         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2793
                 _____________________________

JOSHUA BRANDYN GASKEY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Holmes County.
Christopher N. Patterson, Judge.

                         May 21, 2019


WINOKUR, J.

     Following a jury trial, Joshua Brandyn Gaskey was
convicted of two counts of first-degree murder, one count of
armed robbery, and one count of armed burglary. Gaskey shot
and killed Sheley and Jacquelyn Brooks in their home while
stealing their prescription medication to satisfy a drug debt. We
affirm Gaskey’s judgment and sentence.

                               I.

    The day after the murders, Gaskey and his girlfriend, Sarah
Carroll, were arrested. Carroll was placed in an interview room
and was questioned by Holmes County Sheriff’s Office
Investigator Michael Raley and Lieutenant Tyler Harrison.
Carroll waived her Miranda rights and stated that she had
driven to the Brookses’ residence on the day of the incident with
Gaskey and a man known to her as “Pooh.” Gaskey entered the
home while Carroll and Pooh stayed in the car. According to
Carroll, Gaskey had been in the home for approximately fifteen to
twenty minutes when she heard three loud bangs. Gaskey then
left the home and got back in the car with two bottles of
prescription pills. Gaskey, Carroll, and Pooh then drove to a
motel where Pooh divided up the pills to settle Gaskey’s drug
debt. Carroll stated that she asked Gaskey about the bangs she
heard in the residence and Gaskey responded that he didn’t know
what she was talking about.

    Prior to the start of his interview, Gaskey asked an officer
why he was hearing Carroll cry. The officer repeatedly told
Gaskey to stay seated and that he did not know why or if Carroll
was crying. Gaskey then became belligerent and went on an
expletive-laced tirade against the officer and police in general.

     After entering Gaskey’s interview room, Raley and Harrison
informed Gaskey of his Miranda rights. Gaskey told Raley he
understood his rights, and read and initialed a Miranda rights
form indicating that he understood his rights. As to the question
whether he had “previously asked any law enforcement officer to
speak to an attorney,” Gaskey wrote “Not Yet!” Regarding the
question “[w]ith these rights in mind do you wish to speak with
me?” Gaskey wrote “Yes!”

     From the outset of his interview, Gaskey asked Raley and
Harrison if Carroll was the person he heard crying in the other
room. Raley confirmed that Carroll was in the other room crying.
As the interview progressed, Gaskey became confrontational and
told the officers that he did not care about the Brookses and that
all he was concerned about was Carroll’s well-being:

    I, I care about [Hardin, the son of the Brookses], and I
    care about [Carroll], but I really don’t care about that
    s**t, I just want to know what’s going on with [Carroll].
    After that, I just want to go to a cell and lay down for a
    while. I’m probably going to sit here and dope sick off my
    ass right now, I just want to know what’s wrong with

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    [Carroll], that’s all I care about, everything, I don’t care
    about any of this.

     The officers told Gaskey that his cell phone and video
surveillance placed him in the vicinity of the crime scene, Gaskey
informed Raley and Harrison that he would tell them the truth if
he saw Carroll. Gaskey then proceeded to state that he owed
Pooh a drug debt and that Pooh threatened Carroll’s life over it.
As a result, they went to the Brookses’ home to get their
prescription pills. Gaskey planned to just ask the Brookses for
the pills or to take them by force if they did not agree since they
were elderly. Gaskey admitted that he went inside the residence
with a gun intending to scare them into giving him the pills, but
the gun had a “hair trigger” and went off. Gaskey also confirmed
that he shot Sheley Brooks first and that he threw the gun into
the ocean off the Three Mile Bridge.

     Before trial, Gaskey filed a Motion to Suppress Evidence
regarding his post-arrest interrogation alleging that he had
invoked his right to silence and counsel. The trial court held a
hearing and issued an order denying the motion, concluding that
Gaskey did not make an unequivocal statement indicating that
he wanted to cease questioning. Gaskey then filed a second
suppression motion, arguing that law enforcement misstated the
law during the interrogation. The trial court held another
evidentiary hearing and denied this second motion, concluding
that law enforcement did not make any misrepresentations of
fact or law.

