          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2828
                 _____________________________

WILLIAM THOMASON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


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

                          April 29, 2019


ROBERTS, J.

     Following his conviction and life sentence for the murder of
his infant daughter, the appellant raises two issues on appeal.
First, he argues the trial court erred in denying his motion to
suppress statements he made to law enforcement before and after
his arrest. Second, he argues the trial court erred in denying his
motion for mistrial. We find no reversible error and affirm.

                               Facts

      Around noon on September 13, 2013, the appellant’s girlfriend
left their almost two-month-old daughter alone in the appellant’s
care. According to the girlfriend, the child was in good health when
she left. When she returned around four p.m., the child was limp
and unresponsive with signs of seizure activity. The child was
rushed to the hospital where she was eventually diagnosed with a
subdural hemorrhage hematoma – a severe brain injury – caused
by non-accidental trauma. The child was declared brain dead and
died three days later.

     At around seven p.m. on September 13, law enforcement
arrived at the appellant’s residence to question him. The appellant
consented to a search of the home and told law enforcement that
he did not know what happened to the child. The appellant agreed
to go to the Sheriff’s Criminal Investigations Division Office (the
CID) for further questioning.        He opted to ride with the
investigators instead of following in his own car. At around ten
p.m., an investigator and a sergeant conducted a recorded
interview with the appellant. They began by telling the appellant
he was not under arrest, he was free to leave at any time, and he
could end the interview any time he felt uncomfortable. The
appellant stated he was “absolutely” there of his own free will. The
investigator reiterated that the appellant could end the interview
at any time, and the appellant said, “Okay.” The appellant
hypothesized that the child’s injuries could have been caused by
his dog. The sergeant debunked this theory and hypothesized how
the child could have been unintentionally injured by the appellant.
The appellant said it seemed like he was being accused and, if he
was, he would rather have a lawyer present. The investigator
denied the appellant was being accused. The appellant said he
would rather be with his daughter and had told them all he knew.
The investigator and sergeant continued to theorize how the child
could have been injured. The appellant stated he had “been
through the system” and had the “vibe” as to where the interview
was going. The investigator reiterated that the appellant was not
under arrest and that the only reason he was being interviewed
was because he was alone with the child. The appellant said,
“Man, I got to get out of here. I can’t do this.” The investigator
asked if the appellant wanted a drink, to which the appellant
replied it was eleven p.m., he was done “just for right now,” and he
could not talk anymore. The interview was concluded.

    Department of Children and Families (DCF) investigators
then came in to conduct an additional interview with the


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appellant. Around midnight, the investigator drove the appellant
home.

     The next day, the appellant was arrested for the murder of his
daughter. The same investigator conducted another recorded
interview with the appellant at the jail. The investigator read the
appellant his Miranda 1 rights, which he indicated he understood
and continued talking.

                        Motion to Suppress

     The appellant moved to suppress his statements made on
September 13 and 14. A hearing on the motion was held, during
which the investigator testified that on September 13, the
appellant was free to leave, voluntarily rode with them to the CID,
and was free to use his cellphone during the entire interview. The
sergeant testified the CID interview room door was locked because
it was after-hours. It could be opened from the inside by pushing
a button. The investigator testified he did not read the appellant
his Miranda rights because the appellant was free to leave. The
investigator acknowledged the appellant’s statement about a
lawyer, but stated the appellant did not ask to terminate the
interview at that time and kept talking voluntarily. While he did
accompany the appellant to the restroom, he only did so to show
him where it was. When the appellant said he was done talking,
the investigator ended the interview. The investigator testified he
gave the appellant a ride home, which was recorded. He seized the
appellant’s cellphone, but kept it in evidence storage and did not
search it until obtaining a search warrant on September 19.

    The appellant’s motion to suppress was denied in relevant
part. 2 The trial court also granted the appellant’s motion in limine


    1   Miranda v. Arizona, 384 U.S. 436 (1966).
    2 The trial court’s denial of the portion of the motion seeking
to suppress evidence collected from the appellant’s cellphone is not
challenged on appeal. The appellant’s motion also sought to
suppress statements made during the DCF interview. The trial
court granted that portion of the motion.

