LeShannon Jerome Shelly v. State of Florida , 262 So. 3d 1 ( 2018 )

Supreme Court of Florida
____________
No. SC16-1195
____________
LESHANNON JEROME SHELLY,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
December 13, 2018
PER CURIAM.
LeShannon Jerome Shelly seeks review of the decision of the Fourth District
Court of Appeal in Shelly v. State, 199 So. 3d 973 (Fla. 4th DCA 2016), on the
basis that it expressly and directly conflicts with the decision of this Court in
Welch v. State, 992 So. 2d 206 (Fla. 2008), on a question of law. The decision
below references Moss v. State, 60 So. 3d 540 (Fla. 4th DCA 2011), instead of
Welch, even though it states that Shelly reinitiated communication after invoking
his right to counsel. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
FACTUAL AND PROCEDURAL BACKGROUND
On December 14, 2011, around 11:15 p.m., officers were called to the
Orangewood Apartments in Indian River County, Florida, in response to a reported
shooting. Upon arrival, officers found two victims, Shanice Smith, who was dead,
and Brittany Jackson, who was still alive. The following day, Shelly appeared at
the Indian River County Jail at approximately 5:00 a.m. Shelly agreed to answer
questions after being taken to the interrogation room and read his Miranda1 rights.
The entire interrogation was videotaped and monitored. 2
Shelly claimed he was in Boynton Beach with two friends during the time of
the murder. However, Detective Kevin Heinig informed Shelly that both of his
friends claimed that they were not with Shelly past 9:45 p.m.
[Detective Heinig]: Okay, um--you said you went down to South
Florida?
[Shelly]: Yes sir.
[Detective Heinig]: And who was it you went with?
[Shelly]: Loudy and Ayesha Harden.
[Detective Heinig]: Who?
[Shelly]: Loudy Monplasir and Ayesha Harden.
1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. The entire interrogation lasted approximately four and one-half hours.
-2-
[Detective Heinig]: Okay, I just spoke with both of them.
[Shelly]: Yes sir.
[Detective Heinig]: Okay. Loudy tells me that they picked you up at
9:30. Oh no, I’m sorry. Yes, they came to your house around 9:30,
9:40, they picked you up, they took you to This and That and you
bought a couple of things, they took you back home 9:45, somewhere
in that area and they haven’t seen you again for the rest of the night.
[Shelly]: Man, yea right.
[Detective Heinig]: They’re, they’re both telling me that.
Detective Heinig then informed Shelly that he was spotted by two
eyewitnesses leaving the vicinity of the murder shortly after gunshots were heard.
[Detective Heinig]: Okay. We also have a eye witness that witnessed
the shooting at the park. They saw the shooter.
[Shelly]: Yea.
[Detective Heinig]: Listen. They saw the shooter shoot three times,
turn around, turn back shoot two more times, and then was east
through the complex.
....
[Detective Heinig]: Then I have another witness that sees you, one
hundred percent sure you, they’ve known you for a long time--
[Shelly]: Yea.
[Detective Heinig]: --go out of Orangewood Apartments through the
back of it, cross across 30th. onto 43rd. Street.
[Shelly]: Yea.
-3-
[Detective Heinig]: You were talking on your cell phone when you
walked by them.
[Shelly]: I what? Talking to myself?
[Detective Heinig]: Talking on your cell phone, had your cell phone
up to your ear.
[Shelly]: How is that possible when I’m on 95--
[Detective Heinig]: You’re not.
[Shelly]: --at the time?
[Detective Heinig]: You’re not on 95, because they’re telling me that
you aren’t with them.
Shelly then asked Detective Heinig to call his mother so she could confirm
that he was dropped off by his two friends at the Fort Pierce Greyhound bus station
after coming back from Boynton Beach. Detective Heinig exited the interrogation
room and Detective Chris Cassinari entered. Detective Cassinari pointed out
several issues within Shelly’s account of his whereabouts. Shelly then asked
Detective Cassinari to call his mother so she could corroborate his alibi.
[Shelly]: . . . I wasn’t there. I don’t know who was there. I know I
wasn’t there. And I know I was with Ayesha Harden. Why would I
bring they name up out of the blue?
[Detective Cassinari]: I don’t know why you would.
[Shelly]: I was with--call my mom. You have a phone right there, all
you got to do is call . . . “Mom who dropped me off at the um--
Greyhound Station right beside you in the green Honda?” That’s all I
want to know.
-4-
Detective Cassinari then exited the interrogation room. While alone in the
room, Shelly stated, “Y’all better watch the First 48.[3] I ain’t done it. I ain’t do it.
When the man say he ain’t do it let ’em talk to his lawyer, y’all got to let ’em go
man. Y’all don’t have no evidence on me, dog.” Detective Heinig then entered
the room and played a portion of a recorded conversation that the detectives had
with Shelly’s grandmother. Shelly became frustrated that the detectives had
spoken with his grandmother instead of his mother. Detective Heinig explained to
Shelly that Shelly’s mother was also on the phone during the conversation. The
following exchange then occurred:
[Shelly]: --call the 501 number on the top, that’s Adam. Man, the
man picked me up man. Y’all asked my grandma. I ain’t asked you
to ask my grandma. My grandma wasn’t there man. Y’all tripping
dude. Y’all going all out the boundaries bro. Man, let me talk to my
lawyer now, dog. Let me talk to my lawyer now man, since y’all
want to play crazy. Shit, man, y’all tripping, dog. I ain’t doing
nothing else without my lawyer, dog. Lock me up, whatever you got
to do. I ain’t doing no more talking, now y’all tripping, dog. Y’all
asking my grandma, a person wasn’t even there. My grandma ain’t
had nothing to do with me picking up. My grandma don’t know
what’s going on man.
[Detective Heinig]: Stand up.
3. “The First 48” is a nonfiction investigative television series that “takes
viewers behind the scenes of real-life investigations as it follows homicide
detectives in the critical first 48 hours of murder investigations, giving viewers
unprecedented access to crime scenes, interrogations and forensic processing.” A
& E Network, The First 48, a&etv.com, http://www.aetv.com/shows/the-first-48
(last visited Aug. 20, 2017).
-5-
[Shelly]: Yes, I’m gonna stand up.
[Detective Heinig]: Put your hands behind your back.
[Shelly]: Yea. Yea man. Doing no more talking without the lawyer.
Y’all are asking my grandma. My grandma at the house man. I say
call my mom, not my grandma. Y’all call the last number--
[Detective Heinig]: (Unintelligible) mom talked first--
[Shelly]: --(Unintelligible), man call Adam--
[Detective Heinig]: (Unintelligible.)
[Shelly]: --the number that’s on there last. The man that was with my
mom in Fort Pierce that picked me up from the Greyhound Station
man.
[Detective Heinig]: Who we got to transport? There’s no more
runaround.
[Shelly]: Ain’t no more runaround?
[Detective Heinig]: (Unintelligible). They’re gonna have to do the
header first.
[Shelly]: Y’all gonna ask my grandma. The shooter had--y’all said
the shooter had on pants, I got shorts on and flip flops.
[Detective Heinig]: (Unintelligible) and have a seat.
[Shelly]: Huh?
[Detective Heinig]: Have a seat.
Detective Heinig then stood immediately outside of the interrogation room
and had a brief conversation with other detectives concerning Shelly’s pending
transfer to jail. While Detective Heinig was speaking with the other detectives
-6-
Shelly continued to make comments with regard to the phone call with his mother
and grandmother.
[Shelly]: (Unintelligible.) Y’all ready?
[Detective Heinig]: No.
[Shelly]: Oh.
[Detective Heinig]: Just relax.
[Shelly]: Alright. I said, call my mom, you called my grandma.
[Detective Heinig]: (Unintelligible.)
[Shelly]: Excuse me sir. My grandma don’t have anything to do
with--my grandma was home.
[Detective Heinig]: I know they--when they talked to her--
[Shelly]: Man you can’t talk to my grandma. My momma is
aggravated right now cause she feel like y’all trying to hinder me right
now. Talk to my mom, dog. Ta--sir, not dog, but sir.
[Detective Heinig]: Alright.
Detective Heinig then exited the room and Detective Tony Consalo entered.
The following exchange then took place.
[Detective Consalo]: We’ll be taking you next door in just a few
minutes.
[Shelly]: Yes sir, I understand that. Hey sir--excuse me man, sir. All
I ask can you do one thing.