                                II.

     A trial court’s ruling on a motion to suppress evidence
presents a mixed question of law and fact. Connor v. State, 803
So. 2d 598, 608 (Fla. 2001). The trial court’s factual findings will
be upheld if there is competent, substantial evidence to support
them. State v. Young, 974 So. 2d 601, 608 (Fla. 1st DCA 2008).
However, the trial court’s application of the law to those facts is
reviewed de novo. Id.

    Both the United States Constitution and the Florida
Constitution provide protections against self-incrimination.

                                 3
Amend. V, U.S. Const.; art. I, § 9, Fla. Const. Any statements
obtained by police in violation of these constitutional provisions
are to be suppressed pursuant to the exclusionary rule. Cuervo v.
State, 967 So. 2d 155, 160 (Fla. 2007). In Miranda v. Arizona, the
United States Supreme Court created a prophylactic rule
whereby police are required to inform defendants of their right to
remain silent, as well as their right to counsel prior to any
custodial interrogation. 384 U.S. 436 (1966).

      Once a suspect has waived Miranda rights, police are not
required to end an interrogation if the defendant makes an
equivocal or ambiguous request for counsel. State v. Owen, 696
So. 2d 715, 717 (Fla. 1997) (citing Davis v. United States, 512
U.S. 452, 459 (1994)). Only an unambiguous and unequivocal
request for counsel requires that police terminate an
interrogation. Owen, 696 So. 2d at 719. Similarly, a defendant’s
invocation of the right to silence must also be unequivocal and
unambiguous. Kalisz v. State, 124 So. 3d 185, 202 (Fla. 2013)
(citing Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010)).

                               III.

     Gaskey argues that while he initially waived his Miranda
rights, he subsequently invoked his right to counsel during the
interrogation. As a result, Investigator Raley should have ceased
questioning. Because we see neither an unequivocal nor an
unambiguous assertion of his right to counsel, we disagree.

     Gaskey read and signed a form informing him of his
Miranda rights and stated that he wanted to speak with Raley
and Harrison. Almost immediately after the interrogation began,
Gaskey began to pepper Raley with questions about Carroll. As
the interrogation continued, Gaskey became more frustrated
about why Carroll was crying. Raley told Gaskey that Carroll was
crying because she had “figured out what happened today.”
Gaskey replied that he did not really care what happened to the
Brookses and that all he cared about was finding out what was
happening to Carroll. Exasperated, Gaskey stated as follows:

    Go ahead and, go ahead and tell me your conclusions, I
    don’t care, or what [Carroll’s] conclusions are, I don’t

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    care, like I said, I just want to know what’s wrong with
    [Carroll]. So, tell me what she’s figured out, and after
    that, go ahead and f*****g sign off that I need a lawyer
    or whatever if I’m being arrested. If I’m not being
    arrested, then take me to a cell for my other warrants,
    so I can go ahead and get this s**t over with. But other
    than that, like I said, I want to know what’s wrong with
    her, so whatever she’s figured out, tell me what she’s
    figured out so I can go ahead and go to a cell now
    because other than that, I’m done.

    Gaskey points to this exchange as an unequivocal and
unambiguous invocation of his right to counsel. We disagree. It
appears that Gaskey’s primary motivation was to get information
about Carroll. Indeed, Gaskey’s entire conversation with Raley
centered on Gaskey’s repeated requests to find out why Carroll
was crying and later what she “figured out.”

