Jahmahree Daniel v. State , 238 So. 3d 1283 ( 2018 )


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  •            IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FIFTH DISTRICT
    NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    JAHMAHREE DANIEL,
    Appellant,
    v.                                                      Case No. 5D16-3340
    STATE OF FLORIDA,
    Appellee.
    ________________________________/
    Opinion filed March 29, 2018
    Appeal from the Circuit Court
    for Orange County,
    Renee A. Roche, Judge.
    James S. Purdy, Public Defender, and
    Robert Jackson Pearce III, Assistant Public
    Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General,
    Tallahassee, and Andrea K. Totten,
    Assistant Attorney General, Daytona Beach,
    for Appellee.
    ORFINGER, J.
    Jahmahree Daniel appeals his convictions and sentences, arguing that the trial
    court erred by denying his motion to suppress his post-arrest statement to law
    enforcement. 1 We agree and reverse.
    1   We affirm as to Daniel’s other issue without discussion.
    The charges against Daniel stemmed from a bank robbery. Just after Brinks had
    completed its cash delivery, three men wearing bandanas, gloves, hooded sweatshirts,
    and wielding what appeared to be handguns stormed a SunTrust Bank, yelling “Put your
    hands up!” The robbers zip tied the bank employees and customers before making off
    with $140,000 from the vault. Within an hour, the GPS trackers mixed in with the stolen
    money were found discarded by a lake, directly behind the apartment that Daniel shared
    with his girlfriend and children.
    Several days later, Daniel was taken into custody on unrelated charges, although
    investigators already suspected that he was involved in the robbery. While Daniel was at
    the police station, his mother gave the police a key to a storage locker. The police
    searched the storage locker, discovering multiple items linked to the robbery, including:
    articles of clothing similar to those described by the victims, zip ties, approximately
    $67,000 in cash wrapped in SunTrust wrappers, an unloaded pellet gun, and a box of 20-
    gauge shotgun shells. Daniel’s fingerprints were found on the box of shotgun shells and
    some of the money wrappers.
    After being read the Miranda 2 warnings and agreeing to be interviewed, law
    enforcement personnel began interrogating Daniel. During the first of two recorded
    interviews, the following exchange occurred between Daniel and one of the interrogating
    officers:
    Q         So you would tell us the truth if you did it, right? And you’d tell
    us ‘cause of your kids?
    A         And I wanna. . .
    2    Miranda v. Arizona, 
    384 U.S. 436
    (1966).
    2
    The officers continued the interrogation—never returning to the issue of Daniel’s
    request for counsel. After the first interview ended, law enforcement officers again
    interrogated Daniel, informing him that in the intervening two hours, the police had
    searched the storage locker and found evidence of the robbery. Daniel then admitted
    that he participated in the bank robbery. In his written statement, Daniel said that he was
    one of the three men who walked into the bank and demanded money, the employees
    gave it to them, they left, and when they found the trackers in the money, they threw them
    out near a lake.
    Daniel was arrested and subsequently filed a pre-trial motion to suppress the
    incriminating statements, which was denied after a hearing. Following a trial, the jury
    found Daniel guilty of one count of robbery with a deadly weapon, one count of aggravated
    assault with a deadly weapon, and three counts of false imprisonment with a weapon. He
    challenges the trial court’s denial of his motion to suppress in this appeal.
    Daniel contends that the trial court erred in denying his motion to suppress his
    post-arrest statement because his statement “Can I have a lawyer” was an unequivocal
    and unconditional request for counsel. He asserts the police should have honored his
    request and ceased their questioning until counsel was available to him. Daniel further
    argues that even if his statement did not invoke the right, it was at least prefatory to that
    invocation, and required a simple, straightforward answer.
    A trial court’s ruling on a motion to suppress is presumptively correct and will be
    upheld if supported by the record. E.g., Cuervo v. State, 
    967 So. 2d 155
    , 160 (Fla. 2007);
    San Martin v. State, 
    717 So. 2d 462
    , 469 (Fla. 1998). We defer to the trial court findings
    of fact, provided they are supported by competent, substantial evidence, but review its
    4
    91, 97-98 (1984). This is an objective determination that will look to the understanding of
    a reasonable officer in light of the circumstances. 
    Davis, 512 U.S. at 458-59
    . In this
    inquiry, the court does not consider the totality of the circumstances of the interrogation.
    
    Smith, 469 U.S. at 97-98
    . Indeed, it is error to consider any statements subsequent to
    the request, which are only relevant to the question of waiver. 
    Id. at 98-100
    (holding that
    accused’s post-request responses to further interrogation may not be used to cast
    retrospective doubt on clarity of initial request itself).