[Detective Consalo]: What is that?
[Shelly]: Just call my mom, man. At--listen, sir--
-7-
[Detective Consalo]: Shannon--
[Shelly]: --I’m trying to tell you--
[Detective Consalo]: --listen, I just talked to your mom. Your mom
called here.
[Shelly]: Yea.
[Detective Consalo]: Okay. I--
[Shelly]: Didn’t she pick me up from Fort Pierce, sir?
[Detective Consalo]: Listen to me. Okay, you, you already--you
asked for an attorney, okay you didn’t want to talk anymore.
[Shelly]: Yea.
[Detective Consalo]: Do you--so I’m not gonna ask you any
questions.
[Shelly]: Alright.
[Detective Consalo]: Okay? If you want me to answer that question
then you need to tell me that you want to reinitiate conversation with
us. Alright, cause I was the one that talked to your mom.
[Shelly]: I know my mom picked me up from Fort Pierce sir.
[Detective Consalo]: Okay.
[Shelly]: We met there dog. Sir. Not dog, but sir. I know we did. I
know we did. I know we did. I know we did. We was there man.
She was there sitting in a green Honda, right in the um--the
Greyhound Station in Fort Pierce, that station, the Greyhound--
[Detective Consalo]: Listen--
[Shelly]: --(Unintelligible).
-8-
[Detective Consalo]: You, you know your rights, you know you
might not want to say--if you want to talk to us a little bit longer then
you need to say I want to talk to you a little bit longer--
[Shelly]: No.
[Detective Consalo]: --and I’ll sit there and talk to you. Okay?
[Shelly]: Y’all fixing to book me for nothing. What y’all booking me
ah--like for? Okay, no more talk.
[Detective Consalo]: Ah--that’s up to you. You said, you, you--
[Shelly]: (Unintelligible.)
[Detective Consalo]: --(Unintelligible).
[Shelly]: No, I’m alright. I’m alright.
[Detective Consalo]: You, you said that you--
[Shelly]: No more talking.
[Detective Consalo]: --wanted your attorney, so no more talking.
[Shelly]: Yea.
[Detective Consalo]: If you want to talk I will be more than happy
and I’m gonna shoot straight with you. I’ve known your family for a
long time. I’ve played softball with your, your, your uncle a many,
many times, great--
[Shelly]: Sir, and--
[Detective Consalo]: --softball player.
[Shelly]: --guess what? That’s who picked me up man.
[Detective Consalo]: I--I’m--
-9-
[Shelly]: Alright, you want--I’ll tal--I’ll talk to you.
[Detective Consalo]: You want to talk?
[Shelly]: I’ll talk to you. I’ll talk to you.
[Detective Consalo]: And you are reinitiating contact with us,
correct--
[Shelly]: I’ll talk to you.
[Detective Consalo]: --at your request?
[Shelly]: (Unintelligible.)
[Detective Consalo]: Okay.
[Shelly]: I don’t want to talk man.
[Detective Consalo]: Yes, or no?
[Shelly]: If you gonna lock me up, lock me up.
[Detective Consalo]: Alright, so--
[Shelly]: I know I ain’t do it.
[Detective Consalo]: --yes or no? You tell me if you want to talk.
That’s up to you.
[Shelly]: Cause it ain’t getting nowhere I told y’all who picked me
up.
[Detective Consalo]: I, I will tell you what your momma said, and I’ll
tell you what your grandma said. Okay? If you want to talk to me,
but I--
[Shelly]: Well why--I got a question. I got one more question. Why
is y’all asking my grandma when my grandma don’t--
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[Detective Consalo]: We didn’t ask your grandma.
[Shelly]: He did. He had it on tape recorder.
[Detective Consalo]: You did--you gonna let me tell you--
[Shelly]: Okay.
[Detective Consalo]: That’s what I was going to say, but I’m telling
you right now you need to say--I--I’m--do you want me to sit here and
talk to you for a few minutes? You asked for an attorney, alright, I’m
not gonna ask you any further questions, or talk any further this [sic]
about it, unless you want to and you have to say I want to, I want to
reinitiate contact with you. Is that what you want to do?
[Shelly]: Well I ain’t getting nowhere with it. Y’all--
[Detective Consalo]: Well, you didn’t get anywhere with those guys.
Alright?
[Shelly]: But I’m trying--all I need man is you to call my mom--
[Detective Consalo]: I’m telling you I’ve talked to your mom
Shannon.
[Shelly]: But I--
[Detective Consalo]: That’s what I’m telling you brother. That’s--
[Shelly]: (Unintelligible.)
[Detective Consalo]: You tell me, if you want to, if you want me to
sit down for a few minutes and talk, I’ll just talk. I won’t even ask
you qu--
[Shelly]: I’ll talk, come on man.
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[Detective Consalo]: You want to--
[Shelly]: Reinitiate, come on let’s do it.
[Detective Consalo]: You’re reinitiating conversation?
[Shelly]: I’ll talk to you man.
Detective Consalo then communicated to Shelly the conversation that he had
with Shelly’s mother earlier in the morning.
[Detective Consalo]: Your mom--listen to me for a second Shannon,
okay. Your mom called and your mom was hysterical.
[Shelly]: I know.
[Detective Consalo]: Okay?
[Shelly]: Cause about--
[Detective Consalo]: She said, she said--her--your momma’s name is
Annie, correct.
[Shelly]: Yes sir.
[Detective Consalo]: She said, “This is Annie.” And I said, “Annie
this is Tony Consalo.” And we started talking. I said, “you remember
the old fish market down in Gifford?” I said, “That was my dad’s
place.”
[Shelly]: (Unintelligible.)
[Detective Consalo]: I said, “I know Sherman.” I said, “I know some
of your family and stuff.” I said, “I know you lost a son years ago to
this stuff.” I said, “You don’t need to lose somebody else.”
[Shelly]: Right.
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[Detective Consalo]: I, I--so what you’re doing right now is not
helping yourself, because there’s a difference between a needle in
your arm and maybe a set--a, a--you know a different person.
(Radio transmission in background.)
[Unidentified Deputy]: Hey Tony, come to my officer [sic] before
move [sic] him.
[Detective Consalo]: Okay? Um--there’s a difference between
getting a needle put in your arm for what happened tonight and having
a life sentence. Okay? Or maybe even a, a possibility of getting out.
And that’s remorse. Okay? That’s showing that you, you, you have
feelings for another human being. I’ve dated girls and I know how
mad they can make you. Okay? And I know I’ve snapped, not the
extent that what happened tonight. But I’m telling you man to man
that your momma called, Annie called just a few minutes ago. She
called the front office. My secretary told me that, “Annie Shelly is on
the phone and she would like to speak to you.” I got on that phone,
Annie was on the phone. I explained to her what was going on and
she broke down. Um--she broke down like my mom broke down
when I lost my sister to cancer years ago.
[Shelly]: Yes sir.
[Detective Consalo]: I, I know what it’s like to lose a family member.
A mom knows what it’s like to lose a son. Okay?
[Shelly]: Yes sir.
Shelly continued to allege his alibi; however, Detective Consalo responded
that his time frames were off and that there were multiple witnesses that
contradicted his alibi.
[Detective Consalo]: Okay, we’re done then. Alright? I’m telling
your momma--even your momma didn’t go with it. Even Annie,
before your grandma was on that phone Annie called and she was
crying because she’s losing another son, that’s why. Plain and simple
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brother. And I’m telling you that’s the difference.
[Shelly]: Sir.
[Detective Consalo]: That’s the difference. Shannon, I, I can’t do
anything for you. Okay? Only you can do something for you and if
you’re gonna keep denying it, brother we can’t--I’m, I’m telling you,
I’m telling you--
....
[Detective Consalo]: . . . I’m telling you Brittany is alive. Okay?
Brittany is alive and she is gonna pull through and I know you’re
happy about that. And the reason I say that because I know you didn’t
want--what happened tonight you didn’t want that to happen. I know
that. You know that. But unless you tell me that, unless you ah--I
can’t, I can’t--I’m telling you, I’m telling you Shannon it, it--Brittany
is gonna make it. Okay? Brittany is gonna make it. She was shot.
She was shot in the face. Okay? . . . I’m telling you she’s gonna make
it and that is something there’s no way, there’s no way to get past that.
[Shelly]: You’re right man.
[Detective Consalo]: Tell me what happened.
Detective Consalo then vocalized that Shelly had reinitiated contact and read
him his Miranda rights again.
