THIS CAUSE came before the court on the defendant's Motion to Suppress #3, filed January 25, 2002, and on the defendant's original and Amended Motion to Suppress #4, filed April 10, 2002 and June 10, 2002, all of which were filed pursuant to Fla. R. Crim. P. 3.190(i). On February 14, 2002, April 18, 2002, and May 10, 2002, the court heard testimony and argument on the matter. At the conclusion of the May 10, 2002 hearing, the court directed the parties to file written closing arguments. The parties have since filed several pleadings, all of which are before the court for consideration at this time: the State's Closing Argument for Motion to Suppress #3, filed June 3, 2002; the Defendant's Closing Argument and Legal Memorandum of Law on Motion to Suppress #3, filed June 3, 2002; the State's Response to Defendant's Closing Arguments on Motion to Suppress #3, filed June 10, 2002; and the Defendant's Reply Brief on Closing Argument and Legal Memorandum of Law on Motion to Suppress #3, filed June 10, 2002.
After considering each of the aforementioned filings; after reading each of the transcripts, exhibits, and records provided to the court; after watching the videotape of the compiled suspect interviews that was shown at the training seminar attended by Officers Tonia Nave and Daniel Barber; after carefully watching the four hour videotape of the defendant's interview by Detectives Gibson and Noodwang (conducted on October 19, 1999); after considering the testimony of Officer Tonia Nave on February 14, 2002; after considering the testimony of Officer Daniel Barber and Detective Gibson on April 18, 2002; and after considering the testimony adduced at the May 10, 2002 hearing, the court finds as follows:
PRELIMINARY REMARKS/PROCEDURAL HISTORY
In this case, deciding the validity of the defendant's confession has been complicated, not by the number of motions (to suppress) that have been filed, but by the manner in which the motions have been titled, and by the fact that defense counsel, in subsequent motions, reiterates allegations and claims that have previously been addressed and denied. The court notes the following procedural history, all of which relates to the many motions to suppress that have been filed in this case to date:
On December 15, 2000, the defendant filed a Motion to Suppress. On December 19, 2000, the defendant filed a Motion to Suppress #1 (Miranda Violation). Additionally, on December 19, 2000, the defendant filed a Motion to Suppress #2 (Due Process Violation: Failure to Record). On January 17, 2001, the defendant filed an Addendum to Motion to Suppress #1.
On April 2, 2001, Judge Mark I. Shames heard the defendant's Motion to Suppress as it related to the cash on the front seat of the rental car operated by the defendant. This motion to suppress was properly considered a third motion, separate and distinct from Motion #1, which concerned an alleged Miranda violation, and Motion #2, which concerned an alleged due process violation. The court denied the Motion as it related to the cash on the front seat by oral ruling made April 2, 2001 at the close of the hearing.
On May 9, 2001, May 10, 2001, and May 24, 2001, the court, the Honorable Mark I. Shames presiding, heard Defendant's Motion to Suppress #1 (Miranda Violation) and Motion to Suppress #2 (Due Process Violation). The court denied these Motions by oral ruling made May 24, 2001 at the close of the hearing.
On July 31, 2001, the Honorable Mark I. Shames recused himself from the above-styled case. The case was then reassigned to the undersigned judge, the Honorable Richard A. Luce.
On August 9, 2001, the defendant filed a Motion for Rehearing of Motion to Suppress, a Motion for Rehearing of Motion to Suppress #1 (Miranda Violation), and a Motion for Rehearing of Motion to Suppress #2 (Due Process Violation). Each of these motions was filed pursuant to Fla. R. Jud. Admin. 2.160(h), which allows the successor judge to reconsider the rulings made by the predecessor judge.
On August 23, 2001, the undersigned judge signed written orders submitted by the State denying the Motions to Suppress (that were originally heard by the predecessor judge). These orders were dated nunc pro tunc to the date of the oral rulings made by the predecessor judge, and were merely one sentence in length. Entering these orders was a purely ministerial task.
On September 13, 2001, the defendant filed an Amended Motion for Rehearing of Motion to Suppress. On October 3, 2001, the defendant filed a Motion for Full Evidentiary Hearing on Motions to Suppress #1 and #2.
On October 9, 2001, the undersigned judge, after reviewing the complete record (including the three 1" binders) and all of the predecessor judge's findings and rulings pursuant to Fla. R. Jud. Admin. 2.160(h), entered a written order denying the motions and amended motion for rehearing that were originally filed by the defendant on August 9, 2001 and September 13, 2001. Additionally, on October 9, 2001, the undersigned judge denied the defendant's Motion for Full Evidentiary Hearing.
