                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA,                    NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-2884

ROBERT GENE HINELINE,

      Appellee.

_____________________________/

Opinion filed March 5, 2015.

An appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.

Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney
General, Tallahassee, for Appellant.

Timothy W. Shaw, and Kyle S. Bauman of Anchors Smith Grimsley, Fort Walton
Beach, for Appellee.




PER CURIAM.


      The State appeals the trial court’s order granting Robert Gene Hineline’s

motion to suppress. For the reasons that follow, we find the trial court erred and

reverse the order.
                                          I.

      Detective Richard Tiburzio, the officer investigating an allegation that

Hineline unlawfully touched a twelve-year old, called Hineline to set up a date and

time he could meet with him and discuss the allegations. Tiburzio had earlier gone

to Hineline’s sister’s home, told the sister he wanted to talk to him, and left her his

business card; he did not tell the sister why he wanted to speak to Hineline. After

he called Tiburzio, the detective told Hineline he wanted to speak with him about

the incident giving rise to the charge, and that the reason he wanted to do it at the

police station was “out of respect, which I do for everybody, is that I might get you

to come up to the police department so I didn’t have to come to the house and

everybody knows what’s going on.” Ultimately, Hineline voluntarily went to the

police station to discuss the matter. He was not under arrest at this point.

      While at the police station, Detective Tiburzio recorded his conversation

with Hineline (a DVD and transcript of which was used in the trial court

proceedings). During the recording, the following exchange occurred:

     [TIBURZIO]: Ok. Well, there’s been a referral made to me to
     investigate, but in order for me to talk to you, I have to read you a rights
     waiver.
     [HINELINE]: Rights? Why? Am I being arrested or...
     [TIBURZIO]: No, you’re not being arrested.
     [HINELINE]: Okay.
     [TIBURZIO]: You’re going to be released.
     [HINELINE]: All right.
     [TIBURZIO]: But the bottom line is that in order for me to talk to you, I
     have to read you your rights because you have rights.
                                           2
    [HINELINE]: Okay.
    [TIBURZIO]: And I will be more than glad to discuss what’s going on at
    that point in time, but I have to read you a rights waiver. And I figured
    rather than go to your house...
    [HINELINE]: Yeah, I appreciate this...
    [TIBURZIO]: You know what I mean?
    [HINELINE]: ... because, yeah.
    [TIBURZIO]: I’m one of these guys, I’ve been here 33 years...
    [HINELINE]: Right, right.
    [TIBURZIO]: ... so I know how this thing works, and I just want to
    make sure that, you know, mano-a-mano, man-to-man, you and I are just
    talking and stuff like that, but...
    [HINELINE]: Okay.
    [TIBURZIO]: ... in order to talk to you, I need to read you your rights.
    Would you be willing to talk to me?
    [HINELINE]: Yeah.
    [TIBURZIO]: Okay.
    [HINELINE]: Yeah. I don’t have anything to hide.
    [TIBURZIO]: I didn’t figure you did. Okay. Can you read English?
    [HINELINE]: Yes.
    [TIBURZIO]: Okay. This is a rights waiver. It says, before we ask
    questions, you must understand your rights. You have the right to remain
    silent. And anything you say can be used against you in court. You have
    the right to talk to a lawyer before we ask any questions, and to have a
    lawyer with you during questioning. If you cannot afford a lawyer, one
    will be appointed for you before any questioning, if you wish. And if
    you decide to answer any questions now without a lawyer present, you
    still have the right to stop answering at any time until you talk to a
    lawyer. Does that make sense?
    [HINELINE]: Okay, do you think I’m going to need a lawyer? I mean...
    [TIBURZIO]: Well, we’ll discuss that here in just a second.
    [HINELINE]: Okay.
    [TIBURZIO]: That’s up to you. Do you understand those rights?
    [HINELINE]: Yeah.
    [TIBURZIO]: Okay. Do you wish to talk to me at this time?
    [HINELINE]: Yeah.

(emphasis added).


                                       3
        Immediately following this exchange, Hineline signed the Miranda1 rights

waiver form, and subsequently made both written and oral inculpatory statements

admitting he touched the victim.