[Detective Consalo]: Alright. Before we go any further--
[Shelly]: Yes sir.
[Detective Consalo]: You re-initiated contact, remember we talked
about that. Alright? I want to read you your rights one more time.
Okay?
[Shelly]: What happen if I don’t re-initiate?
[Detective Consalo]: You--we’re done.
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[Shelly]: And I just go to booking?
[Detective Consalo]: Yea, but we’re dealing with what we said.
Okay, let me just read you these for a second. Okay? Alright,
Shannon you have the right to remain silent. Do you understand that?
[Shelly]: (No audible response.)
[Detective Consalo]: Okay. Anything you say can and will be used
against you in a court of law. Do you understand that?
[Shelly]: Yes sir.
[Detective Consalo]: Okay. You have the right to talk to a lawyer
and have him present with you while you’re being questioned. Do
you understand that?
[Shelly]: Yes sir.
[Detective Consalo]: Okay. If you cannot afford to hire a lawyer one
will be appointed to represent you before any questioning if you wish
one.
[Shelly]: Yes sir.
[Detective Consalo]: Do you understand that?
[Shelly]: (No audible response.)
[Detective Consalo]: Okay. Alright, do you understand each of the
rights that I explained to you?
[Shelly]: Yes sir.
[Detective Consalo]: Okay. With those rights in mind do you want to
talk to me?
[Shelly]: I’ll talk to you man.
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[Detective Consalo]: I appreciate that.
Shelly then confessed to shooting both victims but claimed the shooting was
an accident. Before trial, Shelly moved to suppress his statements, asserting that
the detectives had violated his right against self-incrimination and right to counsel.
Shelly also asserted that his confession should have been suppressed because his
confession was involuntary based on the detectives’ discussions with him
regarding the death penalty and the impact the death penalty would have on his
mother.
The Motion to Suppress Hearing
At the suppression hearing, Detective Consalo was questioned by Shelly’s
counsel regarding Shelly’s first mention of an attorney when Shelly was in the
interrogation room alone.
[Detective Consalo]: I wouldn’t say that that’s a request for an
attorney. I think he’s just stating, he’s talking about The First 48.
He’s talking about you don’t have any evidence. I don’t think that’s
an invocation, that he’s requesting an attorney at all and I didn’t take
it that way.
[Defense Counsel]: Okay. So he’s talking about an attorney at that
point in time.
[Detective Consalo]: He’s talking about a TV show and what happens
during a TV show is what he’s talking about.
Shelly’s counsel then questioned Detective Consalo with regard to Shelly’s
subsequent Miranda right invocations and reinitiation of communication with
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detectives. Shelly’s counsel contended that despite each invocation of either the
right to silence or to an attorney, the detectives continued to interrogate Shelly.
Shelly’s counsel asserted that Shelly had not reinitiated conversation with officers
and any conversation after his assertion of rights should be considered invalid
because Shelly was being continuously prompted by detectives to reinitiate
conversation when all communication should have immediately ceased when
Shelly invoked his rights.
The State responded that after each of Shelly’s invocation of rights Shelly
continued to ask the detectives questions, thereby reinitiating conversation. The
State asserted that Detective Consalo went beyond that which is required by law by
reminding Shelly that he had invoked his rights and asked for an attorney. The
State averred that Detective Consalo was not required to reread Shelly his Miranda
rights because Shelly had reinitiated conversation.
The trial court denied both Shelly’s initial and renewed motions to suppress
his confession. Interrogation transcripts were provided to the jury and Shelly’s
confession was played during trial. The jury found Shelly guilty of first-degree
murder and attempted first-degree murder. Shelly was sentenced to life in prison
without the possibility of parole.
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Shelly’s Appeal
Shelly appealed his judgment to the Fourth District on the basis that his
confession should have been suppressed because (1) he invoked his right to an
attorney and (2) his confession was involuntary based on the detectives’
discussions with him regarding the death penalty. Shelly, 199 So. 3d at 974. The
Fourth District affirmed as to the second argument, without discussion, holding
that “the discussion was a proper interrogation tactic, ‘[m]erely informing a
suspect of realistic penalties and encouraging him to tell the truth.’ ” Id. (quoting
Nelson v. State, 688 So. 2d 971, 974 (Fla. 4th DCA 1997)). As to Shelly’s first
argument, the Fourth District held that the totality of the circumstances
demonstrated the statements made by Shelly were preceded by reinitiated
communications of Shelly with the officers. Id. The district court found that
Shelly was the catalyst for further conversation which led to his confession, and
the denial of the motion to suppress the videotape was affirmed. Id.ANALYSIS
As an initial matter, we hold that Welch is the correct standard when
evaluating circumstances where an accused has invoked his or her right to counsel
or silence and then subsequently has allegedly reinitiated communication with
officers. The decision below references Moss not Welch, even though recognizing
that reinitiated communications after the invocation of a right to counsel was at
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issue. We must consider the origins of the two standards and analyze why Welch
is the correct standard to be applied here.
In Moss, the Fourth District stated, “If the accused invoked his right to
counsel, courts may admit his responses to further questioning only on finding that
he (a) initiated further discussions with the police, and (b) knowingly and
intelligently waived the right he had invoked.” 60 So. 3d at 544 (quoting Smith v.
Illinois, 469 U.S. 91, 95 (1984)). However, in Welch, this Court held that “even
when an accused has invoked the right to silence or right to counsel, if the accused
initiates further conversation, is reminded of his rights, and knowingly and
voluntarily waives those rights, any incriminating statements made during this
conversation may be properly admitted.” 992 So. 2d at 214 (emphasis added)
(citing Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983)). Although both the
Moss and Welch standards appear to be nearly identical, there exists one crucial
difference. Both involve a suspect that has (1) invoked his or her right to counsel
or right to silence; (2) engaged in further conversation with police; and (3) waived
his or her previously invoked rights. Importantly, however, missing from the Moss
standard is the requirement in Welch that the accused be reminded of his or her
rights. Compare Moss, 60 So. 3d at 544, with Welch, 992 So. 2d at 214. Thus,
there is some discrepancy between these elements as to the correct legal standard.
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We must understand the origin of the two standards and how each standard has
been used in Florida.
The standard in Welch is derived from Bradshaw. See Welch, 992 So. 2d at
214. Although the standard is not explicitly stated in Bradshaw, the facts of the
case outline that which would become the standard articulated by this Court in
Welch. Bradshaw was questioned during an investigation of the death of a person
whose body had been found in Bradshaw’s pickup truck. Bradshaw, 462 U.S. at
1041. Bradshaw was advised of his Miranda rights and admitted to providing the
victim with liquor for a party but denied involvement in the traffic accident that
killed the victim. Id. Bradshaw was then arrested for providing liquor to the
victim, a minor, and was again advised of his Miranda rights. Id. An officer then
stated to Bradshaw his theory which placed Bradshaw behind the wheel of the
vehicle. Id. Bradshaw again denied his involvement and then stated, “I do want an
attorney before it goes very much further.” Id. at 1041-42. The officer then
immediately terminated the interrogation. Id. at 1042. Sometime later, Bradshaw
inquired to a police officer, “Well, what is going to happen to me now?” Id. The
officer responded, “You do not have to talk to me. You have requested an attorney
. . . .” Id. A conversation followed in which Bradshaw agreed to take a polygraph
examination, stating he was willing to do whatever he could to clear up the matter.
Id. Bradshaw was again reminded of his Miranda rights and ultimately recanted
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his earlier story, admitting he was the driver of the vehicle in which the victim was
killed. Id. The Oregon Court of Appeals held that Bradshaw’s inquiry of what
would happen to him did not “initiate” a conversation with the officer, and that
therefore his eventual incriminating statements should have been excluded under
Edwards.4 Bradshaw, 462 U.S. at 1042. The United States Supreme Court
reversed, holding that Edwards did not stand for the proposition that the initiation
of a conversation by an accused after having invoked the right to counsel amounts
to a waiver of the right to counsel. Id. at 1044. Rather, a two-step process is
involved—after finding no Edwards violation, the inquiry is whether, under the
totality of circumstances, the accused made a knowing and intelligent waiver of the
right to counsel. Id. at 1045-46. The Court further held that, in asking “Well, what
is going to happen to me now?,” Bradshaw had “initiated” further conversation for
purpose of the Edwards rule. 5 Bradshaw, 462 U.S. at 1045-46.
