IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
REGINALD GREENWICH,
Appellant,
v. Case No. 5D15-1361
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed September 9, 2016
Appeal from the Circuit Court
for Orange County,
Keith A. Carsten, Judge.
James S. Purdy, Public Defender, and
Edward J. Weiss, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Samuel A. Perrone,
Assistant Attorney General, Daytona
Beach, for Appellee.
LAMBERT, J.
Early one morning in August 2013, Reginald Greenwich shot his fiancée in the
head, at close range, while she was lying in bed in the apartment that the two of them
shared together. She died shortly thereafter, and Greenwich was arrested and charged
with second-degree murder with a firearm. A jury found Greenwich guilty, and the trial
court sentenced him to serve life in prison.
Greenwich raises three issues in this appeal, with the first two challenging the trial
court’s denial of his motion to suppress statements that he made to law enforcement
during a custodial interrogation. Greenwich first argues that during his interrogation, he
made an unequivocal invocation of his constitutional due process right to remain silent,
which was ignored by the police. Greenwich maintains that any statements he made to
the officers thereafter during his interrogation should have been suppressed. Second,
Greenwich asserts that law enforcement denied him his constitutional right to due process
when the detectives interrogating him failed to advise him that his stepfather, Daniel Paige
("Paige"), who is also a criminal defense attorney, had telephoned the police department
to speak with Greenwich. Greenwich asserts that his inculpatory statements during the
interview occurred after Paige's phone call and, therefore, must be suppressed for being
constitutionally infirm.
In denying the motion to suppress after an evidentiary hearing, the court found, as
to the first issue, that Greenwich’s statement made to the detectives during the
interview—“Please stop this. You’re giving me a headache and you’re frustrating me very
much so.”—was not an unambiguous request by Greenwich to invoke his right to remain
silent or his right to counsel. Therefore, the court concluded that the detectives were not
obligated to discontinue their questioning. On the second issue, the trial court found that
there was no evidence that Paige had been "retained" by Greenwich or that the detectives
interviewing Greenwich knew that Paige was an attorney who was attempting to advise
or represent Greenwich. Accordingly, this led the court to find that Greenwich had not
2
been denied access to counsel. The court thus concluded in its order that, based upon
its examination of the totality of the circumstances, Greenwich had knowingly, voluntarily,
and intelligently waived his privilege against self-incrimination and his right to counsel and
that his due process rights had not been violated by the aforementioned conduct of the
police. For the following reasons, we affirm the trial court’s ruling on the first ground but
reverse on the second.
"A trial court’s ruling on a motion to suppress comes to the appellate court clothed
with a presumption of correctness and a reviewing court must interpret the evidence and
reasonable inferences and deductions derived therefrom in a manner most favorable to
sustain a trial court’s ruling." D.B.P. v. State, 31 So. 3d 883, 884–85 (Fla. 5th DCA 2010)
(citing Doorbal v. State, 837 So. 2d 940, 952 (Fla. 2003) (additional citations omitted)).
An appellate court reviews the trial court’s findings of fact to determine whether they are
supported by competent substantial evidence, and it reviews the trial court’s conclusions
of law de novo. Id. at 885 (citing Bevard v. State, 976 So. 2d 1163 (Fla. 5th DCA 2008)
(additional citations omitted)).
Based upon the varying explanations provided by Greenwich to the police officers
who first arrived at the crime scene as to how the shooting occurred, coupled with the
physical evidence found by the officers in the apartment, which was inconsistent with
Greenwich's versions of the event, the police began to consider Greenwich as a suspect.
Greenwich was eventually taken into custody at the crime scene and thereafter
transported to the Orlando Police Department for further questioning. After Greenwich
had sat for a considerable period of time in a small interrogation room, two detectives
entered the room to begin interviewing him. One of the detectives read to Greenwich the
3
and to observing the victim’s body but did not admit to the murder. Id. The defendant’s
pretrial attempt to suppress his statements to the police was unsuccessful, and, following
a jury trial, he was convicted of first-degree murder and burglary. Id.
In reversing the defendant’s convictions,2 the Florida Supreme Court found that
the police’s failure to notify the defendant that an attorney was present and requesting to
see him deprived the defendant of information essential to a knowing and intelligent
waiver of his right to counsel under Miranda. Id. at 193–94. The United States Supreme
Court subsequently vacated Haliburton I and remanded the case for reconsideration in
light of its opinion of Moran v. Burbine, 475 U.S. 412 (1986). Florida v. Haliburton, 475
U.S. 1078 (1986). In Burbine, the Court determined that misstatements by law
enforcement to a suspect's attorney who had telephoned the police station to speak with
his client did not undermine the suspect’s waiver of his Fifth Amendment right against
self-incrimination so as to require exclusion of the suspect’s later inculpatory statements
during a custodial interrogation. 475 U.S. at 423–24. The Court considered the police
conduct irrelevant as it found that knowledge of the attorney’s telephone call was not
essential to a knowing and intelligent waiver of the suspect’s Miranda rights. Id. at 422–
23. However, the Court acknowledged that its decision did not prohibit "the States from
adopting different requirements for the conduct of its employees and officials as a matter
of state law." Id. at 428.
