CECIL LAUREY SMITH

v.

THE STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed March⁵, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1611 Lower Tribunal No. F18-16957 ________________

Cecil Laurey Smith, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Cristina Miranda, Judge.

Daniel J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.

James Uthmeier, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.

Before LINDSEY, BOKOR and GOODEN, JJ.

GOODEN, J.

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Appellant Cecil Laurey Smith appeals his conviction and sentence. He raises several arguments on appeal.

We affirm in all respects, but write to address one issue: whether the trial court erred by denying Smith’s motion to suppress his incriminating statements and confession. Smith contends that the law enforcement officer failed to clarify the intent of his utterance prior to waiving his Miranda rights.

I.

On August 21, 2018, the Special Response Team executed a search warrant at an apartment. Upon entering, they saw Smith coming out of the bathroom. There were three young children in the apartment. The Special Response Team detained Smith. Smith and the children were removed from the apartment. The search ensued.

In plain view, narcotic officers saw various types and amounts of illegal drugs—black tar heroin, powdered heroin, crack, MDMA, marijuana, cathinones, among other drugs—in the kitchen and bathroom. They also observed scales, a beaker, a vacuum sealer, and cash. While drugs were not in the children’s bedroom, these areas were accessible to the children. Children’s toys were scattered about the bathroom and baby bottles were in the kitchen near the drugs.

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An AK-47 and magazines were in Smith’s bedroom closet. To access the AK-47, a large plastic storage container had to be moved. A marijuana cigarette was found on the dresser in that bedroom.

After the warrant¹ was executed, Detective Colimon, along with a DEA agent, interviewed Cecil Smith at the police station. Detective Colimon advised Smith of his Miranda rights via a form. Smith read each right out loud. After each right, Smith stated he understood and initialed under each statement on the form confirming that he understood. After Smith read and initialed the last right on the form, the following exchange occurred: SMITH: Knowing these rights, are you now willing to answer my questions without having a lawyer present? I can contact my lawyer. DETECTIVE: Whenever you want. We can start. Whenever you want to stop it. Now sign right here.

Smith signed the form. Smith then read the last section: “This statement is signed of my own free will without any threats or promises having been made to me.” Detective Colimon explained that he never threatened Smith, put his hands on him, or told Smith that he would beat him up. Smith responded:

Smith moved to suppress his incriminating statements and confession. After hearing the live testimony of Detective Colimon and reviewing the audio recording of the Miranda exchange, the trial court denied the motion finding that Smith’s waiver was knowing, intelligent, and voluntary. It further found that Smith’s statement verified that he could call a lawyer if he decided to do so.

The jury found Smith guilty on all charges and found that he displayed or used a firearm in the commission of two of the offenses. This appeal followed.

II.

“Suppression issues are extraordinarily rich in diversity and run the gamut from (1) pure questions of fact, to (2) mixed questions of law and fact, to (3) pure questions of law.” State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001).

For instance, legal and constitutional issues are reviewed de novo. On the other hand, the trial court’s findings of fact are reviewed to determine if they are supported by competent, substantial evidence. Cillo v. State, 849 So. 2d 353, 354 (Fla. 2d DCA 2003). “However, this deference to the trial court’s findings of fact does not fully apply when the findings are based on evidence other than live testimony.” Parker v. State, 873 So. 2d 270, 279 (Fla. 2004).

When other evidence, such as audio recordings, are considered, we apply a less deferential standard to those findings. Id.

III.

“The text of our Florida Constitution begins with a Declaration of Rights—a series of rights so basic that the framers of our Constitution accorded them a place of special privilege.” Traylor v. State, 596 So. 2d 957, 963 (Fla. 1992). “They protect each individual within our borders from the

Important to this appeal is Article¹, Section 9, which provides: “[n]o person shall . . . be compelled in any criminal matter to be a witness against oneself.” Art. I, § 9, Fla. Const. This fundamental right is also found in the Fifth Amendment of the United States Constitution. Amend V, U.S. Const. Like other rights, these rights can be waived. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court of the United States established procedural safeguards to ensure the constitutional right against self-incrimination is protected. Under these prophylactic rules, a criminal suspect subject to custodial interrogation has the right to consult with an attorney and have that attorney present during questioning. Id. at 444-45. Law enforcement is required to explain this, among other things, to a suspect before questioning begins. Id. If a right is invoked, the interrogation must stop.

