DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2011
KIMON BLACK,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D09-1052
[April 27, 2011]
CIKLIN, J.
Kimon Black appeals his convictions for two first-degree murder
charges and the resulting two life sentences. We review whether the trial
court erred in denying Black’s motion to suppress the statements he
made to police after his Miranda1 rights were administered. Because
Black clearly and unequivocally invoked his right to counsel, we hold
that the police were required to immediately stop questioning him, and
any statements that resulted from continued questioning should have
been suppressed. Because the error was not harmless, we must reverse
and remand for a new trial.
On August 8, 2003, Stanley Johnson and Otis Hayes were shot to
death outside a party in Broward County during a fray involving multiple
individuals. Almost three years later, on June 2, 2006, Kimon Black was
arrested for the murders and taken into custody by detectives of the
Broward County Sheriff’s Office. After leaving Black in an interrogation
room by himself and with a video camera recording all activities within
the room, Detectives Timothy Duggan a n d Frank Ilarraza entered.
Following some preliminary questioning of Black relating to his name
and ability to read, the detectives had Black read a Miranda form out
loud, including Black’s answers to each Miranda inquiry. As to Black’s
Miranda rights, th e following exchange between Black and Detective
Duggan took place:
1
Miranda v. Arizona, 384 U.S. 436 (1966).
THE DEFENDANT: You have the right to remain silent.
That is, you need not talk to me nor answer any questions
that you do not want to. Do you understand that?
THE DETECTIVE:
Do you understand?
THE DEFENDANT:
Yes.
THE DETECTIVE:
Okay. What about number three?
THE DEFENDANT:2 Should you talk to me, anything you
say can and may be used against you in a court of law. Do
you understand? Yes.
You have the right to talk to an attorney or a lawyer
before you talk to—and have an attorney/lawyer here with
you during any questioning—during questioning now or in
the future, do you understand? Yes.
If you cannot afford to retain your own attorney/lawyer
and you want an attorney/lawyer, one will be appointed for
you before we ask any questions. Do you understand that?
Yeah, I understand that.
If you decide to answer the question now without any
attorney present, you will have—you will still have the right
to stop answering at any time until you talk to an attorney.
Do you understand? [No audible answer]
Knowing a n d understanding your rights as I have
explained them to you, are y o u willing to answer my
questions without an attorney? No.
Have you previously requested any lawyer enforcement—
have you previously requested any law enforcement officer to
allow you to speak to any lawyer? Not yet.
THE DETECTIVE: Okay, put no. Sign your name.
THE DEFENDANT: I, Kimon Black, have read or have
had it read to me and I understand my rights. Were these
rights (inaudible)—a statement and answer questions
regarding an attorney present.
I understand that I can stop answering any questions at
any time. No threats or promises have been made to me. I
understand a n d know that I’m (inaudible)—and this
At this point, Black proceeded to read each Miranda inquiry out-loud as well
as state his answer to each without being prompted by Detective Duggan.
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statement will be used in a court of law.
here?
Put in the time
THE DETECTIVE: Sure, it’s 9:42. Sign your name here
and print your name here. I will witness it. Thank you.
Kimon, do you want to talk to either Frank or I about the
double murder?3
At this point, Black began a lengthy narrative response which directly
addressed the events surrounding the double homicide. Recognizing
that Black had, minutes earlier, unequivocally invoked his right to
counsel, Detective Ilarraza asked Black whether he was “still willing to
talk to us now about this?” This time, Black replied, “Yeah, I’ll talk to
you briefly about it; briefly.” Th e detective inquired one last time,
“Without a n attorney?” a n d Black responded, “Yeah.”
After this
exchange, the detectives questioned Black extensively about the double
slaying. While Black did not specifically confess or make any directly
inculpatory statements, he detrimentally contradicted himself numerous
times and made statements that became the centerpiece of the state’s
case against him.
Defense counsel filed a motion to suppress any statements that Black
made after h e invoked his right to counsel. The trial court held a
suppression hearing at which the detectives testified a n d a DVD
recording of the entire interrogation was played. The trial court issued a
written order denying the motion to suppress, stating that one of the
detectives had testified that he did not comprehend Black’s response of
“no” (to the question of answering questions in the absence of an
attorney) and that the same detective had been up for an extended period
of time and “missed” Black’s responses to the Miranda questions. A
thorough review of the suppression hearing transcript reveals no
evidence to support these findings by the trial court. Neither detective
testified about being tired and neither detective used the word “missed”
when describing their comprehension of Black’s answers. As a matter of
fact, Detective Duggan testified repeatedly on cross-examination that he
clearly understood Black’s responses to each Miranda question the first
time. Finally, the trial court found that Davis v. United States, 512 U.S.