Likewise, in Welch, this Court held that Welch’s statements were admissible
because they were made pursuant to a voluntary, knowing, and intelligent waiver.
4. Edwards v. Arizona, 451 U.S. 477 (1981).
5. “[A]n accused . . . having expressed his desire to deal with the police
only through counsel, is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.” Edwards, 451 U.S.
at 484-85.
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992 So. 2d at 214. Welch was advised of his Miranda rights during an
interrogation concerning a double homicide. Id. After some interrogation Welch
invoked his right to silence and the interrogation stopped. Id. Welch was left
alone for forty-five minutes before asking a detective, “What is going to happen to
me now?” Id. Welch was readvised of his Miranda rights before detectives began
interrogating him again, which led to Welch ultimately making a confession. Id. at
215. This Court held that “even when an accused has invoked the right to silence
or right to counsel, if the accused initiates further conversation, is reminded of his
rights, and knowingly and voluntarily waives those rights, any incriminating
statements made during this conversation may be properly admitted.” Id. at 214(emphasis added) (citing Bradshaw, 462 U.S. at 1045-46). Thus this Court held
that Welch’s statements were admissible. Id. at 215.
This Court formulated the Welch standard in 2008. See id. However, in
2011, the Fourth District applied a different standard in Moss. See Moss, 60 So. 3d
at 544. In Moss, the Fourth District held that the trial court erred in denying
Moss’s motion to suppress. See id. While being advised of his Miranda rights
Moss stated, “I want to talk to a lawyer.” Id. at 542. The Fourth District reversed
the trial court’s determination that Moss’s invocation was equivocal. Id. at 543.
The Fourth District then addressed waiver and stated, “[I]f the accused invoked his
right to counsel, courts may admit his responses to further questioning only on
- 22 -
finding that he (a) initiated further discussions with the police, and (b) knowingly
and intelligently waived the right he had invoked.” Id. (quoting Smith, 469 U.S. at
95). The district court held that the detective interrogating Moss coerced him into
confessing by continuing to question Moss after Moss’s invocation. Id. “[T]he
detective disregarded Moss’s invocation of his right to counsel and continued to
question Moss in the first breath after the invocation. . . . After his request for a
lawyer, Moss did not reinitiate further exchanges with law enforcement; the
ongoing interrogation never paused.” Id.The standard in Moss is extracted from Smith, 469 U.S. 91. See Moss, 60
So. 3d at 543. In Smith, the Supreme Court reversed the Illinois Supreme Court’s
holding that Smith had not effectively invoked his right to counsel. 469 U.S. at 99.
When Smith was informed that he had the right to counsel being present during
questioning, he responded, “Uh, yeah. I’d like to do that.” Id. at 93. Questioning
did not cease and Smith eventually made incriminating statements. Id. at 93-94.
The Appellate Court of Illinois and the Illinois Supreme Court held that Smith did
not clearly assert his right to counsel because he had responded to further
questioning. Id. at 94. The Supreme Court disagreed and stated that if an “accused
invoked his right to counsel, courts may admit his responses to further questioning
only on finding that he (a) initiated further discussions with the police, and (b)
knowingly and intelligently waived the right he had invoked.” Id. at 95 (citing
- 23 -
Edwards, 451 U.S. at 485, 486 n.9). “[A]n accused’s postrequest responses to
further interrogation may not be used to cast retrospective doubt on the clarity of
the initial request itself.” Id. at 100.
Factually, both Moss and Smith involve instances where detectives did not
cease questioning once the defendant had invoked his right to counsel. See Moss,
60 So. 3d at 544; Smith, 469 U.S. at 99. On the other hand, both Welch and
Bradshaw involve instances where the accused invoked the right to silence or
counsel, the interrogation ceased, and the accused allegedly reinitiated
communication with officers. See Welch, 992 So. 2d 206; Bradshaw, 462 U.S.
1039. However, if an accused invokes his or her Miranda rights but later
reinitiates communication, an accused must be reminded of his or her Miranda
rights pursuant to this Court’s holding in Welch. See Welch, 992 So. 2d at 214.
Thus there is conflict between the two standards.
Subsequent to this Court’s decision in Welch, the standard formulated by the
Supreme Court in Smith has been used a total of five times within Florida. See
Simon v. State, 216 So. 3d 720, 722 (Fla. 4th DCA 2017); Davis v. State, 153 So.
3d 360, 365 (Fla. 4th DCA 2014); Calder v. State, 133 So. 3d 1025, 1030 (Fla. 4th
DCA 2014); Black v. State, 59 So. 3d 340, 346 (Fla. 4th DCA 2011); Moss, 60 So.
3d at 544. Welch expands the requirements of the standard in Smith by specifically
including a requirement that the accused be specifically given his or her Miranda
- 24 -
rights after an alleged reinitiation. We conclude that it is incorrect for the standard
in Moss to be utilized. Accordingly, we conclude that Welch is the correct
standard when an accused has invoked his or her right to counsel or silence, and
then is alleged to have subsequently reinitiated communication with officers.
Shelly’s First Mention of a Lawyer
With regard to this case, Shelly’s first mention of a lawyer, while seated
alone in the interrogation room, was equivocal.
[A]ppellate courts should . . . accord a presumption of correctness to
the trial court’s rulings on motions to suppress with regard to the trial
court’s determination of historical facts, but appellate courts must
independently review mixed questions of law and fact that ultimately
determine constitutional issues arising in the context of the Fourth and
Fifth Amendment and, by extension, article I, section 9 of the Florida
Constitution.
Miller v. State, 42 So. 3d 204, 220 (Fla. 2010) (alteration in original) (quoting
Connor v. State, 803 So. 2d 598, 608 (Fla. 2001)).
In Miranda, the United States Supreme Court determined that
the Fifth and Fourteenth Amendments’ prohibition against self-
incrimination requires advising a prospective defendant that he has the
right to remain silent and also the right to the presence of counsel.
384 U.S. 479; Edwards v. Arizona, 451 U.S. 477, 481-82 (1981).
After being advised of his rights, if an accused indicates that he
wishes to remain silent, “the interrogation must cease.” Miranda, 384
U.S. at 474; see also Edwards, 451 U.S. at 482.
Welch, 992 So. 2d at 214. “After a suspect invokes his or her Miranda rights,
police officers are prohibited from engaging in words or actions that the officers
‘should know are reasonably likely to elicit an incriminating response from the
- 25 -
suspect.’ ” Cuervo v. State, 967 So. 2d 155, 164 (Fla. 2007) (quoting Rhode Island
v. Innis, 446 U.S. 291, 301 (1980)). The prohibition of further questioning applies
not only when the suspect requests counsel, but also when the suspect exercises his
or her right to remain silent. See Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992).
The Supreme Court has held:
Invocation of the Miranda right to counsel “requires, at a minimum,
some statement that can reasonably be construed to be an expression
of a desire for the assistance of an attorney.” But if a suspect makes a
reference to an attorney that is ambiguous or equivocal in that a
reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to
counsel, our precedents do not require the cessation of questioning.
Davis v. United States, 512 U.S. 452, 459 (1994) (citation omitted) (quoting
McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)).
Shelly contends that his statement, “Y’all better watch the First 48. I ain’t
done it. I ain’t do it. When the man say he ain’t do it let ’em talk to his lawyer,
y’all got to let ’em go man”—made while seated alone in the interrogation room—
was unequivocal. Detective Consalo and counsel for Shelly had the following
exchange at the motion to suppress hearing:
[Defense Counsel]: So he asked for an attorney and you were
monitoring that and you knew that?
[Detective Consalo]: I wouldn’t say that that’s a request for an
attorney. I think he’s just stating, he’s talking about The First 48.
He’s talking about you don’t have any evidence. I don’t think that’s
an invocation, that he’s requesting an attorney at all and I didn’t take
it that way.
- 26 -
[Defense Counsel]: Okay. So he’s talking about an attorney at that
point in time.
[Detective Consalo]: He’s talking about a TV show and what happens
during a TV show is what he’s talking about.
In our view, Shelly’s first mention of a lawyer in this passage was not
unambiguous. A reasonable police officer under the circumstances would not
reasonably understand that Shelly was invoking his Miranda rights because Shelly
simply mentioned the word “lawyer” within the broader context of discussing a
television program. Shelly’s statement, “When the man say he ain’t do it let ’em
talk to his lawyer, y’all got to let ’em go man,” is not sufficiently clear to
reasonably conclude that Shelly was invoking his Miranda rights with these words.