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to prohibit any reference to the appellant’s potential drug use
during trial.

                            Jury Trial

    The appellant proceeded to a jury trial wherein the recorded
September 13 interviews from the appellant’s home and the CID
and the September 14 jail interview were admitted into evidence
during the investigator’s testimony.

     During the September 14 interview, the appellant was talking
about the DCF interview and stated, “I was just straight up with
them. I told them I wasn’t going to take a drug test[.]” Defense
counsel objected that that statement should have been redacted
and moved for a mistrial. Defense counsel argued there was no
way to cure the error particularly because the appellant had
previously stated he did not “black out” when caring for the child.
Regardless of whether the State had a theory of drug use or not,
defense counsel argued the statement made any defense
unbelievable because the jury could believe the appellant was
under the influence of drugs and hurt the child. Counsel rejected a
curative instruction because it would be inadequate and only
highlight the error. The State responded that the error was not so
prejudicial so as to vitiate the entire trial because its theory was
that the appellant planned to harm the child, which it later
attempted to prove by evidence of internet searches on shaken
baby syndrome that the appellant had conducted before the child’s
death. The trial court denied the motion for mistrial and ordered
the statement redacted in the transcript.

    The jury found the appellant guilty of first-degree felony
murder, and he was sentenced to life in prison without the
possibility of parole.

                        Motion to Suppress

     The appellant first challenges the denial of his motion to
suppress statements made during the September 13 CID interview
and the September 14 jail interview. We review the trial court’s
denial of the motion to suppress under a mixed standard with the
ultimate ruling reviewed de novo, but the factual findings on which

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the ruling is based are reviewed for competent, substantial
evidence. Duke v. State, 255 So. 3d 478, 481 (Fla. 1st DCA 2018).

                   September 13 CID Interview

     The appellant argues the trial court erred in not suppressing
this interview because he was not Mirandized and the interview
was clearly custodial in nature. Generally, law enforcement
officers must administer Miranda warnings before conducting a
“custodial interrogation.” Pierce v. State, 221 So. 3d 1218, 1220-21
(Fla. 1st DCA 2017). What took place at the CID was an
interrogation. See State v. McAdams, 193 So. 3d 824, 833 (Fla.
2016) (defining interrogation as “when a state agent asks
questions or engages in actions that a reasonable person would
conclude are intended to lead to an incriminating response”).
Thus, for the appellant’s pre-Miranda statements to be admissible
in this context, the appellant must not have been “in custody.” The
trial court determined the appellant was not in custody at the CID.
As pointed out in McAdams, “while precedent remains a guide,
custody determinations are heavily fact dependent.” 193 So. 3d at
833 (citing Rigterink v. State, 2 So. 3d 221, 246 (Fla. 2009)).

     The test for whether a suspect is in custody is whether “based
on the totality of the circumstances, a reasonable person would feel
that his freedom of movement has been restricted to a degree
associated with actual arrest.” Myers v. State, 211 So. 3d 962, 972
(Fla. 2017) (citing Caldwell v. State, 41 So. 3d 188 (Fla. 2010)). In
applying the test, courts have relied on the four factors articulated
in Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999):

    (1) the manner in which police summon the suspect for
    questioning; (2) the purpose, place, and manner of the
    interrogation; (3) the extent to which the suspect is
    confronted with evidence of his or her guilt; [and] (4)
    whether the suspect is informed that he or she is free to
    leave the place of questioning.

“This is a conjunctive test, so no factor is solely determinative of
whether [a defendant] was in custody for Miranda purposes.”
Myers, 211 So. 3d at 974. Myers elaborated on the proper analysis,
stating;

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    Although the four Ramirez factors frame our analysis,
    “the ultimate inquiry is twofold: (1) the ‘circumstances
    surrounding the interrogation;’ and (2) ‘given those
    circumstances, would a reasonable person have felt he or
    she was not at liberty to terminate the interrogation and
    leave.’” [Ross v. State, 45 So. 3d 403, 415 (Fla. 2010)]
    (quoting Yarborough v. Alvarado, 541 U.S. 652, 663
    (2004)).

Myers, 211 So. 3d at 973.