In Haliburton v. State (Haliburton II), 514 So. 2d 1088 (Fla. 1987), on remand, the
Florida Supreme Court again reversed the defendant’s convictions, finding that the above
2 The defendant was sentenced to death for the first-degree murder, resulting in
the Florida Supreme Court having jurisdiction over the direct appeal. Art. V, § 3(b)(1),
Fla. Const.
8
After an approximate twenty-minute break, the interview resumed, and, during this part
of the interrogation, Greenwich provided what turned out to be his final explanation of the
incident. He admitted that he shot his fiancée, but he then went into detail explaining how
the shooting was accidental.1
The Fifth Amendment of the United States Constitution provides the right against
self-incrimination. See Amend. V, U.S. Const. (stating that no person "shall be compelled
in any criminal case to be a witness against himself"). If the police obtain statements from
a defendant in violation of the right against self-incrimination, the State cannot use these
statements against the defendant, and the trial court must exclude them from trial.
Deviney v. State, 112 So. 3d 57, 72 (Fla. 2013) (citing Cuervo v. State, 967 So. 2d 155,
160 (Fla. 2007)). Here, Greenwich does not dispute that initially, he voluntarily waived
his right to remain silent. However, once an interrogation has commenced, a suspect is
entitled to reassert his right to remain silent and not incriminate himself and to terminate
the interrogation, Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992), provided that the
suspect makes an unequivocal invocation to end the questioning. Deviney, 112 So. 3d
at 74 ("Once the police have properly administered Miranda warnings to a suspect, and
the suspect validly waives those rights, law enforcement need only cease questioning
upon an unequivocal invocation to terminate the interrogation." (citing State v. Owen, 696
So. 2d 715, 719 (Fla. 1997); Davis v. United States, 512 U.S. 452, 461 (1994))).
Thus, at the suppression hearing, the trial court was tasked with determining
whether Greenwich had unequivocally invoked his right to remain silent during the
1 At trial, the State presented evidence that tended to negate Greenwich’s
explanation of an accidental shooting.
5
1988) (additional citations omitted)). Accordingly, evidence that Greenwich's cellphone
accessed pornographic websites subsequent to the shooting shall be excluded on retrial.
REVERSED and REMANDED for a new trial.
COHEN, J., and LEMONIDIS, R.C., Associate Judge, concur.
14
Greenwich’s mother were at church in Clewiston, Florida, on the morning of the shooting,
when Greenwich’s sister left them a message on their phone, advising them that
Greenwich had been arrested regarding an incident involving his fiancée. Paige and his
wife began driving toward Orlando. While in route, Paige made telephone calls to
determine where Greenwich was located and eventually spoke with a receptionist at the
Orlando Police Department. The unrebutted testimony at the suppression hearing was
that Paige advised the receptionist that he was Greenwich’s attorney and stepfather. The
receptionist referred Paige to the lead detective on Greenwich’s case, and Paige left
voicemail messages on the detective’s phone, advising that he was Greenwich’s
stepfather and that he was an attorney. The detective did not check his voicemail until
after the interview had essentially concluded. Moreover, the receptionist did not notify
the detective that Paige was an attorney, only that a “Dan Paige” wanted to speak with
him about the case. Although Paige eventually consulted with Greenwich at or near the
conclusion of the interview, Greenwich had, by that time, made multiple statements to the
detectives regarding the events concerning the shooting that the State successfully used
against him at trial.
In Haliburton v. State (Haliburton I), 476 So. 2d 192 (Fla. 1985), the defendant had
been taken to a police station for questioning regarding a murder and burglary. 476 So.
2d at 193. He was advised of his Miranda rights and agreed to be interrogated. Id. The
defendant’s sister retained counsel for him. Id. The attorney first telephoned the police
station, requesting that a polygraph examination of the defendant be stopped, and then
arrived at the station shortly thereafter, but the attorney was not allowed to speak with the
defendant. Id. During the interview, the defendant essentially admitted to the burglary
7
and to observing the victim’s body but did not admit to the murder. Id. The defendant’s
pretrial attempt to suppress his statements to the police was unsuccessful, and, following
a jury trial, he was convicted of first-degree murder and burglary. Id.
