       Third District Court of Appeal
                                State of Florida

                           Opinion filed February 4, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D12-651
                           Lower Tribunal No. 06-1372
                              ________________


                             The State of Florida,
                                       Appellant,

                                          vs.

                             Andrew Cummings,
                                       Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Yvonne
Colodny, Judge.

      Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant
Attorney General, for appellant.

      S. Patrick Dray, for appellee.


Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

      SUAREZ, J.

      The State appeals the trial court’s grant of Andrew Cummings’ Motion to

Suppress. We affirm.     In January 2006 a City of Miami police detective was
ordered to respond to an apartment from which a 911 call originated. At that time,

the detective was being “shadowed” by a crew from the television show The First

48.   The crew recorded the ensuing investigation and, eventually, a heavily

redacted version of the investigation was aired.1

      By the time the detective arrived at the scene, the victim, an adult male, had

been pronounced dead in one room of the apartment. The other occupant of the

apartment told a police officer that a white male, who he described, had been in the

apartment the previous night drinking and using drugs with the victim.          The

occupant also told the officers that on the day of the 911 call, the white male, who

was covered in blood, knocked on the door of the bathroom in which the occupant

was showering and said “help me.” The occupant told him to leave the apartment.2

      Another witness, who saw the white male in the elevator of the apartment

complex, gave a similar description of him and stated he had blood smeared on

him. During the elevator ride, the white male told the witness that “his boyfriend

had just stabbed him.” A security guard at the complex also told the officers that

he saw the white male and gave a matching description, but did not indicate that he

made any effort to follow the person or obtain any help for him.

      During the questioning of the witnesses, a report was received about a white

male running through yards in the vicinity. Following that report, the Defendant

1  The remaining portions of the video were destroyed by the television crew.
Apparently, no effort was made by the City of Miami to request retention of the
full video.
2 It is unclear from the briefs how long after this occurred that 911 was called.
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was discovered under a handicap ramp at a nearby home covered in blood and

convulsing. The Defendant gave a false name when asked for his identity by

rescue personnel. The rescue personnel also asked the Defendant what happened

and he stated: “I don’t know.” He gave the same response when asked by the

detective. The Defendant was transported to Jackson Memorial Hospital and was

followed there by a police officer, but the officer was not specifically instructed to

detain him. Nevertheless, an officer remained at the hospital the entire time the

Defendant was being treated.

      The afternoon of the next day, at the direction of the detective, crime scene

investigators photographed the Defendant and collected fingernail scrapings and

DNA swabs from his hands and confiscated his clothing.             At approximately

midnight that day, the detective arrived at the hospital as the Defendant was being

discharged. The detective, who was accompanied by three other officers, advised

the Defendant that “he needed him” to accompany the detective to the police

station. The Defendant was transported to the police station in hospital scrubs and

in the back of a police vehicle. The First 48 video shows the Defendant walking

into the police station accompanied by a much larger, uniformed officer who is

holding “flexi-cuffs” in his right hand.

      The video also shows the beginning of the questioning of the Defendant who

is asked what happened to his head. However, the video shows only five minutes

of questioning and it is undisputed that the questioning actually lasted two hours.

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It is also undisputed that the Defendant fell asleep during the two-hour

interrogation and at different points during the interrogation gave responses that

the detective viewed as evidence that the Defendant did not understand the

question.

      According to the detective, during the questioning the Defendant gave his

actual name and told the detective that he had been at a party, that people were

using drugs, a fight broke out but that he did not remember anything else. The

detective stated that he then asked the Defendant if he knew the victim and the

Defendant said he had known him for 5-7 years, but had not seen him for a week.

The video shows the detective leaving the interrogation room and advising the

camera crew that the Defendant “is lying.”