            1. The Manner in which Law Enforcement
            Summoned the Appellant for Questioning

     The investigator’s testimony established the appellant agreed
to go to the CID for further questioning and voluntarily accepted a
ride with the investigator. Factor one does not support a
conclusion that the appellant was in custody.

     2. The Purpose, Place, and Manner of the Interrogation

    The appellant voluntarily walked through the security doors
at the CID. As it was after hours, the CID door was locked.
However, the sergeant testified the door could be opened by
pressing a button inside the room. While questioning occurred at
the CID, that factor alone is not determinative that the appellant
was in custody. See Wilson v. State, 242 So. 3d 484, 493 (Fla. 2d
DCA 2018).

     At the outset of the interview, the appellant was repeatedly
told he was free to leave and could end questioning at any time he
felt uncomfortable. The appellant acknowledged he was there of
his own free will. The appellant was also able to use his cellphone
freely.

    Investigators did emphasize that they needed to speak to the
appellant, but they characterized it as needing to find out what
happened to the child, so the doctors could provide the correct
medical care. While the investigators rejected the appellant’s
hypothesis that his dog could have harmed the child, they did not

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outright claim the appellant was the one who harmed the child.
Cf. Myers, 211 So. 3d at 976 (finding factor two supported a custody
determination where investigators used language like, “I need to
know why you felt the necessity to plot and plan to have your
husband being murdered at your son’s hands,” and told the
appellant she was lying before she could respond).                 The
investigators couched their questioning in terms of needing to find
out what happened to the child so that the child could get
appropriate medical care. The appellant asked if they wanted him
to just admit that he “football kicked” the child to get the interview
over with, to which the investigator said he did not want him to
say that, he just wanted the truth.

     While the questioning could be interpreted otherwise, the trial
court reviewed the recorded interviews as part of ruling on the
motion to suppress. The trial court’s ruling is reviewed with
deference on appeal. Schoenwetter v. State, 931 So. 2d 857, 866
(Fla. 2006) (“A trial court’s ruling on a motion to suppress comes
to the appellate court clothed with a presumption of correctness
and the court must interpret the evidence and reasonable
inferences and deductions derived therefrom in a manner most
favorable to sustaining the trial court’s ruling.”) (citation omitted).
See also Myers, 211 So. 3d at 966 (noting the Fifth District did not
afford the proper deference to the trial court’s findings). Factor
two does not support a conclusion that the appellant was in
custody.

             3. The Extent to which the Appellant was
               Confronted with Evidence of his Guilt

     The investigators kept pressing the appellant to tell the truth
to help the child. The investigators did confront the appellant with
pictures of the child and told the appellant she was in serious
condition. Again, they couched this in terms of needing to know
what happened so that they could make the child better. At one
point, the sergeant told the appellant someone had grabbed the
child by the leg and it was the appellant. The appellant said he
could have grabbed the child’s leg, and the investigator asked if he
could have been trying to prevent her from falling. While this line
of questioning is suggestive of the appellant’s guilt, it was not so
confrontational as to outright accuse the appellant of harming the

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child to the extent of causing brain damage. The appellant then
stated he felt like he was being accused. The investigators denied
that he was and attempted to rescue the interview. From that
point forward, the appellant was less forthcoming, but he did
continue to speak freely to the investigators. Factor three does not
support the conclusion that the appellant was in custody.

           4. Whether the Appellant was Free to Leave

     The appellant was repeatedly told he was not under arrest
and was free to leave. The appellant was never handcuffed. The
appellant stated he agreed that he wanted to find out what
happened to the child and that he was “on the team.” Eventually
he stated could not continue the interview. After that point, the
interview concluded, and the investigator drove the appellant
home. Unlike Myers, the appellant was not perfunctorily told he
was “free to leave” and then aggressively confronted with his guilt.
211 So. 2d at 980. The investigators questioned the appellant with
the stated intent of finding out what happened, not to immediately
pressure the appellant to incriminate himself. Factor four does not
support the conclusion that the appellant was in custody.

    Under the totality of the circumstances, the trial court
properly concluded the appellant was not in custody at the time of
his pre-Miranda statements; therefore, those statements were
admissible, and suppression of his September 13 CID interview
was properly denied.

