Nickulis Gillis v. State of Florida

SC06-1207

NICK LIST GILLIS.
DOROTHY EASLEY.
MARIA ARM MASS.
CONNIE RAY ISRAEL.
PUTNAM COUNTY.
JAMES McDONOUGH.
ROBERT T STRAIN.
KENNETH NUNNELLEY.
WILLIAM THOMAS ZIEGLER, JR..
JOHN HUSTON POPE.
KENNETH NUN FELLLY.
DOROTHY EASLEY.
HEAR YE, HEAR YE.
THAT THE DEFENDANT COULD, STOP
QUESTIONING AT ANY POINT.
WHY DOESN'T THAT, SENTENCE,
DISTINGUISH THE FACTS OF THIS
CASE FROM THE FACTS OF FROM THE
FOURTH DCA?
>> FIRST OF ALL, YOUR HONOR,
LET'S ESTABLISH WHAT WE'RE HERE
FOR.
THAT IS NOT TO DEBATE THE
SEMANTICS, TO DEBATE THE
PRECISE LANGUAGE.
THE QUESTION IS UNDER BOTH
MIRANDA AND UNDER TRAY LORE IS
THE SUBSTANCE ADVISING
DEFENDANT THUS THAT HE OR SHE
CAN KNOWINGLY WAIVE THOSE
RIGHTS.
QUESTION IS WHETHER OR NOT THE
THIRD DISTRICT COURT OF APPEAL,
THE METRO DADE FORUM,
SUFFICIENTLY ESTABLISHES TO,
SOMEONE OF COMMON UNDERSTANDING
THAT THEY CAN TERMINATE
QUESTIONING AT ANY TIME.
>> YOU BY THINK WE HAVE TO,
FIRST, REACH WHETHER THERE'S A
CONFLICT BETWEEN THE THIRD AND
FOURTH.
>> AND IT'S OUR POSITION THERE
IS A CONFLICT.
>> I THINK THAT'S THE SENSE OF
JUSTICE CANTERO'S QUESTION AND
MY QUESTION TO, IN READING THE
CASESES FROM THE FOURTH AND
READING THIS CASE FROM THE
THIRD, IT RAP PIERCE THAT THERE
IS A REAL QUESTION WHETHER
THEY'RE MAKING A DECISION ON
THE SAME PHRASE IN THE MIRANDA
WARNING.
>> THE QUESTION IS, WHETHER OR
NOT THEY'RE MAKING A DECISION
AS TO THE SAME CONTENT IN THE
MIRANDA WARNING.
THAT IS THE RIGHT TO TERMINATE
QUESTIONING.
IRRESPECTIVE HOW THAT RIGHT IS
THE ARTICULATED.
THE STATE PUT INTO THE RECORD
BELOW MIRANDA WARNING FORMS
FROM ALL OVER THE STATE OF
FLORIDA AND THOSE MIRANDA
WARNING FORMS IN VARIOUS FORMS
IN VARIOUS CHOSEN LANGUAGE
ARTICULATE THE RIGHT TO
TERMINATE LANGUAGE.
4th DISTRICT COURT OF APPEAL
FORM DOES THAT.
THE THIRD DISTRICT COURT OF
APPEAL FORM DOES NOT DO THAT.
I DID A NOTICE OF SUPPLEMENTAL
APPENDIX SO WE COULD COMPARE
THE FORMS AND WHAT IS BEING
URGED BY THE 4th DISTRICT COURT
OF APPEAL.
VERSUS THE METRO DADE FORM AND
WHAT IS IN THE METRO DADE FORM.

THERE ARE TWO MINUTES MISSING
IN THE THIRD DISTRICT COURT OF
APPEALS.
THE METRO DADE FORM THAT ARE
NOT IN TRAY LORE AND THEY'RE
NOT IN THE WHAT IS {RURGE}ED BY
4th DISTRICT.
>> WHAT WAS THE BASIS UPON
WHICH THE THIRD DISTRICT?
>> I UNDERSTAND WHAT YOUR HONOR
IS ASKING.
>> THIRD DISTRICT COURT OF
APPEAL AND STATE OF FLORIDA
TAKE THE POSITION THAT THE
MIRANDA FORM, METRO DADE FORM
IMPLICITLY ARTICULATES THE
RIGHTSES TO A, TERMINATE
QUESTION AT ANY TIME AND
IMPLICITLY ARTICULATE THE RIGHT
TO THE CONSULT WITH COUNSEL
PRIOR TO CUSTODIAL
INTERROGATION.
I THINK I'M GETTING WHAT YOUR
HONOR IS ASKING ABOUT.
THE THIRD DISTRICT COURT OF
APPEAL, POSITION IMPLICITLY
COMMUNICATING THAT RIGHT IS
GOOD ENOUGH.
THE FOURTH DISTRICT COURT OF
APPEAL AND TRAYLOR AND THE U.S.
SUPREME COURT AND MIRANDA TAKE
THE POSITION THAT IMPLICITLY
COMMUNICATE SOMETHING NOT GOOD
YOU HAVE IN.
YOU CANNOT IMPLICITLY
ARTICULATE THAT RIGHT.
YOU MUST EXPRESSLY ARTICULATE.

>> BUT YOU WOULD AGREE IF WE
GET, FIRST THRESHOLD QUESTION
TO ME --
>> OF COURSE.
>> ONCE WE ASSUME JURISDICTION
THE THRESHOLD QUESTION THAT SEE
IS WHETHER MIRANDA, AND
TRAYLOR, OR TRAYLOR, IMPOSE A,
OBLIGATION OR BELIEF.
TO THE ADVISE THE DEFENDANT OF
HIS OR HER.
RIGHT TO RIGHT TO TERMINATE
QUESTIONING AS OPPOSED TO,
RESPONSIBILITY, ON GOING
RESPONSIBILITY OF THE POLICE TO
ENSURE THAT IN ANY MAN EVERY
DURING THE QUESTION THAT
INDICATE THEY DO NOT WANT TO
CONTINUE QUESTIONING, THAT THEY
MUST STOP QUESTIONING.
NOW, I READ THIS IDEA SO-CALLED
RIGHTS, I READ TRAYLOR AS NOT
REQUIRING THE, ADVISING OF A,
OF A RIGHT TO TERMINATE
QUESTIONING.
I THINK IT'S A GOOD IDEA, I
WOULD HOPE, STANDARD FORM
AROUND THE STATE AND THAT'S IN
THERE, BUT IT'S WHETHER IT IS,
A, RIGHT THAT MUST BE, ADVISED
ADVISE THE DEFENDANT WHERE IS
YOUR SOURCE OF TRAYLOR SAYS
THAT THAT MUST BE A RIGHT THAT
IS, COMMUNICATED TO THE
DEFENDANT?
>> YOUR HONOR, CANDIDLY TRAYLOR
DOES NOT {AR} TICK LATE THAT.
THAT WAS NOT THE ISSUE IN
TRAYLOR.
THE FORM USED IN TRAYLOR
INTERESTINGLY IN OUR
SUPPLEMENTAL APPENDIX THE FORM
USED IN TRAYLOR SPECIFICALLY
DOES ARTICULATE THAT.
THE ISSUE IN TRAYLOR WAS A
DIFFERENT ISSUE WHICH WAS
{WLORPT}, THE RIGHT TO --
WHETHER OR NOT THE RIGHT TO
CONSULT WITH COUNSEL WAS
SUFFICIENTLY ARTICULATED.
THIS COURT DID NOT NEED TO GET
TO THAT ISSUE.
>> THEY WERE VERY SPECIFIC
ABOUT WHAT WAS REQUIRED TO BE
TOLD TO THE DEFENDANT.
ON PAGE 965, TO 66, THE COURT
SPECIFICALLY SAID, WE HOLD THAT
ENSURE THE VOLUNTARINESS OF
CONFESSION THE
SELF-INCRIMINATION CLAUSE OF
ARTICLE 1, SECTION 9, FLORIDA
CONSTITUTION REQUIRES THAT
PRIOR TO CUSTODIAL
INTERROGATION IN FLORIDA,
SUSPECTS MUST BE TOLD THEY HAVE
A RIGHT TO REMAIN SILENT.
ANYTHING THEY SAY WILL BE USED
AGAINST THEM IN COURT.
THAT THEY HAVE A RIGHT TO A
LAWYER'S HELP AND THAT IF THEY
CANNOT PAY FOR A LAWYER ONE
WILL BE APPOINTED TO HELP THEM.

