FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-3659
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THOMAS JAMES EVERSOLE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Columbia County.
Paul S. Bryan, Judge.
August 1, 2019
ROWE, J.
Thomas Eversole appeals his judgment and sentence for
burglary of a dwelling and dealing in stolen property. Eversole
argues that the trial court erred in denying his motion to suppress
statements he made to police during a recorded interview without
his counsel present. For the reasons below, we affirm.
Facts
Following his arrest, Eversole was booked into the local jail to
await trial. At first, he refused to speak to investigators and
retained attorney Travis Koon to represent him.
But seven weeks after he was taken into custody, Eversole
told a deputy at the jail that he wanted to speak with the police.
When Eversole made the request, he did not ask for his attorney
to accompany him. Eversole was transported to the Sheriff’s office
for an interview, which was conducted by Detectives Watson and
Foote. Watson read Eversole his Miranda rights. Eversole stated
he understood his rights and wanted to speak to the officers about
the burglary and other charges pending against him.
Within the first five minutes of the interview, the following
exchange occurred:
WATSON: Okay. And having your rights in mind do you
wish to talk to us right now?
EVERSOLE: Yeah, I. do.
WATSON: Okay.
EVERSOLE: If we were to try to get a hold of Travis
Koon and get him out here do you think we could get
him out here?
WATSON: Yeah, that’s up to you. If you want to try to
get a hold of him. What he’s probably gonna do is,
depending on his schedule, he may want to reschedule
you to a time based on his schedule, so we would have
to see about that. I don’t know---Like I don’t know
Travis’ schedule. I don’t know if he can drop what he’s
doing and come straight out here or if he’s available
right now or available later. So I don't know.
Eversole responded by indicating dissatisfaction with Koon’s
representation of him, and by repeating rumors he had heard
about Koon. Eversole asked if he needed a different attorney, and
the following exchange occurred:
WATSON: If you’re unhappy with your lawyer, and you
feel like you’ve got cause to do that, you can certainly
ask the Court for a different one.
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EVERSOLE: I’ve paid him.
WATSON: Okay. Well, then that’s up to you then. If
you're paying him to be your lawyer you can cancel that
and ask for a different one.
After considering the responses from the detectives, Eversole
resumed the conversation and began to discuss the charges against
him. The interview lasted almost seven hours during which
Eversole made several incriminating statements.
Eversole moved to suppress the statements made during his
recorded police interview. He argues that the statements were
unlawfully obtained because he made an unequivocal request for
counsel that required the detectives to end the interview or wait
for the arrival of his attorney. Alternatively, he argued that even
if the statements were equivocal, the detectives steamrolled him
into continuing the interview instead of providing simple and
straightforward answers to his questions about his rights. The
trial court denied the motion, finding that Eversole did not make
an unequivocal request for counsel, and that the detectives’
responses complied with the requirements of the law.
The case went to trial, and a jury found Eversole guilty of
burglary and dealing in stolen property. Eversole appeals.
Standard of Review
When considering a trial court’s ruling on a motion to
suppress, we apply a mixed standard of review. Scott v. State,
151
So. 3d 567, 573 (Fla. 1st DCA 2014). We will affirm a trial court’s
factual findings if they are supported by competent, substantial
evidence.
Id. We review a trial court’s conclusions of law de novo.
Id.
Analysis
Eversole argues that his motion to suppress should have been
granted because: (1) he made an unequivocal request for counsel;
(2) or if his request was equivocal, the detectives did not provide
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simple, straightforward answers to his questions about his right to
counsel.
When a suspect “clearly and unequivocally” requests counsel
at any time during a custodial interview, the police must
immediately stop an interrogation. Davis v. U.S.,
512 U.S. 452, 458
(1994). But the police need not stop an interview when a suspect
makes an equivocal or ambiguous request for counsel. Washington
v. State,
253 So. 3d 64, 68 (Fla. 1st DCA 2018). When determining
whether a suspect’s statement was an unequivocal request for
counsel, a reviewing court must consider the totality of the
circumstances. Deviney v. State,
112 So. 3d 57, 72 (Fla. 2013).
Here, Eversole argues that he unequivocally requested
counsel when he said, “If we were to try to get a hold of Travis Koon
and get him out here do you think we could get him here?” But
statements such as “maybe I should talk to a lawyer” are not
requests for counsel.