Moreover, even though Detective Consalo was monitoring the interrogation room
via video feed when Shelly made this statement, the statement was made while
Shelly was in the interrogation room alone. As a result, Detective Consalo did not
reasonably understand Shelly’s utterance to be an invocation of his right to
counsel. Accordingly, we conclude that Shelly’s initial reference to a lawyer was
equivocal and the detectives were not required to cease questioning.
Shelly’s Unequivocal Invocation
Shelly contends that it was the detectives, not he, who reinitiated
communication after he invoked his Miranda rights. Review of the interrogation,
however, reveals that Shelly continued to make comments and ask the detectives
- 27 -
questions directly related to the investigation after he invoked his Miranda rights.
See supra pp. 6-7. Shelly had the following exchange with Detective Consalo after
being placed in handcuffs.
[Detective Consalo]: We’ll be taking you next door in just a few
minutes.
[Shelly]: Yes sir, I understand that. Hey sir--excuse me man, sir. All
I ask can you do one thing.
[Detective Consalo]: What is that?
[Shelly]: Just call my mom, man. At--listen, sir--
In Bradshaw, the Supreme Court held that a suspect’s inquiries that related
generally to the investigation evinced the suspect’s willingness and desire for a
discussion about the investigation. 462 U.S. at 1045-46. We conclude that Shelly
reinitiated communication with Detective Consalo by asking him to call his
mother, who Shelly asserted was an alibi witness.
Importantly, however, Shelly later unequivocally invoked his right to
silence.
[Detective Consalo]: You, you know your rights, you know you
might not want to say--if you want to talk to us a little bit longer then
you need to say I want to talk to you a little bit longer--
[Shelly]: No.
[Detective Consalo]: --and I’ll sit there and talk to you. Okay?
[Shelly]: Y’all fixing to book me for nothing. What y’all booking me
ah--like for? Okay, no more talk.
- 28 -
[Detective Consalo]: Ah--that’s up to you. You said, you, you--
[Shelly]: (Unintelligible.)
[Detective Consalo]: --(Unintelligible).
[Shelly]: No, I’m alright. I’m alright.
[Detective Consalo]: You, you said that you--
[Shelly]: No more talking.
[Detective Consalo]: --wanted your attorney, so no more talking.
[Shelly]: Yea.
[Detective Consalo]: If you want to talk I will be more than happy
and I’m gonna shoot straight with you. I’ve known your family for a
long time. I’ve played softball with your, your, your uncle a many,
many times, great--
[Shelly]: Sir, and--
[Detective Consalo]: --softball player.
[Shelly]: --guess what? That’s who picked me up man.
[Detective Consalo]: I--I’m--
[Shelly]: Alright, you want--I’ll tal--I’ll talk to you.
[Detective Consalo]: You want to talk?
[Shelly]: I’ll talk to you. I’ll talk to you.
[Detective Consalo]: And you are reinitiating contact with us,
correct--
- 29 -
[Shelly]: I’ll talk to you.
[Detective Consalo]: --at your request?
[Shelly]: (Unintelligible.)
[Detective Consalo]: Okay.
[Shelly]: I don’t want to talk man.
[Detective Consalo]: Yes, or no?
[Shelly]: If you gonna lock me up, lock me up.
[Detective Consalo]: Alright, so--
[Shelly]: I know I ain’t do it.
[Detective Consalo]: --yes or no? You tell me if you want to talk.
That’s up to you.
[Shelly]: Cause it ain’t getting nowhere I told y’all who picked me
up.
[Detective Consalo]: I, I will tell you what your momma said, and I’ll
tell you what your grandma said. Okay? If you want to talk to me,
but I--
From this exchange we can see that Detective Consalo wholly ignored Shelly’s
invocations of his rights and immediately proceeded to attempt to coax him into
continuing with the interrogation. Detective Consalo failed to cease interrogating
Shelly after Shelly unequivocally invoked his right to silence. See Welch, 992 So.
2d at 214 (“[I]f an accused indicates that he wishes to remain silent, ‘the
- 30 -
interrogation must cease.’ ” (quoting Miranda, 384 U.S. at 474)); see also
Edwards, 451 U.S. at 482.
We hold that Detective Consalo’s subsequent statements—with regard to (1)
knowing Shelly’s family; (2) promising to tell Shelly what Shelly’s mother said;
(3) telling Shelly that Shelly’s mother is losing another son; and (4) telling Shelly
two times that there is a difference between “getting a needle put in your arm” and
a life sentence—amounted to interrogation. See supra p. 9-14; see also Innis, 446
U.S. at 301 (“[T]he term ‘interrogation’ under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police . . . that the
police should know are reasonably likely to elicit an incriminating response from
the suspect.”); Cuervo, 967 So. 2d at 164 (statements by officers to the defendant
that he still had an opportunity to tell “his side of the story” amounted to
interrogation because the officers could reasonably anticipate they would elicit an
incriminating response); Calder, 133 So. 3d at 1030 (“After Calder made his
unequivocal request for counsel, the detective did not cease questioning him.
Instead, he continued talking to Calder in an effort to coax him into speaking
without counsel. . . . These statements constituted interrogation . . . .”); Gilbert v.
State, 104 So. 3d 1123, 1125 (Fla. 4th DCA 2012) (“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
- 31 -
tell his ‘side of the story.’ ”); Black, 59 So. 3d at 346 (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). Detective
Consalo’s actions can be likened to the proverbial carrot-and-stick—using reward
and punishment to induce Shelly to acquiesce to continued interrogation. There
can be no doubt these statements induced Shelly to continue engaging with
Detective Consalo, even though he had clearly previously invoked his right to
silence numerous times.
When, as in this case, a detective persists in attempting to coax a suspect to
continue the interrogation after the suspect has unequivocally invoked his right to
silence, the detective is not asking harmless clarifying questions; he is violating the
suspect’s Miranda rights. See Cuervo, 967 So. 2d at 165.
[A]ny statement taken after the person invokes his privilege cannot be
other than the product of compulsion, subtle or otherwise. Without
the right to cut off questioning, the setting of in-custody interrogation
operates on the individual to overcome free choice in producing a
statement after the privilege has been once invoked.
Miranda, 384 U.S. at 474. Any statements that are produced as a result of a
Miranda violation must be suppressed. Id. at 479 (“[U]nless and until such
warnings and waiver are demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against him.”).
- 32 -
Having concluded that Shelly’s Miranda rights were violated, we cannot
hold that his subsequent waiver was voluntary.
As this Court and the United States Supreme Court have made clear,
“the ultimate issue of voluntariness is a legal rather than factual
question.” Ramirez [v. State], 739 So. 2d [568,] 575 [(Fla. 1999)]
(citing Miller v. Fenton, 474 U.S. 104, 109 (1985)). The State bears
the burden of showing that “the confession was not compelled, but
was voluntarily made.” Id. at 573. Further, 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.” Id. at 575.
Ross v. State, 45 So. 3d 403, 418 (Fla. 2010) (citations omitted). Shelly did not
voluntarily initiate further conversation with Detective Consalo because the
interrogation never stopped once Shelly invoked his right to silence. Any
statement taken after the invocation of a suspect’s Fifth Amendment privilege
cannot be other than the product of compulsion, subtle or otherwise. Edwards, 451
U.S. 477; Miranda, 384 U.S. at 479; see also Minnick v. Mississippi, 498 U.S. 146(1990). Thus Shelly’s subsequent waiver was the product of Detective Consalo’s
coercively persistent and repeated efforts to wear down Shelly’s resistance and
induce Shelly to continue the interrogation and eventually confess. We conclude
then that the State is unable to meet its heavy burden of demonstrating that
Shelly’s subsequent Miranda waiver was voluntarily made.
The admissibility of any statements obtained after the accused has invoked
his right to counsel and decided to remain silent “depends under Miranda on
- 33 -
whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Michigan
v. Mosley, 423 U.S. 96, 104 (1975) (quoting Miranda, 384 U.S. at 474, 479); see
also Cuervo, 967 So. 2d at 161. Accordingly, we conclude that the trial court erred
in admitting Shelly’s confession.
Harmless Error Analysis
Miranda violations are subject to a harmless error analysis. See
Caso v. State, 524 So. 2d 422, 425 (Fla. 1988). To affirm a conviction
despite error at trial, the State must prove beyond a reasonable doubt
that the error “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).
