Third District Court of Appeal
State of Florida
Opinion filed June 2, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D19-875
Lower Tribunal No. F05-16085
________________
Derrick Holmes,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Veronica
Diaz, Judge.
Rier/Jordan, P.A., and Andrew F. Rier and Jonathan E. Jordan, for
appellant.
Ashley Moody, Attorney General, and Richard L. Polin, Assistant
Attorney General, for appellee.
Before FERNANDEZ, SCALES, and HENDON, JJ.
HENDON, J.
Derrick Holmes appeals from his conviction and sentence for first-
degree murder while carrying, using, displaying, or threatening to use a
knife. For the reasons that follow, we affirm.
Holmes was charged by an amended indictment with first-degree
premeditated murder and/or felony murder while carrying, using, displaying,
or threatening to use a knife (Count I); armed burglary (Count II); and grand
theft (Count III), which offenses occurred on or about May 10, 2005. Count
three was nolle prossed prior to the commencement of trial and Count II
was nolle prossed during the trial.
Prior to trial, Holmes filed a motion to suppress his entire confession
(“Motion to Suppress”), raising arguments not pertinent to this appeal.
Detective Stroze, who was the detective in charge of the homicide
investigation, testified in a deposition and at the evidentiary hearing on the
Motion to Suppress. His testimonies reflect as follows. On May 12, 2005,
the victim’s neighbor called the police because she last saw the victim on
May 10, 2005 at approximately 8:30 p.m. About half an hour later, she
noticed that the victim’s car was missing. When a police officer arrived at
the victim’s home, the front door was locked and there was no sign of
forced entry. The police officer entered through a window and found the
victim in a hallway with stab wounds. It was later determined that bloody
2
fingerprints discovered at the victim’s home matched Holmes’ fingerprints.
On May 18, 2005, while a search warrant for Holmes’ residence was
being executed, Detective Stroze and Detective Parr went to the facility
where Holmes had been in custody since May 12, 2005 for two robberies—
one on May 11, 2005, and the other on May 12, 2005. Detective Stroze
explained to Holmes that he wanted him to come to the police
headquarters because he was investigating an unsolved crime. Holmes
asked if it was for a homicide and, in response, Detective Stroze said that
he was investigating an unsolved robbery of a woman. Holmes told
Detective Stroze that he was not involved with that robbery and agreed to
go to the police headquarters. After Detective Stroze informed Holmes of
his Miranda 1 rights, Holmes agreed to speak to him. The unrecorded
questioning started around 2:45 p.m. in a robbery interview room of the
police headquarters, and during the interrogation, several breaks were
taken.
While questioning Holmes, Detective Stroze received a phone call
from another detective informing him that a pair of bloody size thirteen
sneakers 2 were found at Holmes’ residence during the execution of the
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
The blood on the sneakers matched the victim’s blood.
3
search warrant. When Detective Stroze returned to the interview room, he
asked Holmes what size sneakers he had on. Holmes looked at the size,
placed his thumb over the number thirteen size, and told him his sneakers
were size twelve, which was the Canadian or European size. After
Detective Stroze corrected Holmes, he told Detective Stroze that the
sneakers he was wearing was his only pair.
Detective Stroze showed Holmes a photo of the victim’s vehicle, and
Holmes stated that he had never seen the vehicle. Detective Stroze then
showed Holmes a photo of the victim, and he admitted that he knew her but
had not seen her in about three weeks to a month. Holmes then informed
Detective Stroze that his (Holmes) fingerprints would be all over the victim’s
car and home because he had been in both on numerous occasions.
Detective Stroze told Holmes that he believed that Holmes was
involved in the homicide, informing Holmes about the evidence against him,
including the fingerprints recovered from the victim’s home. Holmes denied
any involvement, but got very nervous. Around 7:15 p.m., Detective Stroze
once again told Holmes about the evidence against him, and Holmes then
stated that he discovered the victim deceased in her house, but
immediately ran outside without reporting it. Detective Stroze told Holmes
to stop lying.
