Opinion
Case No. 2D18-2444
02-28-2020
N.J.O., Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Stephania A. Gournaris, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Stephania A. Gournaris, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
VILLANTI, Judge.
N.J.O. seeks review of the disposition order that found him guilty of one count of attempted robbery with a deadly weapon and one count of possession of marijuana, contending that the trial court erred by denying his motion to suppress the statements he made to the police. We affirm the disposition order to the extent that it finds N.J.O. guilty of possession of marijuana. However, based on the entirety of the record, we conclude that the trial court erred by denying N.J.O.'s motion to suppress the statement he made to law enforcement officers after N.J.O. expressed his intent to invoke his Miranda rights by requesting that he be allowed to have "someone" with him during questioning. And given the trial court's comments at the disposition hearing that resulted in a sentence harsher than that recommended by the Department of Juvenile Justice (DJJ), the admission of the statement was not harmless. Therefore, we reverse the remainder of the disposition order and remand for a new trial on the attempted robbery charge and a new disposition hearing.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
N.J.O. was arrested after he allegedly pointed a gun at a former classmate in an attempt to rob him of cash. At the police station, a detective and two other officers sought to interview N.J.O. At the start of the interview, the detective read N.J.O. his rights. During that process, the following occurred:
The arrest occurred several days after the attempted robbery, and N.J.O. was found with marijuana at the time of his arrest. Those events gave rise to the possession charge against N.J.O.
DETECTIVE SABINA: Okay. So you have the right to remain silent. Do you understand that?
N.J.O.: Yes.
DETECTIVE SABINA: If you give up the right to remain silent, anything you say can be used against you in court. Do you understand that?
N.J.O.: Yes.
DETECTIVE SABINA: You have the right to consult with an attorney before you make a statement or answer any questions, and the right to have an attorney present during questioning. Do you understand that?
N.J.O.: Yes.
DETECTIVE SABINA: Okay. If you want an attorney but cannot afford to hire an attorney, one will be appointed to represent you before, during questioning, free of charge. Do you understand that?
N.J.O.: (There was no audible response.)
DETECTIVE SABINA: You have the right to use any of these rights at any time you want during the interview. You may stop the interview at any time. Do you understand that?
N.J.O.: Yes.
DETECTIVE SABINA: Okay. I just need you to initial here, "I, [N.J.O.], have—have read these rights to me. I understand them and I am willing to talk at this time. No threats or promises of any kind have been made to coerce me to make a statement." Is that correct?
N.J.O.: Can you repeat that?
DETECTIVE SABINA: Sure, of course. "I, [N.J.O.], have read these rights—have read these rights read to me. I understand them and am willing to talk at this time." Are you willing to talk at this time?
....
N.J.O.: I don't know what all these legal questions mean, so I want to,
like have somebody with me. I'm not trying to be difficult or anything. Like, I just don't know, because you guys word stuff funny sometimes.
DETECTIVE SABINA: Well—
N.J.O.: Not funny, but you guys just use big words sometimes, that I don't understand.
DETECTIVE SABINA: And we're not trying to trick you up, that's why I'm asking you. I need to ask you some questions about this case, but before I do so, I need to read you your rights.
N.J.O.: Yes, sir. I do understand.
OFFICER KLOTZBACH: And you understand your rights?
DETECTIVE SABINA: So basically, what I'm reading to you in this last line is basically, saying that you are willing to talk to me and I have read these rights—these rights have been read to me, which you understand, and you understand them and are willing to talk to me at this time.
N.J.O.: Yes.
DETECTIVE SABINA: Okay. So you are willing to talk to me at this time?
N.J.O.: Not answer every question because I—I mean—
SERGEANT BISHOP: You can pick and choose what you want to answer. If you decide you don't want to, and if you decide at some point that you decided you no longer wanted to—didn't want to answer any more questions, you may, okay? And coerced;—
DETECTIVE SABINA: All right.
SERGEANT BISHOP: —It isn't to trick you or to—to force you to answer the questions. And nobody's done that, right?
DETECTIVE SABINA: So nobody's—nobody's made a threat to you; nobody's made any promises to you. Nobody has tricked you; coerced you to make a statement right now.
N.J.O.: No.
DETECTIVE SABINA: Okay, perfect. So if you understand that and you're willing to talk to me, I need you to place your initials right here and then put your name right there. Put your initials on that line.