Under DiGuilio, the focus of this Court is on the overall effect of the
error on the trier of fact; not to substitute itself for the trier of fact and
reweigh the evidence. See id. at 1139. Further, if a defendant’s
statement resulted from a law enforcement officer’s illegal actions,
that evidence is “fruit of the poisonous tree” and the trial court should
exclude it from trial. See State v. Frierson, 926 So. 2d 1139, 1143
(Fla. 2006) (quoting Wong Sun v. U.S., 371 U.S. 471, 488 (1963)).
Deviney v. State, 112 So. 3d 57, 79 (Fla. 2013). Further, as explained by this Court
in Diguilio:
[H]armless error analysis must not become a device whereby the
appellate court substitutes itself for the jury, examines the permissible
evidence, excludes the impermissible evidence, and determines that
the evidence of guilt is sufficient or even overwhelming based on the
permissible evidence. . . .
Overwhelming evidence of guilt does not negate the fact
that an error that constituted a substantial part of the
prosecution’s case may have played a substantial part in
the jury’s deliberation and thus contributed to the actual
verdict reached, for the jury may have reached its verdict
because of the error without considering other reasons
- 34 -
untainted by error that would have supported the same
result.
....
. . . The 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. 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.
Diguilio, 491 So. 2d at 1136-39 (citation omitted) (quoting People v. Ross, 429
P.2d 606, 621 (Cal. 1967) (Traynor, C.J., dissenting), rev’d sub nom. Ross v.
California, 391 U.S. 470 (1968)).
Under the standard articulated by this Court in DiGuilio, we conclude that
the admission of Shelly’s taped confession cannot be deemed harmless error.
Shelly’s interrogation and transcripts of the recorded interrogation were provided
to the jury. It is difficult to dispute that such a confession most likely played a role
in Shelly’s conviction. Additionally, the prosecutor used Shelly’s interrogation
statements to have Shelly mark down how many lies he told the detectives before
confessing to the shootings. The prosecutor also pointed out that Shelly’s
confession was contrary to his testimony at trial. Further, in his closing argument,
the prosecutor repeatedly mentioned Shelly’s confession during the interrogation
- 35 -
and played several clips of the taped confession. Therefore, we conclude that it is
impossible to say that Shelly’s confession did not contribute to the verdict. Thus
the admission of Shelly’s taped confession cannot be deemed harmless error.
CONCLUSION
For the reasons discussed, we quash the Fourth District Court of Appeal’s
decision. We remand this case to the district court with instructions that the case
be further remanded for a new trial to be conducted without introducing the
portions of statements made on December 15 after Shelly unequivocally invoked
his right to silence.
It is so ordered.
PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.
LAWSON, J., dissents with an opinion, in which CANADY, C.J., and
POLSTON, J., concur.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR
REHEARING/CLARIFICATION. NOT FINAL UNTIL THIS TIME PERIOD
EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF
FILED, DETERMINED.
LAWSON, J., dissenting.
The majority concludes that a citation in the Fourth District’s three-
paragraph decision in Shelly v. State, 199 So. 3d 973 (Fla. 4th DCA 2016),
expressly and directly conflicts with a sentence in Welch v. State, 992 So. 2d 206- 36 -
(Fla. 2008). It does not. Because we have no authority to decide this case, I
dissent.
The Florida Constitution grants this Court authority to “review any decision
of a district court of appeal . . . that expressly and directly conflicts with a decision
of another district court of appeal or of the supreme court on the same question of
law.” Art. V, § 3(b)(3), Fla. Const. This constitutional provision is the only one
alleged as granting us power to decide this case. For this Court to lawfully
entertain jurisdiction under this provision, the “[c]onflict between decisions must
be express and direct, i.e., it must appear within the four corners of the majority
decision” of the district court. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986)
(emphasis added). The jurisdictional rationale suggested by the majority fails this
well-settled requirement.
According to the majority, a direct conflict is apparent from the following
citation in the third paragraph of Shelly:
“When an accused has ‘expressed his desire to deal with the
police only through counsel, [he] is not subject to further interrogation
by the authorities until counsel has been made available to him, unless
the accused himself initiates further communication, exchanges, or
conversations with the police.’ ” Moss v. State, 60 So. 3d 540, 542-43
(Fla. 4th DCA 2011) (alteration in original) (emphasis added)
(quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880,
68 L. Ed. 2d 378 (1981)).
Shelly, 199 So. 3d at 974. See majority op. at 1, 18-25. As discussed further
below, the premise that this citation gives rise to express-and-direct conflict
- 37 -
jurisdiction is unsound for several reasons: first, the citation is to binding, valid
precedent; second, the majority’s explanation for the conflict with that precedent
depends on facts not stated in the district court’s opinion; third, the purported
conflict, if it exists at all, is actually between Moss and Welch, rather than Shelly
and Welch; fourth, Welch did not even reach the holding upon which the finding of
conflict is based; and, fifth, the purported Welch holding pertains to a matter that
was not raised to the Fourth District in Shelly’s case.
As to the first observation, the majority holds that a pin citation to an
accurate quotation from a binding United States Supreme Court decision creates a
conflict between Shelly and one of this Court’s decisions. This proposition cannot
be valid—unless the allegedly conflicting decision of this Court is erroneous,
which the majority has not suggested to be the case. Because all Florida courts are
bound by Edwards, the seminal United States Supreme Court case on the Fifth
Amendment question decided in Shelly, the language identified by the majority as
the sole basis for conflict—a pin citation to an accurate quotation of the Edwards
holding—cannot support a finding of express and direct conflict between the
district court’s decision and one of this Court’s decisions. See Miami Home Milk
Producers Ass’n v. Milk Control Bd., 169 So. 541, 544 (Fla. 1936) (explaining that
“we are of course bound by the decisions of” the United States Supreme Court
“construing the meaning and effect of” provisions of the United States
- 38 -
Constitution). The majority’s reliance on the Moss citation as its basis for finding
jurisdiction is also analytically indistinguishable from reliance on a citation in a
district court decision that merely affirms with citation—which is clearly
unauthorized. Gandy v. State, 846 So. 2d 1141, 1143 (Fla. 2003) (“This Court
does not have jurisdiction to review per curiam decisions of the district courts of
appeal that merely affirm with citations to cases not pending review in this Court.”
(quoting Persaud v. State, 838 So. 2d 529, 532 (Fla. 2003)).
Despite these oversights, given the majority’s lengthy recitation of facts and
legal analysis of the “Edwards rule” issue, see Oregon v. Bradshaw, 462 U.S.
1039, 1045-46 (1983) (discussing “the Edwards rule”), one could easily come
away with an impression that this Court must have jurisdiction given the majority’s
explanation of how the Fourth District misapplied Edwards to reach an incorrect
result. However, none of the facts relevant to the majority’s legal analysis are set
forth in the Shelly opinion. Therefore, they cannot support the majority’s exercise
of jurisdiction. See Gandy, 846 So. 2d at 1144 (explaining that in “cases where the
district court has not explicitly identified a conflicting decision, it is necessary for
the district court to have included some facts in its decision so that the question of
law addressed by the district court in its decision” is manifest within the four
corners of the decision and can serve as a basis for conflict jurisdiction (quoting
Persaud, 838 So. 2d at 532)).
- 39 -
As explained in Reaves:
The only facts relevant to our [jurisdictional decisions] are those facts
contained within the four corners of the decisions allegedly in
conflict. . . . [W]e are not permitted to base our conflict jurisdiction on
a review of the record . . . . Thus, it is pointless and misleading to
include a comprehensive recitation of facts not appearing in the
decision below.
Reaves, 485 So. 2d at 830 n.3. Applying this rule to the Shelly decision should end
our jurisdictional review. The facts and law stated in the Fourth District’s decision
show that the issue raised to the Fourth District was simply whether Shelly’s
statements were the result of the officer’s failure to cease interrogation after Shelly
invoked his rights or whether Shelly reinitiated communication under Edwards.