        In his deposition testimony, Detective Tiburzio explained that during his

interview, “I was wanting to explain to [Hineline] what the allegation was before

he even decided that [getting an attorney]. And I’m not in the business, as you

know, recommending attorneys for people, that’s up to him. He’s an adult and he

understands it’s the law. He could have left at any point in time that he wanted to.

He wasn’t under arrest.”

        Subsequently, Hineline was charged with lewd or lascivious molestation,

based on the allegation that at age forty-eight, he unlawfully and intentionally

touched a twelve-year old child’s breasts, genital, genital area, or buttocks, or the

clothing covering them.

        Hineline moved to suppress his statements made during the interrogation,

arguing that Detective Tiburzio’s response to his prefatory question of, “[w]ell,

we’re going to discuss that here in a second. That’s up to you,” was improper and

allowed the detective to “steamroll” him. The parties stipulated that the narrow

issue to be decided at the suppression hearing was whether the officer made a




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                         4
good-faith effort to give a simple and straightforward answer, the third prong in the

test announced in Almeida v. State, 737 So. 2d 520 (Fla. 1999).

      At the conclusion of the hearing, the trial court granted the motion, finding

that “we wouldn’t be sitting here” had the detective not said, “[w]e’ll discuss that

here in just a second.” The court reasoned that the response was not honest and

fair, that the detective glossed over the prefatory question, and that while he did

not “steamroll” Hineline, the officer engaged in “gamesmanship.” In a written

decision, the court found that Detective Tiburzio “never returned to a discussion of

whether or not the defendant needed a lawyer” after Hineline’s question, and

reiterated that, “[a]lthough the Detective did not ‘steamroll’ the defendant, the

Detective did “gloss over” the defendant’s question and engaged in

‘gamesmanship.’”

      On appeal, the State argues that it was error to grant the motion to suppress

because Detective Tiburzio appropriately responded to Hineline’s prefatory

question by telling him, “That’s up to you. Do you understand?” but Hineline

nonetheless agreed to talk to the detective, and went on to waive his rights.

                                         II.

      We have jurisdiction. Fla. R. App. P. 9.140(c)(1)(B). Ordinarily, this Court

reviews a trial court’s ruling on a motion to suppress under a mixed standard of

review: A reviewing court is bound by the trial court’s factual findings if they are

                                          5
supported by competent, substantial evidence, and the trial court’s determination of

legal issues is reviewed de novo. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002).

      But “this deference to the trial court’s findings of fact does not fully apply

when the findings are based on evidence other than live testimony.” Parker v.

State, 873 So. 2d 270, 279 (Fla. 2004). That is, “the clearly erroneous standard

does not apply with full force in those instances in which the determination turns in

whole or in part, not upon live testimony, but on the meaning of transcripts,

depositions or other documents reviewed by the trial court, which are presented in

essentially the same form to the appellate court.” Thompson v. State, 548 So. 2d

198, 204 n.5 (Fla. 1989); see Almeida v. State, 737 So. 2d 520, 524 n.9 (Fla. 1999)

(noting that “[t]he trial court had no special vantage point in reviewing” the

recording of the interrogation); Black v. State, 59 So. 3d 340, 344 (Fla. 4th DCA

2011) (a “much less deferential standard” applies if the trial court’s factual

findings are based on viewing a DVD).

                                        III.

      The resolution of this case—as stipulated to by the parties below—turns on

the answer to the third question outlined in Almeida; namely, whether the officer

made a good-faith effort to give a simple and straightforward answer. Though this

Court defers to the trial court’s factual finding to the extent it is supported by

competent substantial evidence, because the trial court relied primarily on a review

                                         6
of the DVD of Appellant’s interrogation—which is presented in the same form to

this Court—a “less deferential standard” applies to its factual findings.

      In Almeida, our supreme court outlined a three-step analysis to “an un-

equivocal question that was prefatory to—and possibly determinative of—the

invoking of a right” as follows: (1) whether the defendant was in fact referring to

his right to counsel; (2) whether the utterance was a clear, bona fide question

calling for an answer, not a rumination or a rhetorical question; and (3) whether the

officer made a good-faith effort to give a simple and straightforward answer. 737

So. 2d at 523-25. Almeida had been read his rights, signed a waiver, made a brief

inculpatory statement about an unrelated killing, and then made further inculpatory

statements following this conversation with the interrogating officer:

     Q. . . . Did you understand all of these rights that I read to you?
     A. Yes.
     Q. Do you wish to speak to me now without an attorney present?
     A. Well, what good is an attorney going to do?
     Q. Okay, well you already spoke to me and you want to speak to me
     again on tape?
     Q. (By Detective Allard) We are, we are just going to talk to you as we
     talked to you before, that is all.
     A. Oh, sure.