(Emphasis added.) Following this colloquy, N.J.O. made incriminating statements concerning the attempted robbery.
During pretrial proceedings, N.J.O. moved to suppress his statement, arguing that the comment he made after the detective asked if he was willing to talk to them showed that he had invoked his rights by requesting that "someone" be with him during questioning and that this invocation of his rights had been ignored by the officers when they continued to question him. The trial court denied the motion to suppress.
At the subsequent bench trial, the court heard testimony from the victim, who knew N.J.O. from school. The court also heard testimony from the officers, and it heard the remainder of N.J.O.'s taped statement, during which he admitted to planning the robbery and attempting to carry it out by luring the victim to the area of the robbery. Ultimately, the robbery was foiled because the victim did not have any cash on him. Based on this evidence, the trial court found N.J.O. guilty and sentenced him to a harsher sentence than that recommended by DJJ because of the portion of N.J.O.'s statement in which he explained the planning that went into the attempted robbery.
In this appeal, N.J.O. contends that the trial court erred by denying his motion to suppress his statement because his request to have "somebody" with him was an invocation of his right to counsel which was ignored by the officers and because the officers' actions in continuing to question him resulted in him involuntarily waiving his rights. Having listened to the recording of the interaction between N.J.O. and the officers, we agree.
As a general rule, law enforcement officers must give suspects the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before conducting a custodial interrogation. If, having been properly given those warnings, the suspect waives the right to remain silent and the right to counsel, officers may then proceed with questioning. However, if the suspect invokes his rights rather than waiving them, questioning must not begin. See Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992) ("Under Section 9 [of the Florida Constitution], if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin or, if it has already begun, must immediately stop. If the suspect indicates in any manner that he or she wants the help of a lawyer, interrogation must not begin until a lawyer has been appointed and is present or, if it has already begun, must immediately stop until a lawyer is present." (emphasis added)); State v. Venegas, 79 So. 3d 912, 914 (Fla. 2d DCA 2012) (affirming trial court's ruling that Venegas invoked his right to counsel rather than waiving it and that detectives' failure to stop questioning him after he requested to speak with an attorney or his wife constituted a violation of Miranda ); Green v. State, 69 So. 3d 351, 353 (Fla. 2d DCA 2011) (finding that when Green said he did not want to proceed without counsel, the police action of continuing to question him violated Miranda and required suppression of his subsequent statements).
To invoke Miranda rights at the inception of questioning, a suspect must make a statement that indicates that he or she wishes to do so. The Florida Supreme Court has held that the suspect may indicate "in any manner" that he or she wishes to invoke his or her rights. See Traylor, 596 So. 2d at 966. "The words ‘in any manner’ simply mean that there are no magic words that a suspect must use in order to invoke his or her rights." State v. Owen, 696 So. 2d 715, 719 (Fla. 1997). And since there are no "magic words" that must be intoned, the question is whether the suspect's statement was sufficiently clear to advise the officers that he or she was invoking those rights.
Here, the record shows that after being informed of his Miranda rights, N.J.O. invoked his right to have counsel present with him. When the detective asked N.J.O. whether he wanted to waive his rights and speak with the officers, N.J.O. clearly stated that he did not understand the legal questions that were being asked and clearly stated that he wanted somebody to be with him. N.J.O. also indicated that he was concerned that questions would be "worded funny," he expressed his concern that the detective was using "big words" that N.J.O. did not understand, and he apologized for being difficult. This statement was sufficiently clear to inform the officers that N.J.O. wanted to invoke—not waive—his Miranda rights.
