         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED


REGINALD GREENWICH,

             Appellant,

 v.                                                  Case No. 5D15-1361

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed September 9, 2016

Appeal from the Circuit Court
for Orange County,
Keith A. Carsten, Judge.

James S. Purdy, Public Defender, and
Edward J. Weiss, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Samuel A. Perrone,
Assistant Attorney General, Daytona
Beach, for Appellee.


LAMBERT, J.

      Early one morning in August 2013, Reginald Greenwich shot his fiancée in the

head, at close range, while she was lying in bed in the apartment that the two of them

shared together. She died shortly thereafter, and Greenwich was arrested and charged
with second-degree murder with a firearm. A jury found Greenwich guilty, and the trial

court sentenced him to serve life in prison.

       Greenwich raises three issues in this appeal, with the first two challenging the trial

court’s denial of his motion to suppress statements that he made to law enforcement

during a custodial interrogation. Greenwich first argues that during his interrogation, he

made an unequivocal invocation of his constitutional due process right to remain silent,

which was ignored by the police. Greenwich maintains that any statements he made to

the officers thereafter during his interrogation should have been suppressed. Second,

Greenwich asserts that law enforcement denied him his constitutional right to due process

when the detectives interrogating him failed to advise him that his stepfather, Daniel Paige

("Paige"), who is also a criminal defense attorney, had telephoned the police department

to speak with Greenwich. Greenwich asserts that his inculpatory statements during the

interview occurred after Paige's phone call and, therefore, must be suppressed for being

constitutionally infirm.

       In denying the motion to suppress after an evidentiary hearing, the court found, as

to the first issue, that Greenwich’s statement made to the detectives during the

interview—“Please stop this. You’re giving me a headache and you’re frustrating me very

much so.”—was not an unambiguous request by Greenwich to invoke his right to remain

silent or his right to counsel. Therefore, the court concluded that the detectives were not

obligated to discontinue their questioning. On the second issue, the trial court found that

there was no evidence that Paige had been "retained" by Greenwich or that the detectives

interviewing Greenwich knew that Paige was an attorney who was attempting to advise

or represent Greenwich. Accordingly, this led the court to find that Greenwich had not




                                               2
been denied access to counsel. The court thus concluded in its order that, based upon

its examination of the totality of the circumstances, Greenwich had knowingly, voluntarily,

and intelligently waived his privilege against self-incrimination and his right to counsel and

that his due process rights had not been violated by the aforementioned conduct of the

police. For the following reasons, we affirm the trial court’s ruling on the first ground but

reverse on the second.

       "A trial court’s ruling on a motion to suppress comes to the appellate court clothed

with a presumption of correctness and a reviewing court must interpret the evidence and

reasonable inferences and deductions derived therefrom in a manner most favorable to

sustain a trial court’s ruling." D.B.P. v. State, 31 So. 3d 883, 884–85 (Fla. 5th DCA 2010)

(citing Doorbal v. State, 837 So. 2d 940, 952 (Fla. 2003) (additional citations omitted)).

An appellate court reviews the trial court’s findings of fact to determine whether they are

supported by competent substantial evidence, and it reviews the trial court’s conclusions

of law de novo. Id. at 885 (citing Bevard v. State, 976 So. 2d 1163 (Fla. 5th DCA 2008)

(additional citations omitted)).

       Based upon the varying explanations provided by Greenwich to the police officers

who first arrived at the crime scene as to how the shooting occurred, coupled with the

physical evidence found by the officers in the apartment, which was inconsistent with

Greenwich's versions of the event, the police began to consider Greenwich as a suspect.

Greenwich was eventually taken into custody at the crime scene and thereafter

transported to the Orlando Police Department for further questioning. After Greenwich

had sat for a considerable period of time in a small interrogation room, two detectives

entered the room to begin interviewing him. One of the detectives read to Greenwich the




                                              3
and to observing the victim’s body but did not admit to the murder. Id. The defendant’s

pretrial attempt to suppress his statements to the police was unsuccessful, and, following

a jury trial, he was convicted of first-degree murder and burglary. Id.

