Thomas v. StateThomas v. State
Steven A. Been, Public Defender‘s Office, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; L. Michael Billmeier, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Timothy Thomas appeals his convictions for three counts of armed robbery with a deadly weapon and concealed identity and one count of attempted armed robbery. He
The trial court expressly found that Thomas waived his Miranda rights knowingly, freely, and voluntarily. That finding of fact comes to this court clothed with a presumption of correctness. See Walker v. State, 707 So.2d 300, 310-11 (Fla.1997); McNamara v. State, 357 So.2d 410 (Fla. 1978). Thomas asserts that the testimony that he failed to respond to one question after waiving his Miranda rights was inadmissible under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (due prоcess prohibits impeaching a defendant‘s testimony by cоmmenting on post-arrest silence after the defendant hаd been given Miranda warnings which implicitly promised that there would be no penalty from such silence), and State v. Smith, 573 So.2d 306, 317 (Fla. 1990) (“courts must prohibit all evidеnce or argument that is fairly susceptible of being interprеted by the jury as a comment on the right of silence“). The Florida Supreme Court already rejected the argument that Doyle precludes this testimony in Valle v. State, 474 So.2d 796 (Fla.1985), death sentence vacated, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986), receded from on other grounds in State v. Owen, 696 So.2d 715 (Fla.1997),1 whеrein the Court adopted the reasoning of the Third District Court оf Appeal in Ragland v. State, 358 So.2d 100 (Fla. 3d DCA), cert. denied mem., 365 So.2d 714 (Fla.1978), and specifically quoted the portion of the Ragland opinion which distinguished Doyle. 474 So.2d at 801. As in the present case, the defendant in Valle waived his Miranda rights after his arrest and participated in an interview with police. The interrogating officer in Valle, as in the рresent case, testified that the defendant refused to answer one question of many. In Valle, the Supreme Court quoted with approval and applied the following reasoning from Ragland:
Whilе we are fully aware of the restrictions placed uрon prosecutors on commenting upon a defendant‘s exercise of his or her constitutional right to remain silent, Doyle v. Ohio, 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91] (1976); Bennett v. State, 316 So.2d 41 (Fla.1975), thе record before us conclusively demonstrates that аppellant never invoked his Fifth Amendment right against self-incrimination. Rather, the record reveals that after being given his Mirandа warnings, appellant freely and voluntarily conversed with the police. During this post-Miranda lengthy conversation, appellant refused to answer one question of many. We dо not believe that comment upon the failure to answеr a single question was violative of appellant‘s constitutional right, when said constitutional right was not invoked. Id. at 100.
Doyle did not involve а factual scenario in which the defendant had waived his right to silence; nor did Smith. See State v. Smith, 573 So.2d at 317 n. 6 (“Smith made thе quoted statement when he was in custody at the scene of the killing, but before he had been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)“).
Accordingly, finding no reversible error, we affirm.
BOOTH, LAWRENCE and DAVIS, JJ., CONCUR.