Davis, 512 U.S. at 462. These types of
statements do not require the police to ask clarifying questions as
long as the suspect was properly made aware of his rights. Spivey
v. State,
45 So. 3d 51, 54 (Fla. 1st DCA 2010). “The suspect must
‘articulate his desire to cut off questioning with sufficient clarity
that a reasonable police officer in the circumstances would
understand the statement to be an assertion of the right to remain
silent.’”
Id. at 54 (quoting State v. Owen,
696 So. 2d 715, 718 (Fla
1997)). Eversole’s question about contacting Koon was a
conditional and equivocal request because it did not clearly express
Eversole’s desire to call his attorney and halt the interrogation or
that he would not answer any questions without his attorney
present.
Spivey, 45 So. 3d at 55 (finding that statement was a
conditional request because it was prefaced with the word “if”).
Eversole argues that even if his request were equivocal, the
detectives interviewing him did not give straightforward answers
to his questions about his right to contact counsel and instead
“steamrolled” him into answering their questions. The Florida
Supreme Court has held: “[I]f, at any point during custodial
interrogation, a suspect asks a clear question concerning his or her
rights, the officer must stop the interview and make a good-faith
effort to give a simple and straightforward answer.” Almeida v.
State,
737 So. 2d 520, 525 (Fla. 1999). If the officer properly
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answers the question, the interrogation can resume—assuming
the suspect does not invoke his right to counsel.
Id. The Florida
Supreme Court has emphasized that the police need not “act as
legal advisors or personal counselors for suspects.” State v.
Glatzmayer,
789 So. 2d 297, 305 (Fla. 2001). “All that is required
of interrogating officers . . . is that they be honest and fair when
addressing a suspect's constitutional rights.”
Id. at 305.
In Almeida, after the defendant had been properly
Mirandized, the police asked, “Do you wish to speak to me now
without an attorney
present?” 737 So. 2d at 522. The defendant
responded, “Well, what good is an attorney going to do?”
Id. at 522.
Rather than answer the question in a simple manner, the court
held that the police “steamrolled” the defendant by responding
“Okay, well you already spoke to me and you want to speak to me
again on tape? We are, we are just going to talk to you as we talked
to you before, that is all.”
Id. at 522. The court held that the officers
should have made an honest effort to answer the defendant’s
question.
Id. at 525. Instead, the officers’ answers exacerbated the
inherently coercive environment and placed in doubt the validity
of the prior waiver because the defendant’s answer suggested a
lack of understanding.
Id.
In Glatzmayer, the defendant asked officers if “they thought
he should get a
lawyer?” 789 So. 2d at 300. The officers responded
that it was his decision. The Florida Supreme Court held, “Unlike
the situation in Almeida, the officers did not engage in
‘gamesmanship’; they did not try ‘to give an evasive answer, or to
skip over the question, or to override or ‘steamroll’ the suspect.’”
Id. at 305.
Here, Eversole asked, “If we were to try to get a hold of Travis
Koon and get him out here do you think we could get him here?”
The detectives’ responses were simple, straightforward and
informed Eversole that he had the right to contact his attorney.
The officers then conveyed the possibility that they might have to
reschedule the interview for a different time based on Koon’s
schedule. Neither officer evaded Eversole’s questions nor tried to
steamroll Eversole. Instead, when Eversole asked his questions,
they stopped the interview and provided simple and
straightforward answers. Under these facts, the officers had a
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right to continue with the interrogation until Eversole clearly and
unequivocally expressed his desire to end the interview or contact
counsel.
Because Eversole did not unequivocally invoke his right to
counsel, and the detectives provided straightforward and simple
answers to Eversole’s questions about his rights, the trial court
properly denied the motion to suppress.
AFFIRMED.
ROBERTS and KELSEY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and M. J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Amanda D. Stokes,
Assistant Attorney General, Tallahassee, for Appellee.
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