      The detective testified that after discussing whether the Defendant knew the

victim, he then read the Defendant his Miranda rights.3 According to the detective,

he then advised the Defendant that he was investigating a homicide and the

Defendant looked surprised and asked what he meant. When the detective said the

victim had died, the Defendant stated “get the ____ out of here.” After more

discussion, the Defendant was told that the victim’s blood was found on his hands,

and he admitted that he was in the apartment in the morning of the incident and

later that he and the victim had been in a fight during which he grabbed a towel bar

to fight off the victim, who was much larger than him. The Defendant also stated

3A Miranda form signed at 2:00 a.m. was admitted into evidence, but the reading
of the rights is not on the video.
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that victim was “downstairs ****ing some other guy. He comes back up and I told

him I was leaving. Somehow there was an altercation in the bathroom, I don’t

really know. … I tried getting him off me a couple of times, and he’s high. I had

to ****ing smash him or something a couple of times.” The detective then said he

wanted to take a sworn statement and the Defendant invoked his right to counsel.

The Defendant was arrested two hours later.

      The Defendant moved to suppress “all oral statements, confessions and

admissions made by the Defendant to the police or other agents of the State of

Florida.” As grounds for the motion, the Defendant argued he was

            [A]pprehended by numerous police officers [] when he
            was found outside near a house, bleeding and going into
            convulsions. … The police guarded the Defendant while
            he was receiving treatment. … Immediately upon
            discharge, he was met by two detectives [] and
            transported by yet another officer to the station for
            interrogation. …

            Any statement made from the time he was detained and
            subsequently arrested prior to Miranda warnings was
            obtained in violation of the Defendant’s right to counsel.
            Moreover, any such statement was also obtained in
            violation of the Defendant’s right to remain silent
            because he was in custody and being interrogated at the
            time by the police about a murder investigation.

            Furthermore, the statements were also the product of a
            statement obtained earlier without the benefit of Miranda
            rights. … The statements were not made knowingly,
            intelligently or voluntarily in violation of Miranda. …

      After the hearing on the motion to suppress, the trial court made oral rulings

which included a statement that the
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Defendant “was in custody [] when he was transported to the hospital and while he

was at the hospital he was not free to leave.” The trial court also ruled that the

Defendant’s statements made when he was first found were not voluntary because

“he was in no condition to voluntarily make statements to that.” In a later written

order the trial court ruled that:

              Defendant was illegally detained during his pre-Miranda
              statements. … a reasonable person in Defendant’s
              position would not have felt free to leave, or disengage
              from, the police contact existing in this case. As such,
              defendant was in ‘custody’ when his statements were
              taken. … The Court suppresses Defendant’s pre-Miranda
              statements. … Defendant was consistently in custody for
              several hours (i.e. from the time he was transported to the
              hospital to the moment he was escorted to the interview
              room.).

After later proceedings on a motion for rehearing, the State filed this appeal.

       We affirm suppression of all statements made by the Defendant because the

trial court was correct to conclude that the Defendant was in custody at the time all

statements were made, see Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999), and

in finding that his post-Miranda statements were the result of a deliberate decision

to delay issuing Miranda warnings to the Defendant. Ross v State, 45 So. 3d 403

(Fla. 2010). Specifically with respect to the statements made when the Defendant

was first discovered, there is some confusion in the record as to whether the

Defendant made any statements to rescue personnel which could be considered

separately from statements made to the detective. Despite the confusion, the Order

on appeal states: “[w]hile being treated
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by Fire Rescue, [the detective] approached Defendant to speak to him” and

“[w]hile being treated, [the detective] asked Defendant for his biographical

information and for an explanation of ‘what happened.’ Defendant provided the

name Andrew Gil ….” Because the Order indicates that the questioning was done

by the detective, we affirm the suppression of that statement as well. Moreover,

we conclude that the trial court was also correct to initially find that the Defendant

was in no condition to make voluntary statements. Reddish v. State, 167 So. 2d

858, 863 (Fla. 1964).

      The trial court also ruled that the video tape of The First 48 could not be

shown to the jury. We also affirm that ruling because the video tape was so

heavily redacted that the available portions were deprived of relevance. Martinez

v. State, 761 So. 2d 1074 (Fla. 2000); Morrison v. State, 546 So. 2d 102 (Fla. 4th

DCA 1989).

      Affirmed.




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