NOW, DOES THIS, FORM IN THIS
CASE, DOES THAT GO THROUGH EACH
OF THOSE RIGHTS THAT WERE
REQUIRED BY TRAYLOR?
>> WELL, YOUR HONOR, FIRST OF
ALL --
>> FIRST ANSWER MY QUESTION.
>> ALL RIGHT.
THEN MAY I ANSWER JUSTICE
CANTERO'S QUESTION?
I'M SORRY, JUSTICE PARIENTE'S
QUESTION, I LIKE TO FINISH
ANSWERING THAT QUESTION.
WE WERE ASKING THE SOURCES OF
RIGHTS.
TO ANSWER BOTH OF YOUR
QUESTIONS, TRAYLOR DOES NOT
EXPRESSLY ARTICULATE THAT.
BUT THE FORM IN TRAYLOR
EXPRESSLY CONTAINED IT.
>> JUSTICE PARIENTE ASKED YOU
WHERE IN TRAYLOR THE COURT
REQUIRED THAT THE DEFENDANT BE
TOLD HE HAS RIGHT TO STOP
QUESTIONING?
>> I HAVE RESPONDED TO THAT
THAT TRAYLOR DID NOT EXPRESSLY
REQUIRED THAT.
THAT WAS NOT THE ISSUE
EXPRESSLY IN TRAYLOR.
LET'S STEP BACK FOR A MOMENT GO
BACK TO THE FEDERAL SOURCES ON
THIS ISSUE.
MIRANDA HAS BEEN CONSTRUED IN
SUBSEQUENT CASE LAW, MIR {RABD}
TODAY AS THE DICTA TO INDICATE,
RIGHT TO THE TERMINATE QUESTION
SOMETHING A RIGHT EXPRESSLY
ARTICULATED IT'S EXPRESSLY NOT
ONE OF THE HOLDINGS.
THAT'S WHY WE'RE HERE TODAY
DISCUSSING THAT.
HOWEVER MIRANDA HAS BEEN
CONSTRUED IN THE MOSELEY VERSUS
MICHIGAN DECISION AND
SUBSEQUENT CASES ON RIGHT TO
DETERMINE QUESTIONING AT ANY
TIME.
>> DO MOSELEY OR ANY OF THOSE
OTHER CASES REQUIRE THE
DEFENDANT BE TOLD HE HAS A
RIGHT TO STOP QUESTIONING?
>> IT IS ONE OF THE RIGHTS THAT
SHOULD BE ARTICULATED AND I
SUGGEST, IT'S OUR POSITION,
THAT IF IT HAS NOT BEEN
EXPRESSLY ADDRESSED IN TRAYLOR
THIS COURSE SHOULD EXPRESSLY
REQUIRE IT.
BUT LET ME EXPLAIN TO YOU WHY.

THE REASON WE SHOULD REQUIRE
BECAUSE THERE ARE TWO DIFFERENT
SETS OF RIGHTS TO REMAIN SILENT
HERE.
THERE IS THE RIGHT TO REMAIN
SILENT AT THE BEGINNING OF
CUSTODIAL INTERROGATION.
THAT IS, AM I EVEN GOING TO
ANSWER YOUR QUESTIONS?
AND THEN THERE IS THE RIGHT TO
CONTINUE TO ANSWER YOUR
QUESTIONS.
THAT IS A RIGHT TO REMAIN
SILENT.
YES, IT IS.
BUT IT'S A DIFFERENT RIGHT.
IT'S SO VITAL AND SO IMPORTANT
THAT IT SHOULD BE EXPRESSLY
ARTICULATED.
>> HERE IS WHERE GOING BACK TO
JUSTICE CANTERO'S QUESTION, IN
MIAMI-DADE FORM, THAT YOU'RE
ON, IT HAS RIGHT TO REMAIN
SILENT.
YOU DON'T HAVE TO TALK.
YOU DO NOT HAVE HAVE TO ANSWER
ANY OF MY QUESTIONS.
THAT IS EXPRESSING ADDITIONAL
RIGHTS IS, BUT AT ANY POINT THE
QUESTION IS --
[INAUDIBLE]
YOU HAVE THE RIGHT TO TERMINATE
QUESTION SOMETHING NOT EXACTLY
A VERY -- YOU DON'T HAVE TO
ANSWER ANY OF MY QUESTIONS MORE
EASY TO WAY TO EXPRESS IT.
SO WHY DOES THIS PART, ASK THAT
IS FORM ACTUALLY TWO DIFFERENT
THINGS AS TO
[INAUDIBLE]
>> BECAUSE, THE THIRD DISTRICT
TAKES THE POSITION, FIRST OF
ALL WHAT DID THE THIRD DISTRICT
SAY?
THE THIRD DISTRICT SAYS IT
RIGHT IMPLICITLY ARTICULATED.
WE TAKE A POSITION THIS IS
RIGHT THAT MUST BE EXPRESSLY
ARTICULATED.
SAYING THAT YOU DON'T HAVE TO
ANSWER ANY OF MY QUESTIONS IS
NOT THE SAME THING AS SAYING
YOU HAVE THE RIGHT TO STOP
ANSWERING MY QUESTIONS.
THAT IS NOT SOMETHING OF
ORDINARY INTELLIGENCE.
EVERY TRANSACTION UNDER COMMON,
AND ORDINARY UNDERSTANDING,
ONCE WE SIGN WAIVER, AND ONCE
WE BEGIN TO SPEAK, THOSE OF US
WHO ARE NONLAWYERS DO NOT
UNDERSTAND THAT TO MEAN YOU
MUST CONTINUE ANSWERING
QUESTIONS.
LOOK AT REAL ESTATE CONTRACTS
--
>> DIDN'T THIS COURT
SPECIFICALLY REJECT THAT IN
BROWN IN 1990?
>> IT SUGGESTS THE THAT COURT
SPECIFICALLY REJECTED THAT IN
BROWN UNDER FEDERAL LAW.
>> WELL I'M HAVING A HARD TIME,
IF, TRAYLOR, WHICH I UNDERSTAND
YOU'RE SAYING THAT, TRAYLOR
CHANGED, BROWN BECAUSE, IT WAS,
ON THE BASIS OF STATE LAW.
BUT THEN, EARLIER, RECOGNIZED
THAT TRAYLOR DIDN'T EXPLICITLY
DEAL WITH THE ISSUE.
THEN, BROWN, WHY DOESN'T BROWN
JUST SIMPLY CONTROL THIS ISSUE?