At that point, the officers should have stopped questioning N.J.O. because once a suspect has invoked his or her rights, it is improper for officers to attempt to coax or cajole a suspect into waiving those rights. See, e.g., Shelly v. State, 262 So. 3d 1, 17 (Fla. 2018) (holding that it was a violation of the suspect's Miranda rights for the police to attempt to coax the suspect into permitting further interrogation after the suspect had asserted his right to remain silent); Green, 69 So. 3d at 353 (finding it improper that "detectives simply continued their efforts to get Green to answer their questions" after Green indicated that he wanted to have an attorney); Calder v. State, 133 So. 3d 1025, 1030-31 (Fla. 4th DCA 2014) (concluding that police efforts to continue to speak with Calder after he invoked his right to counsel constituted "interrogation" under Miranda because the detective should have known that his efforts were "reasonably likely to elicit an incriminating response" (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ); see also Black v. State, 59 So. 3d 340, 346 (Fla. 4th DCA 2011) (holding that detective was in violation of Miranda by continuing to ask defendant whether he wanted to talk to him about the crimes after the defendant had clearly invoked his right to counsel); Gilbert v. State, 104 So. 3d 1123, 1125 (Fla. 4th DCA 2012) (finding that officers violated Miranda when "almost immediately after [the defendant] invoked his right to counsel, the detectives engaged in interrogation by telling [the defendant] that they were trying to ‘protect’ him and encouraging him to tell his ‘side of the story’ "). Instead, once a suspect has invoked his or her right to counsel, officers are required to cease questioning the suspect until either he or she reinitiates contact or counsel is provided and present. See Hill v. State, 772 So. 2d 19, 22 (Fla. 2d DCA 2000) ("Once a suspect invokes his right to counsel, no further police-initiated custodial interrogation can take place unless the accused initiates further communication, exchanges, or conversations with the police." (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) )).
In this case, however, the officers did not comply with this requirement. After N.J.O. clearly stated that he wanted to have someone with him, the detective and the other officers continued to converse with N.J.O. in an effort to get him to waive his rights and to coax a statement from him. These efforts after N.J.O. invoked his rights constituted a violation of N.J.O.'s Miranda rights, and his ensuing statement should have been suppressed.
Moreover, even if it could be said that N.J.O.'s comment that he wanted "someone" with him was not sufficiently clear to show that he had invoked his right to counsel, his statement was nevertheless subject to suppression because the record does not support a conclusion that any purported waiver of rights was knowing and voluntary.
Where a confession is obtained after the administration of Miranda warnings, the State bears a "heavy burden" to demonstrate that the defendant knowingly and intelligently waived his or her privilege against self-incrimination and the right to counsel. Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L.Ed.2d 473 (1986) ; Fare v. Michael C., 442 U.S. 707, 724, 99 S. Ct. 2560, 61 L.Ed.2d 197 (1979) ; Miranda, 384 U.S. at 475, 86 S. Ct. 1602 ; W.M. v. State, 585 So. 2d 979, 981 (Fla. 4th DCA 1991). Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L.Ed.2d 410 (1986) (quoting Fare, 442 U.S. at 725, 99 S. Ct. 2560 ). Thus, "any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." Miranda, 384 U.S. at 476, 86 S. Ct. 1602.
Youngblood v. State, 9 So. 3d 717, 720 (Fla. 2d DCA 2009). This already heavy burden is even more onerous when the suspect is a juvenile. See Ramirez v. State, 739 So. 2d 568, 575 (Fla. 1999). In the case of a juvenile, the issue of voluntariness requires consideration of (1) the manner in which the Miranda rights were administered, including any cajoling or trickery; (2) the suspect's age, experience, background and intelligence; (3) the fact that the suspect's parents were not contacted and the juvenile was not given an opportunity to consult with his parents before questioning; (4) the fact that the questioning took place in the station house; and (5) the fact that the interrogators did not secure a written waiver of the Miranda rights at the outset. Id. at 576. Thus, for example, in Rios v. State, 277 So. 3d 1102, 1109 (Fla. 5th DCA 2019), the appellate court found that Rios's young age, her diminished intelligence, her limited experience with the criminal justice system, and the fact that she was denied access to her father prior to questioning all weighed against a conclusion that she understood the significance of her Miranda rights before she elected to waive them.
Here, the record shows that N.J.O. was sixteen years old, had a 0.9 G.P.A., and had no prior experience at all with law enforcement. He was not given an opportunity to speak with his mother, even after he asked for "someone" to be present with him during the interview. The questioning took place at the police station, and when N.J.O. expressed an intent to invoke his rights, the officers attempted to cajole N.J.O. into speaking with them. As they did for the defendant in Rios, all of these factors militate against a finding that the subsequent waiver of N.J.O.'s rights was knowing and voluntary and that his confession was voluntarily given.
