ZACHARY JOSEPH PENNA v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ZACHARY JOSEPH PENNA,
Appellant,

v.

STATE OF FLORIDA,
Appellee.

No. 4D20-345

[December 22, 2021]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Caroline C. Shepherd, Judge; L.T. Case No.
502016CF006304A.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf,
Senior Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

The defendant appeals from his convictions for two counts of first-
degree murder, one count of robbery with a weapon, and one count of false
imprisonment with a weapon. Despite the horrible facts underlying these
convictions, we are compelled to reverse these convictions and remand for
a new trial due to a violation of the defendant’s Miranda rights.

After the defendant had invoked his Miranda rights, but later made
spontaneous statements regarding his crimes to a deputy guarding him at
a hospital, the deputy failed to specifically give the defendant his Miranda
rights again before asking him questions which were reasonably likely to
elicit, and did elicit, incriminating responses which the state presented at
trial in their entirety. Because those elicited incriminating responses
proved and/or corroborated each of the crimes, and further undermined
the defendant’s insanity defense, the trial court erred in denying certain
portions of the defendant’s pre-trial motion to suppress his incriminating
responses. This error was not harmless. Thus, we must reverse and
remand for a new trial.
 We present this opinion in six sections:
1. The crimes and their aftermath;
2. The conversations at issue;
3. The defendant’s pre-trial motion to suppress;
4. The defendant’s insanity evidence and the jury’s verdict;
5. The parties’ arguments on appeal; and
6. Our analysis.

1. The Crimes and Their Aftermath

The crimes occurred on November 20, 2015. The defendant stabbed
two men to death at the men’s home in Palm Beach County. The defendant
then stole the men’s SUV, and drove to a nearby neighborhood where, at
knife point, he robbed an elderly woman of her shirt and purse while she
walked down the street. The defendant then drove to a co-worker’s house
in another neighborhood where, at knife point, he forced the co-worker
into the SUV and attempted to flee in the SUV.

When the defendant stopped at a fast-food restaurant, the co-worker
was able to escape from the SUV. The defendant resumed driving north
on I-95. When he reached Brevard County, he stopped the SUV, and tried
to take another man’s car. When the man resisted, the defendant stabbed
the man (who survived), and fled into the woods. When a police dog was
sent into the woods after the defendant, he stabbed the dog (which
survived). The defendant later charged out of the woods towards the police
while still holding the knife. The police shot the defendant four times, but
he survived and was taken to a hospital for treatment.

At the hospital the next day, while the defendant remained in custody,
the lead Palm Beach County detective read Miranda warnings to the
defendant and attempted to question him. However, the defendant
requested a lawyer. The lead detective left the room. Despite the
defendant having requested a lawyer, a second detective entered the
defendant’s room and attempted to question him. The defendant again
requested a lawyer. The detectives then ceased their attempts to question
the defendant. (The second detective’s improper attempt to question the
defendant is not the Miranda violation at issue in this appeal.)

Nearly four weeks later on December 17, 2015, while the defendant
remained in custody at a Brevard County hospital, one of the deputies
guarding the defendant called the local police to ask whether the defendant
had been read his Miranda warnings and whether they wanted him to
obtain statements from the defendant. The local police (who apparently

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were investigating the Brevard County crimes) said they did not need any
assistance, but the Palm Beach County detectives might.

The deputy then called the Palm Beach County detectives. One of the
Palm Beach County detectives (not the lead detective) told the deputy that
the defendant had refused to speak to them and that he had requested
counsel.

Despite that notification, when the defendant initiated a conversation
with the deputy later that day, and on other days in the weeks which
followed, the deputy did not specifically give the defendant his Miranda
rights again, even though the deputy directed questions to the defendant
during those conversations. Some of the deputy’s questions, from an
objective standpoint, were not reasonably likely to have elicited
incriminating responses from the defendant. However, other questions
were reasonably likely to elicit, and did elicit, incriminating responses from
the defendant.

The deputy’s typed recordings of those conversations, which the state
later disclosed to defense counsel in discovery, became the subject of the
defendant’s pre-trial motion to suppress. We will discuss each
conversation in detail in the next section, before addressing each
conversation’s legality, or lack thereof, later in this opinion.

2. The Conversations at Issue

December 17, 2015

The defendant spontaneously asked the deputy why he (the defendant)
was in the hospital. The deputy replied, “You don’t know why you are
here?” The defendant shook his head, turned away, and closed his eyes.

About thirty minutes later, the defendant spontaneously stated, “I
stabbed a couple of people.” The deputy replied, “You stabbed a couple of
people?” The defendant responded, “Yeah a couple of f*** and a damn
dog.”

December 19, 2015

The defendant spontaneously said he was in a bad mood. When the
deputy asked the defendant why he was in a bad mood, the defendant
responded, “Dude, I’m f*****. I feel like I just f***** my life up.” The deputy
asked the defendant, “Why do you think you f***** your life up?” The
defendant responded, “Dude, I’m just f*****. I know what I did. I’m going

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to prison for my whole f****** life.” The defendant then recited Bible
scriptures and stated that his life in prison would be horrible. The
defendant further stated several times he was upset about having to go to
jail for life at such a young age. The defendant also admitted to having
used marijuana, cocaine, and ecstasy, and stated, “Dude, I’ve tried it all.”

December 20, 2015

The defendant and the deputy were engaged in a conversation about
miscellaneous topics when the defendant spontaneously asked, “What do
you think I will get?” The deputy asked the defendant what he meant. The
defendant responded, “[W]hat do you think I will get for killing those two
f***?”

The deputy asked the defendant “What do you mean, what do you think
you’re being punished for?” The defendant responded that the story was
more complicated than the deputy thought. The defendant said he would
let the deputy know the entire story of what happened.

The deputy told the defendant, “Hey, I’m a law enforcement officer and
you can say anything you want to me, but I’m going to write it down.” The
deputy also told the defendant that he (the deputy) would be typing what
the defendant was saying on his laptop. However, the deputy did not
specifically give the defendant his Miranda rights again. Instead, the
deputy told the defendant, “I don’t want you to tell me anything unless you
want to talk to me.” The deputy also said, “Well you know, I’m in uniform.
I’m here. And if you want to have a conversation, we could talk. But …
as far as specific crimes … I’m not going to ask you specific questions
about specific crimes.”

The defendant proceeded into a lengthy narrative about the crimes. He
said that, on the day of the crimes, his car had a flat tire and he had to
walk to his aunt’s home where he was temporarily staying. He wanted a
car, so he went to a nearby home where an SUV was parked and knocked
loudly on the home’s front door. A man opened the door and said, “What?”
The defendant threatened the man with a folding knife and told the man
to give him the keys to the SUV. When the man refused, the defendant
lunged towards the man and stabbed him several times. The man fell
backwards and yelled, “Get the gun!” to a second man inside the house.

