REPORT AND RECOMMENDATION TO THE UNITED STATES DISTRICT COURT
This matter comes before the Court on Defendant's Amended Motion to Suppress and Exclude Statements of Defendant (Doc. # 216) filed on November 28, 2011. The Government filed its Response to Defendant's Amended Motion to Suppress and Exclude Statements of the Defendant (Doc. # 224) filed on December 5, 2011. The Court held a the first segment of a bifurcated hearing on the instant Motion on December 14, 2011, during which time the Court heard testimony from Deputy Steven Sutphin.*fn1 The Court held the second segment of the bifurcated hearing on January 23, 2012, during which time the Court heard testimony from Dr. Alan Waldman and argument from counsel for both parties.*fn2 The Defendant was present at both hearings and represented by retained counsel, David Brener. The Government was represented by Assistant United States Attorney Tama Caldarone during the first hearing, and Assistant United States Attorneys Tama Caldarone and Douglas Molloy during the second hearing. The issues raised in the Defendant's Motion to Suppress are now ripe for review.
On August 19, 2010, the Grand Jury returned a two-count Indictment against Defendants James Derisma. Defendant Derisma is charged with Count I, possession with intent to distribute more than 5 grams of a mixture or substance containing a detectable amount of cocaine base, known as crack cocaine, and Count II, possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine. (Indictment, Doc. # 10). Defendant Derisma was the passenger in a vehicle which was stopped for a defective headlight violation. A subsequent search of the vehicle revealed cocaine. The Defendant was subsequently arrested as a result of drugs located during the execution of search warrants at a storage facility.
In December 2009, while incarcerated at the Lee County Jail, Defendant was admitted to Lee Memorial Hospital due to observed seizures. It was subsequently determined Defendant suffered from nocardia infection due to the AIDS virus ultimately resulting in abscesses in his brain. Consequently, Defendant underwent brain surgery and medication therapy and was prescribed antibiotics, anti-seizure, and pain medication. As the Defendant remained in custody at Lee Memorial Hospital (LMH), he was guarded at all times by a law enforcement officer. Specifically, at all times relevant to this Motion, on January 20, 21, 31, and February 3, 4, and 8, 2010, Deputy Sutphin of the Lee County Sheriff's Office guarded the Defendant.. This time frame covered before, during, and after Defendant's brain surgery.
Deputy Steven Michael Sutphin (Doc. # 246; Tr. 4-74)
Deputy Steven Michael Sutphin (Deputy Sutphin) is employed with the
Lee County Sheriff's Office (LCSO) as a patrol deputy in the North
District and has served in that capacity for
five (5) years. (Tr. 4).*fn3 During the time in
question, Deputy Sutphin was part of an extra-duty detail.*fn4
In early 2010, he accepted a detail at the hospital to
monitor James Derisma. (Tr. 6). Deputy Sutphin monitored Defendant at
the hospital for six (6), twelve (12) hour shifts. (Tr. 6). The Deputy
stated that he was working 'detail' at LMH, guarding Defendant before,
during, and after his brain surgery. (Tr. 13). Deputy Sutphin
testified that he did not write a report describing his conversations
with Derisma after his detail and he was not present at the hospital
to interrogate the Defendant, only to supervise his admittance. (Tr.
10-11). However, Deputy Sutphin testified that he told Detective
Armado and Detective Snyder from the narcotics division about the
conversations between them several times throughout his detail in
order to pass along information that Defendant had given him about
narcotics activities in North Fort Myers. (Tr. 11). Deputy Sutphin
also noted that Defendant was "up all night, and slept all day, except
for the one day he was unconscious due to his surgery." (Tr. 13).
While at LMH, Deputy Sutphin asked the Defendant questions about his drug activities, Haiti, and the Defendant's family, but stated that he gave no Miranda warnings because he was not questioning the Defendant about this case, and was only asking questions to "keep the conversation going." (Tr. 13-14). Deputy Sutphin stated that he and Defendant had conversations before and after the surgery, but Defendant talked specifically about this case towards the end of his hospital stay. (Tr. 16). The nature of their conversation was friendly (Tr. 21), and Deputy Sutphin testified that if Defendant "made a statement, [he] might ask Derisma to clarify what he said, or state 'What do you mean by that?'" (Tr. 22).
On cross-examination, Deputy Sutphin stated that he and other LCSO's had been attempting to arrest Defendant, a known drug dealer, since 2008, but were unable to do so. (Tr. 26). After requesting this detail, Deputy Sutphin stated that he monitored Defendant on January 20, 21, 31, and February 3, 4, and 8, 2010. (Tr. 27-29). Deputy Sutphin further testified that he met with the United States Attorney's Office on October 6, 2011, almost two years after he supervised Defendant during his hospital admittance. (Tr. 30). He stated that during his meeting with Assistant U.S. Attorney Tama Calderone (AUSA Calderone) and Case Agent Rafael Rodrigo (Agt. Rodrigo), he informed them he had worked several shifts of overtime during January/February at which time he had spoken to Derisma. He indicated to them that he could not recall which statements Derisma made on which days during his detail. (Tr. 34).*fn5 However, Deputy Sutphin was able to recall that statements about this case were made "after surgery." (Tr. 39). Deputy Sutphin testified that Defendant was "no more or less lucid at the end of the detail than he was at the beginning of the detail, other than the day that he had the surgery." (Tr. 40).
During his testimony, Deputy Sutphin confirmed he was aware that the surgery was performed because Defendant had abscesses to his brain due to an almost fatal myocardial infection [sic], and had serious medical issues. (Tr. 43). Deputy Sutphin noted that conversations between himself and Defendant at the hospital would "jump around" and began when he started his detail and continued until his shift was over. (Tr. 67). Deputy Sutphin also indicated he asked Defendant to clarify his statements at the time they were made, during the hospital stay. (Tr. 67). The Deputy stated he was aware Defendant was on pain medication at the time of their conversations, however, never observed Defendant hallucinating. (Tr. 70).
On redirect, Deputy Sutphin testified that Dermisma occasionally made statements he could not understand either due to the Defendant's accent or because he was mumbling. (Tr. 73). The Deputy further stated that he had no intent to "do anything" with the Defendant's statements or the information he obtained from the conversations, and only asked questions to clarify statements for continuity of the conversation. (Tr.73). Deputy Sutphin testified that he was not interrogating Defendant and was aware that Defendant was not Mirandized. (Tr. 72).
Dr. Alan J. Waldman, M.D. (Doc. # 245; Tr.II, 11-71)
On January 23, 2012, Dr. Alan Waldman (Dr. Waldman) testified and was declared an expert witness in general psychiatry, forensic psychiatry, cognitive neurology, and neuropsychiatry.*fn6 (Tr. II, 11). Dr. Waldman testified that he was provided with a copy of the DEA-6 report of Defendant's alleged statements and the dates the statements were made while Defendant was in LMH. (Tr. II, 14).
Dr. Waldman testified that he initially met with Defendant on March 17, 2010, after his surgery, to do a neuropsychiatric competency evaluation. (Tr. II, 16). Counsel admitted into evidence Dr. Waldman's letter sent to Defense Counsel on March 19, 2010, detailing his preliminary findings. (Def. Ex. #2). The findings stated that Defendant was recovering from two brain abscesses of the bacteria nocardia, one of which was drained surgically. (Tr. II, 17). The other, in Defendant's frontal lobe, was unreachable, and was treated with IV antibiotics. (Tr. II, 18). Dr. Waldman stated when he met with Derisma he was suffering from severe delirium due to his brain infections, which affect all areas of cognitive functioning. (Tr. II, 18). Dr. ...