       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            ZEDRIC JOSEPH,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-1651

                          [November 14, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2014-CF-
002657-A.

  Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   Zedric Joseph entered his girlfriend’s apartment and found her having
sex with another man. He killed the man by stabbing him numerous times
with a bread knife. He also held the knife to his girlfriend’s throat and
threatened her. She pushed it away with her hand, causing a severe
laceration. She convinced him to leave, saying she would say that the
incident was a robbery committed by an unknown perpetrator.

   Once Joseph learned that law enforcement was looking for him, he fled.
He was arrested at a hotel in Augusta, Georgia.

   We write to address Joseph’s challenge to the admissibility of his post-
arrest statement to the police.

  After Joseph was taken into custody, he was questioned by Detective
Sabrina Tobey. The interrogation was videotaped and introduced at trial.
   The defendant answered identifying questions and Detective Tobey read
him his Miranda 1 rights. When she asked, “Do you have any questions on
that?” he responded, “Understood 100 percent.” He signed a card waiving
his rights.

   The detective noticed the defendant’s bandaged hand. She asked him
what happened. He replied “football,” explaining that the university
hospital looked at it. Other evidence indicated that he had injured his
hand while stabbing the victim.

    The detective asked him to tell her about his “crazy week,” and he
explained that there was a warrant out for him for something that
happened in West Palm Beach and that he heard the police were looking
for him. He decided to flee because he needed to find out what was going
on so he would not get blindsided. During the interrogation, the defendant
evaded simple questions, like when he arrived in West Palm Beach and
how he got around when he was there.

   Joseph told the detective he had had an on and off relationship with
his girlfriend for five years, that it had been “recently good,” and that they
had gotten back together at the beginning of 2014. He said he did not
know if they were still together.

    When the detective asked why he was in handcuffs, the defendant said,
“I’m hoping to find out exactly from you all.” Joseph avoided giving
concrete answers and instead discussed the seriousness of the situation
and how no one wanted to hear his side.

   Joseph denied being in the girlfriend’s apartment on March 7. The
detective persisted, telling him that he walked in to find his girlfriend
having sex with another man. They talked about whether the detective
respected him and whether she had pre-judged him. She told him that
she knew he was in the apartment and asked him to tell her what he saw
and what he did and then she would respect him.

   The basis of Joseph’s motion to suppress arose from the following
exchange:
        Defendant: I don’t think it will be -- I don’t know the word for
        it, but I don’t think it will be, like -- I don’t want to say smart,
        but -- ‘cause I don’t want to try to make it seem like I’m here
        trying to be slick or something. So I don’t really want to use the

1   Miranda v. Arizona, 384 U.S. 436 (1966).

                                        -2-
     word smart, but I don’t think it will be something for me
     to be, you know, maybe discussing certain things until
     maybe I get a lawyer.
     Because, like you said, when you read the rights, like, you
     know, what you could say or something like that. Like, I don’t
     want to say something and then have a -- I don’t know. ‘Cause
     that’s what -- that’s what lawyers do, they try to use anything
     you say and if they could twist it, they’ll twist it, if they could
     flip it, they’ll flip it. If they can make A seem like Z, they’ll make
     A seem like Z.
     And I’m not -- I don’t have the intellect to know, like, what I
     should and what I shouldn’t even be saying because I -- like I
     said, I’ve never been in anything this serious before, or
     anything serious, for that matter, like. So, I mean, this is new
     to me and I really don’t know --
     Detective:   All right, man. Well, that’s your prerogative.
     Defendant: You know what I’m saying?
     Detective: I mean, if you don’t -- if you don’t want to talk to
     me without a lawyer then I’m not going to talk to you.
     Defendant: Would you advise me to?
     Detective: I can’t tell you to advise -- I can’t advise you to do
     anything. So --
     Defendant: If you were in my shoes, would you? I mean --
     Detective:   I can’t --
     Defendant: I’m not trying --
     Detective:   I can’t tell you whether you should or you
     shouldn’t.
     Defendant. Yeah, I understand.
     Detective: If you want to speak to a lawyer, then I’m done.
     But then you -- you know, you don’t get another chance to
     talk to me. So I’m out, okay?
     [Detective Tobey exited room]
    Seven minutes later, when the detective reentered the room, the
following exchange occurred:



                                     -3-
      Defendant: What’s your name again?
      Detective:   Detective Tobey.
      Defendant: Tobey?
      Detective:   Yes. I want to clarify with you ‘cause --
      Defendant: I want to clarify something with you.
      Detective:   Okay.
      Defendant: Detective Tobey --
      Detective:   Yes?