While the defendant continued stabbing the first man, the second man
approached with a baseball bat and struck the defendant in his upper
right arm and wrist, causing a large gash to the defendant’s wrist. The
second man hit the defendant again with the baseball bat, this time in the

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head. The defendant turned towards the second man and chased him into
the house. When the defendant caught up to the second man, the
defendant began stabbing the second man until he believed the second
man was possibly dead. The defendant said he stabbed both men “one
hundred times.” (The defendant had stabbed the first man fourteen times,
and had stabbed the second man eighteen times.)

While covered in blood from the stabbing, the defendant decided to
drink the two men’s blood “just because.” When the deputy asked the
defendant what the blood tasted like, the defendant said, “silvery and like
iron.” The defendant then detailed how he took the men’s SUV and drove
around to locate vehicle tags to remove from other cars so he could switch
them because he feared being caught by the police.

The defendant also said he needed a clean shirt. He approached an
elderly woman walking down the street, and threatened her with the same
knife which he had just used in the stabbings. He told her to remove her
shirt and give him her shirt and purse.

The defendant then drove to a co-worker’s house to trick the co-worker
into getting into the SUV with him. When the defendant arrived at the
house, he knocked on the door, told the co-worker he had just been
jumped by several men, and needed to come inside to borrow a shirt. The
co-worker opened the door and, once the defendant was inside, the
defendant threatened the co-worker with the knife and demanded the co-
worker go with him and drive to New York or North Carolina and “search
for God’s redemption.” The co-worker later fled from the defendant.

The defendant then drove to I-95 to try to get to North Carolina or New
York, because he had “people” in both places. As the defendant drove up
I-95, he noticed the SUV was low on gas. He exited I-95 but he had only
ten dollars. He saw a man working on the side of the road. The defendant
demanded the man hand over the keys to his vehicle. When the man
refused, the defendant stabbed and slashed the man several times with
the same knife before the man tried to flee. The defendant chased the man
and tried to stab him again.

The defendant then heard sirens in the distance and observed an
emergency vehicle coming towards his location. He fled the area and
wanted “to be hunted like the Aztecs.” After hiding from the police, he saw
a K9 approaching his location. When the K9 approached, “the f****** dog
liked me, but tried to bite me.” The defendant slashed at the dog and tried
to stab it. The K9 retreated and then came back in the defendant’s
direction. The defendant advanced toward the officers and was shot. The

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defendant said he “wasn’t ready to die and God told him he wasn’t ready
for him yet.” The defendant began to laugh at the officers and still tried to
move when “they f****** tased me, and that s*** f****** hurt like hell.”

December 25, 2015

The defendant began asking the deputy questions about prison and
how much time he could get for the crimes which he committed. The
deputy asked the defendant, “What crime do you think you’ll get the most
time for?” The defendant responded he believed that stabbing the two men
and drinking their blood would mean prison for life. The deputy then
asked the defendant what his second worst crime was. The defendant
responded running from the police and stabbing the K9, which he thought
was as bad as stabbing a police officer. The defendant then asked the
deputy if drinking the victims’ blood was a serious crime. The deputy
replied he was unsure if an enhancement would be added to the crime.

The defendant then asked about the elderly woman from whom he took
the shirt and purse. The defendant said he felt bad because she was old.
The defendant admitted he knew the police were looking for him and that
was why he was searching for tags in several neighborhoods and was
looking for a place to hide from the police when he went to the “mansion”
and stayed there before driving towards I-95. The defendant also
described how he was angry about having to walk from where his vehicle’s
flat tire had left him stranded, his relationship with his aunt, and the
initial voices which he said was God telling him to “complete his word.”

The deputy asked the defendant if God’s voice guided him in every crime
which he committed. The defendant stared at the deputy for a few
seconds, and then said once he stabbed the two men and stole their SUV,
he knew he was “f*****.”

The deputy asked the defendant if he considered turning himself into
the police or just stopping and calling for help. The defendant responded
he did not want to stop and just said it was “too late to stop there.”

The defendant then began to ask about prison and where he might be
sent. The deputy replied that a judge would assign his location. The
defendant then asked if he would be in special housing for people who
‘‘committed murders, two of them?” The deputy replied he did not think
so. The defendant said he was not in a great mood because he was going
to prison and was not looking forward to spending life in prison, but he
knew he was meant to live and was told by God he was not going to die
from killing people and stabbing a dog because God said it wasn’t his time.

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 January 7, 2016

The defendant again asked if the deputy thought he was going to prison.
The deputy asked the defendant what he thought his sentence might be
for his crimes. The defendant responded, “I know I will spend life in prison
for killing the two guys and for trying to kill the dog and other people.” The
defendant asked if the deputy thought he (the defendant) was fortunate to
have been reborn. The deputy asked what the defendant’s interpretation
of being reborn was. The defendant responded, “Dude, I got shot four
times, and I am still here,” and that makes him reborn with a purpose.
The deputy asked the defendant if he saw himself as a bad person. The
defendant did not answer, but instead looked at the television and then
asked what the deputy knew about the Egyptian religion Ra. The deputy
replied he was not aware of the religion. The defendant responded he
began practicing the religion several months earlier and was very excited
about learning the ways of Ra.

The defendant then stated that, on the day of the crimes, after his car
had flat tires, he began to hear voices telling him to “do what I am telling
you or your family is gonna die.” The defendant further said, “Once I
stabbed the guys at the house and drank the blood, I knew I just gotta
keep going.”

The deputy asked if the defendant knew the law regarding taking a life.
The defendant responded, “Dude, I was following the voices.” The
defendant then said, ‘‘I could get out you know, they could say I’m crazy
but I know what the f*** is going on.” The defendant again said he knew
what was going on, but was excited because he “watched plenty of f******
cop shows.”

The defendant then began to stare in the deputy’s direction for a long
period of time, before saying, “[Deputy], you’re f****** okay dude.” At that
point, the defendant said he was tired of talking and said he was going to
take a nap until he was taken to jail.

3. The Defendant’s Motion to Suppress

Before trial, the defendant filed a motion to suppress all of the
statements which he made to the deputy because, even though the
defendant had reinitiated communications with the deputy, the deputy’s
resulting questioning of the defendant, without having specifically given
the defendant his Miranda rights again, violated his Miranda rights, as the
Florida Supreme Court held in Shelly v. State, 262 So. 3d 1 (Fla. 2018).

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 The state filed a written response arguing that all of the defendant’s
statements to the deputy were spontaneous and not the result of custodial
interrogation.

At the hearing on the motion, the lead detective and the deputy both
testified about their interactions with the defendant, as recited above.

The trial court denied the defendant’s motion to suppress, reasoning
that the defendant had initiated all of his conversations with the deputy.
The trial court stated:

[T]he key, for me, is the fact that [the deputy] did not
[initially] question him. That every time there was a
conversation it was initiated by [the defendant]. And that [the
deputy] would paraphrase or repeat verbatim what [the
defendant] had said, but forming it … in a question. And then
[the defendant] would elaborate or would continue and say
further things. And sometimes [the deputy] followed up with
questions, but only after [the defendant] initiated the
conversation. And each time that there was a renewed
conversation it was never at the initiation of law enforcement.
And because of that, all those statements that [the defendant]
made are admissible and will be allowed in the State’s case.