     Id. at 522 (emphasis in original). Our supreme court found that Almeida’s

response was prefatory to invoking his rights, and applied the three-prong analysis

to conclude that the officer’s response did not satisfy the test. Specifically, the

court reasoned that by

                                          7
     ignoring the question and continuing the interrogation—i.e., by
     “steamrolling” the defendant—the officers did two things. First, they
     exacerbated the inherently coercive atmosphere of the interrogation
     session. (How could Almeida feel free to exercise his rights when police
     had just overridden his question concerning those rights?) And second,
     they placed in doubt the validity of the prior waiver. (How could
     Almeida have knowingly and intelligently waived his rights earlier if he
     did not know “what good ... an attorney [is] going to do?”)

Id. at 523, 525 (reversing the conviction and vacating the sentence).

      This Court recently applied the third prong of Almeida in State v. Parker,

144 So. 3d 700 (Fla. 1st DCA 2014), to reverse a trial court’s grant of a motion to

suppress recorded statements given during a custodial interrogation. Id. The

appellant had asked the officer: “[c]an you just tell me if I need to get a lawyer or

something?” and “[i]s there—is there a lawyer in the building?” Id. at 701. In

response to the first question, the detective said, “[l]isten, that’s your right. But

what I’m interested in is the truth,” and in response to the second question, he said,

“[n]o, you would have to call one.” Id. at 701, 704. This Court held that the

interrogating officer made a good-faith effort to give simple and straightforward

answers to the appellant’s prefatory questions. Id. at 701. We reasoned that the

officer’s responses were simple, straightforward, and true, and in effect,

communicated to the appellant that he had the right to counsel and whether to ask

for one was his choice. Id. at 704.

      The same outcome is warranted here. When viewed in isolation and out of

context, the officer’s statement, “[w]ell, we’ll discuss that here in just a second,”
                                          8
appears to be inconsistent with the requirements of Almeida, warranting

suppression. Instead, viewing the video interaction between Detective Tiburzio and

Hineline in context, as is required, see Lewis v. State, 747 So. 2d 995, 997 (Fla. 5th

DCA 1999) (examining the entirety of the interactions in determining whether the

response was adequate), what occurred was a fluid conversation between Hineline

and the officer (in which Hineline was cooperative), and there was no pause

between the officer’s response of “[w]ell, we’ll discuss that here in just a second,”

and “[t]hat’s up to you. Do you understand those rights?” In fact, immediately

following this latter question, Hineline indicated he understood his rights, and,

when the officer again asked whether—in lieu of understanding his rights, and

hearing “[t]hat’s up to you”—if he wished to speak to him, Hineline responded

affirmatively.

      Only after answering Hineline’s question, and after Hineline indicated his

continued willingness to speak to the detective after being fully advised of his

rights, did Detective Tiburzio resume the interrogation. “Once the officer properly

answers the [defendant’s prefatory] question, the officer may then resume the

interview (provided of course that the defendant in the meantime has not invoked

his or her rights).” Almeida, 737 So. 2d at 525. That is exactly what happened

here. Under the circumstances, the officer had nothing left to do to be compliant

with Almeida’s mandate. That the officer never returned to Hineline’s prefatory

                                          9
question then was wholly appropriate, as Miranda does not require the interrogator

to give legal advice; rather, Miranda requires only that the officer tell the defendant

of his constitutional right because the determination for the need for counsel is the

defendant’s prerogative. State v. Craig, 237 So. 2d 737, 740 (Fla. 1970); see

Johnson v. State, 660 So. 2d 637, 642 (Fla. 1995) (explaining that the police are

not required to tell suspects what may or may not be in their best interests).

Accordingly, the motion to suppress should have been denied.

      REVERSED.

RAY, MAKAR, and BILBREY, JJ., CONCUR.




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