On October 16, 2001, the defendant filed a Motion to Disqualify Trial Judge, which alleged that "since the court denied the defendant's motions [for rehearing] without allowing counsel the opportunity to be heard prior to ruling, that this court is predisposed to deny any motions filed by the defendant and is not inclined to give the defendant due process of law." In the court's prior order, however, which denied the motions and amended motion for rehearing, the court specifically indicated that it had reviewed all of the pleadings and filings in the case thus far, including the several 1" black binders. Accordingly, the court entered an order denying the Motion to Disqualify Trial Judge on October 29, 2001.
The instant Motions are titled Motion to Suppress #3, and Amended Motion to Suppress #4. Just below the title in each of these motions is the heading Miranda Violation, and each includes allegations about the failure of Detective Gibson to record Miranda warnings. These issues related to Miranda, however, were not the focus of the February 14, 2002, April 18, 2002, or May 10, 2002 hearings, nor are they the focus of the written closing arguments recently filed (these issues were already heard by Judge Shames and orally denied by him on May 24, 2001 and denied by the undersigned judge by written order dated August 23, 2001). Instead, allegations of coercive police techniques, including psychological coercion, and whether the defendant's confession was indeed voluntary, forms the basis for the instant Motions. In written form, the Motion to Suppress #3 appears to address the psychologically coercive techniques, whereas the Motion and Amended Motion to Suppress #4 centers on the videotape used at the training seminar, Officer Nave's testimony, and the allegation that the defendant expressed a desire to stop the interview.
SUMMARY OF ARGUMENT
The defendant, by and through counsel, contends that his confession was involuntary. He argues, based on the expert testimony of Dr. Richard Ofshe, Ph.D., a sociologist currently employed at the University of California, Berkeley, that his confession was the product of psychological coercion. He maintains that this coercion included the use of evidence ploys and improper motivational techniques, including both high-end and low-end motivators, the repeated introduction of the accident scenario tactic, and the focusing of the defendant's attention on how the system works, all of which was calculated to deluding him into thinking that he had no choice but to confess.
Further, the defendant directs the court's attention to the compilation videotape shown at the training seminar attended by Officer Nave and Officer Barber. The defendant cites the events occurring at this training seminar to argue that the detectives, in the instant case, interrupted and "talked over" the defendant, and changed the subject when the defendant began to request an attorney or indicated a desire to stop the interview.
It is axiomatic that the State bears the burden, whenever an allegation is made that a confession is the product of coercion, to prove that the confession was voluntary and not coerced. Traylor v. State 596 So. 2d 957 (Fla. 1992). The voluntariness of a confession is determined by considering the totality of the circumstances. Vorrhees v. State, 699 So. 2d 602 (Fla. 1997); Bush v. State, 461 So. 2d 936, 939 (Fla. 1984) ("Under the totality of the circumstances, the statements made to [the defendant] did not overcome his will and produce the confession."). "To render a confession inadmissible on grounds of coercion, confusion, and intoxication, 'the delusion or confusion must be visited upon the suspect by his interrogators; if it originates from the suspect's own apprehension, mental state, or lack of factual knowledge, it will not require suppression."' Traylor v. State, 640 So. 2d 1127, 1137 (Fla. lst DCA 1994) (quoting Thomas v. State, 456 So. 2d 454, 458 (Fla. 1984)).
DR. OFSHE'S TESTIMONY
After carefully listening to his testimony offered at the May 10, 2002 hearing, the court specifically declines to adopt any of the expert testimony offered by Dr. Ofshe. As explained below, the court found his testimony to lack credibility.
First, the court specifically finds that Dr. Ofshe's testimony on cross-examination, in a few critical areas, was wholly inconsistent with his testimony on direct-examination. For example, on direct examination, Dr. Ofshe espoused his expert opinion that low-end motivators, defined as an appeal to the presentation of self or one's self-worth, do not elicit false or involuntary confessions from suspects who actually committed the crime.
On direct examination, Dr. Ofshe explained: Examples of low-end motivators would be statements such as, come on, we know you did it, be a man about it, admit that you did it and do the right thing; show us that you are not the kind of person who would not only do something like this, but will also continue to deny it when it's obvious that you did it; I treated you decently; I haven't yelled at you: I have been fair with you; come on play the game essentially. These low-end motivators are appeals to presentation of self, makes yourself look better in my eyes and even perhaps in the eyes of the community in general. Show us that you are upstanding enough to take responsibility for what you already did.