4. The Defendant’s Insanity Defense and the Jury’s Verdict

At trial, the state called several witnesses whose testimony proved that
the defendant committed the charged crimes. These witnesses included
the deputy who, consistent with the motion to suppress testimony,
testified about his numerous conversations with the defendant, including
the defendant’s lengthy recitation of having committed the crimes and
fleeing, and his repeated concerns regarding his anticipated punishment.

Defense counsel did not dispute that the defendant committed the
charged crimes. Instead, in accordance with a pre-trial notice filed
pursuant to Florida Rule of Criminal Procedure 3.216, defense counsel
presented an insanity defense.

In support of the insanity defense, defense counsel presented several
witnesses. Defense counsel first presented one of the officers whom the
defendant attacked when he ran out of the woods towards the police while
still holding the knife. The officer testified that after the defendant was
shot, the defendant was “laying on the ground[,] reasonably incoherent,

8
and he was manipulating his genitalia.” The defendant then began
laughing and, when he refused to show his hands, had to be tasered.

Defense counsel next called several of defendant’s family members to
testify regarding his mental illness history. The defendant’s mother, a
registered nurse, testified that the defendant’s father, who had died when
the defendant was fifteen, had a history of psychiatric hospitalizations and
drug addiction. After the defendant’s father died, he began to see a
psychologist and then, because he needed medications, a psychiatrist.
The defendant was treated throughout high school. After high school, he
went to college, but his mental health got worse, and he lasted only one
semester. He had to be hospitalized for three days and later for three
weeks. He could not keep a job. His behavior could be bizarre: “He would
pace, he would cry, he would stay in his room. He would … rock and pace.
He’d lay on my bed and cry. And sleep on the floor.” One year before the
crimes, he stopped taking his medications. On the day of the crimes, he
called his mother to say he was walking home because his car was not
ready. She testified he did not sound irrational at that time. After the
crimes, she visited him in the hospital. He talked about what happened,
but appeared “weirdly confused.” He also would kick off his covers and
expose himself. She testified he had never been violent before, nor had he
ever carried a weapon. However, she admitted having told the lead
detective that although the defendant had expressed violent fantasies, he
knew the difference between fantasy and reality.

The defendant’s stepfather’s testimony reiterated much of the mother’s
testimony. The stepfather also testified that the defendant would “talk
about things that were kind of not reality.” The stepfather saw the
defendant three days before the crimes. The defendant appeared agitated
and nervous.

The defendant’s aunt testified he had lived with her two years before
the crimes. During that time, he was under a psychiatrist’s care, was
taking his medicine, and never behaved violently. However, he also would
often read the Bible and talk about angels.

The defendant’s grandmother testified he also had lived with her two
years before the crimes. She testified he was more anxious when he was
not on his medications, but was never violent.

The defendant’s sister testified he also had lived with her in the two
years before the crimes. She testified that when he was taking his
medications he was normal, but when he was not taking his medications
he was “depressed and lost and just not know who he is or what he’s

9
supposed to be doing or where he belongs in this world.” She also testified
she had never seen him behave violently.

Defense counsel also called the defendant’s manager from an alarm
company which had employed the defendant for three weeks. The
manager testified that on the day of the crimes, the defendant was
distracted and bothered at work.

Defense counsel then called two expert witnesses, a psychologist and a
psychiatrist, each of whom testified that the defendant suffered from a
major mental illness which prevented him from rationally understanding
his actions on the day of the crimes.

The psychologist had examined the defendant in March 2016, three
months after the crimes. The psychologist testified that, at that time, the
defendant was “floridly acutely psychotic,” “[v]irtually unintelligible,”
“delusional, [and] had persecution religious delusions of grandeur. His
speech was extremely disorganized, pressured, rapid.” The psychologist
opined the defendant looked as a person would look when actively
psychotic and unmedicated. At that time, the defendant was not
competent to stand trial and needed anti-psychotic medication. A month
later, the defendant was behaving better. He was more responsive, but he
was still “extremely disorganized, tangential, pressured speech, thought
racing. Lots of delusional material that was not very well integrated ….”
At that time, he was taking anti-psychotic and anti-depressant
medications, but he was still suffering from delusions and psychosis. He
spoke of “aliens, the sun God Ra, pyramids.” He said he was the “daughter
of the sun God Ra … mixed up with some Christian apocalyptic kinds of
material as well.” His statements were a jumble of “Egyptian theology and
a Christian theology that … got symbolized … by the idea of … blood
sacrifice; a ring that he had that … had a serpent on it … and believing
that he had been empowered by God … with the ring.” He believed that
because of the “special powers that were imbued upon him … he wouldn’t
suffer death.”

The psychologist opined that the defendant was not fabricating or
malingering. The psychologist concluded the defendant had bipolar
disorder or bipolar type schizoaffective disorder. The psychologist based
this conclusion on the fact that the defendant was responding to command
hallucinations and thought he was controlled by a higher power. The fact
that the defendant’s father was bipolar increased his chances of being
bipolar from 1 in 10,000 to 1 in 10.

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 In the psychologist’s opinion, the defendant was psychotic on the day
of the crimes, and did not think what he was doing was wrong because he
was operating under a delusional belief system. Thus, the psychologist
concluded, the defendant was legally insane on the day of the crimes,
because he was suffering from a significant mental illness which prevented
him from rationally understanding his actions.

Defense counsel next called the psychiatrist. The psychiatrist
examined the defendant in April 2017 (eighteen months after the crimes)
and October 2018 (almost three years after the crimes). The psychiatrist
opined that the defendant suffers from a major mental illness which
renders him out of touch with reality, and he was out of touch with reality
on the day of the crimes. The psychiatrist concluded the defendant has
schizoaffective disorder, which includes both schizophrenia and bipolar
elements. The bipolar elements are depression and mania; and the
schizophrenia elements are delusions, hallucinations, and thought
disorders.

The psychiatrist testified the defendant believed he had special
connections and powers to the Holy Ghost and to other spiritual forces.
He “was not using logical thinking, and … was referring to ideas and beliefs
which were religiously oriented; but were also so extreme and
contradictory … that they represented thought disorder and delusion.”
The psychiatrist concluded that the defendant met the legal criteria for
insanity during the commission of the crimes.

In rebuttal, the state called a different psychiatrist as an expert witness.
The state’s psychiatrist opined the defendant has a personality disorder,
but was sane at the time of the crimes. According to the state’s
psychiatrist, the defendant has a “mixed personality disorder” with
antisocial (law-breaking), borderline (fluctuating moods, impulsivity), and
dependent (overly dependent on others) features. The state’s psychiatrist
testified those features do not constitute a major mental illness. He further
opined the defendant’s medical records did not show signs of
schizoaffective or bipolar disorder, because the records did not document
any manic episodes.

