GEORGE CHARLES GRESH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1990-04-16
No. 89-2090
WENTWORTH and JOANOS, JJ., concur.
560 So. 2d 1266 Florida District Court of Appeal, First District (1990) Caution
Cited by 13 cases

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Synopsis

George Gresh was convicted of sexual activity with a child. He appealed, arguing that statements he made to child protection workers and a sheriff's deputy should have been suppressed because he was not given Miranda warnings. The court affirmed, holding that Gresh was not in custody during either the parking lot interview or the phone conversation, so Miranda warnings were not required.


Holding

Gresh's statements were properly admitted because he was not in custody during either the parking lot interview with the child protection workers or the phone conversation with Deputy Jester, and therefore Miranda warnings were not required. The test for custody is whether a reasonable person in the suspect's position would have understood their situation as one from which they were not free to leave or refuse to answer questions.


Headnotes

[1] Miranda warnings are required only when a person is subjected to custodial interrogation.

[2] The determination of whether a suspect is in custody for Miranda purposes hinges on whether a reasonable person in the suspect's position would have understood their free…

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Key Quotes

“the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest.”

Establishes the test for determining whether a person is in custody for Miranda purposes

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Facts & Procedural History

Child protection authorities received allegations that Gresh was sexually abusing his stepdaughters. Sally Putters and Linda Edwards, non-law enforcem…

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Opinion of the Court
SMITH, Judge.

SMITH, Judge.

Appellant seeks reversal of his conviction of sexual activity with a child by a person in familial or custodial authority, contrary to section 794.041, Florida Statutes (1987), raising two issues, only one of which merits discussion. He contends that the trial court should have suppressed statements given by him to Sally Putters, project coordinator of the Child Protection Team, Linda Edwards, an intake counselor for the Department of Health and Rehabilitative Services, and David Jester, an Escambia County Sheriffs Deputy, because the statements were given without appellant having been advised of rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.

Sally Putters and Linda Edwards visited appellant at the car agency where he worked, and interviewed him concerning allegations that he was sexually abusing his stepdaughters, R.P. and B.P. Neither of them was a law enforcement officer, nor do they have arrest powers. They do not wear uniforms or carry guns. According to Ms. Putters, appellant agreed to talk to them after they informed him of why they were there, and they conducted the interview in the .parking lot. They did not give appellant Miranda warnings. Appellant admitted having sexual intercourse with his stepdaughter, R.P., for a period of about three years. This information was relayed to Deputy Jester, who was responsible for investigating sex crimes in Escambia County-

When he learned of the possibility of sexual misconduct by appellant involving his stepdaughters, Deputy Jester called appellant at his place of employment. His phone conversation with appellant was taped. Jester began by explaining the purpose of the phone call and requesting that appellant come to his office for an interview concerning the allegations. Deputy Jester did not give appellant Miranda warnings. Jester proceeded to question appellant concerning the allegations of sexual misconduct, and whether they were true. Appellant admitted having sexual intercourse with R.P. Jester made no threats or promises to appellant during this conversation. Appellant was free, obviously, to end the conversation at any time.

Appellant was subsequently charged and convicted of having sexual intercourse with his stepdaughter, R.P., on or about June 17, 1987. His pretrial motion to suppress the statements he gave to Ms. Putters and Mr. Edwards, and Deputy Jester, was denied by the trial court on the grounds that appellant’s statements were not given in a custodial setting “so that his decision to make a voluntary statement would be overborne by the circumstances of the environment in which the interview was conducted.” At his trial, Ms. Putters and Deputy Jester testified against appellant and told the jury of the statements appellant made to them. The tape-recorded conversation of Deputy Jester with' appellant was introduced into evidence and the jury listened to the tape while they read a verified transcript of the conversation. The test for determining whether a defendant is in custody for Miranda purposes is succinctly set out in Caso v. State, 524 So. 2d 422, 423 (Fla.1988), as follows:

In Miranda, the United States Supreme Court established a procedural safeguard to protect an individual’s fifth amendment privilege against compelled self-incrimination from the coercive pressures of custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The procedural safeguard does not, however, apply “outside the context of the inherently coercive custodial interrogations for which it was designed.” Roberts v. United States, 445 U.S. 552, 560, 100 S.Ct. 1358, 1364, 63 L.Ed.2d 622 (1980). The police are required to give Miranda warnings only when the person is in custody. California v. Beheler, 463 U.S. 1121, 1124, 103 S.Ct. 3517, 3519, 77 L.Ed.2d 1275 (1983). In determining whether a suspect is in custody, “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Id. at 1125, 103 S.Ct. at 3520 (quoting Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)).