   The defendant started talking about judging people again, and said that
he needed to let her know that he is not a criminal and he is not a monster.
The detective said she understood:

      Detective Tobey: But I just want to know, okay, you said that
      you -- do you want to continue talking to me or do you want
      to talk to a lawyer? It’s up to you.
      Defendant: I mean, it depends what we’re -- what we’re
      talking about.
      Detective: Well, I’m going to talk about why you’re in here
      and what charges. And I’m going to talk about that.
      Defendant: Okay.
      Detective:   So do you want to talk to me?
      Defendant: I can -- I can talk to you about it. I mean, like I
      said, we can talk and, I mean, if I feel like it’s something, I’ll
      just say, you know, I don’t feel like I should or not.
      Detective:   Okay. And you can’t --
      Defendant: But we can definitely --
      Detective: You can’t walk the line, I don’t know if I should.
      If you don’t want to answer something or you don’t -- then you
      tell me, okay.
      Defendant: Okay.
      Detective: But don’t -- don’t -- don’t walk the line. Don’t say,
      oh, well, I’m not sure, I’m not this, I’m not that. Just tell me,
      okay? So do you want to talk to me?

                                      -4-
      Defendant: Yeah. If it’s something I’ll just straight up tell you
      --
      Detective:   Okay.
      Defendant: -- like, no, this is not -- I don’t want to talk about it,
      or I’ll answer it, just like you said.
    The detective resumed questioning the defendant about what happened
in the girlfriend’s apartment.

   The defendant continued to dodge questions and talked about what
happened the day before the attack. He eventually admitted that on the
day of the attack he and the girlfriend were texting and that she stopped
responding when she went to work. He said he was on the highway at that
time, heading to the Swap Shop in Broward. This statement was
contradicted by law enforcement testimony that the defendant’s cell phone
was never in Broward on March 7, 2014.

   The defendant said when he was driving back from Broward, he “heard
they were looking for me.” He could not recall if it was dark out and told
her that it was “whatever time they came to my house is around the time
I was driving back.”

   He said he headed to Augusta, to the “country.” He “googled” the hotel
and checked in with someone else’s ID. He commiserated some more
about wishing people would understand that he wasn’t a monster or a
criminal. Another detective entered the room and began questioning the
defendant about his hand. He confronted him bluntly and at that point,
the transcript ends.

   Before trial, the defendant moved to suppress the second half of the
interrogation. The defendant argued that he unequivocally asserted his
right to counsel and that “the detective did not scrupulously honor [his]
invocation of his right to counsel.”

   The judge who presided over the motion to suppress hearing denied the
motion, finding that the defendant did not unequivocally invoke his right
to an attorney.

   We review de novo the trial court’s conclusions of law on the motion to
suppress. Because the motion was denied based on the trial judge’s review
of a videotaped interrogation, this court “may review the tape for facts
legally sufficient to support the trial court’s ruling.” Dooley v. State, 743
So. 2d 65, 68 (Fla. 4th DCA 1999).

                                      -5-
    At the outset, we note that the argument the defendant raises on appeal
differs somewhat from what he raised below. In the circuit court, he
argued that he unequivocally asserted his right to counsel which triggered
the officer’s obligation to cease questioning. On appeal, he also bases his
argument on Almeida v. State, 737 So. 2d 520 (Fla. 1999), which holds
that when a suspect asks a question concerning his Miranda rights, the
police must stop interrogation and give a simple and straightforward
answer before interrogation may continue.

   It is clear that the defendant initially waived his Miranda rights. Once
he waived those rights, the police were free to interrogate him.

   A suspect may invoke a previously-waived right to counsel by clearly
requesting counsel. Davis v. United States, 512 U.S. 452, 458 (1994). “If
the suspect’s statement is not an unambiguous or unequivocal request for
counsel, the officers have no obligation to stop questioning him.” Id. at
461-62. The test of whether a suspect has unequivocally invoked his
previously-waived Miranda rights is whether “a reasonable police officer in
the circumstances would understand the statement to be a request for an
attorney.” Id. at 459.

    The defendant’s musings quoted above amounted to thinking out loud
about “maybe” retaining an attorney, not an unequivocal request for a
lawyer that would have required that interrogation cease.              Such
aspirational statements are not unequivocal requests for counsel. Id. at
462 (the statement, “Maybe I should talk to a lawyer,” was not a request
for counsel); Walker v. State, 957 So. 2d 560, 571 (Fla. 2007) (the suspect’s
statement, “I think I may need a lawyer,” and subsequent question asking
detectives whether he needed counsel, were not unequivocal requests for
an attorney); Long v. State, 517 So. 2d 664, 667 (Fla. 1987) (the statement,
“I think I might need an attorney” was equivocal); State v. Carter, 172 So.
3d 538, 540 (Fla. 5th DCA 2015) (the statements, “I think I should wait to
talk to my public defender,” and “I mean I do [want to talk], but I don’t
think I should” did not constitute unambiguous or unequivocal requests
for counsel); see also Spivey v. State, 45 So. 3d 51, 54-55 (Fla. 1st DCA
2010) (statement, “I mean if I am being held and I’m being charged with
something I need to be on the phone calling my lawyer,” was not an
unequivocal request for counsel because it “did not clearly indicate that
[he] wanted counsel present at that time or that he would not answer any
further questions without counsel.”).

