TIMOTHY SMOTHERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1987-10-12
No. BO-468
MILLS and WIGGINTON, JJ., concur.
513 So. 2d 776 Florida District Court of Appeal, First District (1987) Caution
Cited by 6 cases

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Synopsis

Timothy Smothers was convicted of attempted armed robbery after the trial court admitted an involuntary pretrial statement for impeachment purposes without making a voluntariness determination. The appellate court reversed, holding that a trial court must explicitly determine voluntariness before admitting any custodial statement, even if used only for impeachment.


Holding

A trial court commits reversible error by admitting a custodial statement for impeachment without first determining its voluntariness. The trial court must make a finding regarding voluntariness outside the jury's presence when a defendant objects, regardless of whether the statement is used in the prosecution's case-in-chief or only for impeachment. The failure to make such a determination cannot be harmless error unless the record clearly demonstrates an implicit finding of voluntariness.


Headnotes

[1] A trial court must rule on the voluntariness of a defendant's custodial statement before admitting it, even for impeachment purposes.

[2] A trial court's failure to rule on the voluntariness of a statement is reversible error unless the record clearly demonstrates an implicit finding of voluntariness.

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Key Quotes

“We agree that the trial court erred in holding the statement in question admissible for impeachment purposes, without ruling on the voluntariness of the statement. If there is an objection to the voluntariness of a custodial statement by a defendant, the statement may be admitted only if the trial court finds the statement to be voluntary.”

Establishes the core holding that trial courts must explicitly determine voluntariness before admitting any custodial statement, including those used for impeachment.

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Facts & Procedural History

Smothers was charged with attempted armed robbery of a McDonald's restaurant. He filed a pretrial motion to suppress a statement he made to police, cl…

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

Timothy Smothers raises two issues in this appeal from his conviction of attempted armed robbery. We affirm the first issue, finding it without merit, but reverse as to the second issue, and conclude that reversible error was committed by the trial court.

Smothers was charged with attempted armed robbery of a McDonald’s restaurant. Appellant filed a pretrial motion to suppress a statement he had made to a police officer as involuntary, alleging that he had not been Mirandized at the time the statement was given to the officer.

The trial court diol not conduct a hearing on the pretrial motion to suppress, and in fact the prosecution' did not introduce the statement during its ease-in-chief. The state essen tially relied upon the identification testimony of two witnesses at the scene. In defense, appellant offered several alibi witnesses at the trial, who testified that he was at his parents ’ house at the time of the attempted robbery, as well as his own testimony to the same effect as that of his witnesses. During its cross-examination of appellant, the state attempted to introduce the inconsistent pretrial statement in question, reflecting that appellant had advised an officer at the time of arrest that he was at the home of his grandmother, with whom he lived, at the time of the attempted robbery — not at his parents’ house.

In overruling appellant’s objection to the attempted impeachment by means of the inconsistent statement, on the ground that the pretrial statement was involuntarily obtained, the court refused to make a ruling on the voluntariness of the statement, finding that since appellant had taken the stand, he had placed his credibility at issue and was subject to impeachment by the prior inconsistent statement. In doing so, the trial court may have based his ruling on Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), holding that statements taken in violation of the Miranda standards could nevertheless be used for impeachment purposes, if the evidence otherwise satisfied legal standards for trustworthiness. The police officer to whom appellant had made the statement testified in rebuttal that he had given appellant his Miranda rights prior to questioning him.

We agree that the trial court erred in holding the statement in question admissible for impeachment purposes, without ruling on the voluntariness of the statement. If there is an objection to the voluntariness of a custodial statement by a defendant, the statement may be admitted only i/the trial court finds the statement to be voluntary. While the court is not required to recite conclusory findings, the record must establish that the judge “understood his responsibilities and properly fulfilled them.” Peterson v. State, 382 So. 2d 701, 702 (Fla.1980).

The basis of the state’s argument defending the introduction of the statement is that although the trial court failed to rule on its voluntariness, the record otherwise demonstrates it to be so, in that the arresting officer testified on rebuttal and in the presence of the jury that he had advised the defendant of his constitutional rights, by reading him his rights from the standard card carried by him, which the defendant acknowledged that he understood, and then gave the statement. The officer’s testimony that the defendant freely, voluntarily and knowingly gave a confession does not, however, abrogate a trial court’s duty to make such finding before the statement is admitted. Despite the fact that a confession is used only for the purpose of impeaching a defendant’s credibility, the Florida Supreme Court has held that it was nonetheless “error for the trial judge not to make a determination of voluntariness outside the presence of the jury once petitioner objected to introduction of statements for failure of a showing of voluntariness.” Nowlin v. State, 346 So. 2d 1020, 1024 (Fla.1977) (e.s.).

