Rehearing Denied April 26, 1989.
Michael E. Allen, Public Defender, Maria Ines Suber, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., Walter M. Meginniss, Asst. Atty. Gen., for appellee.
Appellant Stokes seeks review of a 1/7/88 judgment entered pursuant to a jury verdict in the circuit court for Santa Rosa County, by which she was convicted of second degree murder with a deadly weapon and sentenced to 17 years. We reverse because the court erred in denying appellant's motion to suppress statements and physical evidence, and in permitting the state to introduce evidence attacking appellant's character when she did not testify and her character was not in issue.
The charges stemmed from the 4/26/87 stabbing and drowning of 15-year-old Amy Michelle Turner in the swimming pool at her family residence. Appellant, age 17, that day gave a recorded statement to the Santa Rosa County Sheriff's Department indicating that she had visited Turner's home that morning. Appellant initially was interviewed by police because she had identified herself as one of the last persons to see Turner alive. At that time, appellant was not a suspect and she was given no Miranda warnings prior to being interviewed. Because appellant's initial statement was inconsistent with known facts, the deputies interviewed appellant a second time at approximately midnight in the presence of her father and Wayne Barnes of the Division of Youth Services, HRS.
Prior to being interviewed for the second time appellant was advised of her rights, and at the beginning of her second recorded statement she signed a rights waiver form. That recorded statement, in which appellant stated that she had stabbed Turner in self-defense, was taken at approximately 12:45 a.m., concluding at approximately 1:10 a.m. At the conclusion of the second recorded statement, sheriff's deputies continued to question appellant and elicited a third statement in which appellant stated she had stabbed and drowned Turner after a dispute regarding Turner's boyfriend. Prior to giving the third statement, appellant was readvised of her rights. The third statement was taken at approximately 1:45 a.m., concluding at approximately 1:50 a.m. on 4/27/87. Present at that time were Sgt. Steve Collier, Sheriff Maurice Coffman, Jr., Wayne Barnes, and Assistant State Attorney John Spencer. Following the third recorded statement, appellant was further questioned and permission was obtained for the sheriff's department to search her boyfriend's residence to take custody of clothing she was allegedly wearing at the time of the crime. Appellant
signed a consent to search form, and a search of the residence was begun at 2:31 a.m. with appellant present. Appellant directed the officers to clothing in a basket in the bathroom of the residence, and the clothing was seized. While appellant was being transported to the county jail, Sgt. Larry Bryant initiated another conversation with appellant, and appellant responded to the officer's questioning, providing additional information. On 5/12/87, after appellant was indicted on a charge of first degree murder, Sgt. Collier again questioned appellant. He advised appellant that she had the right to have an attorney present while being questioned, but when she asked Collier where her attorney was, he responded that the attorney would not be present during that interview.
Appellant moved to suppress the statements given to the police, alleging that they were the result of an involuntary waiver of her rights, coercion, and/or obtained after she exercised her right to remain silent. She also moved to suppress all physical evidence seized, contending her consent to the search was tainted by the prior illegalities. Appellant alleged that she was questioned while under extreme emotional distress and was unable to fully understand her right to consult an attorney, to remain silent, and to cease answering the questioning by authorities. She further alleged that during questioning she indicated she no longer wished to answer questions, and this request was not honored, and that the consent to search was a coerced product of the continuing questioning, or an acquiescence to police authority.
At the hearing on the motion, Sgt. Collier was the state's sole witness. He testified that he had no reason to suspect appellant was involved in the murder when she arrived at the police station accompanied by her father and stepmother around 9:49 p.m. on 4/26/87. He and investigator Larry Bryant talked to appellant's father and then interviewed appellant, as above recounted.
Appellant's father, Mr. Stokes, testified that he escorted his daughter to the sheriff's department and remembered commenting to officers that he wondered if his daughter had committed the crime. He stated the interview room was crowded, small, and smoky. He stated that during the interrogation appellant indicated, prior to any taping, that she wanted to go home. Stokes testified that he was never told he was free to leave, and believed that he could not leave; that he remembered Sheriff Coffman talking to appellant and telling her: "Baby, don't worry about it, you know. Just go ahead and tell us what you know and don't worry about it. And if you did, just put yourself somewhere where you can get yourself a good education." Stokes stated that he "pressured" his daughter to talk because he was tired and wanted to go home; that appellant looked exhausted during the interviewing, and was not allowed to have food. He testified that appellant had quit school, been married and divorced, and had come back to live with him and his wife, subsequently moving into a trailer in their back yard.
On rebuttal, Sheriff Coffman testified that he did not indicate to appellant or her father that she would receive a lenient sentence. He stated that after the arrest he told Mr. Stokes, as a consoling gesture, that his daughter might be able to get vocational training in prison.
The trial court denied the motion to suppress except as to the statement taken after appellant was indicted and had been provided counsel.
A jury trial was held 10/26/87. Among the numerous witnesses, Gloria Mae Murray testified that she was in the Santa Rosa County Jail and shared a cell with appellant in May and June 1987. Murray testified that appellant stated that she was jealous of Amy because Amy had a mother and she did not; that on the day of the crime she and Amy got into a fight; that at one time Amy had four or five hundred dollars for the purchase of cocaine; and that she stabbed Amy several times and then held her under the water until she drowned. Murray stated that she was testifying against appellant in hope that a judge would terminate her probation so that she could leave Florida.
The court allowed correspondence between appellant and Murray to be introduced in evidence. In the letters, appellant wrote that she was having sexual relations while in jail, had been "mooning" male individuals while in the jail, intended to steal a watch from a cellmate, and planned to cry at her trial to get the sympathy of the jury. Appellant related in the letters that, "I was reading the newspaper, and it said that the little 14 year old boy would have gotten off if he would have cried just one time. So I guess, you know, I am ...