O'Brien v. State

56 So. 3d 884, 2011 Fla. App. LEXIS 3508, 2011 WL 892157
CourtDistrict Court of Appeal of Florida
DecidedMarch 16, 2011
DocketNo. 1D09-5396
StatusPublished
Cited by3 cases

This text of 56 So. 3d 884 (O'Brien v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Brien v. State, 56 So. 3d 884, 2011 Fla. App. LEXIS 3508, 2011 WL 892157 (Fla. Ct. App. 2011).

Opinion

PER CURIAM.

Kenneth James O’Brien (“Appellant”) appeals his convictions for sexual battery on a child less than 12 years old. He argues the trial court erred in admitting into evidence his confession, his laptop computer and testimony about child pornography saved on the laptop. We sustain without further discussion the trial court’s rulings as to the laptop and its contents. But we agree the lower court should have suppressed the confession. Because we cannot beyond a reasonable doubt say the error was harmless, we reverse Appellant’s convictions.

[886]*886Alachua County Sheriffs deputies arrested Appellant the night of September 14, 2008, at the victim’s home. One of the arresting deputies started to elicit information from Appellant about what occurred. When Appellant began explaining that he and the victim had been “just messing around” the deputy advised him of his Miranda1 rights. Appellant unequivocally indicated his desire to have an attorney present during questioning, and the deputy ceased the interrogation and placed Appellant, handcuffed, in the patrol car. Thereafter, discourse between Appellant and deputies concerned the tightness of the handcuffs, Appellant’s hiccups, and his requests for cigarettes, water and air conditioning.

After roughly 40 minutes, another officer, Sergeant Crews, approached Appellant, who was still sitting in the cruiser, and initiated the following conversation:2

... Sergeant with the Sheriffs Office. How you doing, Sergeant.
—would you stand up for a minute? These things are killing me.
You want to stand up? How about you just swing your legs—
Yeah, that’s fíne. That’s fíne. I just— Ah. My legs — I never been in the back of a squad car in my life.
Never been arrested?
No, sir. Never ever.
[[Image here]]
Do you have an attorney?
No, sir.
No?
No, sir.
Tell you what I — okay—do you have — I need information — involving the crime—
And you told the deputy that you think you need to have an attorney present?
Yes, sir.
Are you willing to contact an attorney tonight and have them present, or do you want to reconsider it and — maybe a detective—
Nah, I’m not sure. I — I don’t want to stick my foot in my mouth. You know what I’m saying? But — actually, they’re real good friends of mine—
So would you be willing to go to the station and talk to—
I’m going to the station, anyway, so it doesn’t make any difference, does it, jail or the station.
We’d appreciate it.
Oh, I know you do.
The long and short of it — You did what you did.
Exactly, exactly.
It’s done — it’s history. So whatever you did is what you did.
Right.
Now, your cooperation is — but an 11-year-old is going to be interviewed by— he’s going to be interviewed by some specialist.
Yes, sir.
In this type of crime. And go forward with the evidence — What happened is going to come out one way or the other. I’d rather just get it over and, you know, try and keep it as simple as possible. I don’t want him to go through all kind of crap.
So you would be willing to—
I don’t want him to be in harm’s way so — I don’t want to go through all kinds of crap.
[887]*887I understand.
Whatever I say — like you say, it’s going to come out, anyway, so it don’t matter. And I don’t want to hurt him, you know, as much as possible.

The sergeant apparently left Appellant at that point. Appellant continued talking to the other deputies on scene but made no incriminating statements, and no one posed questions to Appellant, directly or indirectly, about the incident leading to his arrest.

Approximately two hours after arresting Appellant, deputies transported him to the Sheriffs Office. There a detective advised him, again, of his Miranda rights. The detective then asked Appellant, “Do you understand each of these rights that I explained to you?” Appellant answered, ‘Tes, sir.” Seeking to ensure Appellant’s apparent waiver of the right to an attorney was voluntary, the detective asked a series of questions ending with “So you did this of your own free will?” Appellant answered, ‘Tes, sir.” And the interrogation proceeded.

Appellant went on to admit performing oral sex on the child victim, touching the victim underneath his pants while the two were in the victim’s swimming pool, and showing the victim adult pornography on the Internet. He denied the victim performed oral sex on him. He also said he threw his laptop computer into the wooded area behind the house after the victim’s parents called police.

Appellant moved to suppress his statements asserting that he invoked his right to counsel but made the incriminating statements after law enforcement unlawfully reinitiated questioning.3 The trial court denied Appellant’s motion, finding (as pertinent to Appellant’s argument on appeal) that

although it is evident that [Appellant] initially invoked his right to counsel ... he did make a later voluntary decision, after the second reading of Miranda, to waive his right to have counsel present .... Law enforcement did speak with him after the first invocation of his right to counsel, although I don’t find that it rose to the level of interrogation.

When reviewing a court’s ruling on a motion to suppress, we presume the court’s findings as to historical facts correct, but we review de novo the court’s application of the facts to a constitutional standard. See Cuervo v. State, 967 So.2d 155, 160 (Fla.2007); Brye v. State, 927 So.2d 78, 80-81 (Fla. 1st DCA 2006). The standards applicable here are the following. Waiver of one’s Miranda rights must be made voluntarily, knowingly and intelligently. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

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Bluebook (online)
56 So. 3d 884, 2011 Fla. App. LEXIS 3508, 2011 WL 892157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-state-fladistctapp-2011.