>> WELL, YOUR HONOR, UNDER
FEDERAL LAW WE CAN SEE THAT
BROWN ARGUABLY DOES ADDRESS
THIS ISSUE.
THE PROBLEM WITH BROWN AND THE
PROBLEM WITH THE OTHER CASES
THE STATE RELIES ON, LET ME GO
AHEAD NAME THEM, TALKING ABOUT
BROWN, WE'RE TALKING ABOUT
COOPER, JOHNSON, AND CHAVEZ.
THE DECISIONS THAT ADDRESS THE
RIGHT TO CONSULT WITH THE
COUNSEL PRIOR TO CUSTODIAL
INTERROGATION.
THE PROBLEM WITH BROWN IS,
THERE IS NOTHING IN THE BROWN
DECISION THAT SUGGESTS IT WAS
DECIDED ON STATE LAW.
AND THAT MATTERS OF COURSE.
THIS COURT HAS THE POWER TO CON
TRUE ITS OWN CONSTITUTION IF
THIS COURT WANTED TO CONSTRUE
THE CONSTITUTION IN BROWN IT
CERTAINLY COULD HAVE DONE SO.
BUT THERE'S NOTHING IN THE
BROWN DECISION THAT SUGGESTS
THAT.
AND THEREFORE, FROM THE
STANDPOINT OF PRECEDENTAL
VALUE.
BROWN DOESN'T GIVE US ANY
GUIDANCE UNDER THE FLORIDA
CONSTITUTION.
WE NEED THAT GUIDANCE.
>> HERE MY PROBLEM WITH THAT IS
THAT, -- I HOPE SOMEHOW THERE
COULD BE ONE --
[INAUDIBLE]
BUT I DON'T SEE WHERE IT RISES
TO THE LEVEL OF CONSTITUTIONAL
SIGNIFICANCE.
MIRANDA ITSELF ARE OF COURSE
REAFFIRMED -- BUT TO SAY THAT
IF THIS COURT WOULD SAY THAT
OUR CONSTITUTIONAL AMENDMENT,
WAS GIVING MORE RIGHTS THAN THE
STATE CONSTITUTION BASED ON
WHAT WE THINK IS A GOOD IDEA
AND THAT'S WHERE I HAVE A
PROBLEM WITH, WHERE IT RISES TO
THE HE LEVEL OF CONSTITUTIONAL
REQUIREMENTS THAT THIS REQUIRE
IMPOSE.
IF IT DOESN'T, IT'S NOT
CONSTITUTIONALLY BASED THAN
WHAT OTHER, WE DON'T HAVE ANY
OTHER AUTHORITY TO SAY IT
SHOULD BE DONE --
[INAUDIBLE]
>> ARE WE ADDRESSING THE SULLY,
RIGHT TO TERMINATE QUESTIONING
OR THE RIGHT TO CONSULT WITH
COUNSEL PRIOR TO CUSS TEED DEAL
-- CUSTODIAL INTERROGATION OR
OVERALL ISSUES BEING RAISE?.
>> RIGHT TO TERMINATE
QUESTIONS.
>> YES, YOUR HONOR THERE ARE
TWO ISSUES WE HAVE RAISED HERE.

