RICHARD A. WALKER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Richard A. Walker appeals convictions for burglary, robbery, kidnapping, sexual battery, and grand theft. The Third District Court of Appeal affirmed all convictions and sentences, finding no merit in four points of appeal regarding discovery violations, Miranda rights, and trial procedure.
The court affirmed all convictions and sentences. The trial court properly conducted a Richardson hearing and found no prejudice from the discovery violation. Testimony about Walker's refusal to give a stenographic statement did not assert his right to remain silent and was properly admitted. Although Walker initially invoked his Miranda rights, his subsequent initiation of communication with police and voluntary execution of a waiver rendered his oral statement admissible. The motion to disqualify the judge presented no fundamental error.
[1] A trial court must conduct a "Richardson" hearing upon being informed of a discovery violation, and the defendant must demonstrate prejudice to warrant a mistrial.
[2] Testimony that a defendant gave an unrecorded oral statement to police after declining a stenographic statement does not constitute an assertion of the right to remain si…
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Join FLexlaw to unlock all legal intelligence“the defendant himself initiated further communication with the police and indicated a desire to cooperate with the authorities — notwithstanding his prior assertion of rights to the contrary”
Establishes the critical exception to Edwards v. Arizona: that Walker's own reinitiation of contact with police allowed admission of his statements despite his prior Miranda invocation
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Join FLexlaw to unlock all legal intelligenceWalker was convicted of multiple serious crimes including burglary, robbery, kidnapping (two counts), sexual battery (four counts), and second degree …
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PER CURIAM.
This is an appeal from multiple judgments of conviction and sentences for burglary, robbery, kidnapping (two counts), sexual battery (four counts), and second degree grand theft. Four points are raised on appeal by the defendant Richard A. Walker. We find no merit in these points and affirm.
First, the defendant contends that the trial court erred in failing to conduct a “Richardson” hearing and in denying a motion for mistrial made after a discovery violation was brought to the trial court’s attention during the trial testimony of the female victim Jessie Victor. We cannot agree. Our review of the record reflects that the trial court conducted an extensive “Richardson” hearing below after being informed of the subject discovery violation—a hearing which consumes twenty-four pages of the trial transcript herein.
The trial court found at the conclusion of the hearing that the defendant had not been prejudiced by the discovery violation, as defense counsel’s preparation for the trial would not have been any different had he been aware of the undisclosed evidence in question. This being so, and given the overwhelming proof of guilt in this cause, the trial court properly denied the defense motion for a mistrial. See Richardson v. State, 246 So. 2d 771 (Fla.1971); Borges v. State, 459 So. 2d 459 (Fla. 3d DCA 1984).
Second, the defendant contends that the trial court erred in denying a motion for mistrial made after a police detective testified that the defendant did not wish to give a stenographic statement to the police, but instead gave an unrecorded oral statement to the police. Plainly, this testimony in no sense represents, as urged, an assertion of the defendant’s right to remain silent and was properly admitted below. Love v. State, 438 So. 2d 142, 144 (Fla. 3d DCA 1983).
Beyond that, the error here, if any, in admitting the evidence complained of was harmless beyond a reasonable doubt given the overwhelming proof of guilt adduced below. See State v. DiGuilio (Fla.1985) (case no. 65,490, opinion filed August 29, 1985) [10 F.L.W. 430]; State v. Prosser, 235 So. 2d 740 (Fla. 1st DCA 1970), cert. dismissed, 243 So. 2d 419 (Fla.1971).
Third, the defendant contends that the trial court erred in denying his motion to suppress his oral statements to the police based on Miranda grounds. This contention has given us some pause because it is undisputed that the defendant, after being advised of his Miranda rights by the police, stated that he did not wish to speak to the police without an attorney being present. Ordinarily, this showing would preclude the admission of any subsequent statement made by the defendant to the police “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981).
In this case, however, the defendant himself initiated further communication with the police and indicated a desire to cooperate with the authorities — notwithstanding his prior assertion of rights to the contrary. Further, we reject the contention that the defendant was pressured or coerced into this subsequent communication with the police. See Norris v. State, 429 So. 2d 688 (Fla.1983).
Thereafter, the defendant voluntarily executed a proper waiver of rights form and gave a voluntary, oral statement to the police. Under these circumstances, the defendant's statement was properly admitted below and the trial court committed no error in denying the aforesaid motion to suppress.
Fourth, the defendant contends that the trial court erred in denying a defense motion to disqualify the trial judge below. As the defendant concedes, however, this motion was never ruled on below and therefore cannot present error unless the error complained of is fundamental in nature. We have examined the record before us and discern that no fundamental error is presented herein.
The final judgments of conviction and sentences are, therefore, in all respects
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. State, 499 So. 2d 912 (Fla. 1st DCA 1986)…o adopt a spurious defense. This did not happen in the instant case, however, since there is no evidence indicating that the defense preparation would have been different had the undisclosed evidence been available before trial. See Walker v. State, 484 So. 2d 1322 (Fla. 3d DCA 1986). Cf Raffone v. State, 483 So. 2d 761 (Fla. 4th DCA 1986) (wherein the court found reversible error where the state disclosed one set of results in the lab report and then attempted to prove something else at trial). Appellant con…
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Enumerable Vaillant v. State, 490 So. 2d 1326 (Fla. 3d DCA 1986)…ause the prosecutor, in closing argument, impermissibly commented on the post-arrest exercise of his right to remain silent. We disagree because we find the error, if any, was harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla.1985); Walker v. State, 484 So. 2d 1322 (Fla. 3d DCA 1986). Vaillant next contends that the trial court erred in failing to grant his motion for judgment of acquittal or reduction of the charges on the grand theft count. We agree. Vaillant was charged with the theft of property valued a…
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Brown v. State, 592 So. 2d 1243 (Fla. 3d DCA 1992)…392 (Fla. 3d DCA 1990). Here, there was a concrete affirmative manifestation to communicate with police after being advised of his rights — he voluntarily spoke about the crime. See Avila v. State, 545 So. 2d 450 (Fla. 3d DCA 1989); Walker v. State, 484 So. 2d 1322 (Fla. 3d DCA 1986). Finally, because the evidence against appellant was overwhelming, we find any error to have been harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Affirmed.…
Authorities Cited
- Edwards v. Arizona, 451 U.S. 477 (U.S. 1981)
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Derwin Norris v. State, 429 So. 2d 688 (Fla. 1983)
- Love v. State, 438 So. 2d 142 (Fla. 3d DCA 1983)
- Bowling v. State, 459 So. 2d 459 (Fla. 5th DCA 1984)
- Daniels v. State, 235 So. 2d 740 (Fla. 1st DCA 1970)
- State v. Prosser, 235 So. 2d 740 (Fla. 1st DCA 1970)
- Federal Pacific v. Lindy's OF Orlando, Inc., 243 So. 2d 419 (Fla. 1971)
- High v. Pub. Serv. Mut. Ins. Co., 243 So. 2d 419 (Fla. 1971)