                   September 14 Jail Interview

     The appellant argues that his September 14 jail interview
should have been suppressed because his invocation of the right to
an attorney on September 13 cut off the investigators’ right to
reinitiate questioning. He argues any waiver of his Miranda rights
at the outset of the September 14 interview was ineffective.

    Toward the end of his September 13 CID interview, the
appellant stated, “If I’m being accused of something, I’d rather
have a lawyer present with me . . . if you’re going to ask me
anything else.” The trial court found, and the appellant concedes,
that this was an equivocal request for a lawyer. The appellant

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argues, however, because he had not waived his Miranda rights
when he made the equivocal request on September 13, questioning
should have been terminated, and the fact that the appellant
waived Miranda on September 14 is irrelevant.

     As aforementioned, the investigators were not required to
Mirandize the appellant on September 13 because he was not in
custody. See Caldwell, 41 So. 3d at 198-99 (“We emphasize that
Miranda warnings are not required in any police encounter in
which the suspect is not placed under arrest or otherwise in
custody under Ramirez.”). As the appellant was not in custody, the
investigators could have continued questioning him even if he
requested a lawyer. Id. at 198 (“In a noncustodial setting, officers
are not required to discontinue questioning when a suspect
indicates that he wishes to exercise his right to remain silent, nor
are they required to provide a lawyer on the suspect’s request.”).
Nonetheless, the appellant requested to end the interview, and the
interview was concluded on September 13.

     When the investigator questioned the appellant again the
next day, he was not reinitiating prohibited questioning because
the appellant had not had his Miranda rights violated the day
before. The appellant relies on Traylor v. State, to argue his
equivocal request for an attorney when he was not Mirandized cut
off the right to reinitiate questioning. 596 So. 2d 957, 966 (Fla.
1992). However, Traylor is not applicable here because the
appellant was not in custody on September 13; therefore, he did
not have any Miranda rights to invoke. The appellant’s equivocal
request for a lawyer on September 13 did not trigger any rights
because it had no legal significance as he was not in custody.

     The appellant was clearly in custody on September 14. He
was properly Mirandized at the outset of the interrogation, and he
waived his Miranda rights. Nothing that transpired during the
September 13 interview had a bearing on this waiver. Suppression
of his September 14 statements was properly denied.

                        Motion for Mistrial

    The appellant’s second argument on appeal is that the trial
court erred in denying his motion for mistrial. This Court reviews

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a trial court’s ruling on a motion for mistrial under the abuse of
discretion standard. Morris v. State, 219 So. 3d 33, 44 (Fla. 2017)
(citing Salazar v. State, 991 So. 2d 364, 371 (Fla. 2008)). A motion
for mistrial should only be granted when the error is so prejudicial
as to vitiate the entire trial. Morris, 219 So. 3d at 44 (citing
England v. State, 940 So. 2d 389, 401-02 (Fla. 2006)).

     The statement about the drug test was very brief in the
context of a long interview. The State’s case was not that the
appellant killed the child while under the influence of drugs.
Rather, the State claimed that the appellant, based on his internet
searches, planned to harm the child. Given that the case was not
about drug use, it is unlikely that the statement had much effect
on the jury’s verdict. While the statement could implicate the
appellant’s character, the trial did not turn on the appellant’s
character. There was medical evidence of the child’s injuries, the
undisputed fact that the child was fine before she was left alone in
the appellant’s care, and evidence of the appellant’s internet
searches related to shaken baby syndrome as well as the
appellant’s own statements. Given this evidence, it is unlikely that
the brief statement about refusing to take a drug test was so
prejudicial as to vitiate the entire trial. We find the trial court did
not abuse its discretion in denying the motion for mistrial.

                             Conclusion

    For the reasons stated above, the appellant’s judgment and
sentence are AFFIRMED.

B.L. THOMAS, C.J., and OSTERHAUS, J., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________




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Andy Thomas, Public Defender, Tallahassee; Terry P. Roberts,
Special Assistant Public Defender, Law Office of Terry P. Roberts,
Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Steven Edward Woods,
Assistant Attorney General, Tallahassee, for Appellee.




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