     More importantly, Gaskey’s statement was entirely
conditional. To the extent Gaskey was asserting his rights to
counsel or to end questioning, it was dependent on receiving
information about Carroll. In fact, he ended his statement by
saying “tell me what she’s figured out so I can go ahead and go to
a cell now because other than that, I’m done.” Thus, it is
reasonable to assume that Gaskey had no intention of ending the
interrogation in order to confer with counsel. Instead, Gaskey
simply wanted more information about Carroll. This is bolstered
by the fact that Gaskey kept talking with Raley and answering
his questions. It appeared that Gaskey was only vaguely
referencing his right to counsel as a way to extract information
about Carroll from police. Such a statement is not an
unambiguous and unequivocal assertion of ones Miranda rights. 1

    1 Florida courts have ruled that statements that appear to be
more explicit requests for counsel than Gaskey’s are equivocal.
See Jones v. State, 748 So. 2d 1012, 1020 (Fla. 1999) (finding the
defendant’s request “to talk to his mother [and] his attorney”
insufficient to invoke his right to counsel); Long v. State, 517 So.
2d 664, 667 (Fla. 1987) (concluding that the statement “I think I
might need an attorney” was equivocal); Waterhouse v. State, 429
So. 2d 301, 305 (Fla. 1983) (holding that the statements “I think I
                                 5
Accordingly, Raley was under no obligation to stop the
interrogation based on these statements.

                               IV.

    Gaskey also argues that his incriminating statements during
the interview were involuntary because Lieutenant Harrison
misstated the law. Since his confession came after the alleged
misstatement of law, Gaskey asserts that the trial court erred in
denying his motion to suppress.

     An involuntary confession is inadmissible. Martin v. State,
107 So. 3d 281, 298 (Fla. 2012). A confession is voluntary if it is
“the product of free will and rational choice,” which is determined
by the totality of the circumstances surrounding the confession.
Id. Direct or implied promises render a confession inadmissible
only if the promise made the confession involuntary in the
totality of the circumstances. Id. at 313-14. A causal connection,
however, must be found between the improper promise or
coercive conduct and the defendant’s subsequent confession.
Ramirez v. State, 15 So. 3d 852, 855-56 (Fla. 1st DCA 2009).

     After a long exchange with Investigator Raley and
Lieutenant Harrison regarding what he did the day of the
murders, Gaskey reiterated his near-constant request to know
why Carroll was crying. Gaskey then immediately proceeded to
state that whatever he knew was irrelevant based on the
allegations Raley and Harrison were making about Gaskey’s
involvement in the crime. At that point Harrison explained the
difference between first-degree murder, second-degree murder,
and manslaughter using hypothetical scenarios to illustrate the
difference between them:

    [HARRISON]: Well, yeah, there is, see, there’s different
    levels of murder, there’s premeditated, that's where you


want to talk to an attorney before I say anything else” and “I
think I’d like to talk to my attorney” were both equivocal).



                                6
    said I’m going to drive over there and I’m going to kill
    them for the pills, that’s premeditated, I don’t want to
    believe that, okay. Then there’s second degree, that’s
    where you go over there, in the heat of the moment,
    something happens, somebody dies. Then there’s
    manslaughter, that’s where he got over there and
    something accidentally, it was fight over the gun and
    something like that happened, that’s the lowest level,
    okay. So, you’re talking about everything from life in
    prison all the way down to a few years in prison, so
    that’s where I need to know that why and where, okay,
    that why, because without that why, all I can do is go
    back and say, he’s saying he ain’t left Pensacola, we can
    put him here, we can show it, I got witnesses, I got
    everything else, but he wants to say that, okay, but that
    is why I need to know that why. That’s where that why
    comes in very important, so I need to know why that
    happened. What was your train of thought? What were
    you thinking? I mean, I know you saw (sic) you’ve been
    doping all day.

     Afterwards, Gaskey responded, “[i]f you want to hear my
answer, I want to tell it to [Carroll], I want her to hear it from
me, I’ll tell you whatever you want to know.” Gaskey also
promised to tell “the truth.” Gaskey then proceeded to confess to
entering the Brookses’ residence with the intention of stealing
their prescription pain medication and accidentally shooting both
of them multiple times.