4
Holmes then admitted that he stabbed the victim, explaining what
occurred. Detective Stroze then took Holmes down the hall to a homicide
interview room. Detective Stroze then asked Holmes if he would give a
recorded statement. Holmes stated that he would not because he already
gave Detective Stroze enough. Detective Strove also asked Holmes if he
would give a stenographic statement, and Holmes refused. Without
Holmes’ knowledge, Detective Parr, who was in another room, activated
the video recording device, and Detective Stroze began to review his notes
with Holmes at approximately 9:00 p.m., which lasted about twenty
minutes.
The transcript of the recording was introduced at the evidentiary
hearing, which reflects the following statements by Holmes as to what
occurred on May 10, 2005. Holmes stated that he knew the victim and
went to her home to ask for money on the evening of May 10, 2005. The
victim invited him into her home and offered him a beer. After a while, she
asked him to help her move a dresser in the master bedroom. He then
asked her for $20, and in response, she began to curse and told him that
she was not going to give him any money. She slapped Holmes and told
him that she was going to call the police, and Holmes got mad. He then
went to the kitchen sink and retrieved a seven- to eight-inch knife and
5
carried it along his side to conceal it from the victim. At this point, they
were in the living room area, and he pushed her into the hallway so no one
could see her if they were looking through the windows. He grabbed and
held her until she fell to the ground. He then stabbed her, but the knife did
not go all the way in because she grabbed the knife for about twenty
seconds in an attempt to stop him from pulling it out and stabbing her
again. She cut her hand. When she was holding the knife, she said,
“Derrick, you [are] the nicest guy on the street,” which made Holmes feel
like, “Damn. I wish I could bring this lady back.” He removed the knife and
stabbed her again. Holmes believes that the knife went all the way through
because he saw blood “squirt out” from her back. At that point, Holmes
believed that the victim was dead because “she went straight out,” her
head went back, her “[e]yes got --- went like that,” and she didn’t say
anything.
After he stabbed the victim the second time, he put gloves on his
hands, which gloves he had in his pockets when he arrived at the victim’s
home. He turned off the porch light and began to go through her house
looking for items to steal, and during his search, he removed his gloves
because he was having difficulty grabbing items. He found a change jar in
6
a drawer, but left it behind because he panicked. 3 He placed the stolen
items in the victim’s Toyota Camry and left driving the victim’s Camry. He
bought drugs with the money he made from selling the stolen items. He
discarded the knife after he left the victim’s house, and eventually
abandoned the Camry 4 and walked home. He changed his clothes and
placed his sneakers in his closet. After using the drugs, he panicked and
left his house.
Following the recorded statement, Detectives Stroze and Parr drove
Holmes to where he stated he discarded the knife, but the knife was not
located. The detectives then transported Holmes back to the detention
center around 1:12 a.m.
At the conclusion of the Motion to Suppress hearing, the trial court did
not rule. Thereafter, Holmes filed a “Supplemental Memorandum to
Exclude Videotaped Statement Following Evidentiary Hearing on Motion to
Suppress.” Holmes argued that during the interrogation, he stated, “I’ve
given you enough already,” which statement constituted the invocation of
his right to remain silent and the questioning should have ceased at that
point. Thereafter, the trial court heard legal argument as to whether
3
The fingerprints on the change jar matched Holmes’ fingerprints.
4
The Camry was located where Holmes stated he abandoned the vehicle.
7
Holmes’ statement during the interrogation constitutes an unequivocal
assertion of his right to remain silent. At the conclusion of the hearing, the
trial court denied the Motion to Suppress and the Supplemental Motion to
Suppress, explaining in relevant part as follows:
I think that while he did respond that he was not willing to give a
recorded statement, he didn’t indicate that he wanted to stop
talking because it’s clear from the transcript that the detective
asked him to go over the notes and he agreed; he continued to
engage him, so if he did not want to continue speaking, he –
and he did – and he was trying to make a revocation of his
previous waiver, it would have been clear and the question
wouldn’t be out there as to whether it was just in response to a
question or if he was in fact making that statement.
