Anthony Delane Washington v. State of Florida , 253 So. 3d 64 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D16-5447
_____________________________
ANTHONY DELANE WASHINGTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Clay County.
John H. Skinner, Judge.
August 1, 2018
ROWE, J.
After a jury trial, Anthony Delane Washington was convicted
of first-degree murder and burglary with an assault or battery. On
direct appeal, he argues that his convictions and sentences should
be vacated because the incriminating statements he made to the
police should have been suppressed. We disagree and affirm.
I. Facts
Washington was a suspect in the murder of Alphonso Doss
because he was having an affair with Doss’s wife. Washington was
first interviewed by police nine days after the murder. A second
interview was conducted six months later after Washington
voluntarily drove himself to the police station. The interview
began around 10:17 p.m. and continued until the early morning
hours of the following day.
Approximately twelve minutes after Washington entered the
interrogation room and before any questioning began, the
following exchange occurred between Washington and Detective
Monroe:
MONROE: All right, you have the right to remain silent.
If you understand that, just put, put your initials right
there for me. All right. Uh, anything you say can and
will be used against you in a court of law. If you
understand that just put your, initials there for me. Uh,
you have the Right to talk to a lawyer and to have them
present with you while you’re, being questioned. If you
understand that put your
WASHINGTON: Do I need that?
MONROE: What’s that?
WASHINGTON: Do I need him?
MONROE: A-a lawyer? I’m, I’m not a lawyer. I can’t
really tell you that stuff. Uh, if you cannot afford to hire
a lawyer, one will be appointed to represent you before
any questioning if you wish. If you understand that put
your initials there. Uh, you can decide at any time to
exercise these Rights and not answer any questions or
make any statements. All right. Lastly, I have carefully
read and listened to the above information. I fully
understand my Rights. If you understand that? Put your
initials there for me. And if you could sign there if you
agree to everything we just went, went over. I think
there’s a place to print, address and stuff in there.
Thirteen minutes later, Washington inquired again about his
right to counsel:
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WASHINGTON: Yeah, I mean if you got something, do I
need to call my lawyer, or call (inaudible) I mean at, if
you got me as a suspect I mean.
MONROE: Well listen, I can’t, I can’t give you legal
advice, okay? I can tell you right now that, we wanna
hear, we wanna give you the opportunity to talk to us and
that’s why we’re here.
WASHINGTON: Okay.
The interrogation continued for over ninety minutes before
the following exchange occurred between Washington and
Detectives Monroe and Singletary:
WASHINGTON: So will I walk outta here tonight?
MONROE: Well, we don’t know what you’re gonna tell
us Anthony.
SINGLETARY: We won’t know the answer to that.
MONROE: Until you tell us.
SINGLETARY: Until we even know what happened.
Cause only you, how will we, how will we know that?
WASHINGTON: Can I call my lawyer?
SINGLETARY: We can’t tell you no.
MONROE: Sometimes, there comes a time, in your life
Anthony where, you have to make a decision, all right?
And you as a father know, with your children, that they’re
gonna have things come up in their life, and you being
raised the way that you were, I know, that you want them
to make the right decisions, to be honest, to be truthful,
to be good, good hearted young men. That’s how we raise
our, our children. I have a son. I would want to raise him
the same way, all right? Part of being a father, is not
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only, giving the right example to your children, but
setting the example.
WASHINGTON: Okay.
MONROE: So ten years from now, fifteen years from
now, you need to be able to look at your kids in their face
and say look, I did the right thing. I led by example. I
told the truth.
WASHINGTON: Let’s get this on the way. Um. He came
in lit. I was sitting on the bed. We had, we exchanged
words, uh, I told him what I thought.
Before Washington could proceed with his statement, the
detectives were asked by their supervisors to exit the interrogation
room for a few minutes. When they returned, Detective Monroe
reminded Washington of his rights:
MONROE: All right Anthony, um, something I want to
address with you, okay? Um, here’s the deal, okay? A
minute ago, all right, and the most important thing here
is that we’ve, we’ve made a conscious decision, that you’re
gonna be a good father and you’re gonna led by example,
not by, doing as I do, you know, you know that whole
saying where you know, you don’t do it but you tell it you
got something or someone else to do it.
