisdictional, and hence a proper subject for review here, citing Turner v. State, 429 So.2d 318, 319 (Fla. 1st DCA 1982). In Turner, however, on rehearing we receded from language in our original opinion in which we indicated that an appellate court could determine for itself whether an issue stipulated by the parties as being dispositive to a case was in fact dispositive, stating: "... [W]e do not address any question...
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