   The defendant here was contemplating his situation. He talked about
perhaps not answering certain questions until maybe getting a lawyer. He
did not request an attorney. He did not refuse to answer questions without

                                    -6-
an attorney. The circuit court did not err in denying the defendant’s
motion to suppress because the defendant did not unequivocally and
unambiguously invoke his right to counsel.

    We also discern no violation of Almeida. If a suspect does not invoke
his right to counsel, but instead, “asks a clear question concerning his or
her rights, the officer must stop the interview and make a good-faith effort
to give a simple and straightforward answer.” Almeida, 737 So. 2d at 525.
“Once the officer properly answers the question, the officer may then
resume the interview (provided of course that the defendant in the
meantime has not invoked his or her rights).” Id.

   “Custodial utterances are extraordinarily rich in diversity and include
not only statements affirmatively invoking a suspect’s rights but also
statements prefatory to the invoking of a right.” Id. at 523.

      [A] prefatory statement is subject to the following three-step
      analysis: (1) was the defendant referring to a constitutionally
      guaranteed right; (2) was the utterance a clear, bona fide
      question calling for an answer, not a rumination or a
      rhetorical question; and (3) did the officer make a good-faith
      effort to give a simple and straightforward answer.

Daniel v. State, 238 So. 3d 1283, 1287–88 (Fla. 5th DCA 2018).

   On appeal, the defendant argues that his statements during the second
half of the interview were involuntary because the detectives failed to give
him honest and accurate answers to his bona fide questions about his
right to an attorney. The defendant’s argument fails for two reasons.

   First, the defendant’s argument was not made below, so it was not
preserved. While the defendant moved to suppress part of his statement,
the ground for the motion was different from the ground urged on appeal.
“A defendant may not argue in the trial court that a consent was
involuntary for certain reasons and then obtain a reversal on appeal on
the ground that the consent was involuntary for other reasons.” I.R.C. v.
State, 968 So. 2d 583, 589 (Fla. 2d DCA 2007).

   Below, the defendant argued that he unequivocally invoked his right to
counsel.     The inquiry below, therefore, focused on the objective
interpretation of the defendant’s words to the police.

   On appeal, the defendant’s argument is that he asked a question about
his right to counsel triggering the detective’s duty to cease questioning and

                                    -7-
answer the question before continuing the interrogation. This part of the
inquiry on appeal focuses on the appropriateness of the detective’s
response.

   Trial counsel for the defendant did not cite Almeida and the trial judge
did not consider the appropriateness of the detective’s answers to the
defendant’s questions about counsel under Almeida and its progeny. The
Almeida objection was not preserved because the specific legal argument
pursued on appeal was not part of the presentation below. Perez v. State,
919 So. 2d 347, 359 (Fla. 2005).

    The second reason the defendant’s argument fails is because his brief
fails to pinpoint any “bona fide question” asked by the defendant and any
improper response by the detective. At the pages quoted in appellant’s
brief, the single question the defendant asks the detective is whether she
would advise him to get an attorney. She repeatedly states that she cannot
give him legal advice, an entirely proper response.

      To require officers to advise and counsel suspects would
      impinge on the officers’ sworn duty to prevent and detect
      crime and enforce the laws of the state. All that is required of
      interrogating officers under Almeida and Owen is that they be
      honest and fair when addressing a suspect’s constitutional
      rights.

State v. Glatzmayer, 789 So. 2d 297, 305 (Fla. 2001). An officer may not
evade the suspect’s questions, engage in gamesmanship, or steamroll him.
Almeida, 737 So. 2d at 525 (where the suspect asked “what good is an
attorney going to do?” the officer evaded the question by asking whether
the suspect wanted to speak with him again).

   Here, the detective did not evade the defendant’s questions.          She
answered honestly--that she could not give him advice.

   Because the detective responded in an appropriate manner to the
defendant’s questions about counsel, the detectives could continue the
interrogation and there was no error in denying the defendant’s motion to
suppress.

   We have considered the other arguments raised on appeal and find
them to be without merit.

WARNER and LEVINE, JJ., concur.


                                    -8-
                      *        *        *

Not final until disposition of timely filed motion for rehearing.




                              -9-