In addition to so holding, the court refused to apply the harmless error rule.

Nevertheless, there are circumstances in which the failure of the trial court to make findings regarding the voluntariness of a statement is not considered reversible error. In Hoffman v. State, 474 So. 2d 1178, 1181 (Fla.1985), the supreme court held that the failure of the trial court to make specific findings regarding voluntariness is not reversible error, if it “is apparent from the record” that the trial court made a determination of voluntariness, (e.s.) See also Alejo v. State, 483 So. 2d 117 (Fla. 2d DCA 1986), wherein the admission of such evidence was approved, despite the absence of any explicit finding by the trial court, on a record indicating that the trial court had made an implicit finding that the statement was voluntary. In the instant case we are unable to state that an implicit finding regarding the voluntariness of the statement was made, because the trial court refused to make such a determination on the erroneous belief that he was not required, under the circumstances, to so find. Admission of statements made in violation of Miranda can be harmless error, “in view of the evidence of guilt and the lack of any substantial prejudice to the defendant’s right to a fair trial.” Saucier v. State, 491 So. 2d 1282, 1284 (Fla. 1st DCA 1986).

The harmless error standard requires proof “beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.1986).

In the instant case we are unable to say beyond a reasonable doubt that the introduction of the inconsistent statement as to appellant’s location at the time of the attempted robbery did not contribute to the conviction.1

Because the only demonstration in the record of the voluntariness of the statement came from the arresting officer’s testimony, and not from any determination by the trial court, we are compelled to reverse the conviction and remand with directions that a new trial be granted. In so holding we note that an error of this sort cannot be corrected by our relinquishing jurisdiction to the trial court in order for it to make an explicit ruling on the issue of voluntariness. See Greene v. State, 351 So. 2d 941 (Fla.1977).

REVERSED and REMANDED for a new trial.

MILLS and WIGGINTON, JJ., concur. . The defendant, as earlier indicated, in addition to his own testimony, presented a number of alibi witnesses — family members and a friend — placing him at his parents’ home at the approximate time the attempted robbery occurred. Although appellant was identified in court by two witnesses as the attempted perpetrator of the crime, one of the two — the witness who stated that appellant had accosted her with a hand gun and demanded money from her— was unable to identify appellant in court until after her memory had been refreshed by her examination of a photographic display.


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Citator

Cited By

  • Johnson v. State, 696 So. 2d 326 (Fla. 1997)
    …f McDole discussed in the excerpt from Antone has been applied numerous times both by this Court and the district courts. E.g., Hoffman v. State, 474 So. 2d 1178, 1181 (Fla.1985); Peterson v. State, 382 So. 2d 701, 702 (Fla.1980); Smothers v. State, 513 So. 2d 776, 777 (Fla. 1st DCA 1987); Williams v. State, 397 So. 2d 1044, 1045 (Fla. 4th DCA 1981). In this case, it is clear that the issue of voluntariness was specifically before the court. The record, with unmistakable clarity, supports the conclusion that…
  • Etavius Carlyle v. State, 945 So. 2d 540 (Fla. 2d DCA 2006)
    …capitalize on the trial court’s harmless error or otherwise paint the victim as a saintly figure — or something she clearly was not.2 Thus, there is no reasonable probability that the error contributed to Carlyle’s conviction. See Smothers v. State, 513 So. 2d 776 (Fla. 1st DCA 1987). Affirmed. ALTENBERND, J., Concurs. FULMER, C.J., Dissents with opinion. . Cook was also charged with offenses arising from this episode. His charges and Carlyle's were severed prior to Carlyle’s trial. . In closing, the Sta…
  • Guess v. State, 579 So. 2d 339 (Fla. 1st DCA 1991)
    …st reverse issue I, however, in light of existing law which holds that the failure of the trial court to permit a defendant to testify outside the presence of the jury concerning the volun-tariness of custodial statement is error. Smothers v. State, 513 So. 2d 776 (Fla. 1st DCA 1987); Kitchens v. State, 240 So. 2d 321 (Fla. 1st DCA 1970). On the day of trial, Guess filed a motion to suppress and a motion in limine which were directed toward any statements he may have made while in police custody. The motions…
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