Regarding the psychotic symptoms which the defendant reported to the
defense’s psychologist, the state’s psychiatrist testified that a
schizophrenic or psychotic person typically does not have so many
different ideas, and is usually limited to specific delusional thinking. The
state’s psychiatrist could not rule out substance abuse as a possible
contributor to the defendant’s behavior, based on physical symptoms

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which the defendant reported at the hospital and his self-reported use of
MDMA or Ecstasy.

The state’s closing arguments repeatedly used the defendant’s
statements to the deputy to prove the defendant was sane at the time of
the crimes. During the state’s initial closing, the prosecutor argued:

• “The actions that he took, the words that he said, [‘]I can get out,
you know, they can say I’m crazy, but I know what the f*** is going
on.[’] That’s what he said ... to [the] [d]eputy, amongst all the other
things that he said. He knew what was going on. He knew that he
could get out of this if he acts crazy.”

• “Look at the statements that he made to [the] [d]eputy ... in detail.
[‘]I killed two [f***] and a dog. I’m f*****. I f***** up my whole life. I
know what I did. I’m going to prison for the rest of my life.[’] If you
don’t know what you were doing was wrong, what are you talking
about prison for? Again, he recounts detailed events, telling [the]
[d]eputy ... what he did [in] fear of being located by the police.”

Further, during the state’s rebuttal closing, the prosecutor argued:

• “All you have to do is look at his actions and his words.”

• “Violence does not equate to legal insanity. What are his words?
What are his actions?”

• “Words and actions. What are his words? [‘]I stabbed two [f***] and
a damn dog.[’] Hmm. He is able to discern, in a matter of several
minutes, that the two men that he stabbed to death are
homosexuals. He’s able to consciously understand that and discern
it, and remember it when he’s sitting there talking to [the deputy].
That’s the fully blown psychotic break? That’s being insane?”

• “[W]e know somebody who he did talk to. He didn’t say all these
weird things to [the deputy]. ... Now, just because he tells a law
enforcement officer things that he did, whatever reason. Did he feel
some remorse at that time? Was he bragging? Was he testing his
[insanity defense] theory that he was going to use some day in the
future, like today?”

• “He knew exactly how wrong it was. He told [the deputy], [‘]I robbed
that old lady.[’] His words, [‘]I robbed.[’]”

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 • “His words. He knows what’s going on. [‘]I’ve watched plenty of cop
shows. Say I’m crazy, but I know what the f*** is going on. I could
get out, you know.[’] Those are his words, those are his actions.”

The jury found the defendant guilty as charged of all four crimes
committed in Palm Beach County against the two murdered men, the
elderly woman, and the defendant’s co-worker, thereby rejecting the
defendant’s insanity defense. This appeal followed.

5. The Parties’ Arguments on Appeal

The defendant primarily argues the trial court erred in denying his
motion to suppress all of the statements which he made during the several
conversations with the deputy at the hospital. More specifically, the
defendant argues after he had invoked his Miranda rights, but later made
spontaneous statements regarding his crimes to the deputy, the deputy
failed to specifically give the defendant his Miranda rights again before
asking him questions which were reasonably likely to elicit, and did elicit,
incriminating responses which the state presented at trial in their entirety.
According to the defendant, “It is no exaggeration to say that [the deputy’s]
testimony was the centerpiece of the State’s case.” Therefore, the
defendant argues, the trial court’s error in denying the defendant’s motion
to suppress was not harmless beyond a reasonable doubt.

The state responds the trial court properly denied the defendant’s
motion to suppress. According to the state, all of the defendant’s
statements to the deputy at the hospital were admissible because he made
the statements spontaneously, without prompting or interrogation, and
some of those statements occurred during conversations which were not
related in any way to the crimes. The state further argues that the deputy’s
decision to memorialize the defendant’s statements on a laptop in front of
the defendant, respond to the defendant’s inquiries, and continuing to let
him speak without being prompted, did not transform their interactions
into interrogations.

In rebuttal, the defendant challenges the state’s characterization of the
deputy’s interactions with him, arguing the interactions show that the
deputy asked the defendant “question after question after question.”
Further, the defendant argues, even if he voluntarily made ambiguous
statements, the deputy was limited to asking follow-up questions in a
neutral effort to clarify what had already been said, but could not expand
the scope of the statements previously made.

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 6. Our Analysis

While the parties’ arguments to the trial court, and to us, have sought
an “all or none” disposition of the defendant’s motion to suppress (to which
the trial court adhered by admitting the defendant’s statements in their
entirety), we conclude the correct analysis should have been to separately
address each of the defendant’s statements.

Applying a statement-by-statement analysis, we conclude the trial
court correctly admitted the defendant’s spontaneous (i.e., unelicited)
statements, as will be specifically described below. However, because the
deputy failed to specifically give the defendant his Miranda rights again
before expanding the conversation to ask him questions which were
reasonably likely to elicit, and did elicit, incriminating responses, the trial
court erred in admitting those elicited incriminating responses, as will be
described below. Further, because those elicited incriminating responses
proved and/or corroborated each of the crimes, and further undermined
the defendant’s insanity defense, the trial court’s errors were not harmless.

Our analysis will begin with the standards applicable to circumstances
where an accused has invoked their right to counsel (or silence) and then
later reinitiates communication with officers. We then will apply those
standards to each of the defendant’s statements during the several
conversations with the deputy. Lastly, we will explain why the trial court’s
errors in admitting the elicited incriminating responses were not harmless.

a. Standard of Review and Applicable Law

“Appellate courts should ... accord a presumption of correctness to the
trial court’s rulings on motions to suppress with regard to the trial court’s
determination of historical facts, but appellate courts must independently
review mixed questions of law and fact that ultimately determine
constitutional issues arising in the context of the … Fifth Amendment ….”
Shelly v. State, 262 So. 3d 1, 14 (Fla. 2018) (brackets and citation omitted);
see also Middleton v. State, 220 So. 3d 1152, 1179 (Fla. 2017) (“A trial
court’s decision to deny a motion to suppress comes to [an appellate court]
cloaked with a presumption that its factual findings are correct, but [the
appellate court] appl[ies] a de novo standard of review to legal issues and
mixed questions of law and fact which ultimately determine constitutional
issues.”).

In Miranda [v. Arizona, 384 U.S. 436, 479 (1966)], the United States
Supreme Court determined that the Fifth … Amendment prohibition
against self-incrimination requires advising a prospective defendant of the

14
right to remain silent and also the right to the presence of counsel. Shelly,
262 So. 3d at 14 (citation omitted). “After being advised of these rights, if
an accused indicates a wish to remain silent, ‘interrogation must cease.’”
Id. (quoting Miranda, 384 U.S. at 474) (other citation omitted). Further,
“[a]fter a suspect invokes [their] Miranda rights, police officers are
prohibited from engaging in words or actions that the officers should know
are reasonably likely to elicit an incriminating response from the suspect.”
Shelly, 262 So. 3d at 14 (citation and internal quotation marks omitted);
see also Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (“A practice that
the police should know is reasonably likely to evoke an incriminating
response from a suspect … amounts to interrogation.”).