[Transcript from May 10, 2002 Hearing: pages 29-30].
Dr. Ofshe then discussed the likely result of using low-end motivators. Dr. Ofshe explained: Low-end motivators can actually work to elicit that "Okay I did it" statement from someone who knows they committed the crime, believes they are caught, believes their fate is certain and now just needs essentially a little grease to slide them across the line. Low-end motivators are very - are not going to produce false confessions from the innocent. The innocent person still knows I didn't do this. [Transcript from May 10, 2002 Hearing: page 30].
Yet on cross-examination, Dr. Ofshe was questioned concerning the low-end motivators used immediately preceding the defendant's actual confession, which again, according to Dr Ofshe, would not produce a false confession from someone who did not commit the crime. Dr. Ofshe's explanation, however, was that the motivators used immediately preceding the actual confession were actually not low-end motivators, but were merely additional reasons to accept the accident story, which, as he then explained it was the psychologically coercive motivator used throughout the entire interview. Despite Dr. Ofshe's explanation, the court finds, after reading the transcript and watching the videotape, that the motivators used immediately preceding the actual confession were indeed low-end motivators, if one were to subscribe to Dr. Ofshe's theories. Clearly, the motivators introduced immediately preceding the actual confession appealed to the defendant's presentation of self, such as how his family will perceive their father, how he will be written up in the press, and how his son will think of him in the future.
Dr. Ofshe's explanation that the detectives, on 78 different occasions, gave the defendant "bits and pieces" of the accident story, and that the defendant's eventual confession is somehow a product of that, even though the defendant consistently denied his involvement and manufactured stories up and until the point that the low-end motivators were introduced immediately preceding the actual confession, is simply inconsistent with the theory he espoused on direct-examination. A plain-language reading of the transcript, together with a viewing of the videotape, clearly indicates that the questions concerning the defendant's family, and how they would perceive him and his willingness to accept responsibility for the crime, were the factors that evidently prompted the defendant's eventual confession.
Notwithstanding that which is discussed above, relatively insignificant comments made by Dr. Ofshe, which belie common sense, eroded his credibility. For example, the court rejects Dr. Ofshe's opinion that the word "ploy" from the term "evidence ploy" is a neutral term. Further, the court found that his refusal to concede to obvious issues undermined his credibility. For example, Dr. Ofshe testified on direct-examination that the detectives repeatedly employed the coercive "accident scenario" tactic, and thereby kept encouraging the defendant to embrace this scenario given the legal differences between premeditated and second-degree murder. This opinion, however, flies in the face of the record, which clearly and unequivocally reflects that the defendant did not understand the detectives' attempt to explain to him the legal differences between premeditated and second-degree murder, and the fact that it was in his favor to admit to committing the murder by accident. The defendant himself conceded that he did not understand the legal differences:
Dr Ofshe: But you do remember what you came to understand about what was going on with those different levels of murder and so on?
Defendent: No, not really. He kept saying, you know, different degrees of murder, I was just thinking, you know, that murder is murder, that's you know, I really don't know too much about first, second, manslaughter, all I know is murder is murder; that's all I know. That's why I said murder, murder, it's murder.
[Transcript of Interview at Pinellas County Jail: pages 18-19].
In sum, the motivators Dr. Ofshe cited, which were allegedly used by the detectives to elicit the confession in this case, were clearly rejected (as not understood) by the defendant in his interview at the Pinellas County Jail. Additionally, Dr. Ofshe's explanations as to why he traveled across country to interview the defendant at the Pinellas County Jail, given his firm belief that the transcript is the best indicator of what occurred at the interview, or why it was that he promised the defendant a return visit when he had no intentions of returning, were disingenuous, and frankly, confusing.
This observation leads the court to discuss another area of concern about Dr. Ofshe. It is clear to the court, after reading the transcript of the interview conducted at the Pinellas County Jail, that Dr. Ofshe did, in fact, ask the defendant numerous leading questions, and that he did indeed suggest to the defendant that he was bated, coerced, and improperly motivated during the interview (e.g., page 26, line 15: Dr Ofshe: "You have to understand that they're playing a game with you."). During the interview, Dr. Ofshe repeatedly suggested and even told the defendant that he was manipulated and coerced, after which the defendant then stated:
Okay. Now I'm catching on to what's going on here.... For hours I was kind of lost before. I know she [defense counsel] told me what you was coming to really do, but, you know, until you get into it, until I get into it, you know, it really then- it's really not dawned on me. [Transcript of Interview at Pinellas County Jail: pages 20-21 ].
