Friday, November 13, 2009

Miranda: The Murder of Ana Maria Angel, State v. Powell, 998 So. 2d 531 (Fla. 2008) and Related Miranda Issues

Roland Schwartz and I were sitting in the Third DCA on Monday waiting for an oral argument so we had the opportunity to watch a couple of other cases.  The case directly before my case was Mena v. State (3D08-73).  Mena and the various related cases could alone form the basis for a treatise on Miranda warnings.  One of the issues in the Mena case is whether the police failed to give a sufficient miranda warning because the suspect was told he had a right to counsel now and a right to counsel later but was not specifically told that he had a right to counsel during questioning. 

Mena is one of five people charged in a brutal murder that took place in 2002.  Some of the facts were described in the Third DCA's decision in State v. Roman, 983 So.2d 731 (Fla. 3d DCA 2008) (3D06-1949).  In Roman, the Third District reversed the trial court's suppresion of a confession relating to miranda rights. In that decision, the Third DCA described the facts of the crime as follows:
On the night of Saturday, April 27, 2002, young adults Ana Maria Angel and Nelson Portobanco had a dinner date in Miami Beach. They walked on the beach at the south end of the city and, as they returned from that walk, were abducted at gunpoint by a group of young men in a white pickup truck.

Ana Maria Angel was assaulted, raped, and ultimately shot in the head at point blank range while on her knees. Nelson Portobanco was beaten, stabbed, and left for dead alongside Interstate 95 as the kidnappers drove north in the pickup truck.

Using information obtained from Portobanco at North Broward Hospital, credit card and ATM information, and cell phone details, a Miami Beach homicide detective traced the suspects to an apartment complex in Orlando early Sunday morning. Florida Department of Law Enforcement (FDLE) personnel in Orlando were brought into the investigation. During the questioning of persons other than Roman, the investigation implicated Victor Caraballo, his brother Hector Caraballo, Joel Lebron, Cesar Mena, and Jesus Roman (also known as “Tito,” “Tico,” or Jesus Roman Torres) as the five perpetrators.
The Third District also released an opinion on miranda warnings in the appeal of co-perpetrator Joel Lebron.  In State v. Lebron, 979 So.2d 1093 (Fla. 3d DCA 2008) (3D06-1940), the court reversed in part and affirmed in part.  The court stated: "The trial court suppressed the pre-Miranda statement on the theory that one of the law enforcement officers asked a question which was the functional equivalent of interrogation, prior to the administration of Miranda warnings. The court suppressed the post-Miranda statement on the theory that the pre-Miranda question rendered the post-Miranda statement inadmissible. We affirm as to the pre-Miranda statement but reverse as to the post-Miranda statement."

Another of the alleged co-perpetrators was Victor Caraballo.  Mr. Caraballo was convicted of murder and the jury reccomended death by a vote of 9-3 which led the trial court to enter a death sentence.  That conviction and sentence are currently on direct appeal to the Florida Supreme Court in case number SC07-1375.  You can view the briefs in Mr. Caraballo's Florida Supreme Court appeal here.  Oral argument was held on September 2, 2009 and you can watch a video of the argument here and read a transcript here.  The oral argument was interesting and the Court seemed somewhat upset with prosecution as a whole.  One somewhat funny part of the oral argument was when Justice Labarga commented that it must be what you call a bad day as a lawyer when you turn on the tv and your client is giving a press conference admitting to murder. 

Acevedo v. State (5D09-09) is what reminded me of the oral argument in Mena that I saw a couple of days ago.  The Acevedo case has nothing to do with the murder described by the many cases above.  Mr. Acevedo was charged "with burglary of a dwelling, dealing in stolen property, and grand theft of property valued at $300 or more but less than $20,000."  Mr. Acevedo argued:
that law enforcement gave a defective Miranda warning by failing to advise him of his right to have counsel present during questioning. He is correct that, under the decision of the Florida Supreme Court in State v. Powell, 998 So. 2d 531 (Fla. 2008), cert. granted, 129 S. Ct. 2827 (U.S. June 22, 2009) (No. 08-1175), the Miranda warning he was given was defective because he was told only that he had a right to counsel, not that he had a right to counsel before being interrogated and during interrogation. 998 So. 2d at 535; see also Modeste v. State, 4 So. 3d 1217 (Fla. 2009) (quashing decision of this Court in State v. Modeste, 987 So. 2d 787 (Fla. 5th DCA 2009)(en banc)).
The exact language used in Acevedo was preserved by videotape and included in the opinion as follows: "Mr. Acevedo, before we get started I'm going to advise you of your rights, and you have a right to remain silent. Anything you say will be used against you in court as evidence. You have a right to an attorney. If you can't afford one, one will be appointed to you. Do you understand your rights?"  The court stated that based upon State v. Powell, this language is insufficient.  "Given the nature of this evidence, it is impossible to say that Acevedo's statements did not affect the jury's verdict. Although there may be sufficient evidence to support a conviction without Acevedo's statements, the erroneous admission of Acevedo's statements obtained in violation of Miranda was not harmless error." 

Finally, the United States Supreme Court granted certiorari and will review State v. Powell, 998 So. 2d 531 (Fla. 2008).  At least in part, Powell was previously referenced on this blog here and here.  Oral argument at the United States Supreme Court is scheduled for December 7, 2009.  SCOTUS Wiki has all of the briefs and that portion of the SCOTUS Wiki page is copied below:

Docket: 08-1175

Issue: Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?
Merit briefs
Amicus briefs
Of course, the United States Supreme Court may make all of this irrelevant.


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