>> RIGHT TO TERMINATE
QUESTIONING.
>> RIGHT TO TERMINATE
QUESTIONING IT IS OUR POSITION
THAT MIRANDA DOES NOT EXPRESSLY
REQUIRE IT.
IT IS OUR POSITION THAT THE
CASES SUBSEQUENTLY CONSTRUING
MIRANDA DO REQUIRE IT.
WE CITED CASE LAW, MOSELEY
VERSUS MICHIGAN IS ONE OF THE
CASES.
IN ADDITION THE TRAYLOR
DECISION HAD THE RIGHT TO
TERMINATE QUESTIONING.
MORE THAN HALF OF THE FORMS THE
STATE PUT INTO THE RECORD BELOW
ACROSS THE STATE OF FLORIDA
CONTAIN THIS REQUIREMENT.
IT IS, TO THE EXTENT THE COURTS
INCLUDES THAT THE RIGHT TO
TERMINATE QUESTIONING, IS AN
AREA THAT WE HAVE LEFT OPEN.
THAT WAS LEFT OPEN IN MIR RAND
TODAY.
IS AN AREA WE LEFT OPEN IN
TRAYLOR, UNDER OUR DECLARATION
OF RIGHTS UNDER THE
SELF-INCRIMINATION CLAUSE WHICH
WE HOLD IN A POSITION OF
GREATER IMPORTANCE WE RETECH
FULLY SUBMIT THAT THE COURT
SHOULD CLOSE THAT GAP AND
EXPRESSLY REQUIRE IT.
BECAUSE THERE ARE TWO DIFFERENT
RIGHTS HERE.
I HOPE I'M ANSWERING YOUR
QUESTION, JUSTICE PARIENTE,
THERE ARE TWO DIFFERENT RIGHTS
HERE RIGHT TO REMAIN SILENT.
ONE IS RIGHT TO BEGIN
QUESTIONING WHICH IS THRESHOLD
RIGHT.
THE OTHER IS TO CONTINUE
ANSWERING MY QUESTIONS.
AND IF SOMEONE IS NOT ADVISED
EXPRESSLY OF THAT RIGHT, AND
THE U.S. SUPREME COURT
EXTENSIVELY DISCUSSES THAT IN
THE MIRANDA DECISION, IF YOU'RE
NOT EXPRESSLY ADVISED OF THE
RIGHTS YOU CANNOT KNOW THAT
UNDER COMMON AND ORDINARY
UNDERSTANDING.
AND IN TRANSACTIONS, IN
CONSUMER PROTECTION
TRANSACTIONS WAIVER OF RIGHT TO
--
>> THERE IS NO QUESTION MIRANDA
IS MORE SPECIFIC RIGHTS THAT
MUST BE WARNED OF, AND ON THAT
I THINK YOU AGREE THE RIGHT TO
TERMINATE QUESTIONING IS, NOT,
AMONG THOSE THAT, AN INDIVIDUAL
MUST BE WARNED B SO, LET'S --
>> I CAN SEE IT'S BEEN LEFT
OPEN.
>> NOW THE OTHER ONE, NOW
YOU'RE TALKING ABOUT I DIDN'T
REALIZE, IS THAT ANOTHER
CONFLICT ISSUE.
>> YES, IT IS, YOUR HONOR.
RIGHT TO CONSULT WITH COUNSEL
PRIOR TO CUSTODIAL
INTERROGATION WAS NOT
SPECIFICALLY IN CONFLICT WITH
THE FOURTH DISTRICT COURT OF
APPEAL OPINION.
BUT RECALL THAT THE {FOUSHT}
DISTRICT COURT AFTER PAP PEEL
DECISIONS RIPLEY, ROBERTS,
FRANKLY, WEST THOSE DEALT WITH
THE BROWARD FORM.
THE BROWARD FORM ALREADY HAD
THAT IN THERE.
>> THAT'S ALL IT HAD IN IT,
RIGHT?
>> CORRECT.
EXACTLY, YOUR HONOR THE PROBLEM
WITH THE BROWARD FORM IT DID
NOT HAVE THE RIGHT TO CONSULT
WITH COUNSEL DURING
INTERROGATION.
I'M SORRY, JUSTICE.
>> FIRST ISSUE I'M A LITTLE BIT
CONCERNED ABOUT.
ARE YOU GIVING UP ON THAT
ISSUE?
ARE YOU DOWN SEEDING THAT, THE,
CASES I BELIEVE IT'S JOHNSON
AND COOPER, CONTROLLING ON THAT
ISSUE?
>> NO, YOUR HONOR.
I'M NOT CONCEDING THAT THE
THEY'RE CONTROLLING ON THE
ISSUE YOU OF FLORIDA LAW.
WHAT I'M CONCEDE SOMETHING THAT
THIS COURT HAS CONSTRUED
MIRANDA, TO CONCLUDE THAT IT
DOES NOT REQUIRE A RIGHT TO
QUESTIONING.
A RIGHT TO TERMINATE
QUESTIONING ANY TIME.
>> THERE IS POINT IN MIR RAND
TODAY.
THERE IS A HOLDING IN MIRANDA
SAID ACCORDINGLY WE HOLD THAT
AN INDIVIDUAL, HELD FOR
INTERROGATION, MUST BE CLEARLY
INFORMED THAT HE HAS THE RIGHT
TO CONSULT WITH AN WITH A
LAWYER AND TO HAVE THE LAWYER
WITH HIM DURING INTERROGATION
UNDER THE SYSTEM FOR PROTECTING
THE PRIVILEGE WE DELINEATE
TODAY.
SO WHAT DO YOU, INTERPRET THAT
STATEMENT AS MEANING?
>> WELL, THE RIGHT TO CONSULT
WITH COUNSEL PRIOR TO
INTERROGATION AND THE RIGHT TO
CONSULT WITH COUNSEL DURING
INTERROGATION.
I THINK IT'S IMPORTANT, IN BOTH
MIRANDA AND IN TRAYLOR, THAT
WE'RE NOT DECIDED EXCLUSIVELY
ON FIFTH AMENDMENT GROUNDS
ALTHOUGH THE U.S. SUPREME COURT
SUGGESTS THAT THEY WERE.
MIRANDA CAME ON THE HEELS OF
ESCOBIDO.
AND ESCOBIDO WAS DECIDED ON
SIXTH AMENDMENT GROUNDS.
MIRANDA DECIDED ON FIFTH
AMENDMENT GROUNDS AND BRINGS IN
RIGHT OF COUNSEL.
I HOPE I'M ADDRESSING YOUR
QUESTION, YOUR HONOR.
>> BASED ON THIS STATEMENT I
GUESS MY QUESTION TO YOU, IS
THIS STATEMENT, DIFFERENT FROM
WHAT THIS COURT SAID IN THE
COOPER AND THE JOHNSON CASE?
>> WELL YOUR HONOR, WHAT THIS
COURT SAID, IN THE COOPER AND
JOHNSON CASE WAS, THAT THERE
WAS NO RIGHT TO CONSULT WITH
COUNSEL PRIOR TO CUSTODIAL
INTERROGATION.
WHAT THE COURT WAS TAKING THE
POSITION, THE ISSUES THAT WERE
RAISED IN THOSE CASES WERE
FEDERAL LAW ISSUES.
TO THE EXTENT THAT THIS COURT
CONCLUDES THAT PERHAPS, MIRANDA
DID SUPPORT THE RIGHT TO
CONSULT WITH COUNSEL PRIOR TO
CUSTODIAL INTERROGATION THAT
WOULD BRING INTO QUESTION THE
JOHNSON, COOPER AND CHAVEZ
DECISIONS.
AND IN ADDITION, I THINK, IS
SOMETHING THAT SEEMS TO HAVE
BEEN OVERLOOKED AN AWFUL LOT IN
THE CASE LAW WAS CLEARLY WITHIN
THE FOUR CORNERS OF THE 9
MIRANDA DECISION I THINK YOUR
HONOR IS ASKING ME ABOUT, ONE
OF THE CONSOLIDATED CASES IN
MIRANDA WAS WET OVER.
WESTOVER REVERSED FOR THE
FAILURE TO ADVISE RIGHT TO
CONSULT WITH COUNSEL PRIOR TO
CUSTODIAL INTERROGATION.
THAT OF COURSE IS A VITAL RIGHT
THAT WE HAVE.
WHAT THE U.S. SUPREME COURT
SAYS IN THE MIRANDA DECISION IS
THE RIGHT TO CONSULT WITH
COUNSEL IS SORT OF THAT,
SAFEGUARD THAT WE HAVE TO
ENSURE THAT WE HAVE THE LAWYERS
THERE TO POLICE THE POLICE.
TO MAKE SURE THAT THE CUSTODIAL
INTERROGATION GOES
APPROPRIATELY.
IF WE ARE NOT AT A MINIMUM
ADVISING OF THE RIGHT TO
CONSULT WITH A LAWYER AND OF
COURSE, HAVE ONE APPOINTED, FOR
THE AVERAGE PERSON, IN THE
AVERAGE, OF COMMON
UNDERSTANDING, IF WE'RE NOT
ADVISING THEM OF THAT RIGHT,
THEN WE LOSE MANY OF THE
SAFEGUARDS AND MANY OF THE
PROTECTIONS THAT ARE REQUIRED
BEFORE A WAIVER IS EVEN
EXECUTED AND, THE, OTHER
THING'S VERY, VERY IMPORTANT IN
THE MIRANDA DECISION IS THE
NOTION THAT, WE WANT ALL OF OUR
CONFESSION, AND THE STATE OF
FLORIDA WANTS THIS, WE WANT ALL
OF OUR CONFESSIONS TO BE
INTELLIGENTLY AND KNOWINGLY
MADE PURSUANT TO AN TELL
{GEPT}, KNOWING, --
INTELLIGENT, KNOWING WAIVER.
ONLY WAY WE CAN DO THAT IS
REQUIRE LAW ENFORCEMENT
ARTICULATE EACH AND EVERYONE OF
THESE RIGHTS.
WE CANNOT PRESUME, IT IS NOT
IMPLICIT WE CANNOT ASSUME THESE
RIGHTS ARE GOING TO BE
UNDERSTOOD BY SOMEONE OF COMMON
UNDERSTANDING.
>> WITH THAT YOU'VE EXHAUSTED
ALL OF YOUR TIME.
>> APOLOGIZE.
THANK YOU SO MUCH.
>> MISS ARMAS.
>> MAY IT PLEASE THE COURT,
MARIA ARMAS.
STATE OF FLORIDA.
I'M A LITTLE TOO SHORT.
>> CLARIFY SOMETHING FOR ME.
I'M HAVING TROUBLE
UNDERSTANDING THE CONFLICT
HERE.
I THINK PART OF IT IS SOME
CONFUSION IN THE THIRD
DISTRICT'S OPINION HERE.
THE THIRD DISTRICT SAID THAT WE
NOTE THAT IN RIPLEY AND WEST
THE {FOUSHTH} DISTRICT
CONCLUDED MIRANDA FORM USED BY
THE BROWARD SHERIFF'S OFFICE
WAS DEFECTIVE FOR FAILING TO
INFORM A SUSPECT HE COULD STOP
QUESTIONING AT ANY TIME.
I DON'T SEE THAT IN WEST.
IT APPEARS TO ME WHAT THE
FOURTH DISTRICT SAID IN WEST
FORM WAS DEFECTIVE BECAUSE IT
FAILED TO INFORM THE DEFENDANT
THAT HE COULD HAVE COUNSEL
PRESENT DURING INTERROGATION.
DID NOT SEEM TO ADDRESS AND
MAYBE I JUST HAVEN'T SEEN IT,
THE ISSUE IN THIS CASE WHICH IS
FAILING TO INFORM DEFENDANT HE
COULD STOP QUESTIONING.
>> I BELIEVE YOU'RE CORRECT IN
THAT INTERPRETATION JUST AT
THIS CANTERO WITH REGARDS TO
WEST --
>> RIPLEY DIDN'T THEY?
>> IN RIPLEY, THEY PUT IT IN
AS, ALMOST AS AN AFTERTHOUGHT.