See Shelly, 199 So. 3d at 974. Given the Fourth District’s summary conclusion
that “Shelly . . . was the one who reinitiated communications with the officers,” id.,
and inclusion of no facts from which a reader could question its resolution of the
issue, id., we do not have jurisdiction to decide the issue. Gandy, 846 So. 2d at
1144; Reaves, 485 So. 2d at 830.6
6. If the facts relied upon by the majority to find a Miranda violation in this
case appeared on the face of the district court opinion, we would probably have
jurisdiction based on some case in our precedent finding a Miranda violation under
indistinguishable circumstances. However, Welch would not qualify as such a
case. This Court concluded in Welch that the defendant reinitiated communication
by asking a direct, unsolicited question about the investigation after being left
alone for more than forty-five minutes. Welch, 992 So. 2d at 214. The
circumstances of the reinitiation in Welch are not comparable to those of the instant
- 40 -
It should also be apparent from the majority’s circuitous explanation of a
conflict between Shelly and Welch, based upon a purported conflict between Moss
and Welch, see majority op. at 18-25, that even if the majority’s described conflict
existed it would not be manifest “within the four corners of” the Shelly decision,
Reaves, 485 So. 2d at 830, and it would not place Shelly in “direct” conflict with
Welch as required by Florida’s constitution before we can hear this case. Mystan
Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla. 1976) (“The jurisdiction of
this Court extends only to the narrow class of cases enumerated in [a]rticle V,
[s]ection 3(b) of the Florida Constitution.”). After all, even if Moss had preceded
Welch and Welch had expressly overruled Moss on a different question of law,
Shelly could have still pin-cited to the Edwards quote in Moss and this still would
not have given rise to an express and direct conflict between Shelly and Welch “on
the same question of law.” Art. V, § 3(b)(3), Fla. Const. Indeed, although the
majority asserts as its jurisdictional rationale that the Shelly court came into
conflict with our precedent by citing the Edwards rule, the majority’s merits
decision in this case is based on its application of this very rule to facts not stated
in the Shelly opinion. Majority op. at 31-34.
case and, therefore, do not control one way or the other the determination of
whether it was Shelly or the detective who reinitiated communication.
- 41 -
Moreover, even the indirect and unexpressed conflict identified by the
majority does not exist because Welch could not and did not reach the holding on
which the majority’s jurisdictional rationale is based.
The majority begins its conflict analysis by “hold[ing] that Welch is the
correct standard when evaluating circumstances where an accused has invoked his
or her right to counsel or silence and then subsequently has allegedly reinitiated
communication with officers.” Majority op. at 18 (emphasis added). Then, the
majority sets out to explain the origin of the Welch “standard” and to contrast this
new standard with what it describes and rejects as the incorrect rule set forth in
Moss. Majority op. at 18-25. Ironically, the standard the majority rejects as
incorrect is found in a single sentence in the Moss opinion that is not cited or
addressed in Shelly and that simply quotes the standard dictated by the United
States Supreme Court in Smith v. Illinois, 469 U.S. 91, 95 (1984). Moss states:
[I]f the accused invoked his right to counsel, courts may admit his
responses to further questioning only on finding that he (a) initiated
further discussions with the police, and (b) knowingly and
intelligently waived the right he had invoked.
60 So. 3d at 544 (quoting Smith, 469 U.S. at 95). How could a state court legally
err by correctly quoting binding precedent from the United States Supreme Court
on an issue of United States constitutional law, or how could this Court have
adopted a different standard on this Fifth Amendment issue in Welch? See Milk
Control Bd., 169 So. at 544 (explaining that this Court is bound by decisions of the
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United States Supreme Court on questions of United States constitutional law).7
Of course, neither proposition could occur.
Nevertheless, the majority opines that the Moss panel erred and came into
conflict with Welch by quoting the United States Supreme Court’s decision in
Smith because Smith leaves out a purported independent third inquiry, supposedly
recognized in Welch as an expansion of the rule set forth in Smith, majority op. at
24, that (c) “the accused be reminded of his or her rights” after he or she reinitiates
communication. Majority op. at 19. The majority asserts that Welch gleaned this
extra requirement from the United States Supreme Court’s plurality opinion in
Bradshaw, which was issued before the Court decided Smith. Majority op. at 20.
In so concluding, the majority fails to explain how an earlier plurality opinion
(Bradshaw) from the United States Supreme Court could trump a later majority
opinion (Smith) from that Court on the same issue.
The majority does acknowledge that the supposed Bradshaw “standard is not
explicitly stated in Bradshaw.” Majority op. at 20. However, the majority fails to
7. Although this Court could develop a Florida standard governing the right
against self-incrimination under article I, section 9 of the Florida Constitution,
provided that the standard gives citizens at least as much protection as does the
federal constitution, Traylor v. State, 596 So. 2d 957, 961 (Fla. 1992), that is not
what occurred in Welch. Welch was a straightforward application of federal
precedent to a Fifth Amendment issue with no reference to the Florida
Constitution. See 992 So. 2d at 213-15.
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acknowledge that Bradshaw unequivocally uses the same two-step analysis as
Smith. See Bradshaw, 462 U.S. at 1044-46 (applying the “Edwards rule” as the
first inquiry in this context and identifying “the next inquiry [as] ‘whether a valid
waiver of the right to counsel and the right to silence had occurred, that is, whether
the purported waiver was knowing and intelligent and found to be so under the
totality of the circumstances’ ” (quoting Edwards, 451 U.S. at 486 n.9)). Contrary
to the majority’s assertion, the United States Supreme Court has never articulated
or implied a third inquiry or standard requiring that police “remind” the accused of
his or her Miranda rights, in Bradshaw or any other case. Rather, both Edwards
and Bradshaw make clear that the waiver issue involves a totality-of-the-
circumstances test. Bradshaw, 462 U.S. at 1046 (“[T]he next inquiry was ‘whether
a valid waiver of the right to counsel and the right to silence had occurred, that is,
whether the purported waiver was knowing and intelligent and found to be so
under the totality of the circumstances . . . .’ ” (quoting Edwards, 451 U.S. at 486
n.9) (emphasis added)). 8 And, as explained below, this Court did not reach a
different conclusion in Welch.
8. As a practical matter, police would usually need to reinstruct the accused
on his or her Miranda rights, after the accused’s reinitiation of communication, to
assure that the waiver is knowing and intelligent (and to be able to prove it later).
This reminder was given in Bradshaw, Smith, Welch, and Shelly. However, it is
easy to think of a circumstance where this reminder would be unnecessary to meet
the totality-of-the-circumstances “valid waiver” test set forth in Edwards and
Bradshaw.
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Welch did not add to the two-step analysis required by the United States
Supreme Court and did not create a new standard—which is the foundation of the
majority’s jurisdictional analysis. Welch was a direct appeal following a plea of
guilty to two counts of first-degree premeditated murder (among other charges)
and a penalty-phase trial in which Anthony Welch was sentenced to death for the
two murders. 992 So. 2d at 208-09. This Court reversed, ordering a new penalty-
phase trial due to an error in jury selection. Id. at 212-13. After thoroughly
analyzing the jury selection issue, the Court “touch[ed] briefly on some of the
remaining claims in order to provide guidance for the new penalty phase.” Id. at
213. One of those issues was Welch’s claim “that the trial court erred in denying
his motion to suppress the incriminating confession he made at the Broward
County Sherriff’s Office.” Id.Welch was interviewed at the sheriff’s office after waiving his Miranda
rights. Id. He then announced that he no longer wanted to talk, and the first
For example, the accused could be a seasoned criminal defense attorney who
reinitiated contact by reminding police of her profession and stating that she was
fully aware of the Edwards rule and was reinitiating communication with full
knowledge that she was waiving her right to counsel and other Fifth Amendment
rights. In that scenario, the State could easily demonstrate a valid waiver
irrespective of whether police reminded her of those rights. Under the new
standard explained in the majority opinion, however, it appears that any statements
made by the accused would still be suppressed unless police also independently
reminded her of those rights. Majority op. at 19. This approach is misguided and
inconsistent with the Edwards and Bradshaw totality-of-the-circumstances test.
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interview concluded. Id. Welch, however, reinitiated communication and police
again advised him of his Miranda rights before the second interview. Id. In its
“brief touch” of the legal issues surrounding Welch’s argument, the Court did not
analyze the law in this area but simply summarized it. Id. at 214 (summarizing
Miranda and Edwards). Then, citing Bradshaw, Welch states:
[E]ven when an accused has invoked the right to silence or right to
counsel, if the accused initiates further conversation, is reminded of
his rights, and knowingly and voluntarily waives those rights, any
incriminating statements made during this conversation may be
properly admitted.