    Applying these standards, we conclude that Daniel's request for a lawyer was an
    unequivocal request for counsel. See Laurito v State, 
    120 So. 3d 203
    , 204 (Fla. 5th DCA
    2013) (holding statement “Can I make a phone call so I can get a lawyer?" to be
    unequivocal request for counsel); State v. Soto, 
    954 So. 2d 686
    , 688 (Fla. 4th DCA 2007)
    (holding that defendant's statement to police officer during custodial interrogation, “I can't
    make a phone call or nothing, no?” was clear and unambiguous request for lawyer in
    context); Bean v. State, 
    752 So. 2d 644
    , 646 (Fla. 5th DCA 2000) (viewing statement “I
    should be able to talk to a lawyer” as unequivocal request for counsel); see United States
    v. Lee, 
    413 F.3d 622
    , 624 (7th Cir. 2005) (determining clear assertion of right to counsel
    where defendant asked “Can I have a lawyer?”); People v. Howerton, 
    782 N.E.2d 942
    ,
    945 (Ill. App. Ct. 2003) (holding “Well, can I have a lawyer then?” was valid request
    invoking defendant's right to counsel); State v. Dumas, 
    750 A.2d 420
    , 424 (R.I. 2000)
    (explaining “Can I get a lawyer?” may be unequivocal request for counsel unlike “Do I
    need a lawyer?,” which is request for advice).
    However, even if Daniel's inquiry is viewed as an equivocal question about whether
    he could have a lawyer, the interrogating officer was required to cease his questioning
    6
    application of law de novo. Delhall v. State, 
    95 So. 3d 134
    , 150 (Fla. 2012); Pagan v.
    State, 
    830 So. 2d 792
    , 806 (Fla. 2002).
    A suspect has the right to consult with an attorney and to have an attorney present
    during custodial questioning. Spivey v. State, 
    45 So. 3d 51
    , 54 (Fla. 1st DCA 2010) (citing
    Miranda v. Arizona, 
    384 U.S. 436
    , 469-73 (1966)). “If a suspect clearly and unequivocally
    requests counsel at any time during a custodial interview, the interrogation must
    immediately stop until a lawyer is present or the suspect reinitiates conversation.” 
    Id. On the
    other hand, if a suspect makes an equivocal or ambiguous request for counsel, police
    officers are not required to stop the interrogation or ask clarifying questions. 
    Id. at 53,
    54-
    55 (holding that appellant’s statement, “I mean if I am being held and I’m being charged
    with something I need to be on the phone calling my lawyer,” was not unequivocal request
    for counsel because it “did not clearly indicate that [he] wanted counsel present at that
    time or that he would not answer any further questions without counsel”); see also Walker
    v. State, 
    957 So. 2d 560
    , 571, 574 (Fla. 2007) (finding that appellant did not make
    unequivocal request for counsel where he said, “I think I might want to talk to an attorney”
    and later asked agent if he needed attorney); Jones v. State, 
    748 So. 2d 1012
    , 1020 (Fla.
    1999) (finding that appellant’s statement that he wanted to speak “to his mother, his
    attorney, and Detective Parker” was not unequivocal request for counsel).
    Whether a suspect has invoked the right to counsel is an “objective inquiry” that
    requires “at a minimum, some statement that can reasonably be construed to be an
    expression of a desire for the assistance of an attorney.” Davis v. United States, 
    512 U.S. 452
    , 459 (1994) (quoting McNeil v. Wisconsin, 
    501 U.S. 171
    , 178 (1991)). “A statement
    either is such an assertion [of the right to counsel] or it is not.” Smith v. Illinois, 
    469 U.S. 5
    91, 97-98 (1984). This is an objective determination that will look to the understanding of
    a reasonable officer in light of the circumstances. 
    Davis, 512 U.S. at 458-59
    . In this
    inquiry, the court does not consider the totality of the circumstances of the interrogation.
    
    Smith, 469 U.S. at 97-98
    . Indeed, it is error to consider any statements subsequent to
    the request, which are only relevant to the question of waiver. 
    Id. at 98-100
    (holding that
    accused’s post-request responses to further interrogation may not be used to cast
    retrospective doubt on clarity of initial request itself).