At trial, the State called the associate medical examiner who testified
as to the wounds on the victim’s body. He testified that there were three
stab wounds any of which could have caused death independently. One
stab wound was to the left, top side of the chest, and it went through the
victim’s left lung, fractured the fourth rib, and pierced the wall of the chest
on the back. Another wound was to the left, bottom side of the chest and it
went through cartilage of the eighth rib. Further, the knife went into the
abdominal cavity and injured the victim’s kidney, liver, stomach, and
pancreas. The other wound went through the victim’s right lung. The
victim also had defensive wounds on her left hand and fingers.
Detective Stroze also testified as to his interrogation of Holmes. He
8
testified that towards the end of his unrecorded interrogation of Holmes, he
asked Holmes for a “formal recorded statement,” which meant that he
wanted to take a “stenographically recorded statement.” Holmes declined
and stated, “[Y]ou know what, I gave you too much already.” Outside of the
interrogation room, Detective Stroze and Detective Parr agreed that
Detective Stroze would go back into the interrogation room and tell Holmes
that he (Detective Stroze) wanted to review his notes with Holmes and, at
that point, Detective Parr will hit the recording button. As planned,
Detective Stroze entered the interrogation room and told Holmes that he
wanted to go over his notes of what Holmes had stated earlier. Thereafter,
Detective Stroze went over his notes and Holmes himself clarified several
of Detective Stroze’s notes. During Detective Stroze’s testimony, over
objection, the videotaped recording was played for the jury.
At the conclusion of the State’s case, the Defendant moved for a
judgment of acquittal. Following the defense’s argument, the State nolle
prossed Count II.
The Defendant did not call any witnesses, and the defense rested.
The defense moved for a second judgment of acquittal, which the trial court
denied.
The trial court asked defense counsel if he wanted a special
9
interrogatory verdict form separating the theories of first-degree murder.
Defense counsel stated that he did not. The jury returned a verdict finding
Holmes guilty of first-degree murder and while in the course of committing
the first-degree murder, Holmes carried, used, displayed, or threatened to
use a knife. Holmes was later sentenced to a term of life, and this appeal
followed.
Holmes contends that the evidence was legally insufficient to support
his conviction for first-degree premeditated murder because the State
allegedly failed to establish beyond a reasonable doubt that the homicide
was premeditated. Based on our de novo review, we disagree. See Pena
v. State, 298 So. 3d 1224, 1227 (Fla. 3d DCA 2020) (“A motion for
judgment of acquittal is reviewed de novo to determine whether the
evidence is legally sufficient to support the jury’s verdict.”) (quoting
Jefferson v. State, 243 So. 3d 1014, 1017 (Fla. 3d DCA 2018)).
When determining whether the evidence was legally sufficient, all
evidence must be viewed in the light most favorable to the State. Pena,
298 So. 3d at 1227. Further, the evidence is legally sufficient when a
rational trier of fact could have found that the elements of the crime existed
beyond a reasonable doubt. See Bush v. State, 295 So. 3d 179, 200 (Fla.
2020). If there is substantial, competent evidence to support the jury’s
10
verdict, the appellate court must affirm. Id. at 200-01.
As to the element of premeditation for the offense of first-degree
murder, the Florida Supreme Court explained the following:
Premeditation is defined as more than a mere intent to kill; it is
a fully formed conscious purpose to kill. Premeditation may be
formed in a moment and need only exist for such a time as will
allow the accused to be conscious of the nature of the act he is
about to commit and the probable result of that act.