In reversing the defendant’s convictions,2 the Florida Supreme Court found that
the police’s failure to notify the defendant that an attorney was present and requesting to
see him deprived the defendant of information essential to a knowing and intelligent
waiver of his right to counsel under Miranda. Id. at 193–94. The United States Supreme
Court subsequently vacated Haliburton I and remanded the case for reconsideration in
light of its opinion of Moran v. Burbine, 475 U.S. 412 (1986). Florida v. Haliburton, 475
U.S. 1078 (1986). In Burbine, the Court determined that misstatements by law
enforcement to a suspect's attorney who had telephoned the police station to speak with
his client did not undermine the suspect’s waiver of his Fifth Amendment right against
self-incrimination so as to require exclusion of the suspect’s later inculpatory statements
during a custodial interrogation. 475 U.S. at 423–24. The Court considered the police
conduct irrelevant as it found that knowledge of the attorney’s telephone call was not
essential to a knowing and intelligent waiver of the suspect’s Miranda rights. Id. at 422–
23. However, the Court acknowledged that its decision did not prohibit "the States from
adopting different requirements for the conduct of its employees and officials as a matter
of state law." Id. at 428.
In Haliburton v. State (Haliburton II), 514 So. 2d 1088 (Fla. 1987), on remand, the
Florida Supreme Court again reversed the defendant’s convictions, finding that the above
2 The defendant was sentenced to death for the first-degree murder, resulting in
the Florida Supreme Court having jurisdiction over the direct appeal. Art. V, § 3(b)(1),
Fla. Const.
8
described conduct of the police, in failing to notify defendant that an attorney was present
and requesting to see him, violated the due process provisions of article I, section 9 of
the Florida Constitution. 514 So. 2d at 1090. The court agreed with the dissenting opinion
of Justice Stevens in Burbine that
due process requires fairness, integrity, and honor in the
operation of the criminal justice system, and in its treatment
of the citizen’s cardinal constitutional protections. . . . [P]olice
interference in the attorney-client relationship is the type of
governmental misconduct on a matter of central importance
to the administration of justice that the Due Process Clause
prohibits. . . . Just as the government cannot conceal from a
suspect material and exculpatory evidence, so too the
government cannot conceal from a suspect the material fact
of his attorney’s communication.
Id. (quoting 475 U.S. at 467 (Stevens, J., dissenting)).
In the present case, there is no evidence that the police either intentionally or
fraudulently tried to conceal from Greenwich the phone call made by his attorney, Paige,
offering assistance. However, this is neither critical nor dispositive as to the issue before
us. In Haliburton II, the court also adopted the following additional language from Justice
Stevens’ dissent in Burbine when it determined that "there can be no constitutional
distinction . . . between a deceptive misstatement and the concealment by the police of
the critical fact that an attorney retained by the accused or his family has offered
assistance, either by telephone or in person." Id. (omission in original) (emphasis added)
(quoting Burbine, 475 U.S. at 453 (Stevens, J., dissenting)).
More recently, in State v. McAdams, 193 So. 3d 824 (Fla. 2016), the Florida
Supreme Court addressed whether, under the Due Process Clause of the Florida
Constitution, a person who is being questioned by law enforcement in a non-public
location must be notified that an attorney retained on his or her behalf is at the location
9
and available to speak with him or her. In McAdams, the detectives were questioning the
defendant because his estranged wife and her boyfriend/coworker had been reported
missing, when an attorney retained by his parents arrived at the sheriff's office and was
available to assist him. Id. at 826–27. However, the detective conducting the
interrogation decided not to stop the questioning or to allow the attorney to have access
to the defendant because he was not in custody. Id. at 827. The defendant thereafter
confessed to killing his wife and her boyfriend and was arrested and charged with their
murders. Id. Prior to trial, McAdams sought to suppress his confession because of the
failure of law enforcement to notify him with regard to the presence of his attorney. Id. at
827–28. The trial court denied the motion, and McAdams was ultimately convicted of two
counts of first-degree murder. Id. at 828.
On appeal, the Second District Court of Appeal reversed the judgment and
sentences. McAdams v. State, 137 So. 3d 401 (Fla. 2d DCA 2014). The court held that
the detective's failure to inform the defendant that an attorney was available and waiting
to talk to him at the time the defendant was not in custody did not violate the defendant’s
right to consult with counsel. Id. at 407. The court did, however, hold that any statements
or confessions made by the defendant after he was in custody and was not informed of
the availability of counsel violated his right to due process and should have been
suppressed. Id. at 407–08.
The Florida Supreme Court accepted jurisdiction and quashed the Second
District’s opinion. McAdams, 193 So. 3d 824. The court found that the defendant's right
to due process under the Florida Constitution was violated, and it implemented a bright-
line rule that a suspect who is being questioned in a location that is not open to the public
10
has the right to be notified regarding the presence and purpose of the attorney retained
on his or her behalf, regardless of whether the suspect is in custody. Id. at 832. The
court noted that, under its interpretation of the Due Process Clause of the Florida
Constitution, it is the individual who is given the knowledge and power to take advantage
of the attorney’s services. Id. at 832.