    Applying these standards, we conclude that Daniel's request for a lawyer was an
    unequivocal request for counsel. See Laurito v State, 
    120 So. 3d 203
    , 204 (Fla. 5th DCA
    2013) (holding statement “Can I make a phone call so I can get a lawyer?" to be
    unequivocal request for counsel); State v. Soto, 
    954 So. 2d 686
    , 688 (Fla. 4th DCA 2007)
    (holding that defendant's statement to police officer during custodial interrogation, “I can't
    make a phone call or nothing, no?” was clear and unambiguous request for lawyer in
    context); Bean v. State, 
    752 So. 2d 644
    , 646 (Fla. 5th DCA 2000) (viewing statement “I
    should be able to talk to a lawyer” as unequivocal request for counsel); see United States
    v. Lee, 
    413 F.3d 622
    , 624 (7th Cir. 2005) (determining clear assertion of right to counsel
    where defendant asked “Can I have a lawyer?”); People v. Howerton, 
    782 N.E.2d 942
    ,
    945 (Ill. App. Ct. 2003) (holding “Well, can I have a lawyer then?” was valid request
    invoking defendant's right to counsel); State v. Dumas, 
    750 A.2d 420
    , 424 (R.I. 2000)
    (explaining “Can I get a lawyer?” may be unequivocal request for counsel unlike “Do I
    need a lawyer?,” which is request for advice).
    However, even if Daniel's inquiry is viewed as an equivocal question about whether
    he could have a lawyer, the interrogating officer was required to cease his questioning
    6
    and give a “simple and straightforward” answer to the question. See Almeida v. State,
    
    737 So. 2d 520
    , 525 (Fla. 1999). In Almeida, the Florida Supreme Court distinguished
    an equivocal statement that requires no clarification from a question that is “prefatory to—
    and possibly determinative of—the invoking of a 
    right.” 737 So. 2d at 523
    . The court held
    that
    if, 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. To do otherwise—i.e., to
    give an evasive answer, or to skip over the question, or to
    override or “steamroll” the suspect—is to actively promote the
    very coercion that Traylor [v. State, 
    596 So. 2d 957
    (Fla.
    1992)] was intended to dispel. A suspect who has been
    ignored or overridden concerning a right will be reluctant to
    exercise that right freely. Once the officer properly answers
    the question, the officer may then resume the interview
    (provided of course that the defendant in the meantime has
    not invoked his or her rights). Any statement obtained in
    violation of this proscription violates the Florida Constitution
    and cannot be used by the State.
    
    Id. at 525.
    Thus, a prefatory statement is subject to the following three-step analysis: (1)
    was the defendant referring to a constitutionally guaranteed right; (2) was the utterance
    a clear, bona fide question calling for an answer, not a rumination or a rhetorical question;
    and (3) did the officer make a good-faith effort to give a simple and straightforward
    answer. 
    Id. at 523–25.
    Here, as in Almeida, Daniel was clearly referring to his right to counsel. While
    Daniel’s statement was made well into the police interview and not in response to the
    reading of his rights, Daniel clearly indicated a desire to speak with a lawyer. Daniel’s
    statement is a much more direct reference to the right to counsel than the statement in
    Laurito—“Can I make a phone call so that I can get a lawyer”—which this Court found
    7
    constituted an unequivocal request for counsel as well as was sufficient to trigger the
    officer’s duty under Almeida to provide a simple straightforward answer before continuing
    the interview. Turning to the next step in the Almeida analysis, the statement at issue
    was a bona fide question calling for an answer. From the record of the suppression
    hearing, it is clear that the officers interpreted Daniel’s statement as if it was a bona fide
    question calling for an answer, which was never given (the final step of the analysis).
    The State argues that the error, if any, was harmless.           We disagree.     “The
    erroneous admission of statements obtained in violation of Miranda rights is subject to
    harmless error analysis.” Mansfield v. State, 
    758 So. 2d 636
    , 644 (Fla. 2000) (quoting
    Caso v. State, 
    524 So. 2d 422
    , 425 (Fla. 1988)). In State v. DiGuilio, 
    491 So. 2d 1129
    ,
    1135 (Fla. 1986), the Florida Supreme Court explained:
    The harmless error test . . . places the burden on the state, as the
    beneficiary of the error, to prove beyond a reasonable doubt that the
    error complained of did not contribute to the verdict or, alternatively
    stated, that there is no reasonable possibility that the error
    contributed to the conviction. Application of the test requires an
    examination of the entire record by the appellate court including a
    close examination of the permissible evidence on which the jury
    could have legitimately relied, and in addition an even closer
    examination of the impermissible evidence which might have
    possibly influenced the jury verdict.
    (Citation omitted). Importantly,
    the applicable test “is not a sufficiency-of-the-evidence, a correct
    result, a not clearly wrong, a substantial evidence, a more probable
    than not, a clear and convincing, or even an overwhelming evidence
    test.” 
    DiGuilio, 491 So. 2d at 1139
    . Likewise, it is not a strong
    evidence test. Rather, the test is “whether there is a reasonable
    possibility that the error affected the verdict.” Id.; see also Ventura v.