That the defendant was ill prepared for the interview does not, in the court's opinion justify a blatant attempt to "coach" the defendant or convince him that he was psychologically coerced. Although this arguably goes to the defendant's theory of the case and the preparation thereof, it is a factor that the court can consider as the fact-finder to determine the expert witness' credibility.
For all of the reasons listed above, the court rejects the testimony of Dr. Ofshe, finding him to lack credibility. In deciding to reject his testimony for purposes of these pretrial motions, the court makes no comment on the admissibility of Dr. Ofshe's testimony at trial or whether he is qualified as an expert to testify at trial. Boyer v. State, 2002 WL 925015, 27 Fla. L. Weekly D 1113 (Fla. 5-th DCA 2002) (holding that the trial court erred in excluding Dr. Ofshe's testimony at trial after finding him qualified to testify as an expert where Dr. Ofshe's testimony went to the defendant's main defense).
OFFICER NAVE AND THE COMPILATION VIDEOTAPE
On February 14, 2002, the court heard testimony from Officer Tonia Nave. Officer Nave testified that she attended a training, seminar on April 24 and 25, 2001, titled Street Narcotics Investigations, at which time the two detectives involved in this case, Detectives Gibson and Noodwang, taught interrogation techniques and showed a videotape of suspect interviews. Officer Nave testified that the defendant in this case, Nathan Brinkley, was shown on the videotape, and that during the portion of the videotape depicting the defendant, Officer Daniel Barber asked the question "how did you keep that guy from asking for an attorney?" Officer Nave testified that the detectives answered the question by responding "you talk over the guy or interrupt the guy." (Officer Nave paraphrasing answer given by the two detectives).
After hearing Officer Nave's testimony, the court became quite concerned with the substance of the allegations. That is why the court, at the hearing held April 18, 2002, insisted on viewing the videotape shown at the training seminar (even though it required adjourning until the videotape could be obtained). Officer Nave testified that she felt uncomfortable about viewing the videotape because she was a witness in the case, and because the case was still an active, ongoing investigation.
The court has carefully viewed this videotape in its entirety. The videotape shown at the training seminar includes seven segments. The first segment portrays the reenactment of a crime in an unrelated case. The second segment involves an interview with a suspect accused of robbing the Flowers Bakery in an unrelated case. The third segment involves the robbery of a convenience store in an unrelated case. The fourth segment portrays the reenactment of aggravated child abuse by a suspect in an unrelated case. The fifth segment involves an interview with a defendant implicated in the second segment. The sixth segment shows a longer version of the enactment portrayed in the second segment.
The seventh segment involves the defendant in this case, Nathan Brinkley. This segment shows excerpted portions from the four hour videotape of the interview with the defendant, which runs in its entirety from 2:57 p.m. - 7:21 p.m. The seventh segment begins at 2:57 p.m., ends at 3:14 p.m., jumps to 3:41 p.m., ends at 3:53 p.m., begins again at 4:49 p.m., ends at 4:53 p.m., begins again at 5:49 p.m., and finally ends at 6:30 p.m. The defendant does not request counsel, nor does he express a desire to stop the interview during any of these segments. From what the court can glean, it appears that these excerpts were selected merely as an aid to teach interrogation techniques.
The court finds that the training seminar videotape, together with Detective Gibson's testimony at the April 18, 2002 hearing regarding what occurred at the training seminar, although somewhat relevant, does not assist the court in determining how the detectives actually conducted themselves in the interview with the defendant on October 19, 1999. Instead, the transcript of the interview, together with the videotape of the interview, reflect the true circumstances surrounding the defendant's confession in this case. That Detective Gibson recorded most of his other Miranda warnings in the past, or that Detective Gibson may have encouraged interrupting a suspect as an interrogation technique at a training seminar, does not establish that the defendant's confession in this case was involuntary or psychologically coerced.
VIEWING THE VIDEOTAPE OF DEFENDANT'S CONFESION
Finally, as previously mentioned, the court viewed the entire videotape of the defendant's confession, which is nearly four hours in length. In viewing the videotape, the court specifically looked for instances where the detectives interrupted, talked over, or distracted the defendant, or even changed the subject when it seemed as though the defendant was asking for an attorney or indicating a desire to stop the interview. These were the allegations made by defense counsel on several instances.