WASHINGTON: Yeah.
MONROE: Okay, a minute ago, okay, you brought up
talking to a lawyer. All right, we went over at the
beginning of this whole thing, your – your Rights, okay?
WASHINGTON: Yeah.
MONROE: Now, I want you, I wanna ask you again, all
right, you went over, you know your Rights, okay, but you
also know what’s, what you’re about to tell us. Okay?
Now, listen, we, if you want to call your lawyer, you can
call your lawyer.
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SINGLETARY: Yeah, like I said, we can’t tell you no.
MONROE: Okay, but if you don’t wanna call your lawyer,
and you wanna continue to tell us what you’re about to
tell us, listen, man to man, you can do that. And I will
respect you from sitting over there and me sitting over
here, because like I said, we both have kids. We both
have sons. And we know what’s, what’s right and what’s
wrong.
After considering this statement for almost thirty seconds,
Washington continued to speak to the detectives.
WASHINGTON: Okay.
MONROE: Okay? So,
WASHINGTON: That what, that’s what I wanna ask
you, man to man, sitting here, am I walking out that
door?
SINGLETARY: Like I told you before, we don’t know
what you’re gonna tell us.
MONROE: Until you tell us.
SINGLETARY: And, I told you, if you tell us something,
that is not clear to us, and is a violation of law, we will
confer with the State Attorney, before we make a decision
on what we’re gonna do.
WASHINGTON: Tonight?
SINGLETARY: Tonight. Tonight.
Washington paused to consider this response. Then, he proceeded
to make incriminating statements about the circumstances
surrounding Doss’s murder.
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Washington moved to suppress his statements, arguing that
they were not freely and voluntarily given because the detectives
ignored his repeated requests for counsel and downplayed the
significance of the Miranda warnings. After considering argument
from counsel and viewing the video recording of Washington’s
interrogation, the trial court found that there was no delay in the
administration of Washington’s rights and that there was no
indication that he was intimidated, coerced, or deceived into
waiving his rights. The court further found that Washington never
clearly and unequivocally requested counsel during the
interrogation. The trial court denied the motion to suppress and
the case proceeded to trial.
A jury found Washington guilty of first-degree murder during
the commission of a burglary and burglary with an assault or
battery. Washington was sentenced to concurrent terms of life
imprisonment and thirty years’ imprisonment. This timely appeal
follows.
II. Standard of Review
A trial court’s ruling on a motion to suppress is subject to a
mixed standard of review. The court’s factual findings will be
affirmed if they are supported by competent, substantial evidence.
Scott v. State, 151 So. 3d 567, 573 (Fla. 1st DCA 2014). The trial
court’s conclusions of law are reviewed de novo. Id.III. Analysis
It is well-settled that police officers must immediately stop an
interrogation when a suspect clearly and unequivocally requests
counsel at any time during a custodial interview. Davis v. United
States, 512 U.S. 452, 458 (1994). Failure to do so requires
suppression of any statements made after the suspect has invoked
his right to counsel. Edwards v. Arizona, 451 U.S. 477, 484-85
(1981). However, the police are not required to stop an interview
when a suspect makes an equivocal or ambiguous request for
counsel. State v. Carter, 172 So. 3d 538, 540 (Fla. 5th DCA 2015).
Statements such as “maybe I should talk to a lawyer” are not
unequivocal requests for counsel. Id. These types of statements
do not require the police to ask clarifying questions as long as the
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suspect was properly advised of his rights. Spivey v. State, 45 So.
3d 51, 54 (Fla. 1st DCA 2010). “The suspect must ‘articulate his
desire to cut off questioning with sufficient clarity that a
reasonable police officer in the circumstances would understand
the statement to be an assertion of the right to remain silent.’” Id.(quoting State v. Owen, 696 So. 2d 715, 718 (Fla. 1997)). When
determining whether a suspect’s statement was an unequivocal
request for counsel, a reviewing court must consider the totality of
the circumstances. Deviney v. State, 112 So. 3d 57, 72 (Fla. 2013).