However, where a suspect has invoked their Miranda rights, the suspect
remains free to volunteer a statement to police on the suspect’s initiative
at any time, on any subject, in the absence of counsel. Traylor v. State,
596 So. 2d 957, 966 (Fla. 1992). But if the police wish to reinitiate
interrogation at that point, the Florida Supreme Court has imposed an
additional requirement: “[E]ven when an accused has invoked the right to
silence or right to counsel, if the accused initiates further conversation, is
reminded of his [Miranda] rights, and knowingly and voluntarily waives
those rights, any incriminating statements made during this conversation
may be properly admitted.” Shelly, 262 So. 3d at 11 (quoting Welch v.
State, 992 So. 2d 206, 214 (Fla. 2008) (citing Oregon v. Bradshaw, 462
U.S. 1039, 1045-46 (1983))).

The Florida Supreme Court in Shelly proceeded to explain why it was
requiring the police to remind the accused of their Miranda rights before
interrogation is reinitiated:

The standard in Welch is derived from Bradshaw.
Although the standard is not explicitly stated in Bradshaw,
the facts of the case outline that which would become the
standard articulated by this Court in Welch. Bradshaw was
questioned during an investigation of the death of a person
whose body had been found in Bradshaw’s pickup truck.
Bradshaw was advised of his Miranda rights and admitted to
providing the victim with liquor for a party but denied
involvement in the traffic accident that killed the victim.
Bradshaw was then arrested for providing liquor to the victim,
a minor, and was again advised of his Miranda rights. An
officer then stated to Bradshaw his theory which placed
Bradshaw behind the wheel of the vehicle. Bradshaw again
denied his involvement and then stated, “I do want an
attorney before it goes very much further.” The officer then

15
immediately terminated the interrogation. Sometime later,
Bradshaw inquired to a police officer, “Well, what is going to
happen to me now?” The officer responded, “You do not have
to talk to me. You have requested an attorney ....” A
conversation followed in which Bradshaw agreed to take a
polygraph examination, stating he was willing to do whatever
he could to clear up the matter. Bradshaw was again
reminded of his Miranda rights and ultimately recanted his
earlier story, admitting he was the driver of the vehicle in
which the victim was killed. The Oregon Court of Appeals held
that Bradshaw’s inquiry of what would happen to him did not
“initiate” a conversation with the officer, and that therefore his
eventual incriminating statements should have been excluded
under Edwards [v. Arizona, 451 U.S. 477, 485 (1981) (a
defendant who has “expressed his desire to deal with the
police only through counsel is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiated further
communication, exchanges, or conversations with the
police”)]. The United States Supreme Court reversed, holding
that Edwards did not stand for the proposition that the
initiation of a conversation by an accused after having invoked
the right to counsel amounts to a waiver of the right to
counsel. Rather, a two-step process is involved – after finding
no Edwards violation, the inquiry is whether, under the
totality of circumstances, the accused made a knowing and
intelligent waiver of the right to counsel. The Court further
held that, in asking “Well, what is going to happen to me
now?,” Bradshaw had “initiated” further conversation for
purpose of the Edwards rule.

Likewise, in Welch, this Court held that Welch’s statements
were admissible because they were made pursuant to a
voluntary, knowing, and intelligent waiver. Welch was
advised of his Miranda rights during an interrogation
concerning a double homicide. After some interrogation
Welch invoked his right to silence and the interrogation
stopped. Welch was left alone for forty-five minutes before
asking a detective, “What is going to happen to me now?”
Welch was readvised of his Miranda rights before detectives
began interrogating him again, which led to Welch ultimately
making a confession. This Court held that “even when an
accused has invoked the right to silence or right to counsel, if
the accused initiates further conversation, is reminded of his

16
 rights, and knowingly and voluntarily waives those rights, any
incriminating statements made during this conversation may
be properly admitted.” Id. at 214 (emphasis added) (citing
Bradshaw, 462 U.S. at 1045-46, 103 S. Ct. 2830). Thus this
Court held that Welch’s statements were admissible.

….

… Welch and Bradshaw involve instances where the
accused invoked the right to silence or counsel, the
interrogation ceased, and the accused allegedly reinitiated
communication with officers. However, if an accused invokes
his or her Miranda rights but later reinitiates communication,
an accused must be reminded of his or her Miranda rights
pursuant to this Court’s holding in Welch.

Shelly, 262 So. 3d at 11-13 (other internal citations and footnotes omitted).

Importantly, the Shelly court later re-phrased its holding using slightly
different language: “Welch … specifically includ[es] a requirement that the
accused be specifically given his or her Miranda rights after an alleged
reinitiation.” Id. at 13 (bold and underlining added).

Given the Shelly court’s later re-phrased holding that the accused be
“specifically given” his or her Miranda rights after an alleged reinitiation,
we have interpreted that re-phrased holding as follows: “In other words,
police must again re-read the Miranda rights before commencing further
conversation.” Quarles v. State, 290 So. 3d 505, 507 (Fla. 4th DCA 2020)
(emphasis added).

b. Applying the Foregoing Standards to The Instant Case

1. The entire December 17, 2015, conversation was admissible.

The defendant spontaneously asked the deputy why he (the defendant)
was in the hospital. The deputy replied, “You don’t know why you are
here?” The defendant did not verbally respond. He shook his head, turned
away, and closed his eyes. While the defendant could have answered the
deputy’s query with an incriminating response, we cannot conclude that
the deputy’s query was reasonably likely to have elicited an incriminating
response. The defendant just as easily could have responded, “No, I don’t,”
or “I don’t remember,” or some other non-incriminating response. See
Innis, 446 U.S. at 301-02 (“[S]ince the police surely cannot be held
accountable for the unforeseeable results of their words or actions, the

17
definition of interrogation can extend only to words or actions on the part
of police officers that they should have known were reasonably likely to
elicit an incriminating response.”).

About thirty minutes later, the defendant made the incriminating
statement, “I stabbed a couple of people.” Given the length of time from
the previous exchange, we conclude the defendant’s incriminating
statement was spontaneous, and was not reasonably likely to have been
elicited by the deputy’s earlier query. Even if we concluded the deputy’s
earlier query had elicited the defendant’s incriminating statement, the test
is whether the deputy’s query was reasonably likely to have elicited an
incriminating response. As stated in our prior paragraph, we conclude the
deputy’s earlier query was not reasonably likely to have elicited an
incriminating response, regardless of the fact that the defendant, thirty
minutes later, made the incriminating statement.

