369 So. 2d 962 | Fla. Dist. Ct. App. | 1979
Defendant, Michael Monroe, appeals his conviction • for second degree murder and robbery based upon a plea of nolo conten-dere tendered subsequent to the denial of his motion to suppress his conviction. The salient facts are as follows:
On April 19, 1977
Monroe basically argues that the trial court erred in denying his motion to suppress because he was not made aware that he had court-appointed counsel, nor was his counsel informed of or present at the inter
It does not follow that all statements made in the absence of counsel are inadmissible; but each case must turn on the facts and circumstances surrounding the particular interrogation. United States v. Brown, 551 F.2d 639, 643-4 (5th Cir. 1977). A valid interrogation of a defendant can take place out of the presence of his attorney where the defendant knowingly and intelligently waives his right to have counsel present at some particular critical stage of the proceedings, and further the presence of his counsel is not essential to the validity or effectiveness of that waiver. Johnson v. State, 268 So.2d 544, 546 (Fla.3d DCA 1972), cert. discharged, 294 So.2d 69 (1974). The voluntariness of in-custody statements of persons accused of a crime and of the waiver of the right to counsel at an interrogation need only be established by a preponderance of the evidence. Johnson v. State, 294 So.2d 69 (Fla.1974), supra.
The evidence is undisputed that the interrogating officers and the prosecutor were unaware that Monroe had counsel. Monroe was advised of his rights on two occasions and twice waived them. He agreed to accompany the investigating officers to the prosecutor’s office and voluntarily submitted to the polygraph examination. Unlike the Massiah case, supra, we find that Monroe’s confession was not obtained from him surreptitiously without his knowing consent to interrogation or a waiver of the right to have counsel present. The record supports the conclusion of the trial judge by more than a mere preponderance of the evidence that Monroe made a knowing, intelligent and voluntary waiver and there was no bad faith or coercion on the part of the investigating officers.
We additionally note that Monroe failed in his burden to clearly show that the State’s case could not succeed without‘the use of his confession which he sought to suppress and, therefore, the denial of his motion to suppress which raised solely a question of law could not be specifically preserved for appellate review by him upon entry of his plea of nolo contendere. See Brown v. State, 355 So.2d 138 (Fla.3d DCA 1978).
For the reasons stated, the denial of his motion to suppress is affirmed.
Affirmed.
. However, he had not yet been indicted at this point in time.
. Monroe was also unaware that the public defender had been appointed to represent him.