       In reversing the defendant’s convictions,2 the Florida Supreme Court found that

the police’s failure to notify the defendant that an attorney was present and requesting to

see him deprived the defendant of information essential to a knowing and intelligent

waiver of his right to counsel under Miranda. Id. at 193–94. The United States Supreme

Court subsequently vacated Haliburton I and remanded the case for reconsideration in

light of its opinion of Moran v. Burbine, 475 U.S. 412 (1986). Florida v. Haliburton, 475

U.S. 1078 (1986).       In Burbine, the Court determined that misstatements by law

enforcement to a suspect's attorney who had telephoned the police station to speak with

his client did not undermine the suspect’s waiver of his Fifth Amendment right against

self-incrimination so as to require exclusion of the suspect’s later inculpatory statements

during a custodial interrogation. 475 U.S. at 423–24. The Court considered the police

conduct irrelevant as it found that knowledge of the attorney’s telephone call was not

essential to a knowing and intelligent waiver of the suspect’s Miranda rights. Id. at 422–

23. However, the Court acknowledged that its decision did not prohibit "the States from

adopting different requirements for the conduct of its employees and officials as a matter

of state law." Id. at 428.

       In Haliburton v. State (Haliburton II), 514 So. 2d 1088 (Fla. 1987), on remand, the

Florida Supreme Court again reversed the defendant’s convictions, finding that the above



       2 The defendant was sentenced to death for the first-degree murder, resulting in
the Florida Supreme Court having jurisdiction over the direct appeal. Art. V, § 3(b)(1),
Fla. Const.

                                             8
After an approximate twenty-minute break, the interview resumed, and, during this part

of the interrogation, Greenwich provided what turned out to be his final explanation of the

incident. He admitted that he shot his fiancée, but he then went into detail explaining how

the shooting was accidental.1

       The Fifth Amendment of the United States Constitution provides the right against

self-incrimination. See Amend. V, U.S. Const. (stating that no person "shall be compelled

in any criminal case to be a witness against himself"). If the police obtain statements from

a defendant in violation of the right against self-incrimination, the State cannot use these

statements against the defendant, and the trial court must exclude them from trial.

Deviney v. State, 112 So. 3d 57, 72 (Fla. 2013) (citing Cuervo v. State, 967 So. 2d 155,

160 (Fla. 2007)). Here, Greenwich does not dispute that initially, he voluntarily waived

his right to remain silent. However, once an interrogation has commenced, a suspect is

entitled to reassert his right to remain silent and not incriminate himself and to terminate

the interrogation, Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992), provided that the

suspect makes an unequivocal invocation to end the questioning. Deviney, 112 So. 3d

at 74 ("Once the police have properly administered Miranda warnings to a suspect, and

the suspect validly waives those rights, law enforcement need only cease questioning

upon an unequivocal invocation to terminate the interrogation." (citing State v. Owen, 696

So. 2d 715, 719 (Fla. 1997); Davis v. United States, 512 U.S. 452, 461 (1994))).

       Thus, at the suppression hearing, the trial court was tasked with determining

whether Greenwich had unequivocally invoked his right to remain silent during the



       1 At trial, the State presented evidence that tended to negate Greenwich’s
explanation of an accidental shooting.



                                             5
1988) (additional citations omitted)). Accordingly, evidence that Greenwich's cellphone

accessed pornographic websites subsequent to the shooting shall be excluded on retrial.

      REVERSED and REMANDED for a new trial.

COHEN, J., and LEMONIDIS, R.C., Associate Judge, concur.