After the defendant made the incriminating statement, “I stabbed a
couple of people,” the deputy replied, “You stabbed a couple of people?”,
to which the defendant responded, “Yeah a couple of f*** and a damn dog.”
We do not find the deputy’s query, simply repeating the defendant’s earlier
incriminating statement in the form of a question, but without
encouraging the defendant to elaborate on what he had just said, to have
been interrogation. See Gordon v. State, 213 So. 3d 1050, 1053 (Fla. 4th
DCA 2017) (“An officer’s request for clarification of a spontaneous
statement generally does not constitute interrogation.”) (quoting United
States v. Chipps, 410 F.3d 438, 445 (8th Cir. 2005)).

Based on the foregoing, we conclude the entire December 17, 2015,
conversation was admissible. Thus, the trial court correctly refused to
suppress any portion of that conversation.

2. The entire December 19, 2015, conversation was admissible.

The defendant spontaneously said he was in a bad mood. When the
deputy asked the defendant why he was in a bad mood, the defendant
responded, “Dude, I’m f*****. I feel like I just f***** my life up.” The deputy
asked the defendant, “Why do you think you f***** your life up?” The
defendant responded, “Dude, I’m just f*****. I know what I did. I’m going
to prison for my whole f****** life.” The defendant then recited Bible
scriptures and stated that his life in prison would be horrible. The
defendant further stated several times he was upset about having to go to
jail for life at such a young age. The defendant also admitted to having
used marijuana, cocaine, and ecstasy, and stated, “Dude, I’ve tried it all.”

18
 We do not consider the deputy’s query asking why the defendant was
in a bad mood to have been interrogation. Instead, we find the deputy’s
query to have been another request for clarification. Our finding is
primarily based on the fact that the deputy was guarding the defendant at
the hospital, and thus was responsible for not only the public’s safety, but
also the defendant’s well-being at the hospital. Gordon, 213 So. 3d at
1053. The defendant just as easily could have responded, “I don’t feel
well,” or “I’m being mistreated,” or some other non-incriminating response.
The fact that the defendant instead made the incriminating response,
“Dude, I’m f*****. I feel like I just f***** my life up,” did not convert the
deputy’s query into interrogation. Innis, 446 U.S. at 301-02.

The deputy’s follow-up query, “Why do you think you f***** your life
up?,” obviously comes closer to possibly constituting interrogation,
because the deputy knew that the defendant was accused of having
committed two murders and other crimes. However, again, we recognize
that the defendant could have been referring to some other significant life
event unrelated to the crimes. Thus, we conclude the deputy’s follow-up
query was not reasonably likely to elicit an incriminating response. The
fact that the defendant then made several incriminating responses does
not change our conclusion. Innis, 446 U.S. at 301-02.

Based on the foregoing, we conclude the entire December 19, 2015,
conversation was admissible. Thus, the trial court correctly refused to
suppress any portion of that conversation.

3. Most of the December 20, 2015, conversation was inadmissible.

The defendant and the deputy were engaged in a conversation about
miscellaneous topics when the defendant asked, “What do you think I will
get?” The deputy asked the defendant what he meant. The defendant
responded, “[W]hat do you think I will get for killing those two f***?” The
deputy asked the defendant, “What do you mean, what do you think you’re
being punished for?” The defendant responded that the story was more
complicated than the deputy thought. The defendant proceeded to let the
deputy know the entire story of what happened, up to and including his
apprehension, thereby confessing to all of the crimes in great detail.

We conclude the defendant’s question, “What do you think I will get?”
was spontaneous and therefore admissible. The deputy’s follow-up query,
asking what the defendant meant, again comes closer to possibly
constituting interrogation, because the deputy knew that the defendant
was accused of having committed two murders and other crimes.
However, because the defendant at that point was not specifically referring

19
to the crimes, we conclude the deputy’s follow-up query was not
reasonably likely to elicit an incriminating response. Thus, the
defendant’s incriminating response, “[W]hat do you think I will get for
killing those two f***?,” was admissible. Innis, 446 U.S. at 301-02.

However, the remainder of the conversation, starting with the deputy
asking the defendant, “What do you mean, what do you think you’re being
punished for?,” through the defendant’s recitation of the crimes, and up
to and including his apprehension, was inadmissible. Once the defendant
asked the deputy, “[W]hat do you think I will get for killing those two f***?,”
the deputy should have known that any words or actions on his part,
which corresponded to the defendant’s question about the punishment for
his crimes, were reasonably likely to have elicited an incriminating
response from the defendant. Innis, 446 U.S. at 301-02. Thus, pursuant
to Shelly, before the deputy propounded his next query, “What do you
mean, what do you think you’re being punished for?,” the deputy was
required to have specifically given the defendant his Miranda rights again,
in order for the defendant’s responses to have been considered as a
knowing and voluntary waiver of those rights. Shelly, 262 So. 3d at 13.

We do not consider the deputy’s prefatory comments to the defendant’s
lengthy confession to have satisfied Shelly’s “requirement that the accused
be specifically given his or her Miranda rights after an alleged
reinitiation.” 262 So. 3d at 13 (emphasis added). As stated above, the
deputy’s prefatory comments consisted of the following:

• “Hey, I’m a law enforcement officer and you can say anything you
want to me, but I’m going to write it down (on my laptop).”
• “I don’t want you to tell me anything unless you want to talk to me.”
• “Well you know, I’m in uniform. I’m here. And if you want to have
a conversation, we could talk. But … as far as specific crimes … I’m
not going to ask you specific questions about specific crimes.”

At best, the deputy’s second comment was a veiled reminder of the
defendant’s right to remain silent. However, none of the deputy’s
comments reasonably can be interpreted as having specifically reminded
the defendant of his right to counsel, the very right which he exercised –
twice – when he was read his Miranda rights on November 21, 2015.
Moreover, after the defendant was read his Miranda rights, twenty-nine
days passed, during which the defendant was being treated for his gunshot
wounds, until this December 20, 2015, conversation occurred.

We understand the argument that a reasonable person in the
defendant’s position may have been able to remember his Miranda rights

20
without having a police officer specifically give the Miranda rights again.
However, we are bound to follow our supreme court’s requirement in Shelly
that “the accused be specifically given his or her Miranda rights after an
alleged reinitiation.” 262 So. 3d at 13 (emphasis added).

4. Nearly all of the December 25, 2015, conversation was
inadmissible.

The defendant’s initial questions to the deputy about prison and how
much time he could get for the crimes which he committed were admissible
as spontaneous statements.

However, the remainder of the conversation – all prompted by the
deputy’s series of questions which were reasonably likely to elicit
incriminating responses, and without having specifically given the
defendant his Miranda rights again – was inadmissible. The deputy asked
the defendant:

• what crime did he think he would get the most time for;
• what his second worst crime was;
• if God’s voice guided him in every crime which he committed; and
• if the defendant considered turning himself into the police or just
stopping and calling for help.