Morrison v. State, 818 So. 2d 432, 452 (Fla. 2002) (quotations and citations
omitted). In addition, “[e]vidence from which premeditation may be inferred
includes such matters as the nature of the weapon used, the presence or
absence of adequate provocation, previous difficulties between the parties,
the manner in which the homicide was committed, and the nature and
manner of the wounds inflicted.” Sochor v. State, 619 So. 2d 285, 288 (Fla.
1993) (quoting Larry v. State, 104 So. 2d 352, 354 (Fla. 1958)).
In the instant case, without rehashing Holmes’ statement made
during the videotaped interview, which was played for the jury, the State
established beyond a reasonable doubt that the homicide was
premeditated and there was substantial, competent evidence to support the
jury’s verdict as to first-degree murder. Holmes’ statement reflects that he
had “a fully formed conscious purpose to kill.” Morrison v. State, 818 So.
2d at 452. We disagree with Holmes’ characterization of what occurred as
11
a “spur-of-the-moment act.” After he became mad at the victim, he walked
over to the kitchen sink, grabbed the knife from the sink, and held it to his
side to hide it from the victim. He then pushed her into the hallway to avoid
detection, and then held her until she fell to the floor. After she fell to the
ground, he stabbed her for the first time. She struggled with Holmes for
about twenty seconds because she did not want him to pull the knife out so
that he could stab her again. Although having twenty seconds to
contemplate his next action, he opted to pull out the knife and stab her
again with enough force that the knife exited her back. Moreover, the
assistant medical examiner’s testimony reflects that the victim was actually
stabbed three times, and that any of the stab wounds could have
independently caused death. Clearly, Holmes’ actions indicate that he
acted with premeditation. See Jackson v. State, 180 So. 3d 938, 956 (Fla.
2015) (“When a victim is deliberately stabbed with a knife several times in
vital organs, as occurred here, the manner of death can provide
circumstantial evidence of premeditation.”); Morrison, 818 So. 2d at 452
(concluding that premeditation established where the victim suffered two
major knife wounds to the neck, and the second was sufficiently deep to
nick the victim’s vertebrae). Accordingly, we conclude that the State
established beyond a reasonable doubt that Holmes committed the murder
12
with premeditation. 5
Next, Holmes contends the trial court erred by failing to suppress the
recorded statement with Detective Stroze, arguing that he unequivocally
invoked his right to remain silent by stating, “[Y]ou know what, I gave you
too much already,” when Detective Stroze asked Holmes if he could
stenographically record his statement when going over his notes with
Holmes. Based on the circumstances of this case, we disagree. See State
v. Socarras, 272 So. 3d 488, 491 (Fla. 3d DCA 2019) (quoting Ross v.
State, 45 So. 3d 403, 414 (Fla. 2010)) (“We defer to a trial court’s findings
of fact as long as they are supported by competent, substantial evidence,
but we review de novo a trial court’s application of the law to the historical
facts.”).
In the instant case, Holmes waived his Miranda rights and freely
spoke with Detective Stroze. However, once waived, Holmes had the right
to “reassert his right of silence at any time, even in the midst of a police
interrogation, and bring a halt to the questioning.” Horne v. State, 127 So.
3d 898, 902 (Fla. 5th DCA 2013). The Florida Supreme Court has
5
Holmes also argued that the State failed to establish felony murder and
that the motion for judgment of acquittal should have been granted as to
the lesser-included offense of second-degree murder. We need not reach
these arguments based on our conclusion as to first-degree premeditated
murder.
13
explained:
It is well established that where a defendant has received
proper Miranda warnings and waived his Miranda rights, he
must make an unequivocal or unambiguous request to
terminate an interrogation in order to reassert those rights. If a
defendant's attempt to revoke his waiver is ambiguous or
equivocal, police are not required to either cease questioning or
to clarify whether the defendant's statement was in fact a
reassertion of his Miranda rights. Id. A revocation is
unambiguous if a reasonable police officer under the
circumstances would understand that the suspect is invoking
the right. When determining whether a revocation is
unambiguous, we consider whether the response refers to
specific questions about the crime or about the underlying right
to cut off all questioning.