IN RIPLEY THE COURT SAID
MIRANDA FORM WAS DEFECTSTIVE
BECAUSE COUNSEL, THE DEFENDANT
WAS NOT WARNED OF THE RIGHT TO
HAVE COUNSEL PRESIDENT DURING
QUESTIONING OR HE COULD STOP
THE INTERROGATION AT ANY TIME
DURING QUESTIONING.
IT DOESN'T CITE ANY CASE LAW TO
SUPPORT THAT PROPOSITION.
>> WEST ALSO HAS THAT IN.
IT SEEMS LIKE AN AFTERTHOUGHT
AS WELL.
>> EXACTLY.
I COULD NOT FIND THE SUPPORT
FOR IT.
>> PROBLEM IS --
[INAUDIBLE]
WAS NOT INFORMED SHE WAS
ENTITLED TO HAVE COUNSEL
PRESENT DURING INTERROGATION
OR, SHE COULD TOP THE
INTERROGATION AT ANY TIME.
BUT IT'S PRETTY CLEAR FROM ALL
THE OTHER PREVIOUS DECISIONS
THAT WHAT THE COURT HAD BEEN
FOCUSING ON THE FACT HAVING
COUNSEL PRESENT.
>> DURING QUESTIONING.
>> TWO OR THREE AS ONE OF THE
VITAL, ESSENTIAL MIRANDA
RIGHTS.
>> WARNINGS, YES.
AND TO ADDRESS THE ISSUE
CONFLICT --
>> OUT OF NOWHERE.
>> OUT OF NOWHERE THERE IS NO
REAL SUPPORT FOR IT.
I SEARCHED FOR IT.
THERE WASN'T.
I WENT THROUGH THOSE CASES.
NOW --.
>> YOU ALSO AGREE THE FORM, DO
YOU THINK IT'S AN IMPORTANT
DISTINCTION?
I GUESS THIS IS SIMPLY TWEAKS
THE CONFLICT ISSUE, IF THERE IS
A RIGHT, IS THE, IS THE RIGHT
FORM THAT MIAMI-DADE POLICE
DEPARTMENT USES, IS THAT
SIGNIFICANT DIFFERENCE?
THAT YOU DON'T HAVE TO ANSWER
ANY OF MY QUESTIONS WHICH,
WHEREAS THE BROWARD ONE ONLY
HAS RIGHT TO REMAIN SILENT?
>> LET ME JUST CLARIFY.
WE ARE HERE ON TWO QUESTIONS AS
TO MIRANDA RIGHTS FORM USED BY
MIAMI-DADE COUNTY AND ISSUES B,
C, AND D UNLESS YOU WANT TO ASK
ANY QUESTIONS ABOUT THAT.
THE FIRST QUESTION THAT WE'RE
HERE FOR REPORTEDLY BECAUSE OF
A CONFLICT IS PRIOR TO
QUESTIONING, THAT FIRST
WARNING.
THEN WE HAVE THE TERMINATION AT
ANY TIME.
THAT'S THE SECOND QUESTION.
MIAMI-DADE MIRANDA FORM IS MUCH
MORE EXPANSIVE USED, THE FORMER
FORM USED BY THE BROWARD
SHERIFF'S OFFICE.
AND WITH REGARDS TO THE, RIGHT
TO TERMINATE QUESTIONING AT ANY
TIME, MIAMI-DADE INFORMS AN
ACCUSED YOU DON'T HAVE TO
ANSWER ANY OF MY QUESTIONS.
THEY DON'T QUALIFY IT.
IT'S NOT LIMITED.
YOU DON'T HAVE TO ANY
QUESTIONS, IT'S JUST ANY OF MY
QUESTIONS.
THIRD DISTRICT COURT OF APPEAL
TOOK THAT TO MEAN WHAT IT SAID.