                                          14
Greenwich’s mother were at church in Clewiston, Florida, on the morning of the shooting,

when Greenwich’s sister left them a message on their phone, advising them that

Greenwich had been arrested regarding an incident involving his fiancée. Paige and his

wife began driving toward Orlando. While in route, Paige made telephone calls to

determine where Greenwich was located and eventually spoke with a receptionist at the

Orlando Police Department. The unrebutted testimony at the suppression hearing was

that Paige advised the receptionist that he was Greenwich’s attorney and stepfather. The

receptionist referred Paige to the lead detective on Greenwich’s case, and Paige left

voicemail messages on the detective’s phone, advising that he was Greenwich’s

stepfather and that he was an attorney. The detective did not check his voicemail until

after the interview had essentially concluded. Moreover, the receptionist did not notify

the detective that Paige was an attorney, only that a “Dan Paige” wanted to speak with

him about the case. Although Paige eventually consulted with Greenwich at or near the

conclusion of the interview, Greenwich had, by that time, made multiple statements to the

detectives regarding the events concerning the shooting that the State successfully used

against him at trial.

       In Haliburton v. State (Haliburton I), 476 So. 2d 192 (Fla. 1985), the defendant had

been taken to a police station for questioning regarding a murder and burglary. 476 So.

2d at 193. He was advised of his Miranda rights and agreed to be interrogated. Id. The

defendant’s sister retained counsel for him. Id. The attorney first telephoned the police

station, requesting that a polygraph examination of the defendant be stopped, and then

arrived at the station shortly thereafter, but the attorney was not allowed to speak with the

defendant. Id. During the interview, the defendant essentially admitted to the burglary




                                             7
and to observing the victim’s body but did not admit to the murder. Id. The defendant’s

pretrial attempt to suppress his statements to the police was unsuccessful, and, following

a jury trial, he was convicted of first-degree murder and burglary. Id.

       In reversing the defendant’s convictions,2 the Florida Supreme Court found that

the police’s failure to notify the defendant that an attorney was present and requesting to

see him deprived the defendant of information essential to a knowing and intelligent

waiver of his right to counsel under Miranda. Id. at 193–94. The United States Supreme

Court subsequently vacated Haliburton I and remanded the case for reconsideration in

light of its opinion of Moran v. Burbine, 475 U.S. 412 (1986). Florida v. Haliburton, 475

U.S. 1078 (1986).       In Burbine, the Court determined that misstatements by law

enforcement to a suspect's attorney who had telephoned the police station to speak with

his client did not undermine the suspect’s waiver of his Fifth Amendment right against

self-incrimination so as to require exclusion of the suspect’s later inculpatory statements

during a custodial interrogation. 475 U.S. at 423–24. The Court considered the police

conduct irrelevant as it found that knowledge of the attorney’s telephone call was not

essential to a knowing and intelligent waiver of the suspect’s Miranda rights. Id. at 422–

23. However, the Court acknowledged that its decision did not prohibit "the States from

adopting different requirements for the conduct of its employees and officials as a matter

of state law." Id. at 428.

       In Haliburton v. State (Haliburton II), 514 So. 2d 1088 (Fla. 1987), on remand, the

Florida Supreme Court again reversed the defendant’s convictions, finding that the above



       2 The defendant was sentenced to death for the first-degree murder, resulting in
the Florida Supreme Court having jurisdiction over the direct appeal. Art. V, § 3(b)(1),
Fla. Const.

                                             8
described conduct of the police, in failing to notify defendant that an attorney was present

and requesting to see him, violated the due process provisions of article I, section 9 of

the Florida Constitution. 514 So. 2d at 1090. The court agreed with the dissenting opinion

of Justice Stevens in Burbine that

              due process requires fairness, integrity, and honor in the
              operation of the criminal justice system, and in its treatment
              of the citizen’s cardinal constitutional protections. . . . [P]olice
              interference in the attorney-client relationship is the type of
              governmental misconduct on a matter of central importance
              to the administration of justice that the Due Process Clause
              prohibits. . . . Just as the government cannot conceal from a
              suspect material and exculpatory evidence, so too the
              government cannot conceal from a suspect the material fact
              of his attorney’s communication.