Along with the suspect’s words, the suspect’s conduct may indicate
an invocation of the right to remain silent. Id.Often, a suspect will not invoke the right to counsel, but
instead, will ask the interrogating officer questions about his
rights. When “a suspect asks a clear question concerning his or
her rights, the officer must stop the interview and make a good-
faith effort to give a simple and straightforward answer.” Almeida
v. State, 737 So. 2d 520, 525 (Fla. 1999). If the officer properly
answers the question, the interrogation can resume – assuming
the suspect does not invoke his rights. Id. The supreme court
emphasized that law enforcement officers are not required to “act
as legal advisors or personal counselors for suspects.” State v.
Glatzmayer, 789 So. 2d 297, 305 (Fla. 2001). “All that is required
of interrogating officers . . . is that they be honest and fair when
addressing a suspect’s constitutional rights.” Id.Washington argues that his incriminating statements should
have been suppressed because he made multiple unequivocal
requests for counsel and the detectives did not provide simple and
straightforward answers when he inquired about his rights.
Washington identifies three portions of the interrogation in which
he asserts he invoked his right to counsel, which we will address
in turn.
A. “Do I need that?/Do I need him?
At the beginning of the interview, Washington asked whether
he was a suspect in the murder of Doss. Detective Monroe
explained that he was trying to eliminate individuals as suspects
and that Washington needed to fill out the waiver form before the
interview could proceed. Washington was asked to initial each of
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the statements if he understood them. Detective Monroe assured
Washington that the use of the form did not mean that Washington
was a suspect. When Detective Monroe read the statement
informing Washington of his right to an attorney, Washington
asked, “Do I need that?” and “Do I need him?”
Washington asserts that these questions invoked his right to
counsel and that the interrogation should have stopped. But we
find that these questions were not unequivocal requests for
counsel. See Walker v. State, 957 So. 2d 560, 571-74 (Fla. 2007)
(holding that suspect’s statement, “I think I may need a lawyer,”
and question asking detectives whether he needed counsel were
not unequivocal requests for counsel). Rather, these questions by
Washington amounted to requests for advice about his rights. And
Detective Monroe satisfied the requirements of Almeida and
Glatzmayer by temporarily stopping the interrogation to explain
to Washington that he was not an attorney and could not advise
Washington about whether an attorney was needed. Washington
did not invoke his right to counsel and indicated his continued
willingness to talk to the detectives after being fully advised of his
rights. The interview was properly continued.
B. “Do I need to call my lawyer?”
Almost fifteen minutes after signing the waiver form,
Washington asked if he was a suspect and inquired, “do I need to
call my lawyer?” Detective Monroe informed Washington that he
was not qualified to give legal advice and that he wanted to hear
what Washington had to say. Although Washington again asserts
that his right to counsel was invoked, we conclude that his
question “do I need to call my lawyer?” was not an unequivocal
request for counsel. See Spivey, 45 So. 3d at 55 (holding that the
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 an
unequivocal request for counsel). Rather, it was a prefatory
question about his rights. See State v. Hineline, 159 So. 3d 293,
297-98 (Fla. 1st DCA 2015) (holding that the question “do you
think I’m going to need a lawyer” was not an unequivocal request
for counsel, but a prefatory question requiring a simple and
straightforward response). Again, Detective Monroe satisfied the
requirements of Almeida and Glatzmayer by informing
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Washington that he could not provide legal advice. Washington
did not invoke his rights and indicated his continuing willingness
to speak to detectives after being fully advised of his rights. The
interview was properly resumed.
C. “Can I call my lawyer?”
After ninety minutes of questioning, Washington asked
whether he would be able to leave the police station that night if
he told the detectives his story. The detectives repeatedly declined
Washington’s request for them to guarantee that he would be able
to leave the station; rather, they assured him that if there was any
question regarding the legality of his actions they would contact
the State Attorney’s Office that night to resolve the issue.
Washington then asked, “Can I call my lawyer?” Detective
Singletary responded, “We can’t tell you no.” After pausing for ten
seconds with no response from Washington, Detective Monroe
suggested that Washington should consider how he could set a
good example for his son by doing the right thing.
Then, when Washington began to make a statement about the
night in question, the interview was stopped by the detectives’
supervisor. After two minutes, Detective Monroe resumed the
interrogation and explained to Washington, “if you want to call
your lawyer, you can call your lawyer.” Detective Singletary
confirmed that they could not tell him not to call his lawyer.