The Court explained: “If the suspect indicates in any manner that he or she wants the help of a lawyer, interrogation must not begin until a lawyer has been appointed and is present or, if it has already begun, must immediately stop until a lawyer is present.” Id. at 966. “Whether a suspect has invoked the right to counsel is an ‘objective inquiry’ that requires ‘at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.’” Daniel v. State, 238 So. 3d 1283, 1286 (Fla. 5th DCA 2018) (citing Davis v. United States, 512 U.S. 452, 459 (1994). “A statement either is such an assertion or it is not.” Smith v. Illinois, 469 U.S. 91, 97–98 (1984) (internal quotation omitted).

Yet human interactions are not always so simple and straightforward. Sometimes it is unclear whether the suspect, in fact, requested counsel, asked a question, or simply verified the right involved. “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.” Almeida v. State, 737 So. 2d 520, 523 (Fla. 1999).

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In Almeida v. State, the Florida Supreme Court distinguished an equivocal statement that requires no clarification from an “unequivocal question that was prefatory to—and possibly determinative of—the invoking of a right.” Id. at 524.

It held: if, at any point during custodial interrogation, a suspect 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. To do otherwise—i.e., to give an evasive answer, or to skip over the question, or to override or “steamroll” the suspect—is to actively promote the very coercion that Traylor was intended to dispel. A suspect who has been ignored or overridden concerning a right will be reluctant to exercise that right freely. 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).

Any statement obtained in violation of this proscription violates the Florida Constitution and cannot be used by the State.

Id. at 525.

Thus, we must analyze: (1) whether the defendant was in fact referring to his right to counsel; (2) whether the utterance was a bona fide question calling for an answer—not a musing or a rhetorical question; and (3) whether the officer made a good-faith effort to give a simple and straightforward answer to that question. Id. at 523-25. The communications must be viewed in context.

First, there is no doubt Smith was referring to his right to counsel. After Smith read “Knowing these rights, are you now willing to answer my questions without having a lawyer present?”, he stated, “I can contact my

9 lawyer.” This utterance was made at the very beginning of the taped session, during the general discussion of rights, and was in response to the question he just read. He specifically referenced contacting “my attorney.”

Next, we examine whether the utterance was a bona fide question calling for an answer. The parties both concede that it is unclear whether Smith’s utterance was a statement or a question.

We reviewed the audio recording. While there is a slight inflection in his voice at the end of the utterance, it appears it is a restatement or verification of the right. Smith’s voice has inflection at different points in sentences and words. It is not necessarily present when he asks questions. When viewed in context, we agree with the trial court that Smith was not asking for a lawyer. This was simply a restatement of his right.² Even if this Court were to find that this utterance was a clear, bona fide question, Detective Colimon responded promptly and provided clarification: “Whenever you want.” This is the simple truth. It reiterated that Smith could call his lawyer at any time. There is no evidence of gamesmanship, coercion, or steamrolling. See Spivey v. State, 45 So. 3d 51, 56 (Fla. 1st DCA 2010) (“The main purpose of Miranda and its progeny is to ensure that confessions

2 The State also points to the fact Smith is no stranger to the legal system and had been given his Miranda rights on other occasions.

Based on the foregoing, the trial court properly denied Smith’s motion to suppress his incriminating statements and confession. Smith’s waiver was knowing, intelligent, and voluntary. Detective Colimon complied with the requirements of Almeida. And importantly, Smith was not “compelled in any criminal matter to be a witness against oneself.” Art. I, § 9, Fla. Const.

Accordingly, we affirm Smith’s conviction and sentence.

Affirmed.