452 (1994)—in which the United States Supreme Court held that after a
defendant waives his Miranda rights, he can only reassert them with
clear and unequivocal language—controlled this case. The trial court
concluded that, notwithstanding Black’s clear invocation of his right to
The entire interrogation was video recorded onto a DVD, which was played, in
its entirety, at the suppression hearing and trial.
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counsel, he waived his Miranda rights when he continued to speak with
the detectives anyway.
Ordinarily, “when reviewing a ruling on a motion to suppress, an
appellate court presumes the trial court’s findings of fact are correct and
reverses only those findings not supported by competent substantial
evidence.” Pierre v. State, 22 So. 3d 759, 765 (Fla. 4th DCA 2009)
(citation omitted). Additionally, the trial court’s findings of law are
reviewed d e novo. Id. However, “this deference to the trial court’s
findings of fact does not fully apply when the findings are based on
evidence other than live testimony.” Id. (quoting Parker v. State, 873 So.
2d 270, 279 (Fla. 2004)). In this case, the main issue before us relates
back to th e administration of Miranda warnings to Black a n d the
exchange that occurred afterward—all of which was captured by a video
camera and preserved on DVD. This DVD was played in its entirety at
the suppression hearing and it appears to be largely on what the trial
court based its findings. The trial court also based its order (denying the
motion to suppress) on testimony offered by both detectives at the
suppression hearing. As such, we review the trial court’s findings that
are based on hearing each detective’s live testimony under the ordinary
“competent and substantial evidence” standard. However, to the extent
that the trial court’s findings are based on viewing the interrogation
DVD, which this court of course has also viewed, we utilize a much less
deferential standard.
To protect suspects’ constitutional right against self-incrimination,4
law enforcement officers are required to inform them of their right to
remain silent and to have counsel present at any custodial interrogation.
Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). Once an individual
has invoked his or her right to counsel, police questioning of the person
must cease immediately. Id. at 474 (“If the individual states that he
wants an attorney, the interrogation must cease until an attorney is
present.”); Edwards v. Arizona, 451 U.S. 477, 485 (1981) (“We . . .
emphasize that it is inconsistent with Miranda and its progeny for the
authorities, at their instance, to reinterrogate an accused in custody if he
has clearly asserted his right to counsel.”); Davis, 512 U.S. at 458
(reiterating the Miranda and Edwards holdings that the police must
cease interrogation of a person once he or she has clearly invoked the
right to counsel). The United States Supreme Court has explained why
police must immediately halt any questioning of the suspect upon the
suspect’s invocation of the right to counsel:
This right is enshrined in both the United States Constitution and the Florida
Constitution. U.S. Const. amend. V; art. 1, § 9, Fla. Const.
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[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 b y th e prosecution at trial, n o evidence
obtained as a result of interrogation can be used against him.”).
“The safeguards provided by Miranda apply only if an individual is in
custody and subject to interrogation.” Timmons v. State, 961 So. 2d 378,
379 (Fla. 4th DCA 2007). Black was clearly in custody as he had been
arrested a n d placed in an interrogation room b y law enforcement
officials.
The detectives intended to interrogate Black about his
involvement in the double homicide, so Miranda warnings were obviously
required. This factor is undisputed. The interrogating detectives were
also aware of this necessity as they dutifully administered Black’s
Miranda warnings prior to interrogating him. Accordingly, the issue here
is not whether Miranda warnings were necessary, but whether the police
honored Black’s answer that he did not want to speak to them without
his attorney present. We find that they did not.
In the instant case, Black clearly asserted his right to counsel when
h e answered “no” to the inquiry, “Knowing and understanding your
rights as I have explained them to you, are you willing to answer my
questions without an attorney?” The detective who administered Black’s
Miranda warnings testified repeatedly that Black’s answers to each
Miranda inquiry were clear and he understood them. Having determined
that Black clearly invoked his right to counsel, we must now determine
whether the police continued interrogating Black in spite of that
invocation.
“[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
(other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit a n incriminating
response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301
(1980). (footnotes omitted).
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Quite simply, asking Black—after h e clearly invoked his right to
counsel—“Kimon, do you want to talk to either Frank or I [sic] about the
double murder?” is likely to elicit an incriminating response. In fact, a
follow-up question asking a suspect—after he or she just clearly invoked
his or her right to counsel—whether the person wants to speak to the
police anyway, appears to be the type of question designed to wear down
a suspect’s resistance to police questioning.
Given Black’s clear
invocation of his right to counsel, the detective’s follow-up question can
only b e viewed as a n effort (intended or not) to wear down Black’s
resistance a n d ma k e him change his mind.5 A s such, all of the
statements that resulted from the failure to respect Black’s right to
counsel are—by definition—in violation of Miranda.6
After Black clearly invoked his right to counsel, his responses to
additional police questioning would be admissible only if this court were
to find that Black “(a) initiated further discussions with the police, and
(b) knowingly and intelligently waived the right he had invoked.” Smith v.
