NEAL BROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Neal Bross appeals his third-degree murder conviction and fifteen-year sentence, arguing that his post-arrest statement should have been suppressed because the Miranda warning he received failed to inform him of his right to counsel during questioning. The Fourth District Court of Appeal agreed and reversed, finding the Miranda warning defective and the error not harmless beyond a reasonable doubt given that Bross's confession constituted the bulk of the evidence against him.
The court held that the Miranda warning was defective because it failed to inform Bross of his right to have an attorney present during questioning, and the error was not harmless beyond a reasonable doubt. Therefore, Bross's conviction and sentence were reversed and the case was remanded for a new trial.
[1] A Miranda warning is insufficient if it fails to inform a suspect of the right to have an attorney present during questioning.
[2] A conviction based in whole or in part on an inadmissible confession cannot stand if the error is not harmless beyond a reasonable doubt.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Based on our review of the record, we are unable to conclude that this error was harmless beyond a reasonable doubt, given that the bulk of the evidence against Bross was his own confession and a corroborative statement and trial testimony of a co-defendant.”
The court's rationale for finding the Miranda error was not harmless, emphasizing that the defective warning could have affected the central piece of evidence used to convict Bross.
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Join FLexlaw to unlock all legal intelligenceNeal Bross was convicted of third-degree murder and sentenced to fifteen years. After his arrest, Bross gave a statement to police following a Miranda…
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PER CURIAM.
Neal Bross appeals his conviction and fifteen-year sentence for the lesser-included offense of third degree murder. Bross contends that his post-arrest statement to the police should have been suppressed because the Miranda1 warning he received failed to inform him that he had a right to have an attorney present during questioning. We agree and reverse. See Dendy v. State, 896 So. 2d 800 (Fla. 4th DCA 2005)(reversing on the same grounds on appeal by co-defendant); Franklin v. State, 876 So. 2d 607 (Fla. 4th DCA 2004)(noting that Miranda form used by Broward County Sheriffs Office was only one of ninety rights forms obtained from federal and state law enforcement agencies introduced in evidence that failed to indicate that the suspect could consult with a lawyer during questioning), cert. denied, — U.S. -, 125 S.Ct. 890, 160 L.Ed.2d 825 (2005); President v. State, 884 So. 2d 126 (Fla. 4th DCA 2004), review denied, 892 So. 2d 1014 (Fla.2005); West v. State, 876 So. 2d 614 (Fla. 4th DCA 2004), review denied, 892 So. 2d 1014 (Fla.2005); Roberts v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004), review denied, 892 So. 2d 1014 (Fla.2005).2
Based on our review of the record, we are unable to conclude that this error was harmless beyond a reasonable doubt, given that the bulk of the evidence against Bross was his own confession and a corroborative statement and trial testimony of a co-defendant. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986)(holding that harmless error exists where the state establishes beyond a reasonable doubt that the error did not contribute to the verdict).
Accordingly, we reverse Bross’ conviction and sentence and remand this cause for a new trial. We affirm without discussion Bross’ second point on appeal that the trial court erred in allowing the state access to grand jury testimony.
REVERSED in part, AFFIRMED in part and REMANDED.
POLEN, TAYLOR and MAY, JJ., concur. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. As the foregoing citations indicate, both the Florida Supreme Court and United States Supreme Court have declined to review cases ruling on the constitutionality of the Broward County Sheriff's Office’s Miranda rights card.
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State v. Powell, 998 So. 2d 531 (Fla. 2008)…ing); Ripley v. State, 898 So. 2d 1078 (Fla. 4th DCA 2005) [*539] (finding at that time Broward County Sheriff's Office standard warnings defective because warnings did not advise of right to have counsel present during questioning); Bross v. State, 898 So. 2d 1027 (Fla. 4th DCA 2005) (reversing conviction because Miranda warnings did not inform the defendant of the right to have counsel present during questioning); Cook v. State, 896 So. 2d 885 (Fla. 4th DCA 2005) (warning that advises the defendant of the ri…
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Martin v. State, 921 So. 2d 697 (Fla. 4th DCA 2006)…ase are deficient. See Roberts v. State, 874 So. 2d 1225, 1228 (Fla. 4th DCA 2004). In Roberts, we held that warnings failing to advise a defendant of the right to counsel “during” questioning are constitutionally defective. See id.; Bross v. State, 898 So. 2d 1027 (Fla. 4th DCA 2005). The warnings given in this case suffer from the same defect. We must therefore reverse the order denying the motion to suppress on this basis and remand the case for a new trial. We find no error in the State’s notice of intent…
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Dendy v. State, 954 So. 2d 1221 (Fla. 4th DCA 2007)…d both convictions because appellants’ confessions, which were introduced at trial, had been obtained through use of the Broward Sheriffs Office’s defective Miranda rights form. Dendy v. State, 896 So. 2d 800 (Fla. 4th DCA 2005), and Bross v. State, 898 So. 2d 1027 (Fla. 4th DCA2005).1 Retrial of this case was assigned to Circuit Court Judge Eileen O’Connor, a former federal prosecutor. After the jury was selected, but before the first witness testified, appellants orally moved for mistrial. They advised Judg…
Authorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Gorman Roberts, Jr. v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004)
- State v. West, 892 So. 2d 1014 (Fla. 2005)
- Nneka West v. State, 876 So. 2d 614 (Fla. 4th DCA 2004)
- Myron Franklin v. State, 876 So. 2d 607 (Fla. 4th DCA 2004)
- Tonny President v. State, 884 So. 2d 126 (Fla. 4th DCA 2004)
- Abimael Martinez v. Nightshift Temps, 896 So. 2d 800 (Fla. 1st DCA 2005)