Id. (quoting 475 U.S. at 467 (Stevens, J., dissenting)).

       In the present case, there is no evidence that the police either intentionally or

fraudulently tried to conceal from Greenwich the phone call made by his attorney, Paige,

offering assistance. However, this is neither critical nor dispositive as to the issue before

us. In Haliburton II, the court also adopted the following additional language from Justice

Stevens’ dissent in Burbine when it determined that "there can be no constitutional

distinction . . . between a deceptive misstatement and the concealment by the police of

the critical fact that an attorney retained by the accused or his family has offered

assistance, either by telephone or in person." Id. (omission in original) (emphasis added)

(quoting Burbine, 475 U.S. at 453 (Stevens, J., dissenting)).

       More recently, in State v. McAdams, 193 So. 3d 824 (Fla. 2016), the Florida

Supreme Court addressed whether, under the Due Process Clause of the Florida

Constitution, a person who is being questioned by law enforcement in a non-public

location must be notified that an attorney retained on his or her behalf is at the location



                                               9
and available to speak with him or her. In McAdams, the detectives were questioning the

defendant because his estranged wife and her boyfriend/coworker had been reported

missing, when an attorney retained by his parents arrived at the sheriff's office and was

available to assist him.     Id. at 826–27.       However, the detective conducting the

interrogation decided not to stop the questioning or to allow the attorney to have access

to the defendant because he was not in custody. Id. at 827. The defendant thereafter

confessed to killing his wife and her boyfriend and was arrested and charged with their

murders. Id. Prior to trial, McAdams sought to suppress his confession because of the

failure of law enforcement to notify him with regard to the presence of his attorney. Id. at

827–28. The trial court denied the motion, and McAdams was ultimately convicted of two

counts of first-degree murder. Id. at 828.

       On appeal, the Second District Court of Appeal reversed the judgment and

sentences. McAdams v. State, 137 So. 3d 401 (Fla. 2d DCA 2014). The court held that

the detective's failure to inform the defendant that an attorney was available and waiting

to talk to him at the time the defendant was not in custody did not violate the defendant’s

right to consult with counsel. Id. at 407. The court did, however, hold that any statements

or confessions made by the defendant after he was in custody and was not informed of

the availability of counsel violated his right to due process and should have been

suppressed. Id. at 407–08.

       The Florida Supreme Court accepted jurisdiction and quashed the Second

District’s opinion. McAdams, 193 So. 3d 824. The court found that the defendant's right

to due process under the Florida Constitution was violated, and it implemented a bright-

line rule that a suspect who is being questioned in a location that is not open to the public




                                             10
has the right to be notified regarding the presence and purpose of the attorney retained

on his or her behalf, regardless of whether the suspect is in custody. Id. at 832. The

court noted that, under its interpretation of the Due Process Clause of the Florida

Constitution, it is the individual who is given the knowledge and power to take advantage

of the attorney’s services. Id. at 832.

       We acknowledge and recognize that in McAdams, defense counsel was present

at the sheriff's office when he was denied access to his client while, in the present case,

Paige was not physically present at the police station when Greenwich was being

questioned in a non-public area, but instead was contacting Greenwich by phone to

provide legal assistance. Under the facts of this case, we do not find this difference to be

material. As indicated in Haliburton II, the constitutional protection afforded to a suspect

of the right to consult with counsel arises when the attorney has been retained by the

accused or his family and has offered assistance by telephone or in person. 514 So. 2d

at 1090. Accordingly, we conclude that the trial court in the instant case erred by placing

legal significance in its written denial order that, at the time of the phone call, Paige was

not physically present at the police station. Additionally, we find that the trial court also

erred in denying the motion to suppress based on its conclusion that Paige had not been

