Perrine v. State

919 So. 2d 520, 2005 WL 3414352
CourtDistrict Court of Appeal of Florida
DecidedDecember 14, 2005
Docket3D05-645, 3D04-2496
StatusPublished
Cited by3 cases

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Bluebook
Perrine v. State, 919 So. 2d 520, 2005 WL 3414352 (Fla. Ct. App. 2005).

Opinion

919 So.2d 520 (2005)

Carmen PERRINE, Appellant,
v.
The STATE of Florida, Appellee.

Nos. 3D05-645, 3D04-2496.

District Court of Appeal of Florida, Third District.

December 14, 2005.
Rehearing and Rehearing Denied February 8, 2006.

*521 Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General and Michele Samaroo, Assistant Attorney General, for appellee.

Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

Rehearing and Rehearing En Banc Denied February 8, 2006.

AMENDED OPINION

SCHWARTZ, Senior Judge.

The primary issue on this appeal from convictions for burglary of a dwelling and grand theft is the admission of obviously false exculpatory statements made to the police concerning the stolen firearms subsequent to (a) the defendant's initial invocation of her Miranda rights;[1] (b) subsequent improper further questioning by the police;[2] (c) an interval of at least thirty *522 *523 minutes during which defendant was free to, and did, leave the police station, and then returned voluntarily;[3] and (d) her initiation of questioning on her own and *524 then specifically waiving her Miranda rights to an attorney and to remain silent.[4]

While we certainly agree that the (quite extensive) post-Miranda invocation questioning was improper, indeed condemnable, see Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983)(Edwards[5] rule was "designed to protect an accused in police custody from being badgered by police officers"); Pirzadeh v. State, 854 So.2d 740 (Fla. 5th DCA 2003), we hold, distinguishing such cases as United States v. Gomez, 927 F.2d 1530, 1539 n. 8 (11th Cir.1991),[6] that the trial court did not err in finding that the tainted post-Miranda interrogation had been dissipated. The cases indicate that, under given circumstances, either a break in custody or a lapse of time *525 may be sufficient to obviate the effect of improper police interrogation. See Palaggi v. Chrans, 221 F.3d 1339 (7th Cir.2000) (unpublished opinion) ("Palaggi's confession in Illinois, initiated by him two days after the Edwards violation in Florida and after receiving Miranda warnings, was sufficiently removed from any taint."); Holman v. Kemna, 212 F.3d 413, 419 (8th Cir.2000) (defendant-initiated confession given morning after post-invocation of counsel questioning admissible), cert. denied, 531 U.S. 1021, 121 S.Ct. 587, 148 L.Ed.2d 502 (2000); Hill v. Brigano, 199 F.3d 833, 842 (6th Cir.1999), cert. denied, 529 U.S. 1134, 120 S.Ct. 2015, 146 L.Ed.2d 964 (2000); United States v. Thomas, 11 F.3d 1392 (7th Cir.1993); Henderson v. Singletary, 968 F.2d 1070 (11th Cir.1992), cert. denied, 506 U.S. 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992); United States v. Evans, 917 F.2d 800, 805 (4th Cir.1990), overruled on other grounds by United States v. Lancaster, 96 F.3d 734 (4th Cir. 1996), cert. denied, 519 U.S. 1120, 117 S.Ct. 967, 136 L.Ed.2d 852 (1997); Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir.1988), cert. denied, 489 U.S. 1059, 109 S.Ct. 1329, 103 L.Ed.2d 597 (1989); see also Fitzpatrick v. State, 900 So.2d 495, 512 (Fla. 2005); Parker v. State, 873 So.2d 270 (Fla. 2004), cert. denied, 543 U.S. 1049, 125 S.Ct. 868, 160 L.Ed.2d 768 (2005); Keys v. State, 606 So.2d 669 (Fla. 1st DCA 1992); Gonzalez v. State, 449 So.2d 882 (Fla. 3d DCA 1984), review denied, 458 So.2d 274 (Fla. 1984); cf. Gomez, 927 F.2d at 1539 (invalidating defendant-reinitiated questioning following post-Miranda interrogation in absence of significant passage of time or release from custody); United States v. Walker, 624 F.Supp. 103 (D.Md.1985) (defendant's response to officers one hour after Edwards violation insufficient to constitute waiver of right to counsel); Blake v. Maryland, 381 Md. 218, 849 A.2d 410, 422 (2004) (no break in custody and twenty-eight minute time lapse), cert. dismissed as improvidently granted, ___ U.S. ___, 126 S.Ct. 602, ___ L.Ed.2d ___ (2005); see generally McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991) (dictum) (suspect's responses to post-invocation of counsel questioning in counsel's absence presumed involuntary "assuming there has been no break in custody"); Edwards; Craig v. State, 599 So.2d 170, 171 (Fla. 3d DCA 1992), review denied, 605 So.2d 1263 (Fla.1992). Because both of these factors are involved in this case, affirmance is clearly in order.

Affirmed.

NOTES

[1] The videotaped and transcribed interview of Perrine reflects the following:

Detective Dillon Corr: Do you wish to have an attorney present with you at this time?

The Witness [Defendant Perrine]: Uh, yes. Yes, just to be safe.

Detective Dillon Corr: Okay.

[Defendant Perrine]: Can we do this tomorrow, or something? I have something —

Officer Bonnie Levin: No, No.

Detective Dillon Corr: We do this on my time frame. Sign the paper.

[Defendant Perrine]: For what?

Detective Dillon Corr: To say that you want an attorney.

Officer Bonnie Levin: We are done. We won't talk. We are done.

[Defendant Perrine]: So, the next time you guys come out I will be with my attorney?

Officer Bonnie Levin: Yeah, yeah, your attorney. But I don't want to say anything after the fact. We already told you ahead of time.

[Defendant Perrine]: Yeah, I know, but the next time that you guys come, I am going to be with my attorney.

(Emphasis added).

[2] Immediately after Perrine requested counsel, the following occurred:

Detective Dillon Corr: I will probably come and visit you. I am going to lay it all out for you.

If you want your attorney present, that is fine. If you want to hear what we have to say, you can. You still don't have to talk to us. Okay? That is the bottom line.

You need to understand your rights. All right? If you decide to answer a question, now, without a lawyer, you still have the right to stop the interview at any time.

You also have the right to stop the interview at any time to talk to a lawyer.

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