Braddy v. State, 111 So. 3d 810, 830 (Fla. 2012) (quotation marks and
citations omitted). Further,
[a] suspect must articulate his desire to cut off questioning with
sufficient clarity that a reasonable police officer in the
circumstances would understand the statement to be an
assertion of the right to remain silent. If the statement is
ambiguous or equivocal, then the police have no duty to clarify
the suspect’s intent, and they may proceed with the
interrogation.
State v. Owen, 696 So. 2d 715, 718 (Fla. 1997).
In support of his position, Holmes relies on Johnson v. State, 135 So.
3d 1002 (Fla. 2014). During Johnson’s interrogation the following
transpired:
JOHNSON: I don’t want to say no more.
DETECTIVE FLAHERTY: You sure?
14
JOHNSON: Yes.
DETECTIVE FLAHERTY: If you’re sure, that’s your right.
JOHNSON: Can I have a cigarette, please?
DETECTIVE FLAHERTY: I don’t have cigarettes here. We’ll
see if I can get one for you.
JOHNSON: I know I did not pull a knife on her.
Id. at 1032. On appeal, Johnson argued that Detective Flaherty failed to
scrupulously honor his termination of the interview. The Florida Supreme
Court disagreed with Johnson’s contention. Although finding that
Johnson’s statement—“I don’t want to say no more”—was an unequivocal
invocation of his right to remain silent, the Court concluded that Detective
Flaherty honored Johnson’s invocation of his right to remain silent. Id. at
1032.
Johnson is distinguishable from the instant case. Unlike Johnson,
Holmes’ statement was not an unequivocal invocation of his right to remain
silent. Rather, Holmes’ statement was made in response to Detective
Stroze’s question if he could record Holmes while going over his notes with
Holmes. Despite stating that he did not want to be recorded, Holmes did
not unequivocally invoke his right to remain silent.
Holmes’ reliance on Dixon v. State, 72 So. 3d 171 (Fla. 4th DCA
2011), is also misplaced. Dixon appealed his convictions for armed
15
burglary of a dwelling, burglary of a dwelling, grand theft with a firearm, and
grand theft, which charges stem from two incidents at his parents’ home.
Id. at 172. Dixon argued on appeal that after he waived his Miranda rights,
he made several unequivocal and unambiguous statements invoking his
right to remain silent. The Fourth District Court Appeal agreed with Dixon’s
argument, stating as follows:
The circumstances of this case demonstrate that the defendant
unequivocally invoked his right to remain silent on the issue of
the home burglaries. In response to questions about the
burglaries, Dixon said: “I don't want to talk about that”; “[T]his
conversation here about this house thing is through, I don't
wanna talk about that, period”; “I don't want anything to do with
this here what you talking about what did I do. . . . I don't want
to go through that”; “Yeah, I ain't talking about that there”; “Now
enough is enough, you know what I'm saying, enough is
enough. Now, I don't want to talk about that house no more”;
“Let's not talk about the house”; and “I don't want to talk about it
no more”.
Id. at 176 (citations omitted).
Dixon is distinguishable from the instant case. As already stated,
Holmes’ statement was not an unequivocal and unambiguous invocation of
his right to remain silent. Rather, Holmes’ statement was made in
response to Detective Stroze’s question if he could record Holmes while
going over his notes with Holmes. See Van Royal v. State, 497 So. 2d
625, 627 (Fla. 1986) (finding that Van Royal declining to give a taped
statement after waiving Miranda was not an exercise of his right to remain
16
silent). Thus, we conclude that Holmes did not unequivocally and
unambiguously invoke his right to remain silent under the circumstances.
For the above stated reasons, we affirm Holmes’ conviction and
sentence for first-degree murder.
Affirmed.
17