As the Florida Supreme Court and the United States Supreme Court have recognized:

A policeman’s unarticulated plan has no bearing on the question of whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.

Roman v. State, 475 So. 2d 1228, 1231 (Fla.1985), cert. den., 475 U.S. 1090, 106 S.Ct. 1480, 89 L.Ed.2d 734 (1986), quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984).

With respect to the interview conducted by Ms. Putters and Ms. Edwards, the record indicates that an investigation was instigated because of allegations of child abuse as required under section 415.-505(1), Florida Statutes (1987). Under section 415.505(1)(a)-(e), the primary purpose of such an investigation is to protect the child rather than to gain probable cause to arrest. Neither of the workers possessed arrest powers. They interviewed appellant at his place of work in the parking lot and it is clear that appellant was free to refuse to participate in the interview. The interview did not take place in an inherently coercive custodial setting nor was there intimidation or coercion of appellant. Accordingly, we agree with the trial court that appellant has failed to demonstrate a basis for a reasonable belief that he was being subjected to a custodial interrogation from which he was not free to leave. See generally Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d. 409 (1984).

With respect to appellant’s telephonic statements to Officer Jester, Officer Jester called appellant to set up an interview. He testified that appellant was not under arrest at the time the phone call was placed and the record substantiates his testimony that appellant was not threatened or coerced in any way to answer his questions. Appellant was free to stop the telephone conversation at any time. Under the circumstances, we agree with the trial court that appellant was not questioned in a custodial setting where it could be said that the coercive atmosphere overcame his free will and rendered his confession or statement involuntary. See Minnesota v. Murphy, 104 S.Ct. at 1144.

Appellant’s reliance on this court’s decisions in Jenkins v. State, 533 So. 2d 297 (Fla. 1st DCA 1988), and Mosely v. State, 503 So. 2d 1356 (Fla. 1st DCA 1987), is misplaced. In Mosely, both coercion and intimidation were present, making the defendant’s statements involuntary. In Jenkins, deception was present — and there is no evidence of deception in this case.

AFFIRMED.

WENTWORTH and JOANOS, JJ., concur.


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Citator

Cited By

  • Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA 1991)
    …n, in carrying out his responsibilities as a team member, primarily serves a police function, i.e. investigating a crime as an agent for the state. As did the North Carolina Supreme Court in State v. Aguaito, supra, and this court in Gresh v. State, 560 So. 2d 1266 (Fla. 1st DCA 1990), we reject this argument as being inconsistent with legislative intent, clearly expressed, that a CPT physician’s examination shall serve to produce a diagnosis and a plan of treatment for child sex abuse victims. See generally S…
  • State v. Alioto, 588 So. 2d 17 (Fla. 5th DCA 1991)
    …n in the suspect’s place. Id. at 423-424, (citing Roman v. State, 475 So. 2d 1228, 1231 (Fla.1985), cert. denied, 475 U.S. 1090, 106 S.Ct. 1480, 89 L.Ed.2d 734 (1986)). See also Riechmann v. State, 581 So. 2d 133, 137-138 (Fla.1991); Gresh v. State, 560 So. 2d 1266 (Fla. 1st DCA 1990). A “reasonable person” has been defined as one who is “neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.”5 845 F. 2d at 596. The test does not involve conside…
  • State v. D.M., 654 So. 2d 256 (Fla. 3d DCA 1995)
    …t 442, 104 S.Ct. at 3151-52). In the instant case, we conclude that a reasonable person speaking to a police officer over the telephone in the safety and privacy of the person’s home does not constitute a coercive custodial setting. Gresh v. State, 560 So. 2d 1266 (Fla. 1st DCA 1990). Clearly, D.M. was free to end his telephone conversation with the detective at any time and there were absolutely no restraints on D.M.’s liberty. The fact that D.M. was otherwise the sole focus of the investigation or that the…

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