Washington again asked about leaving the station, and the
detectives repeated that they could not answer that question
without knowing what Washington would tell them. After
consideration of these answers, Washington made the
incriminating statements that were used against him at trial.
Whether the question “Can I call my lawyer?” unequivocally
invokes the right to counsel depends on the context in which the
suspect poses the question. In some circumstances, courts have
found the question to unequivocally invoke the right to counsel.
See United States v. de la Jara, 973 F.2d 746, 750-51 (9th Cir.
1992) (finding the question was an unequivocal request for counsel
where the interrogating officer told another officer that it sounded
like the suspect had invoked his right to counsel because the
suspect “had just asked to call his attorney”); see also Kamyab v.
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Uribe, 2009 WL 1520022, *15-16 (C.D. Cal. May 29, 2009) (finding
the question an unequivocal request for counsel without further
explanation); Laurito v. State, 120 So. 3d 203, 204-06 (Fla. 5th
DCA 2013) (finding that the question “Can I make a phone call so
I can get a lawyer?” when asked immediately after an officer gave
the Miranda warnings was an unequivocal request for counsel). In
other circumstances, courts have held that the question “Can I call
my lawyer?” does not invoke the right to counsel but is merely a
prefatory question about the suspect’s rights. See Ford v. Hall, 546
F.3d 1326, 1339 (11th Cir. 2008) (finding the question was
ambiguous where the suspect had just been informed that the
police believed he was responsible for the crime in question and
the interrogating officer advised the suspect that he could call a
lawyer); Dormire v. Wilkinson, 249 F.3d 801, 805 (8th Cir. 2001)
(finding the question was not unequivocal where the suspect had
just asked if he could contact his girlfriend and officers could
reasonably believe the suspect was merely inquiring about
whether he had the right to call counsel); United States v.
Laughlin, 2012 WL 3065404, *20-21 (N.D. Ga. July 6, 2012)
(finding the question did not invoke the right to counsel where the
interrogating officer’s clarifying questions led the suspect to state
that he was not finished talking to the police); United States v.
Brown, 2006 WL 2314057, *16 (D. Minn. Aug. 9, 2006) (finding
that the question did not invoke the right to counsel based on the
suspect’s answers to the clarifying questions asked by the
detectives).
Here, considering the context surrounding the question, we
conclude that Washington did not unequivocally invoke his right
to counsel. The detectives had read the Miranda rights over ninety
minutes before this point in the interrogation. The detectives had
just described incriminating evidence they had against him when
Washington asked if he was free to leave and if he was going to
“walk outta here tonight.” Immediately after asking those
questions, Washington inquired, “Can I call my lawyer?” The
question was reasonably interpreted by the detectives to be an
inquiry by Washington about whether he could contact an attorney
as opposed to expressing a desire to terminate the interview and
speak with counsel at that precise moment.
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In response, the detectives answered Washington’s question
simply and directly in compliance with the requirements of
Almeida and Glatzmayer. The record, including the unredacted
video recording of the interrogation, demonstrates that the
detectives did not steamroll Washington, play good cop/bad cop, or
talk over him in an effort to coerce his confession. Cf. Ross v. State,
45 So. 3d 403, 424-25 (Fla. 2010) (holding that a confession was
involuntary when the police made the deliberate decision to delay
the giving of the Miranda warnings until several hours into the
custodial interrogation and the lengthy interrogation was
conducted in a highly accusatory manner). The video recording of
the interrogation shows that the detectives paused after
answering Washington’s questions to allow him to consider his
rights. It was only after a long pause that Detective Monroe
resumed the interrogation. Washington did not thereafter invoke
his right to counsel and indicated his willingness to speak to the
detectives after being fully advised of his rights.
Because Washington did not unequivocally invoke his right to
counsel, and the detectives provided straightforward and simple
answers to Washington’s questions about his rights, we hold that
the trial court properly denied Washington’s motion to suppress.
AFFIRMED.
WETHERELL and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Steven E. Woods,
Assistant Attorney General, Tallahassee, for Appellee.
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