We understand that after the deputy’s questions, some of the
defendant’s incriminating statements were not directly responsive to the
questions, but instead addressed other aspects of the crimes. For
example, after the deputy asked the defendant what his second worst
crime was, the defendant immediately responded running from the police
and stabbing the K9. However, the defendant then asked the deputy if
drinking the victims’ blood was a serious crime, and also asked about the
elderly woman from whom he took the shirt and purse. Although the latter
incriminating statements were not directly responsive to the deputy’s
question, we conclude the latter incriminating statements logically were
prompted by the deputy’s continuation of the conversation about the
crimes generally. The record does not indicate any temporal break by
which we could consider the latter incriminating statements to have been
made spontaneously. See Innis, 446 U.S. at 301 (“[T]he term
‘interrogation’ under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.”)
(footnote omitted).

21
 5. Nearly all of the January 7, 2016, conversation was inadmissible.

The defendant’s initial question to the deputy, asking whether the
deputy thought the defendant was going to prison, was admissible as a
spontaneous statement.

However, the remainder of the conversation – all prompted by the
deputy’s series of questions which were reasonably likely to elicit
incriminating responses, and without having specifically given the
defendant his Miranda rights again – was inadmissible. The deputy asked
the defendant:

• what he thought his sentence might be for his crimes;
• what the defendant’s interpretation of being reborn was;
• if the defendant saw himself as a bad person; and
• if the defendant knew the law regarding taking a life.

Again, although certain incriminating statements which the defendant
made during this conversation were not directly responsive to the deputy’s
questions, we conclude all of the defendant’s subsequent statements
logically were prompted by the deputy’s continuation of the conversation
about the crimes generally, as the record does not indicate any temporal
break by which we could consider the subsequent incriminating
statements to have been made spontaneously. Innis, 446 U.S. at 301.

c. Harmless Error Analysis

“Miranda violations are subject to a harmless error analysis.” Shelly,
262 So. 3d at 17 (citation omitted). “To affirm a conviction despite error
at trial, the [s]tate must prove beyond a reasonable doubt that the error
‘did not contribute to the verdict or, alternatively stated, that there is no
reasonable possibility that the error contributed to the conviction.’” Id. at
17-18 (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)). Under
DiGuilio, an appellate court’s focus is on the error’s overall effect “on the
trier of fact; not to substitute itself for the trier of fact and reweigh the
evidence.” Shelly, 262 So. 3d at 18 (citing DiGuilio, 491 So. 2d at 1139).
Further, as explained in DiGuilio:

[H]armless error analysis must not become a device
whereby the appellate court substitutes itself for the jury,
examines the permissible evidence, excludes the
impermissible evidence, and determines that the evidence of

22
 guilt is sufficient or even overwhelming based on the
permissible evidence ....

Overwhelming evidence of guilt does not negate the fact that
an error that constituted a substantial part of the prosecution’s
case may have played a substantial part in the jury’s
deliberation and thus contributed to the actual verdict reached,
for the jury may have reached its verdict because of the error
without considering other reasons untainted by error that
would have supported the same result.

....

... The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a device for
the appellate court to substitute itself for the trier-of-fact by
simply weighing the evidence. The focus is on the effect of the
error on the trier-of-fact. The question is whether there is a
reasonable possibility that the error affected the verdict. The
burden to show the error was harmless must remain on the
state. If the appellate court cannot say beyond a reasonable
doubt that the error did not affect the verdict, then the error is
by definition harmful.

491 So. 2d at 1136-39 (citation and internal indentations omitted;
emphasis added).

Applying DiGuilio here, the trial court’s errors in denying certain
portions of the defendant’s motion to suppress, in the manner which we
have addressed above, were not harmless. We acknowledge that, even
without the improperly admitted statements, the evidence proving the
defendant committed the murders and other crimes was overwhelming.
However, the DiGuilio test is not an “overwhelming evidence test.” Id. at
1139. The state has not proven “beyond a reasonable doubt that the
error[s] complained of did not contribute to the verdict or, alternatively
stated, that there is no reasonable possibility that the error[s] contributed
to the conviction.” Id. at 1135.

As the defendant has argued, “It is no exaggeration to say that [the
deputy’s] testimony [reciting the defendant’s incriminating statements]
was the centerpiece of the State’s case.” As the state highlighted during
its closing arguments, those elicited incriminating responses proved

23
and/or corroborated each of the crimes, and further undermined the
defendant’s insanity defense.

We emphasize the latter effect, that is, undermining the defendant’s
insanity defense, in greater detail. Pursuant to Florida Standard Jury
Instruction (Crim.) 3.6(a), the trial court instructed the jury, in pertinent
part:

An issue in this case is whether [the defendant] was insane
when the crime allegedly was committed.

A person is considered to be insane when:

1. [He] … had a mental infirmity, disease, or defect.

2. Because of this condition

a. [he] … did not know what [he] … was doing or its
consequences or

b. although [he] … knew what [he] … was doing and its
consequences, [he] … did not know it was wrong.

All persons are presumed to be sane. The defendant has
the burden of proving the defense of insanity by clear and
convincing evidence. …

In determining the issue of insanity, you may consider the
testimony of expert and nonexpert witnesses. The question
you must answer is not whether the defendant is insane
today, or has ever been insane, but whether instead the
defendant was insane at the time the crime allegedly was
committed.

….

Although insanity is a defense, mental or psychiatric
conditions not constituting insanity are not defenses to any
crime in this case. Unless there is clear and convincing
evidence that [the defendant] was insane at the time of the
crime(s) alleged, any evidence of mental illness, an abnormal
mental condition, or diminished mental capacity may not be
taken into consideration to show that [he] … lacked the
specific intent or did not have the state of mind essential to

24
 proving that [he] … committed the crime[s] charged [or any
lesser crime].

….

Fla. Stand. Jury Instr. (Crim.) 3.6(a).

Here, defense counsel presented one of the arresting officers, several of
the defendant’s family members, the defendant’s most recent employer,
and two expert witnesses, all in an effort to prove, by clear and convincing
evidence, the defendant had a mental infirmity, disease, or defect, and
because of this condition, he did not know what he was doing or its
consequences or did not know it was wrong.

However, the state, through the deputy’s testimony, presented the
several inadmissible incriminating statements addressed above, which
served as the state’s strongest evidence to show that the defendant knew
what he was doing and its consequences, and by his reasons for flight,
knew it was wrong (i.e., consciousness of guilt). Thus, the trial court’s
error in admitting these several inadmissible incriminating statements
was not harmless.

Conclusion

In sum, after the defendant reinitiated conversation, because the
deputy failed to specifically give the defendant his Miranda rights again
before asking him questions which were reasonably likely to elicit, and did
elicit, incriminating responses, which the state presented at trial in their
entirety and were not harmless, we are compelled to reverse the
defendant’s convictions and remand for a new trial on all charges. On
remand, the trial court shall exclude those incriminating statements which
we have described above as having been obtained in violation of the
defendant’s Miranda rights. The trial court may admit the other
incriminating statements which we have described above as having been
spontaneously made and therefore not obtained in violation of the
defendant’s Miranda rights.