In reaching our conclusion that N.J.O. invoked—rather than voluntarily waived—his rights, we are mindful of the maxim that this court will generally defer to the trial court's findings of fact. Nevertheless, in this case, the interrogation of N.J.O. was audiotaped, and the audiotape was included in the record on appeal. When a trial court's ruling on a Miranda issue is based on an audio or videotape, the trial court is in no better position to evaluate the evidence than the appellate court, which may review the tape for facts legally sufficient to support the trial court's ruling. See Almeida v. State, 737 So. 2d 520, 524 n.9 (Fla. 1999) (disagreeing with the trial court's interpretation of the facts based on the court having listened to the same audiotape presented to the trial court). Given the existence of this audiotape, this court need not defer to the trial court's conclusions concerning whether N.J.O. invoked his rights and whether the subsequent waiver was knowing and voluntary. And, having listened to the audiotape, it is clear that N.J.O.—a sixteen-year-old with no prior criminal record or arrests—was attempting to invoke his right to have an attorney present with him during questioning. The officers' continued questioning of N.J.O. after that point violated Miranda and renders N.J.O.'s subsequent statement subject to suppression.
The cases cited by the State in its brief to this court do not compel a different result. The State relies on cases in which the suspect had initially waived his Miranda rights and then, during the interrogation, made ambiguous statements about invoking his rights, see Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), or in which the suspect was not involved in a custodial interrogation at the time he mentioned wanting an attorney, see State v. Carter, 172 So. 3d 538 (Fla. 5th DCA 2015), or in which the officers made misleading statements about Miranda rights in response to a suspect's questions, see Isom v. State, 819 So. 2d 154 (Fla. 2d DCA 2002). Such are not the facts here, and therefore, these cases do not dictate the outcome here.
In sum, we note that jurisprudence in this country does not require more of law enforcement officers than their reading the suspect his or her rights from a Miranda card before interrogation. Usually, a simple "yes" answer to the question of whether a suspect understands his or her rights has been deemed sufficient to establish that the suspect did, in fact, understand his or her rights. But occasionally, other statements may show that the initial "yes" answer did not actually indicate a knowing understanding of the rights at issue. Such was the case here when N.J.O. told the officers that he did not understand big words and was concerned that certain statements were "worded funny." These comments essentially nullified any interpretation of the prior "yes" answers as reflecting a true understanding by N.J.O. of the rights at issue. And the officers' subsequent attempt to allay N.J.O.'s concerns about trickery with funny or big words was of no moment because, at that point, N.J.O. had already invoked his Miranda rights. These facts militate against any conclusion that N.J.O. knowingly and voluntarily waived his rights before speaking with the officers, and they require suppression of his ensuing statements.
Finally, we cannot say that the error in this case is harmless. As the supreme court as explained:
Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.
State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986) ; see also Wilson v. State, 242 So. 3d 484, 499 (Fla. 2d DCA 2018). In the context of sentencing, an "error is harmless only if there is no reasonable possibility that the error contributed to the sentence." Wood v. State, 209 So. 3d 1217, 1233 (Fla. 2017) (quoting Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016) ).
In this case, the record shows that the error did, in point of fact, contribute to the sentence. The DJJ recommended that N.J.O. be sentenced to probation because he had no prior record, no diversions, and no other incidents in the past. Nevertheless, based solely on the content of N.J.O.'s statement to the officers, the court determined that a harsher sentence was necessary. The court pointed to N.J.O.'s efforts to "set up" the victim because he knew from school that the victim usually carried cash and stated:
[T]here's a level of premeditation involved and I'm not suggesting this was, you know, the Brinks robbery, but, you know, they—they—in my opinion, based on hearing the testimony, [N.J.O.] lured that kid to that location, jumped him; put a gun to him and then led him, you know, for a period of time, to go get money.
It wasn't, you know, one rash bad act. It was thought out ahead of time and it took a period of time to complete. That makes it much different than most of what we see in here, which is wrong crowd and they check a door handle and rummage through a car, and see if they can find anything in there. That's a lot different.
The only evidence in the record of any type of premeditation—that N.J.O. may have targeted the victim and "lured" him to the location—came from N.J.O.'s statement to the officers. Without that statement, the trial court would have had no factual basis for departing from the DJJ recommendation concerning the sentence to be imposed. Therefore, because there is a reasonable probability that the error in considering and admitting N.J.O.'s statement contributed to the sentence imposed, the error was not harmless.
For all of these reasons, we hold that the trial court erred by denying the motion to suppress N.J.O.'s statement and that the error was not harmless. We must therefore reverse the disposition order to the extent that it finds N.J.O. guilty of attempted robbery with a deadly weapon and remand for a new trial on that charge before a different judge. After that trial, N.J.O. is entitled to a new disposition hearing.
Affirmed in part, reversed in part, and remanded for a new trial and disposition hearing.
CASANUEVA and SMITH, JJ., Concur.