      Gaskey relies on Baptiste v. State, 179 So. 3d 502 (Fla. 1st
DCA 2015), for his assertion that Harrison misstated the law as
it related to homicide, which rendered his confession involuntary.
In Baptiste, police told the defendant that if he committed the
armed robbery they were investigating with a BB gun and not a
firearm then “‘this is the time for you to tell us that’ because ‘it
makes a world of difference.’” Id. at 504. When the defendant
then asked why it made a difference, the officers told the
defendant that if he used a BB gun to commit the robbery that it
was attempted robbery and not armed robbery. Id. at 505. The
defendant subsequently confessed and was charged with two
counts of armed robbery with a deadly weapon. Id. On appeal,

                                 7
this Court found that the officers misstated the law since using a
BB gun can support a conviction for armed robbery. Id. at 506.
Thus, the officers’ promise that the defendant could not be
charged with armed robbery if he confessed to using a BB gun
rendered his subsequent confession involuntary. Id. at 507.

     In this case, Lieutenant Harrison made no comparable
statement. Harrison simply responded to Gaskey’s statement
with the accurate observation that his mindset during the
commission of the crime is important to determining the
punishment he faced. While Harrison’s explanation may seem
somewhat inapt to experienced criminal practitioners, it was
nothing like the clearly erroneous legal explanation given by the
officers in Baptiste. More importantly, “advis[ing] a suspect of
potential penalties and consequences does not amount to a
threat.” Martin, 107 So. 3d at 305. Harrison simply informed
Gaskey that his mindset during the incident would matter. As a
result, Harrison did not make a misstatement of law.

     In any event, Gaskey’s confession was not causally connected
to Harrison’s statement. Immediately after Harrison’s
explanation about the different classifications of homicide,
Gaskey stated that he would tell “the truth” if he could say it to
Carroll. It was only after this response from Gaskey that Raley
and Harrison told him that they would bring Carroll over, but
that Gaskey would have to tell them the truth first. Based on
Gaskey’s obsession with Carroll throughout the interrogation, it
is reasonable to assume that Gaskey was attempting to exploit
Harrison’s desire to know what occurred by demanding to see
Carroll. Again, Gaskey made no statement indicating that he
would say anything the officers wanted to hear. Gaskey stated
that he would tell “the truth” in exchange for seeing Carroll.
There is nothing to indicate that Gaskey confessed because of
Harrison’s explanation.

     Gaskey’s overture to police is similar to the facts in Black v.
State, where both the defendant and his girlfriend were arrested
after a police search of the defendant’s home yielded marijuana in
a dresser belonging to his girlfriend. 630 So. 2d 609, 614 (Fla. 1st
DCA 1993). At the police station, the defendant became
concerned over her well-being and “offered to provide details of

                                 8
the robberies if [his girlfriend] was not charged for those
offenses.” Id. On appeal, this Court found the defendant’s
subsequent confession voluntary concluding that “there was no
police overreaching [and] [i]nstead, the extraction of any
‘promises’ from the police was induced solely by overtures from
the appellant, motivated by his concern for the welfare of
his girlfriend.” Id. at 617.

    As in Black, Gaskey proposed the “offer” of telling police “the
truth” in exchange for seeing Carroll. As a result, it cannot be
said that Harrison misstated the law, made any promises, or
otherwise induced Gaskey to confess.

                                 V.

    In conclusion, Gaskey waived his Miranda rights and
voluntarily spoke to police. Gaskey’s overriding concern
throughout the interrogation was Carroll’s well-being. At no point
did Gaskey unequivocally invoke his right to silence or counsel.
Furthermore, the interrogating officers did not misstate the law.
Gaskey simply attempted to leverage his knowledge of the
murders in order to see Carroll, and in the process confessed to
the crime. As a result, Gaskey’s confession was neither coerced
nor involuntary. Accordingly, the trial court did not err in
denying Gaskey’s suppression motions. We, therefore, affirm his
judgment and sentence. 2

    AFFIRMED.

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

                  _____________________________

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



    2   We reject all other arguments Gaskey makes in this appeal.

                                 9
Andy Thomas, Public Defender, and Steven L. Seliger, Assistant
Public Defender, and Barbara J. Busharis, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.




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