It is obvious to the court, after watching the videotape, that the confession in this case was indeed voluntary. Owen v. State 560 So.2d 207, 210 (Fla. 1990) (finding that the videotaped confession "show[s] that the confession was entirely voluntary"). It is also obvious to the court, and it should be obvious to anyone who watches the videotape, that the defendant did not manifest a desire to stop the interview, nor did he ever indicate a desire to seek the advice of counsel. Nor did either detective, for that matter, interrupt the defendant, talk over him, or distract him. The most that can be said is that the detectives, on occasion, "redirected" the defendant.
There are many factors which lead the court to conclude that the
confession in this case was voluntary. State v. Sawyer, 561 So.
2d 278 (Fla. 2d DCA 1990). The interview was conducted in a controlled,
calm setting, and Detective Noodwang was the sole interviewer during
the approximate half hour period preceding the actual confession.
Drake v. State, 441 So.2d 1079, 1081 (Fla. 1983). The defendant
was not subjected to a barrage of questions during predawn hours
without an opportunity to eat or sleep (to the contrary, Detective
Gibson asked the defendant, on three separate occasions, if he wanted
a soda). Spradley v. State, 442 So.2d 102.9, 1043 (Fla. 2d DCA 1983).
Several breaks were taken during the interview. Neither of the detectives
made any threats of harm (to the contrary, the detectives offered
the defendant a blanket to keep warm). Williams v. State 441 SO.2d
653, 655 (Fla. 3d DCA 1983). Neither of the detectives exerted any
undue influence or made any direct or implied promise of benefits.
Id. Finally, neither of the detectives made any threats or improper
promises of leniency. Nelson v. State, 688 So. 2d 971, 972-974 (Fla.
4th DCA 1997) ("[S]statements suggesting leniency if [a] confession
is made are only objectionable if they establish an express quid
pro quo bargaining for the confession.").
The tactics that were employed by the detectives in this case, such as promising to tell the state attorney that the defendant cooperated or that the crime may have been accidental, are legally permissible. Walker v. State, 707 So.2d 300,311 (Fla. 1997); Magueira v. State, 588 So. 2d 221 (Fla. 1991); Brown v. State 565 So.2d 304, 306 (Fla. 1990). That the detectives represented to the defendant, at some time preceding the taped interview, that they knew, from fingerprint analysis, that the money found in his custody was the money from Chili's Restaurant does not amount to coercion or render the detailed confession involuntary. A misstatement of fact does not, in and of itself, amount to coercion. State v. Wallace, 673 So. 2d 914 (Fla. 2d DCA 1996) ("[p]olice deception does not automatically invalidate a confession especially where there is no doubt that the defendant was read and understood his Miranda rights."); State v. Mallory, 670 So. 2d 103, 107 (Fla. Ist DCA 1996) (citing State v. Manning, 506 So. 2d 1094 (Fla. 3d DCA 1987)); but see State v. Cayward, 552 So. 2d 971 (Fla. 2d DCA 1989) (finding that presentation of false scientific documents overstepped the line of permitted police deception).
In sum, the court concludes that the defendant's confession was voluntary. As explained above, the observable factors certainly do not support a finding of involuntariness. Compare State v. Sawyer 561 So.2d 278, 290-91 (Fla. 2d DCA 1990) (confession involuntary where it was product of enforced sleeplessness, 16-hour serial interrogation with no meaningful breaks, scenario of misleading questions, denial of requests to rest, refusal to honor defendant's Miranda rights and use of defendant's history of blackouts to undermine his reliance on his own memory). Moreover, although the court acknowledges that involuntary confessions can result from psychological coercion, such was not the case here. Walker, 707 So. 2d at 311. As explained above, neither the transcript nor the videotape of the interview suggest that the defendant was coerced by the detectives into making his confession. Owen, 560 So. 2d at 210.
As of the date of this order, the court will not entertain any further motions to suppress on any matters that have been ruled upon in this order or in previous orders.
Accordingly, it is ORDERED AND ADJUDGED that the Defendant's Motion to Suppress #3 and Motion to Suppress #4 are hereby DENIED.
DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this - day of July, 2002. A true and correct copy of the foregoing has been furnished, via U.S. Mail or interoffice mail, to the parties listed below.
ORIGINAL SIGNED JUL 03 2002
RICHARD A. LUCE
RICHARD A. LUCE, Circuit Judge
cc: Staff Attorney
Berverly Andringa, Esquire
Mary Handsel, Esquire
Chris Hellinger, Esquire
Kandice Friesen, Esquire
Nora McClure, Esquir