"retained" by Greenwich. Haliburton II provides constitutional protection when an attorney

retained by the accused or his family has offered assistance. Paige, as a family member,

was not required to formally "retain" himself on behalf of Greenwich before offering legal

assistance.3




       3   Paige did appear as one of Greenwich's counsel in the proceedings below.



                                             11
       Finally, based on the facts of this case, the fact that the detectives were personally

unaware during their interrogation of Greenwich that Paige was an attorney is not material

to our constitutional analysis. As the Fourth District Court of Appeal cogently explained

in Bruce v. State, 92 So. 3d 902, 906 (Fla. 4th DCA 2012):

              The police cannot rely on the failure to notify interrogators of
              a lawyer’s presence to skirt the article 1, section 9, due
              process requirements imposed by Haliburton II. Thus, the fact
              that the interrogating detectives in this case were unaware of
              [the attorney’s] presence at the station house is without legal
              significance. To allow the police to hide behind the imprecise
              standard of the good faith ignorance of the interrogators would
              encourage law enforcement to be deaf and blind to a lawyer’s
              attempts to contact his client . . . .

It is unclear why the receptionist at the Orlando Police Department who received Paige's

telephone call did not specifically notify the interrogating detectives in her communication

to them that Paige was Greenwich's attorney and wanted to speak with him, but this

failure to do so does not inure to the benefit of the state. 4

       Haliburton II and McAdams compel the conclusion that the constitutional error or

violation in the present case occurred when law enforcement failed to tell Greenwich that

his attorney was on the telephone and wished to speak with him, even if the police did

not intentionally try to block Greenwich's communication with his attorney. See State v.

Allen, 548 So. 2d 762, 765 (Fla. 1st DCA 1989) (finding that the trial court did not err in

suppressing defendant’s statements to police after police failed to inform defendant that

his attorney was trying to contact him by telephone when the defendant’s location was

easily ascertainable and the police did not intentionally block communication between the




       4 To be clear, we do not attribute any intentional misconduct by either the
receptionist or the detectives involved in this case.

                                              12
attorney and the defendant). Simply put, if Greenwich had been advised of Paige’s

telephone call, he could have then decided whether to speak with him and thereafter

determined whether to continue with the interrogation or not. Because our record is clear

that this constitutional error was harmful, we reverse the conviction and remand for a new

trial. However, because the record also established that Greenwich did continue to speak

with the detectives even after he consulted with Paige, on retrial, only those statements

made by Greenwich to the detectives during the interview but prior to his communicating

with Paige should be excluded.

      To facilitate the retrial that we have now ordered, we address the separate

evidentiary issue raised by Greenwich in this appeal. Greenwich argues that the trial

court erred in admitting into evidence, over objection, that his cellphone accessed

pornographic websites subsequent to the shooting and at a time when he had already

met with the police at the crime scene. We agree, as we fail to see how this evidence is

relevant as to whether Greenwich murdered his fiancée earlier that morning. See §

90.401, Fla. Stat. (2013) (defining relevant evidence as “evidence tending to prove or

disprove a material fact"). Furthermore, even if this evidence were remotely relevant, the

probative value of this evidence is substantially outweighed by the danger of unfair

prejudice. See § 90.403, Fla. Stat. (2013) ("Relevant evidence is inadmissible if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion

of issues, misleading the jury, or needless presentation of cumulative evidence."). "The

unfair prejudice that section 90.403 attempts to eliminate relates to evidence that

'inflames the jury or appeals improperly to the jury’s emotions.'" State v. Gerry, 855 So.

2d 157, 159 (Fla. 5th DCA 2003) (quoting State v. McClain, 525 So. 2d 420, 422 (Fla.




                                           13
1988) (additional citations omitted)). Accordingly, evidence that Greenwich's cellphone

accessed pornographic websites subsequent to the shooting shall be excluded on retrial.

      REVERSED and REMANDED for a new trial.

COHEN, J., and LEMONIDIS, R.C., Associate Judge, concur.




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