Illinois, 469 U.S. 91, 95 (1984) (citation omitted). The law is abundantly
clear that “when a n accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver of that right cannot
b e established by showing only that he responded to further policeinitiated custodial interrogation even if h e has been advised of his
Had Black’s response to the Miranda inquiries been unclear or ambiguous, the
detectives would not only have been allowed to but also obligated to ask
clarifying questions to determine Black’s intent. See Alvarez v. State, 15 So. 3d
738, 745 (Fla. 4th DCA 2009) (“Thus, an ambiguous waiver must be clarified
before initial questioning.”). However, Black’s answer was not ambiguous in
any sense, so clarifying follow-up questions were unnecessary.
6 We acknowledge that the First District held differently in a recent case. See
Serrano v. State, 15 So. 3d 629, 635 (Fla. 1st DCA 2009) (“Because a suspect’s
yes-or-no response to a question seeking verification of even an unequivocal
clear invocation of the right to counsel could hardly be characterized as
incriminating or testimonial, an officer’s question to confirm the suspect’s
wishes, without more, does not violate clearly established law.”). While we
disagree with that holding to the extent that it is inconsistent with the
reasoning in this opinion, we note that in Serrano one judge dissented and
another concurred with the outcome only and decided to affirm under a
harmless error analysis. Therefore, the First District advanced three very
different legal reasons to resolve the case, none of which had majority support.
Because of the fractured nature of the Serrano opinion, the Florida Supreme
Court found that it was unable to review the holding on appeal. See Serrano v.
State, 26 So. 3d 582 (Fla. 2010) (“[T]he Court has determined that it lacks
jurisdiction in this case because there is no majority decision on the merits.”).
As such, we do not certify Serrano as being in conflict with our holding here.
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rights.” Edwards, 451 U.S. at 484. Black did not re-initiate any
conversation with the detectives; rather, it was the detectives who
continued to question Black after he invoked his right to counsel.
Therefore, the later attempt by one of the detectives to establish Black’s
waiver of his right to counsel was ineffective. It is for this reason as well
that the trial court erred in relying upon Davis. Davis applies where a
defendant, who has already validly waived his or her Miranda rights,
attempts to re-assert them later. See Davis, 512 U.S. at 461 (“[A]fter a
knowing and voluntary waiver of the Miranda rights, law enforcement
officers may continue questioning until and unless the suspect clearly
requests a n attorney.”). In the instant case, any waiver of Black’s
Miranda rights was invalid because it was based upon police-initiated
interrogation. See Edwards, 451 U.S. at 484-85 (“[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.”).
The state repeatedly emphasized Black’s interrogation statements in
its opening statement and played to the jury the entire interrogation
DVD.
Black did not testify at trial a n d th e main focus of the
state’s closing argument was the interrogation DVD.
Th e state’s
constant closing argument drumbeat was that of a challenge to the jury
to test the credibility of the state’s case by reviewing the DVD. The state
used Black’s interrogation answers to urge a guilty conscience and
implored the jury to play the DVD again during deliberations. Thus, the
error here was not harmless. See State v. DiGuilio, 491 So. 2d 1129,
1135 (Fla. 1986) (stating that, to prove that an error was harmless, the
state must show “there is n o reasonable possibility that the error
contributed to the conviction”).
In many matters—if not most—involving custodial interrogation vis-àvis Miranda, cases fall on particular distinctions, differences, and factual
nuances that are intricately imbedded within complex and sometimes
obscure factual scenarios. Seldom are appellate courts presented with a
set of facts that illuminate a bright line thereby permitting a clear and
simple application of the exclusionary rule. To that extent, we are
fortunate.
The issue before u s could not be more straightforward and
uncomplicated. The digital recording of the interrogation that occurred
in this matter leads to only one inescapable conclusion. When the
suspect audibly read and unhesitatingly answered “no” to the following
question, his interrogation should have immediately halted: “Do you wish
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to answer any questions without a lawyer present?” To hold otherwise
would strike at the very heart and meaning of the Fifth Amendment.7
While we do not ascribe any ill motives to the detectives involved in
Black’s interrogation, the bright line in this case was clearly crossed.
Reversed and remanded for a new trial.
POLEN and LEVINE, JJ., concur.
*
*
*
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ilona M. Holmes, Judge; L.T. Case No. 06-9559 CF10A.
Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela J o Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
“The right to counsel established by Miranda is a procedural safeguard that is
not a right itself protected by the Constitution but is instead a measure to
protect the Fifth Amendment right against compulsory self-incrimination.”
Spivey v. State, 45 So. 3d 51, 54 (Fla. 1st DCA 2010) (citing Davis, 512 U.S. at
457).
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