Lofton v. StateLofton v. State
Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
The principal issue raised on this appеal is whether the trial court erred in refusing to suppress a statement made by appellant to an investigator for the State Attorney. We find no error and affirm.
Suspecting that defendant Lofton was involved in a sexual battery which was under investigation, an investigator from the State Attorney‘s office in St. Johns County interviewed defendant in the county jail, where he was being held on completely unrelated burglary charges. After reading Lofton his Miranda rights and ascertaining that he understood them, and after defendant signed a written waiver of those rights, the investigator learned from defendаnt that he was one of the three men involved in the sexual encounter with the victim. Lofton admitted that he, as well as the other two men, had engaged in sexual intercourse with the victim, although he maintained that the act was consensual.
At trial Lofton‘s counsel objected to introductiоn of the statement and moved to suppress it maintaining that the statement was taken without contacting the attorney representing Lofton in the unrelated burglary charge. The appellant maintained at the trial level, and maintains on appeal, that it was error to take a statement from him when the investigating officer knew that the appellant was being represented by the Office of the Public Defender in another case. The State counters that the appellant was fully aware of his right to counsel, signed a waiver of rights form, and volunteered to sрeak with Officer Edmonson. The trial court denied the motion to suppress and the confession was introduced at trial.
Although appellant hаd not yet been charged with sexual battery nor had counsel been appointed for him in this case, he maintains that his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) were violated because he did not initiate the conversation with the investigator who knew that appellant was represented by counsel in an unrelatеd criminal case. He reasons that because he was represented by counsel on another charge, he had thus indicated his desirе to speak only through counsel. We have previously considered and rejected a similar argument.
In Miller v. State, 403 So.2d 1017 (Fla. 5th DCA 1981)1, the appellant gave a confession
This court in Miller refused to apply the “New York” rule mаking the following comment:
Florida has rejected New York‘s “indelible” right by specifically holding that the decision to have a lawyer is not irrevoсable and that a statement voluntarily given to law enforcement officers after a defendant has been fully informed of his rights, waives the prоtection afforded by Miranda. Jackson v. State, 359 So.2d 1190 (Fla. 1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979). A request for counsel for an unrelated charge does not require that interrogation cease if adequatе Miranda warnings have been given. Stone v. State, 378 So.2d 765, 769 (Fla. 1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980). In the light of these cases, we hold that the knowledge of a police officer that a defendant is represented by counsel in a сompletely unrelated charge does not preclude the questioning of the defendant about the charge at hand where the defendant has intelligently and knowingly waived his right to counsel and has made a voluntary statement to the police. [Footnote omitted].
In Waterhouse v. State, 429 So.2d 301 (Fla. 1983) the Florida supreme court refused to adopt a per se rule requiring officers to notify the defendant‘s attorney before communicating with the aсcused. Here, it is clear that defendant was not represented by counsel in the sexual battery case. In fact, he had not yet been сharged in that case. He was informed of his right to counsel and of his right not to speak to the investigator, and he waived those rights. Appellant dоes not contend that his statement was otherwise involuntary, and we hold that it was not made involuntary merely because the public defender representing defendant in a completely unrelated criminal matter was not notified prior to the questioning.
AFFIRMED.
COWART, J., concurs.
DAUKSCH, J., concurs in part, dissents in part with opinion.
I agree the confession of the appellant should not be excluded on the grounds it was coerced, involuntary or otherwise obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
However it is inexcusable unethical behavior оn the part of a lawyer, either personally or through his investigator or other agent, to contact and have a discussion with his oppоsing lawyer‘s client. For that prosecutorial and lawyer misconduct I would require the exclusion of the appellant‘s statements and any evidence gained