Id. It made perfect sense for this Court in Welch to cite Bradshaw because the
facts of the two cases appear legally indistinguishable, including the words used by
each suspect to “reinitiate” communication. Compare Bradshaw, 462 U.S. at
1043-44 (holding that suspect’s unprompted question, “Well, what is going to
happen to me now?” satisfied Edwards rule) with Welch, 992 So. 2d at 213-14
(citing Bradshaw and holding that suspect’s unprompted question, “What is going
to happen to me now?” satisfied Edwards rule).
The sentence quoted from Welch is accurate if viewed as summarizing a
factually indistinguishable case in which the United States Supreme Court found
no violation of a suspect’s Fifth Amendment rights. If viewed in this light, the
quoted sentence from Welch is not inconsistent with the “standard” set forth in
Smith and quoted in Moss—comprising two distinct and separate inquires.
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Bradshaw, 462 U.S. at 1044-45 (explaining that Edwards rule is a “separate”
inquiry that should not be “meld[ed] together” with the different and distinct
question of whether, after the suspect reinitiates communication, “subsequent
events indicate[] a waiver of the Fifth Amendment right to have counsel present
during the interrogation”). The accuracy of this view is established both by what
the Welch opinion says next and by what this Court did not say at all in that
opinion.
Although Welch does not cite Smith, it does go on to conduct the same two-
step analysis recited in Smith after its summary explanation of Bradshaw. “First,”
the Court concluded that Welch reinitiated communication with an unsolicited
question almost identical to the unsolicited question in Bradshaw. Id. at 214.
Then, in the next paragraph, the Court stated:
Second, Welch’s incriminating confession was made after a voluntary,
knowing, and intelligent waiver of his Miranda rights.
Id. at 215. Although the Court discussed the fact that Welch was “again advised of
his Miranda rights,” this observation was made in support of its conclusion that
Welch’s waiver of his Miranda rights was valid—the same analytical framework
used in Bradshaw, summarized in Smith, and quoted in Moss. See id.
Significantly, nowhere in its “brief touch” on this issue did this Court hint
that it was creating a new standard that “expands the requirements of,” majority op.
at 24, the very analytical framework that it employed. The majority’s conclusion
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that this is how Welch should be read, which is the basis for its jurisdictional
determination, is incorrect. Because this Court cannot change the requirements of
federal law—by expansion or otherwise—it should be clear that Welch did not add
a requirement to the federal framework for addressing the issues resolved in Welch
and, consequently, that the majority’s basis for reviewing this case—conflict
between Welch and the Moss court’s citation of binding United States Supreme
Court precedent—is invalid. See supra p. 41-42.
Finally, that the majority reaches outside the bounds of our constitutional
authority to take this case is evident because the majority bases its jurisdictional
determination on issues that were not argued—and, therefore, not decided—below.
Shelly’s arguments to the Fourth District (and this Court) focused on the
reinitiation question—the Edwards rule—and not the separate question of whether
a knowing and intelligent waiver of his Fifth Amendment rights followed any such
reinitiation. Consequently, that separate totality-of-the-circumstances inquiry is
not an issue properly before this Court—and the same would be true of the
supposed Welch requirement that police remind the suspect of Miranda rights.
Shelly never raised that as an issue for review because it was not implicated by the
facts of the case (as the police did restate the Miranda warnings). Therefore, the
majority should not have based its jurisdictional determination on a purported
conflict on a question of law that the Fourth District did not address. In fact,
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irrespective of the label it uses, the majority’s adoption of a new standard under the
guise of a jurisdictional analysis is dicta resolving a purported conflict that does
not appear in the four corners of the Fourth District’s decision and is not even
germane to an issue presented to this Court for review in the merits briefs. State v.
Yule, 905 So. 2d 251, 259 n.10 (Fla. 2d DCA 2005) (“A holding consists of those
propositions along the chosen decisional path or paths of reasoning that (1) are
actually decided, (2) are based upon the facts of the case, and (3) lead to the
judgment. If not a holding, a proposition stated in a case counts as dicta.”)
(Canady, J., specially concurring) (quoting Michael Abramowicz & Maxwell
Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1065 (2005)); New Port Largo, Inc.
v. Monroe County, 985 F.2d 1488, 1500 n.7 (11th Cir. 1993) (explaining that even
a statement labeled as a holding is not a holding unless it decides a matter that
“was squarely presented by the facts of the case and was a proposition that
absolutely must have been decided to decide the concrete case then before the
court”) (Edmonson, J., concurring specially) (emphasis added).
The majority reads a conflict into the Fourth District’s decision by pointing
out the Fourth District’s conclusion that Shelly reinitiated communication with the
officers and then explaining, in reliance on Welch, that whether the accused
reinitiates communication after invoking his right to silence or counsel is not the
end of the inquiry when the accused argues on appeal that his confession should
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have been suppressed because he invoked his right to an attorney. Majority op. at
18-25. This approach to express-and-direct conflict jurisdiction overlooks the
limited role Florida’s appellate courts have in addressing trial-court error. The
district court in this case was required to rule only on the issues properly raised and
argued by Shelly in his appellate briefs. See City of Miami v. Steckloff, 111 So. 2d
446, 447 (Fla. 1959) (“It is an established rule that points covered by a decree of
the trial court will not be considered by an appellate court unless they are properly
raised and discussed in the briefs.”); see also Bainter v. League of Women Voters
of Fla., 150 So. 3d 1115, 1126 (Fla. 2014) (“ ‘Basic principles of due process’—to
say nothing of professionalism and a long appellate tradition—‘suggest that courts
. . . ought not consider arguments outside the scope of the briefing process.’ ”
(quoting Powell v. State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013))); Rigterink v.
State, 66 So. 3d 866, 897 (Fla. 2011) (declining to address whether an alleged error
was fundamental because the appellate brief did not argue that it was); Fla.
Emergency Physicians—Kang & Assocs., M.D., P.A. v. Parker, 800 So. 2d 631,
636 (Fla. 5th DCA 2001) (noting the well-settled rule that appellate courts “do not
address issues not clearly set out in the issues on appeal”). It is clear from the four
corners of the Fourth District’s opinion that Shelly raised a narrow issue to the
Fourth District: whether the officers violated his right to counsel by reinitiating
communication with him after he invoked that right. See Shelly, 199 So. 3d at 974.
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Having received the record after jurisdiction was improvidently granted in
this case, we can confirm that Shelly’s Fourth Amendment argument to the district
court was as narrow as the opinion indicates. In ruling on Shelly’s motion to
suppress, the trial court identified the pertinent inquiries as (1) whether Shelly’s
confession resulted from the detective’s failure to scrupulously honor Shelly’s
invocation of his right to remain silent or from Shelly’s reinitiation of
communication and (2) whether, after any such reinitiation, Shelly’s decision to
waive his rights again was voluntary, knowing, and intelligent. The trial court
found in favor of the State as to each inquiry, and Shelly’s appellate argument
focused on the first inquiry, involving Shelly’s lack of “reinitiation” under the
governing standards. Given Shelly’s limitation of his appellate argument, the
district court was not required to address anything further and, in fact, would have
been in error to do so. See Sebo v. Am. Home Assurance Co., 208 So. 3d 694, 699
n.2 (Fla. 2016) (opining that the district court improperly decided an issue where it
was neither preserved in the trial court nor raised to the district court); Steckloff,
111 So. 2d at 447. And, given this limited role of an appellate court, the district
court’s failure to address anything beyond the reinitiation of communication does
not expressly and directly conflict with any case law discussing the second inquiry.
Ultimately, from the four corners of the Shelly decision, it is clear that the
issue that was raised and decided was simply whether error occurred at the first
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step of the Edwards test, not whether any subsequent waiver was valid under
Welch. See id. Because conflict must appear on the face of the two decisions
being compared to be express and direct and therefore empower this Court to
exercise jurisdiction, Reaves, 485 So. 2d at 830, the Florida Constitution dictates
that we discharge this case irrespective of our view of the merits or importance of
the issue that would otherwise be presented. See art. V, § 3(b)(3), Fla. Const.
CANADY, C.J., and POLSTON, J., concur.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
Fourth District - Case No. 4D14-1910
(Indian River County)
Cathy A. Williams of Law Office of Cathy A. Williams PLLC, Cornelius, North
Carolina; and Thomas J. Seider of Brannock & Humphries, Tampa, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia A. Terenzio, Chief
Assistant Attorney General, Cynthia L. Comras, Luke R. Napodano, and Donna M.
Perry, Assistant Attorneys General, West Palm Beach, Florida,
for Respondent
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