Our reversal and remand for a new trial moots two other arguments
which the defendant raised on appeal, claiming the trial court erred in
denying his post-trial request to interview a juror, and in overruling his
discovery objection to a state witness’s late-disclosed PowerPoint
presentation. The three remaining arguments which the defendant raised
on appeal – claiming the trial court erred in overruling a “facts not in
evidence” objection during the psychologist’s testimony, in overruling a

25
hearsay objection during the psychiatrist’s testimony, and in denying
defense counsel’s request to add language to the insanity defense’s
standard jury instruction – all lack merit, without further discussion.

Reversed and remanded for new trial.

WARNER, J., concurs.
ARTAU, J., concurs in part and dissents in part with an opinion.

ARTAU, J., concurring in part and dissenting in part.

While I concur in part with the majority because this court’s decision
in Quarles v. State, 290 So. 3d 505 (Fla 4th DCA 2020), requires us to
conclude that the trial court erred in denying suppression of the
statements determined by the majority to be inadmissible, I dissent from
the majority’s reversal of the defendant’s convictions because the
defendant’s inadmissible statements were merely cumulative to the other
properly admitted evidence at trial, making the trial court’s error harmless.

Quarles held that law enforcement must “re-read the Miranda rights
before commencing further conversation” with a suspect after he or she
has reinitiated communication with law enforcement following an initial
Miranda rights invocation. Id. at 507. However, I do not believe the
Quarles holding was required by our supreme court’s decision in Shelly v.
State, 262 So. 3d 1 (Fla. 2018). Instead, I agree with Justice Lawson that
what the Shelly majority articulated as having been adopted in Welch v.
State, 992 So. 2d 206 (Fla. 2008), was “dicta” because “the supposed Welch
requirement that police remind the suspect of Miranda rights” was “never
raised [by the defendant in Shelly] as an issue for review because it was
not implicated by the facts of the case (as the police did restate the Miranda
warnings).” See Shelly, 262 So. 3d at 24 (Lawson, J., dissenting)
(explaining how Welch applied but did not expand upon the “totality of the
circumstances” test set forth in Oregon v. Bradshaw, 462 U.S. 1039, 1044-
45 (1983), and therefore Shelly could not have adopted a new standard
“under the guise of a jurisdictional analysis”).

Thus, while I agree that the panel in this case is bound by Quarles, I
would certify the following question to the supreme court as being one of
great public importance:

DID SHELLY V. STATE, 262 SO. 3D 1 (FLA. 2018), ABANDON
THE “TOTALITY OF THE CIRCUMSTANCES” TEST SET
FORTH IN OREGON V. BRADSHAW, 462 U.S. 1039 (1983), IN
FAVOR OF THE REQUIREMENT RECOGNIZED IN QUARLES

26
 V. STATE, 290 SO. 3D 505 (FLA. 4TH DCA 2020), THAT LAW
ENFORCEMENT MUST RE-READ MIRANDA RIGHTS
BEFORE COMMENCING FURTHER INTERROGATION WITH
A SUSPECT WHO HAS RE-INITIATED COMMUNICATION
SUBSEQUENT TO INVOCATION OF HIS OR HER MIRANDA
RIGHTS?

Moreover, I dissent because in my view the defendant’s convictions
should be affirmed based on application of the well-established harmless
error test set forth in State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986),
which “requires a close examination of the permissible evidence on which
the trier of fact could have legitimately relied, as well as an even closer
examination of the impermissible evidence which might have possibly
influenced the verdict.” Erickson v. State, 565 So. 2d 328, 334 (Fla. 4th
DCA 1990) (citing DiGuilio, 491 So. 2d at 1138).

In considering whether error is harmful, “[i]t is well settled that even
incorrectly admitted evidence is deemed harmless and may not be grounds
for reversal when it is essentially the same as or merely corroborative of
other properly considered testimony at trial.” Id.; see also Hojan v. State,
3 So. 3d 1204, 1210 (Fla. 2009) (“[W]here the evidence introduced in error
was not the only evidence on the issue to which the improper evidence
related, the introduction can be harmless.”); cf. Anderson v. State, 230 So.
3d 175, 177 (Fla. 4th DCA 2017) (erroneous admission of hearsay
testimony could not be considered harmless because it “was the only
evidence” tying the victim’s description of the perpetrator’s gun to the
defendant’s gun).

As acknowledged by the majority in its harmless error analysis, “even
without the improperly admitted statements, the evidence proving the
defendant committed the murders and other crimes was overwhelming.”
Thus, the defendant’s inadmissible statements served only to further
corroborate the other overwhelming evidence that he had committed the
charged crimes. Nonetheless, the majority concludes that “several
inadmissible incriminating statements” were not harmless because they
“show that the defendant knew what he was doing and its consequences,
and by his reasons for flight, knew it was wrong (i.e., consciousness of
guilt).” Therefore, the majority concludes that the trial court’s failure to
suppress the inadmissible statements cannot be considered harmless as
they negated the defendant’s claim that he was insane at the time of the
offenses by demonstrating his appreciation of the wrongfulness and
criminality of his actions.

27
 However, the majority also concludes, and I agree, that the statements
made by the defendant on December 19, 2015 were admissible, including
his statements lamenting having to go to jail for life at such a young age:
“Dude, I’m f*****. I feel like I just f***** my life up. Dude, I’m just f*****. I
know what I did. I’m going to prison for my whole f****** life.” (emphasis
added). By the time the inadmissible statements were erroneously
presented, the jury had already heard the defendant’s properly admitted
December 19, 2015 statements which negated his claim that he was
insane at the time of the offenses by demonstrating his appreciation of the
wrongfulness and criminality of his actions.

Accordingly, the trial court’s error in not suppressing the defendant’s
subsequent inadmissible statements was harmless because they were
merely cumulative to the properly admitted evidence, including the
defendant’s statements made on December 19, 2015, establishing the
specifics of the crimes and negating the defendant’s insanity defense. See,
e.g., Blanton v. State, 978 So. 2d 149, 157 (Fla. 2008) (erroneous
admission of evidence that was “merely cumulative” to “properly admitted
evidence” was harmless under DiGuilio standard); Casica v. State, 24 So.
3d 1236, 1241 (Fla. 4th DCA 2009) (erroneous admission of evidence “was
harmless” where evidence “was cumulative” to other “properly admitted”
evidence); Liscinsky v. State, 700 So. 2d 171, 172 (Fla. 4th DCA 1997)
(admission of challenged testimony, if erroneous, was harmless where
“testimony was merely cumulative of several other witnesses’ testimony at
trial”).

I therefore respectfully dissent from the majority’s conclusion that the
defendant is entitled to a new trial based on the trial court’s error in
denying suppression of the cumulative inadmissible statements.

* * *

Not final until disposition of timely filed motion for rehearing.

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