>> IS THAT FORM, IS THERE -- IS
THAT FORM THEY DO -- I GUESS.
>> AT LEAST TEN YEARS, YOUR
HONOR.
>> ISSUE WITH, FOR THE FUTURE,
IS WHETHER, WE CAN HAVE ONE
FORM,
[INAUDIBLE]
DIFFERENT FORM IN THE SAME WAY,
YOU WOULD READ IN TRAYLOR AND A
LOT OF OTHER FORMS -- WAS.
>> ALL FORMS THROUGHOUT THE
STATE MOST PART TEND TO DIFFER
IN SOME WAY OR ANOTHER.
>> THIS ONE, YOU HAVE A RIGHT
TO STOP QUESTIONING --
>> THE OTHER FORMS IN THE
STATE?
SOME OF THEM HAVE IT.
SOME OF THEM DO NOT.
WE DO NOT HAVE ONE SINGULAR
FORM TO ADVISE A DEFENDANT OF
MIRANDA WARNINGS.
BUT WITH REGARDS TO THE
MIAMI-DADE FORM, THAT
PARTICULAR LANGUAGE, AGAIN WE
HAVE THE CASE OF BROWN WHICH
DID ADDRESS THIS ISSUE.
>> WHAT I HAVE A CONCERN WITH,
AS I THINK BIT, --, THERE WAS A
CHANGE IN THE LAW NOT AS FAR AS
TRAYLOR IS CONCERNED, ON IDEA
WHAT IS INVOCATION OF THE RIGHT
TO REMAIN SILENT?
AND, --
[INAUDIBLE]
BUT THE PROBLEM IS WE'RE NOW
REQUIRING THAT A DEFENDANT
CLEARLY, EXPRESS DURING
QUESTIONING THAT HE OR SHE
WANTS TO STOP QUESTIONING, FOR
THEM TO STOP -- THEY INDICATE
WHATEVER THE CHANGE IN THE
LANGUAGE WAS.
SO WHAT I'M CONCERNED ABOUT IS
THAT, PREVIOUSLY, ANYTHING THAT
A DEFENDANT MIGHT SAY TO
INDICATE THAT THERE WAS SOME
QUESTION ABOUT WHETHER THEY
WANTED TO CONTINUE, THE
QUESTIONING, POLICE HAVE TO
STOP.
NOW THAT IS NOT THE CASE.
IN TERMS OF MAKING SURE, THAT
THEY UNDERSTAND WHAT THEIR
RIGHTS ARE, DO YOU SEE, MAYBE
NO ONE'S MADE THIS ARGUMENT --
THAT IT IS NOT CRITICALLY
IMPORTANT TO ADVISE THE RIGHT
TO STOP QUESTIONING AT ANY
TIME?
>> THAT ARGUMENT HAS NOT BEEN
RAISED HERE.
BUT AGAIN, THE BURDEN IS STILL
ON THE POLICE TO, TO STOP
QUESTIONING WHEN THE DEFENDANT
EITHER ASKS FOR COUNSEL OR
INDICATES HE OR SHE WOULD LIKE
TO HAVE AN ATTORNEY PRESENT OR
INDICATES IN ANY WAY, SHAPE OR
FORM, I DON'T WANT TO ANSWER
THAT QUESTION.
COULD BE THE QUESTION SAYS I
DON'T WANT TO ANSWER THAT
QUESTION.
WELL DO YOU WANT TO ANSWER ANY
OTHERS?
YES OR NO?
AND THE MIAMI-DADE FORM CLEARLY
GIVES THE DEFENDANT THE
OPPORTUNITY SAYS YOU DON'T HAVE
TO ANSWER ANY OF MY QUESTIONS.

THAT'S WHAT THE THIRD DISTRICT
COURT OF APPEALS UPHELD.
NOW MIND YOU, THE THIRD
DISTRICT COURT OF APPEALS DID
NOT CITE TO BROWN SPECIFICALLY
BUT IT DID FOLLOW THE LOGIC OF
BROWN WHICH, THE FOURTH
DISTRICT COURT OF APPEALS DID
NOT DO WHEN IT JUST SIMPLY
SAID, YOU HAVE THE RIGHT TO
TERMINATE QUESTIONING AT ANY
TIME.
SO THE BSO FORM IS DEFICIENT.
>> WOULD YOU THEN SAY, AGAIN,
IF THE MIAMI-DADE FORM ONLY HAD
UNDER A, YOU HAVE THE RIGHT TO
REMAIN SILENT, YOU DON'T HAVE
TO TALK TO ME IF YOU DON'T WISH
TO, AND DIDN'T HAVE THAT
SECOND, YOU DON'T HAVE TO
ANSWER ANY OF MY QUESTIONS,
UNDER WHAT YOU SAID, BASED ON
BROWN THAT WOULD NOT BE A
CONSTITUTIONALLY DEFECTIVE --
>> RIGHT.
BECAUSE BROWN IS STILL GOOD LAW
IN THE STATE OF FLORIDA.
AND, EVEN THOUGH WE HAVE
TRAYLOR COMING TWO YEARS LATER
AND ALL THOSE OTHER CASES THAT
HAVE GONE AFTERWARDS, BROWN HAS
NEVER BEEN REVERSED.
THIS COURT DOES NOT -- REVERSE
ITSELF.
AS TO THE ISSUE REGARDING TO
HAVING AN ATTORNEY PRESENT
PRIOR TO QUESTIONING THAT
SPECIFIC LANGUAGE OF THE
MIAMI-DADE FORM HAS BEEN UPHELD
IN THIS COURT ON AT LEAST THREE
OCCASIONS THE THIRD DISTRICT
COURT OF APPEAL CANNOT BE SAID
TO HAVE DONE SOMETHING
ERRONEOUS WHEN IT FOLLOWS THE
PRECEDENT OF THIS COURT.
>> THIS LANGUAGE THAT LANGUAGE
SAYS YOU WANT A LAWYER TO BE
PRESENT DURING QUESTIONING?
IMPLICIT IN THAT SEEMS TO BE
THE STATEMENT THAT THAT IS WHEN
YOU CAN HAVE A LAWYER PRESENT.

THAT YOU CAN'T HAVE A LAWYER
PRIOR TO THE QUESTIONING.
SO --
>> YOUR HONOR --
>> SO WOULDN'T THAT LET ME JUST
FINISH THE QUESTION, WOULDN'T
THAT BE A VIOLATION OF THE
LANGUAGE IN MIRANDA THAT
SPECIFICALLY SAYS THAT YOU HAVE
A RIGHT TO CONSULT WITH AN
ATTORNEY AND, HAVE AN ATTORNEY
PRESENT DURING QUESTIONING?
>> WELL, I JUST POINT OUT TO
YOU RESPECTFULLY THE ACTUAL
WARNING GIVEN ON THE MIAMI-DADE
FORM, IF YOU WANT A LAWYER TO
BE PRESENT DURING QUESTIONING,
AT THIS TIME, OR ANY TIME
HEREAFTER, YOU ARE ENTITLED TO
HAVE THE LAWYER PRESENT.
CLEARLY, AT THIS TIME MEANS
RIGHT NOW I'M GIVING YOU --
>> DURING QUESTIONING AT THIS
TIME AND.
>> NO AT THIS TIME, WHEN I'M
GIVING YOU THE WARNING.
WE HAVE NOT YET COMMENCED
INTERROGATION OBVIOUSLY WE HAVE
NOT GONE THROUGH THE ENTIRE
MIRANDA WARNING.
LITERALLY AT THIS TIME, FROM
THIS POINT FORWARD YOU WANT
ATTORNEY PRESENT YOU'RE
ENTITLED TO HAVE ONE PRESENT.
I WOULD VICINITY OUT --
>> WE HAVE A DIFFERENCE IN
INTERPRETATION TO THAT.
SEEMS TO ME WHAT THEY'RE SAYING
YOU HAVE A RIGHT HAVE LAWYER
PRESENCE DURING QUESTIONING AT
THIS TIME OR AT ANY TIME DURING
THE QUESTIONING.
AND SO, IT'S, THE MIRANDA
DECISION, WHILE IT DID NOT HOLD
SPECIFICALLY ABOUT THE,
QUESTIONING GETTING RID OF,
STOPPING QUESTIONING AT ANY
TIME, IT SEEMS TO ME, IT DOES
SPECIFIC SAY, THAT YOU HAVE THE
RIGHT TO CONSULT WITH AN
ATTORNEY, AND THEN YOU HAVE THE
RIGHT TO HAVE THAT ATTORNEY
PRESENT DURING THE QUESTIONING.

