State v. Powell

66 So. 3d 905, 36 Fla. L. Weekly Supp. 264, 2011 Fla. LEXIS 1341, 2011 WL 2374612
CourtSupreme Court of Florida
DecidedJune 16, 2011
DocketNo. SC07-2295
StatusPublished
Cited by6 cases

This text of 66 So. 3d 905 (State v. Powell) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Powell, 66 So. 3d 905, 36 Fla. L. Weekly Supp. 264, 2011 Fla. LEXIS 1341, 2011 WL 2374612 (Fla. 2011).

Opinions

PER CURIAM.

This case comes before this Court on remand from the decision of the United States Supreme Court in Florida v. Powell, - U.S. -, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010). The issue presented concerns the scope of the pre-interrogation warnings required by the Fifth Amendment to the United States Constitution, as described in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and by article I, section 9 of the Florida Constitution, as described in Traylor v. State, 596 So.2d 957 (Fla.1992). After giving due consideration to the Supreme Court’s decision in Powell, we find that the warnings given in this case adequately advised the respondent of his rights under the United States and Florida Constitutions.

STATEMENT OF THE CASE

Previously, in State v. Powell, 998 So.2d 531 (Fla.2008), we upheld a decision of the Second District Court of Appeal reversing respondent Kevin Powell’s conviction for possession of a firearm by a felon. The factual predicate for the conviction took place on August 10, 2004, when police officers discovered a nine-millimeter handgun after arriving at a residence to investigate the respondent. Powell was arrested and transported to police headquarters, where he was given the following warnings:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

Id. at 532. Powell agreed to talk to the officers and subsequently made incriminating statements during the interrogation. See id. At trial, Powell’s counsel objected to the introduction of the statements into evidence, arguing that the warnings were deficient because they did not expressly state that Powell had the right to have an attorney present during questioning. The trial court overruled the objection and admitted the statements. Powell was convicted by the jury and sentenced to ten years in prison. See id. at 532-33.

On appeal, the Second District Court of Appeal reversed the conviction, holding that the warnings were inadequate under both the Fifth Amendment and article I, section 9. See Powell v. State, 969 So.2d 1060, 1061 (Fla. 2d DCA 2007), approved, 998 So.2d 531 (Fla.2008). The district court reasoned that to advise a suspect that he “has the right ‘to talk to a lawyer [907]*907before answering ... any of our questions’ constitutes a narrower and less functional warning than that required by Miranda.” Id. at 1064. However, the Second District certified the following question to this Court as a matter of great public importance:

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER “BEFORE QUESTIONING” AND (B) THE “RIGHT TO USE” THE RIGHT TO CONSULT A LAWYER “AT ANY TIME” DURING QUESTIONING?

Id. at 1067-68.

This Court granted discretionary review,1 answered the certified question in the affirmative, and approved the decision of the Second District. See Powell, 998 So.2d at 532. In our decision, we agreed with the Second District that the warnings were deficient and that the trial court had erred in admitting Powell’s statements into evidence. See id. at 542. This Court first discussed the contours of the privilege against self-incrimination as afforded by both federal and Florida law. With regard to the requirements of the United States Constitution, we explained that the United States Supreme Court has held that the following warnings are required to ensure that any statement obtained during a custodial interrogation complies with the federal privilege against self-incrimination afforded by the Fifth Amendment:

[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Id. at 534 (quoting Miranda, 384 U.S. at 479, 86 S.Ct. 1602).

With regard to the requirements of Florida law, we explained that similar warnings are required by the self-incrimination clause of article I, section 9 of the Florida Constitution. Under article I, section 9, suspects must be informed:

[1] that they have a right to remain silent, [2] that anything they say will be used against them in court, [3] that they have a right to a lawyer’s help, and [4] that if they cannot pay for a lawyer one will be appointed to help them.

Powell, 998 So.2d at 535 (footnote omitted) (quoting Traylor, 596 So.2d at 966). We noted that the right to a lawyer’s help means that “the suspect has the right to consult with a lawyer before being interrogated and to have the lawyer present during interrogation.” Id. at 535 n. 2 (quoting Traylor, 596 So.2d at 966 n. 13). For the purposes of our decision on remand, however, we observe here that, “[t]hough our analysis in Traylor was grounded in the Florida Constitution, our conclusions were no different than those set forth in prior holdings of the United States Supreme Court.” State v. Owen, 696 So.2d 715, 719 (Fla.1997).

After evaluating the specific pre-interro-gation warnings that were read to Powell, we agreed with the Second District that the warnings were deficient. Our analysis focused on two portions of the warnings that were read by the interrogating officers. First, Powell was informed: “You have the right to talk to a lawyer before answering any of our questions.” Powell, 998 So.2d at 540. Second, a catch-all statement was included at the end of the warnings, which stated: “You have the [908]*908right to use any of these rights at any time you want during this interview.” Id.

We determined that the Miranda rights as they were described to Powell did not advise him of his right to have an attorney present during questioning. See id. With regard to the first portion of the warning, we found the statement misleading because Powell was informed only that he had the right to speak with an attorney before answering any questions. We stated: “The ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.” Id. at 541.

We also concluded that the final statement, informing Powell of his right to use his rights “at any time ... during this interview” did not cure the deficiency:

The Second District ... found that language could not cure the deficiency because Powell was never unequivocally informed that he had the right to have an attorney present at all times during his custodial interrogation. See Powell,

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Cite This Page — Counsel Stack

Bluebook (online)
66 So. 3d 905, 36 Fla. L. Weekly Supp. 264, 2011 Fla. LEXIS 1341, 2011 WL 2374612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-powell-fla-2011.