We acknowledge and recognize that in McAdams, defense counsel was present
at the sheriff's office when he was denied access to his client while, in the present case,
Paige was not physically present at the police station when Greenwich was being
questioned in a non-public area, but instead was contacting Greenwich by phone to
provide legal assistance. Under the facts of this case, we do not find this difference to be
material. As indicated in Haliburton II, the constitutional protection afforded to a suspect
of the right to consult with counsel arises when the attorney has been retained by the
accused or his family and has offered assistance by telephone or in person. 514 So. 2d
at 1090. Accordingly, we conclude that the trial court in the instant case erred by placing
legal significance in its written denial order that, at the time of the phone call, Paige was
not physically present at the police station. Additionally, we find that the trial court also
erred in denying the motion to suppress based on its conclusion that Paige had not been
"retained" by Greenwich. Haliburton II provides constitutional protection when an attorney
retained by the accused or his family has offered assistance. Paige, as a family member,
was not required to formally "retain" himself on behalf of Greenwich before offering legal
assistance.3
3 Paige did appear as one of Greenwich's counsel in the proceedings below.
11
Finally, based on the facts of this case, the fact that the detectives were personally
unaware during their interrogation of Greenwich that Paige was an attorney is not material
to our constitutional analysis. As the Fourth District Court of Appeal cogently explained
in Bruce v. State, 92 So. 3d 902, 906 (Fla. 4th DCA 2012):
The police cannot rely on the failure to notify interrogators of
a lawyer’s presence to skirt the article 1, section 9, due
process requirements imposed by Haliburton II. Thus, the fact
that the interrogating detectives in this case were unaware of
[the attorney’s] presence at the station house is without legal
significance. To allow the police to hide behind the imprecise
standard of the good faith ignorance of the interrogators would
encourage law enforcement to be deaf and blind to a lawyer’s
attempts to contact his client . . . .
It is unclear why the receptionist at the Orlando Police Department who received Paige's
telephone call did not specifically notify the interrogating detectives in her communication
to them that Paige was Greenwich's attorney and wanted to speak with him, but this
failure to do so does not inure to the benefit of the state. 4
Haliburton II and McAdams compel the conclusion that the constitutional error or
violation in the present case occurred when law enforcement failed to tell Greenwich that
his attorney was on the telephone and wished to speak with him, even if the police did
not intentionally try to block Greenwich's communication with his attorney. See State v.
Allen, 548 So. 2d 762, 765 (Fla. 1st DCA 1989) (finding that the trial court did not err in
suppressing defendant’s statements to police after police failed to inform defendant that
his attorney was trying to contact him by telephone when the defendant’s location was
easily ascertainable and the police did not intentionally block communication between the
4 To be clear, we do not attribute any intentional misconduct by either the
receptionist or the detectives involved in this case.
12
attorney and the defendant). Simply put, if Greenwich had been advised of Paige’s
telephone call, he could have then decided whether to speak with him and thereafter
determined whether to continue with the interrogation or not. Because our record is clear
that this constitutional error was harmful, we reverse the conviction and remand for a new
trial. However, because the record also established that Greenwich did continue to speak
with the detectives even after he consulted with Paige, on retrial, only those statements
made by Greenwich to the detectives during the interview but prior to his communicating
with Paige should be excluded.
To facilitate the retrial that we have now ordered, we address the separate
evidentiary issue raised by Greenwich in this appeal. Greenwich argues that the trial
court erred in admitting into evidence, over objection, that his cellphone accessed
pornographic websites subsequent to the shooting and at a time when he had already
met with the police at the crime scene. We agree, as we fail to see how this evidence is
relevant as to whether Greenwich murdered his fiancée earlier that morning. See §
90.401, Fla. Stat. (2013) (defining relevant evidence as “evidence tending to prove or
disprove a material fact"). Furthermore, even if this evidence were remotely relevant, the
probative value of this evidence is substantially outweighed by the danger of unfair
prejudice. See § 90.403, Fla. Stat. (2013) ("Relevant evidence is inadmissible if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of issues, misleading the jury, or needless presentation of cumulative evidence."). "The
unfair prejudice that section 90.403 attempts to eliminate relates to evidence that
'inflames the jury or appeals improperly to the jury’s emotions.'" State v. Gerry, 855 So.
2d 157, 159 (Fla. 5th DCA 2003) (quoting State v. McClain, 525 So. 2d 420, 422 (Fla.
13
1988) (additional citations omitted)). Accordingly, evidence that Greenwich's cellphone
accessed pornographic websites subsequent to the shooting shall be excluded on retrial.
REVERSED and REMANDED for a new trial.
COHEN, J., and LEMONIDIS, R.C., Associate Judge, concur.
14