DO YOU BELIEVE THAT'S WHAT THE
MIRANDA DECISION SAYS?
>> THE MIRANDA DECISION DOES
HAVE A REQUIREMENT THAT THE
DEFENDANT BE WARNED THAT YOU
HAVE THE RIGHT TO HAVE AN
ATTORNEY PRIOR TO ANY
QUESTIONING.
TRAYLOR HOWEVER, RELEGATED THAT
LANGUAGE TO A FOOTNOTE.
TRAYLOR SIMPLIFIED THE MIRANDA
WARNING ITSELF, SAID YOU HAVE A
RIGHT TO A LAWYER'S HELP.
IN FOOTNOTE 13, AND BY THAT WE
MEAN, BEFORE AND DURING.
NOT PUT IT AS PART OF THE
ACTUAL LANGUAGE.
BUT THEY HELD WOULD BE
SUFFICIENT TO WARN A DEFENDANT
--
>> WHAT WAS THE FORM -- WHAT
DOES THE TRAYLOR FORM ACTUALLY
SAY ON THAT?
>> I DON'T HAVE IT HANDY.
IT'S IN THERE.
>> YOU DON'T KNOW IF IT
ACTUALLY SAYS YOU HAVE A RIGHT
TO CONSULT WITH AN ATTORNEY
AND, HAVE A LAWYER PRESENT?
>> I BELIEVE IT DID BUT I HAVE
TO VERIFY THAT FOR YOU.
>> SEEMS TO ME AGAIN, IN TERMS
OF RIGHT TO LAWYER, THOSE ARE
-- THAT THOSE CAN'T BE, PUSHED
TOGETHER.
THE PROBLEM WITH THE BROWARD
FORM HAD, RIGHT TO LAWYER
BEFORE QUESTIONING AND THAT IT
DIDN'T -- YOU HAVE A RIGHT TO A
LAWYER DURING QUESTIONING.
>> CORRECT.
AGAIN THE TWO DIFFERENT FORMS
BEING COMPARED HERE, THAT'S
WHY, JURISDICTIONAL BRIEF I
ARGUED THAT --
>> MIRANDA WOULD CLEARLY BE
CONTROLLING WHEN WE TALK ABOUT
TRAY -- TRAYLOR OR OTHERS
MIRANDA IS CONTROLLING OVER
THAT, IS IT NOT?
>> ACCORDING TO TRAYLOR,
TRAYLOR FIRST REQUIRES ANALYSIS
BASED ON THE FLORIDA
CONSTITUTION.
>> WHAT TRAYLOR IS DOING, IS
SAYING OF COURSE, THAT STATES
THROUGH THEIR CONSTITUTION AND,
INTERPRETATION OF THE
CONSTITUTION, HAVE THE RIGHT TO
GRANT GREATER RIGHTS.
>> CORRECT.
>> BUT THE STATE HAVES NO RIGHT
TO GRANT LESSER RIGHTS.
>> CORRECT.
>> THAN HAS BEEN GRANTED IN
MIRANDA.
SO, JUSTICE QUINCE HAS BEEN
ASKING YOU ABOUT.
THIS I HAVE A QUOTE FROM, A I
HAVE QUOTE FROM MIRANDA RIGHT
HERE THAT SAYS, QUOTE, AN
INDIVIDUAL HELD FOR
INTERROGATION MUST BE CLEARLY
INFORMED THAT HE HAS THE RIGHT
TO CONSULT WITH A LAWYER AND TO
HAVE THE LAWYER WITH HIM DURING
INTERROGATION.
NOW, --
>> MIAMI-DADE FORM DOES THIS.
>> WELL, WE'RE NOT, IN
ANSWERING JUSTICE QUINCE'S
QUESTION A MINUTE AGO THOUGH,
YOU SAID YOU DID NOT AGREE THAT
MIRANDA REQUIRED THAT OR AT
LEAST --
>> I'M SORRY I DID AGREE THAT
IT DOES REQUIRE THAT UNDER MIR
RAND TODAY.
I DID AGREE AS TO MIRANDA
REQUIRING THAT.
I SIMPLY POINTED OUT TRAYLOR
SIMPLIFIED THE LANGUAGE OF
MIRANDA.
>> HOPE THAT YOU WOULD AGREE,
WHAT THAT QUOTE THAT I JUST
READ YOU MANDATES.
AND IT INCLUDES THAT HE HAS THE
RIGHT TO CONSULT WITH A LAWYER
AND TO HAVE THE LAWYER WITH HIM
DURING INTERROGATION.
WOULD YOU AGREE WITH THAT.
>> YES, SIR, YOUR HONOR.
AND --
>> ON ANY FORM THAT DOESN'T SET
THAT OUT, WOULD NOT BE IN
COMPLIANCE WITH MIRANDA WOULD
IT?
>> RIGHT.
I WOULD ALSO POINT OUT TO YOU
UNDER CHAVEZ, JOHNSON AND
COOPER THIS COURT PARTICULARLY
LOOKED AT LANGUAGE SAID IT WAS
SUFFICIENT UNDER MIRANDA.
>> NO I UNDERSTAND YOUR FURTHER
ARGUMENT THERE.
I WANT TO BE CLEAR THAT YOU'RE
NOT CHALLENGING THE FACT THAT A
DEFENDANT MUST BE INFORMED THAT
HE HAS THE RIGHT TO HAVE A
LAWYER PRESENT DURING
INTERROGATION?
>> OH I'M NOT CHALLENGING THAT
AT ALL.
BUT I'M ALSO POINTING OUT THAT
THE MIAMI-DADE FORM DOES DO
THIS.
>> BUT WHEN YOU LOOK AT THE
COOPER AND JOHNSON DECISIONS, I
MEAN, REALLY, IN COOPER, THE
DISCUSSION OF MIRANDA, IS,
REALLY RELEGATED TO A FOOTNOTE.