    State, 
    29 So. 3d 1086
    , 1091 (Fla. 2010) (quashing and remanding a
    district court's decision when the harmless error analysis focused on
    overwhelming evidence of guilt because it “does not address a
    proper [DiGuilio] analysis and does not discuss whether there is a
    reasonable possibility that the . . . error affected the verdict”).
    8
    Cooper v. State, 
    43 So. 3d 42
    , 43 (Fla. 2010); see Jackson v. State, 
    107 So. 3d 328
    , 342
    (Fla. 2012) (reiterating that court “has many times emphasized that the harmless error
    test is not a ‘sufficiency of the evidence’ test or an ‘overwhelming evidence’ test because
    the relative strength of the permissible evidence does not negate the fact that the
    impermissible evidence may have played a substantial part in the jury's deliberation”);
    State v. Lee, 
    531 So. 2d 133
    , 136 (Fla. 1988) (recognizing focus of harmless error
    analysis must be effect of error on trier of fact). Applying this test, we conclude the error
    was not harmless beyond a reasonable doubt.
    Here, compelling evidence of Daniel’s guilt was presented to the jury through his
    confession, in which he admitted that he took part in the bank robbery where he held up
    the bank’s employees and guests, zip tied them, took money from the bank vault, and
    dumped the trackers behind his apartment building. It is simply impossible to conclude
    that the erroneous admission of this highly detailed confession did not contribute to the
    convictions in this matter. 
    DiGuilio, 491 So. 2d at 1135
    .
    We reverse Daniel’s convictions and sentences and remand for a new trial.
    AFFIRMED in part; REVERSED in part; and REMANDED.
    TORPY, J., concurs.
    COHEN, C.J., dissenting, with opinion.
    9
    CASE NO. 5D16-3340
    COHEN, C.J., dissenting, with opinion.
    I agree with the majority that the trial court erred in denying Daniel’s motion to
    suppress the confession. The statement, “Look, can I have a lawyer, man,” is a clear
    assertion of the constitutional right to counsel, warranting suppression when that request
    was not honored. In my view, however, the error in admitting Daniel’s confession was
    harmless.
    Other than a video recording of the commission of a crime, the admission of a
    confession is often the most compelling and damaging evidence that can be presented
    at trial. Nonetheless, the erroneous admission of a confession is not per se reversible
    error; instead, a harmless error analysis applies. Mansfield v. State, 
    758 So. 2d 636
    , 644
    (Fla. 2000). To establish that an error was harmless, the State must “prove beyond a
    reasonable doubt that the error complained of did not contribute to the verdict or,
    alternatively stated, that there is no reasonable possibility that the error contributed to the
    conviction.” State v. DiGuilio, 
    491 So. 2d 1129
    , 1135 (Fla. 1986).
    In determining whether an error was harmless, appellate courts must examine the
    entire record, view the admissible evidence presented to the jury, and consider how the
    jury might have been influenced by the improperly admitted evidence. See 
    id. Although the
    analysis “is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a
    substantial evidence, a more probable than not, a clear and convincing, or even an
    overwhelming evidence test,” see 
    id. at 1139,
    in order to employ the analysis, we are
    compelled to examine the evidence admitted, without objection, of Daniel’s guilt.
    10
    Within hours of the bank robbery, tracking devices from the money stolen from the
    bank were found behind the apartment building where Daniel resided. Three days after
    the robbery, Daniel’s brother, Jashua, along with another man, were arrested in a rental
    car following a traffic stop. Police found roughly $4,200 in the center console of the
    vehicle. Both men denied knowing that the money was in the car. It became clear from
    Jashua’s phone call to his mother from jail that both he and Daniel had participated in the
    robbery. Jashua instructed his mother to clean out the house and backyard, to put
    everything back in storage, and not to wait for Daniel to help. Jashua also instructed her
    to keep no more than 200 or 300, obviously referring to money.
    Based on that phone call, police served warrants on both Daniel’s and the mother’s
    residences. The mother thereafter provided police the location of and a key to a storage
    unit. In that unit, police discovered $67,000 in cash secured in SunTrust bands on which
    the fingerprints of Jashua, Daniel, and their mother were located. Police also found
    clothing precisely matching the description of those worn by the bank robbers, zip ties
    consistent with those used in the robbery, an unloaded airsoft pellet gun, and a box of 20-
    gauge shotgun shells. Daniel’s fingerprints were located on the box of shotgun shells.
    While the State noted that Daniel confessed to participating in the robbery, his
    confession was not the focus of the State’s closing argument. In my view, the introduction
    of the confession did not affect the verdict in this case, and the erroneous admission of
    the confession was harmless. 3 I would affirm.
    3 This harmless error analysis contemplates that absent the introduction of the
    confession, Daniel could attempt to argue identity as a defense to the charges.
    11