544 So. 2d 310 | Fla. Dist. Ct. App. | 1989
Lead Opinion
The sole issue on appeal is whether the trial court erred in denying a motion to suppress appellant’s taped confession. The defendant entered a plea to second degree murder, reserving the right to appeal. We affirm.
The facts are not in dispute. Following his arrest, the defendant was brought to a police substation where he was advised, twice, of the rights and warnings required pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On that same day, he was brought to the police station, where he was again advised of all his rights, which were read to him from a printed form.
The defendant orally confessed to the murder, after which a taped statement was taken. At the beginning of the taped statement he was advised of his Miranda rights for the fourth time, and again stated that he understood them. The defendant, who is Spanish speaking, was advised in both English and Spanish by a multilingual deputy. His ability to understand what was said is not the issue on appeal.
During the taped statement, according to the testimony of a translator-witness who listened to and translated the tape recording being played in open court, the following partial colloquy occurred:
[Deputy] ... You have the right to have a lawyer while we are questioning you if you want to. You can have him present while we are questioning you, if you want one. You have the right to have*311 [sic] lawyer present while we are interviewing you, if you want to.
[Further translation was here deferred until the following day]
[Deputy] ... If you don’t have money for a lawyer, the county will pay for a lawyer that can'represent you at that time in court, do you understand?
[Defendant] Okay.
[Deputy] (Indiscernible) and to have a lawyer present, you can do that, do you understand that?
[Defendant] But what about if I don’t have any money?1
[Deputy] But do you understand the rights I am reading to you, do you understand? Do you want to talk to us?
[Defendant] Yes.
(emphasis supplied).
The record reflects some problems by the translator in picking up everything on the tape. At no time did the appellant ask for, or indicate that he wanted, an attorney. There is no contention that the substance of the taped statement differed in any respect from the earlier oral confession, with respect to which no issue has been raised. The defendant also signed a written waiver of rights form.
Clearly, once a defendant asserts a request for counsel, even if equivocally worded, he may not be questioned further until it is established that there was a knowing waiver of his right to counsel. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The defendant contends that even if the confession was otherwise voluntary, the single question he asked during the taped statement must be construed as an indication that he was requesting an attorney before going forward with the confession. Additionally, he asserts that the deputy’s follow-up inquiry as to whether he understood his rights and whether he wanted to proceed was inadequate to clarify whether he was seeking to have counsel present.
The trial court considered the totality of the testimony and circumstances, together with what was said in the above colloquy, and concluded that the defendant had been fully advised and that he understood his right to counsel, finding
[T]he defendant was fully advised as to his rights with regard to Miranda Esco-bedo with regard to his right to have an attorney that, in fact, an attorney would be provided to him if he was unable to obtain one because of lack of funds, that he did have a right to remain silent, that he did have the right to have an attorney, that anything he said could be used against him, the record is overwhelming on that.
... I find that he did understand what his rights were and he did effectively waive them.
... Now, turning to the fourth rendition of the — of his Miranda Escobedo rights, I find that there may have been a technical omission on the part of Officer Torres [sic], but based on the totality of the circumstances, including the first three waivers, the first three times he was informed of his rights, and then the method in which Officer Torres [sic] scrupulously attempted to insure that he did understand, I find that that was an adequate warning and I’m very out of patience that indicates that it is not necessary for law enforcement to parrot exact magic words. The substance of the warning given by Officer Torres to the defendant for this fourth time was sufficient.
I therefore find that based on the documentary evidence, the credibility of the witnesses, the plausibility of the testimony of all of the witnesses, the defendant made a voluntary statement ... and ... made a knowing, intelligent and voluntary waiver of his Miranda rights and, therefore, the motion for the suppression of the statements is denied.
The trial court could conclude from this record that the defendant’s query could not
The judgment and sentence are affirmed.
. The translation on the second day differed to some extent from the translation the previous afternoon, which was suspended because the translator was tired. We accept the translation as corrected on the second day of testimony.
Dissenting Opinion
dissenting.
The transcript of the defendant’s taped confession contains error by the interrogating officer which should have resulted in the taped confession’s suppression. Accordingly, I would reverse and remand with direction to suppress the taped confession, and give the defendant an opportunity to withdraw his plea.
The transcript of the tape reflects the following:
(Thereupon, the tape recording, Defense Exhibit Number One, was played to the Court.)
[Deputy Perez] If you don’t have money for a lawyer, the county will pay for a lawyer that can represent you at that time in court, do you understand?
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[Deputy Perez] (Indiscernible) and to have a lawyer present, you can do that, do you understand that?
[Defendant] But what about if I don’t have any money?
[Deputy Perez] But do you understand the rights that I am reading to you, do you understand?
Do you want to talk to us?
[Defendant] Yes.
(emphasis supplied).
The defendant’s emphasized question indicates his uncertainty during interrogation as to the effect of his inability to pay for a lawyer.
In Fields v. State, 402 So.2d 46 (Fla. 1st DCA 1981), the First District Court of Appeal reversed a trial court’s denial of a juvenile’s motion to suppress confessions and admissions he had made during a custodial interrogation. Although the juvenile had expressly waived his Miranda rights, the trial court concluded his waiver was not voluntary, intelligent and knowing. In making this finding, the trial court noted that:
Appellant was, in formal terms, repeatedly advised of and said that he understood his Miranda rights, but upon being asked if he wanted a lawyer his response was that “I can’t afford to get one.” Appellant’s interrogators did not then or at anytime thereafter make any further statement or clarification regarding his right to counsel.
Id. at 47. The First District found that the defendant’s statement regarding his inability to afford counsel showed that the defendant did not comprehend his right to counsel even if he could not afford the cost. Likewise, in the instant case, the appellant’s statement could be deemed to show that he did not comprehend his right to counsel even though he had been advised at least three times that he would be appointed counsel if he could not afford the cost of legal representation.
When an accused during interrogation makes a statement that, given the context in which it is made, may indicate a desire to have counsel present, all custodial interrogation must cease and further inquiry is limited to clarifying the accused’s statement. Cannady v. State, 427 So.2d 723, 728 (Fla.1983); Kyser v. State, 533 So.2d 285, 286 (Fla.1988). Here the interrogating officer failed to conduct the necessary and limited inquiry as to appellant’s desire for counsel once appellant made the ambiguous statement “But what if I don’t have any money.”