IT'S, THEY SAY THAT, OTHER THAN
TRAYLOR THERE IS JUST A
FOOTNOTE.
AND THE JOHNSON OPINION REALLY
DOES SORT OF, YOU KNOW, CITES
TO COOPER WITHOUT ANY REAL
ANALYSIS.
SO, NEITHER OF THOSE CASES SEEM
TO GO THROUGH ANY REAL ANALYSIS
OF THE MIRANDA OPINION.
THEY JUST SORT OF, MAKE THE
STATEMENT AND SAY, THAT THIS
FORM COMPLIES WITH MIRANDA.
>> THAT'S TRUE.
>> SO, I MEAN IF WE'RE REALLY
GOING TO LOOK AT WHETHER, WHAT
THESE FORMS ARE SUPPOSED TO
CONTAIN, AND IF WE START WITH
MIRANDA AS THE BASE, THEN YOU
THINK WE NEED TO LOOK AT THE
EXACT LANGUAGE AND HOLDINGS IN
MIRANDA TO MAKE A DECISION
WHETHER OR NOT A FORM IS REALLY
IN COMPLIANCE, SHOULDN'T WE.
>> I THINK YOU BEGIN WITH A
ANALYSIS OF MIRANDA AS TO THE
FORMS USED.
BUT IN THIS PARTICULAR CASE YOU
HAVE THE MIAMI-DADE MIRANDA
FORM THE STATE'S INTERPRETATION
THAT IT DOES INFORM THE
DEFENDANT OF RIGHT TO COUNSEL
NOW AND THERE AFTER.
>> YOU'RE HERE DEFENDING THE
MIAMI-DADE COUNTY'S RIGHTS
FORM?
YOU'RE NOT HERE --
>> ALL THE FORMS THROUGHOUT THE
STATE OF FLORIDA.
>> YOU'RE NOT HERE DEFENDING
BROWARD'S?
>> NO.
BECAUSE BROWARD'S FORM HAS
ALREADY BEEN CHANGED.
IT'S, NO LONGER THE FORM OF
WEST, RIPLEY, BROADHURST AND
FRANKLIN.
SO THAT'S GONE.
>> I GUESS MY CONCERN ABOUT IT
IS, SAYING IF YOU WANT A LAWYER
TO BE PRESENT DURING
QUESTIONING, AT THIS TIME, OR
ANY POINT THERE AFTER YOU'RE
ENTITLED TO HAVE A LAWYER
PRESENT.
THAT IS A LITTLE BIT, YOU'RE
SAYING THE IT SAYS --
[INAUDIBLE]
>> I DON'T BELIEVE IT'S
AMBIGUOUS AT ALL.
CLEARLY IT SAYS AT THIS TIME OR
ANY TIME HEREAFTER.
AT THIS TIME I AM NOW JUST
GIVING YOU THESE MIRANDA
WARNINGS.
>> IT SAYS DURING QUESTIONING.

IT DOESN'T SAY -- IF YOU WANT A
LAWYER TO BE PRESENT AT THIS
TIME OR ANY TIME, SAYS AT THIS
TIME OR ANY TIME THEREAFTER.
IF YOU WANT A LAWYER TO BE
PRESENT DURING QUESTIONING AT
THIS TIME OR ANY TIME THERE
AFTER, TO ME I READ I CAN ONLY
GET A LAWYER DURING
QUESTIONING.
>> BUT I WOULD DISAGREE WITH
THAT INTERPRETATION THAT IT'S
LIMITED TO, WELL, WE HAVE TO
ACTUALLY COMMENCE THE
INTERROGATION.
AT THIS TIME, INTERROGATION HAS
NOT YET BEGUN.
>> BUT THE MORE I GUESS THE
REAL QUESTION, I HAVE THE SAME
PROBLEM HERE IS, IS THAT THE
SENTENCE BEGINS WITH, PRESENT
DURING QUESTIONING, COME MARKS,
AT THIS TIME, OR ANY TIME
THEREAFTER.
WHICH SEEMS TO MODIFY THE
DURING QUESTIONING.
SO, THAT'S THE PROBLEM I HAVE
WITH THIS FORM IS, THAT,
THAT'S, READING OF THIS FORM,
YOU DON'T THINK THAT IS
REASONABLE READING OF IT?
>> I UNDERSTAND YOUR
INTERPRETATION OF IT.
WHEN THE FORM IS INITIALLY READ
TO THE DEFENDANT QUESTIONING
HAS NOT YET BEGUN.
IT CLEARLY SAYS, AT THIS TIME.

THAT'S THE STATE'S
INTERPRETATION, YOUR HONOR.
DOES THIS COURT HAVE ANY OTHER
QUESTIONS WITH REGARDS TO THE
PRIOR OR TO THE, RIGHT TO
COUNSEL PRIOR TO QUESTIONING OR
THE RIGHT TO TERMINATE
QUESTIONING AT ANY TIME?
I WANT TO MAKE SURE I ANSWER
EVERYTHING?
NO.
THE STATE WILL REST ON ITS
BRIEF, THANK YOU VERY MUCH.
>> YOU'VE EX{HAUST}ED ALL OF
YOUR TIME.
I'LL GIVE YOU A MINUTE
REBUTTAL.
>> VERY BRIEFLY.
WESTOVER, ONE OF THE DECISIONS
IN MIRANDA SPECIFICALLY STATED
ON PAGES 494, THROUGH 496, ON
THE FACTS OF THIS CASE WE
CANNOT FIND THAT WESTOVER
KNOWINGLY AND INTELLIGENTLY
WAIVED HIS RIGHT TO REMAIN
SILENT AND HIS RIGHT TO CONSULT
WITH COUNSEL PRIOR TO THE TIME
HE MADE THE STATEMENT.
JUSTICE QUINCE, YOU'RE
ABSOLUTELY CORRECT, THE
PARENTHETICAL, AT THIS TIME, OR
ANY TIME HEREAFTER IS DEPENDENT
CLAUSE.
THAT DEPENDENT CLAUSE MODIFIES
DURING QUESTIONING.
TO ANYONE WHO SPEAKS ENGLISH
THEY ARE GOING TO UNDERSTAND
THAT TO MEAN THEY HAVE A RIGHT
TO HAVE ATTORNEY PRESENT DURING
QUESTIONING.
THEY WOULD NOT UNDERSTAND THAT
THAT RIGHT TO MEAN, THAT THEY
HAVE THE RIGHT TO CONSULT WITH
AN ATTORNEY PRIOR TO
QUESTIONING.
JUSTICE PARIENTE, I WOULD SIM
PLY LIKE TO DIRECT YOU YOU AND
TO THE COURT TO THE RECORD
WHERE THE STATE PUTS INTO THE
RECORD MIRANDA FORMS FROM ALL
OVER THE STATE AND WHAT YOUR
HONOR WILL SEE IS THE
OVERWHELMINGING MAJORITY OF THE
COUNTIES ARE, INCLUDING THE
RIGHT TO TERMINATE QUESTIONING
AND THE RIGHT TO CONSULT WITH
COUNSEL PRIOR TO INTERROGATION.

>> THANK YOU VERY MUCH.
YOU MORE THAN EXCEEDED YOUR
TIME.
>> I APPRECIATE YOUR TIME.
>> THANK YOU FOR YOUR
ARGUEMENTS.
WE'LL TAKE THE CASE UNDER
ADVISEMENT, THANKS VERY MUCH.