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The first Ramirez factor addresses the manner in which law enforcement summoned the defendant for questioning and what objective impetus caused the defendant to attend. See 739 So. 2d at 574. Here, Rigterink voluntarily traveled with his parents to the BCI office to provide "elimination prints" and to speak with PCSO detectives concerning his activities and whereabouts on the day of the murders. Rigterink was not arrested and was not restrained for purposes of officer safety. Moreover, he rode with his parents to the BCI office. This factor militates in favor of the conclusion that Rigterink was not in custody for purposes of Miranda.





b. Rigterink was Questioned in a Small Interrogation Room for Several



Hours by a Group of Detectives who Repeatedly Accused him of Lying



Concerning His Activities and Whereabouts on the Day of the Murders






The second Ramirez factor is "the purpose, place, and manner of the interrogation." 739 So. 2d at 574. This factor "is, of course, a multifaceted factor which encompasses the circumstances . . . in which the interrogation is conducted."


State v. Pitts, 936 So. 2d 1111, 1126 (Fla. 2d DCA 2006). The detectives' purpose for requesting that Rigterink accompany them to the BCI was two-fold: (1) to secure his "elimination prints"; and (2) to speak with him regarding his activities and whereabouts on the day of the murders. The questioning was conducted in a small, sound-insulated polygraph room, where a group of at least four investigators rotated in and out of the room to question Rigterink (Detectives Connolly,







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Raczynski, Rench, and Major Martin). At least two detectives were with Rigterink at all times. The six-by-eight foot room contained three chairs and a small desk.


In total, the interrogation continued for at least four hours and for perhaps as much as 6.5 hours (there was no specific testimony with regard to how much time elapsed between the close of questioning and when Rigterink was arrested at 5:30




p.m.). The first 3.5 hours of questioning were not recorded. It is clear that Detective Connolly only turned on the recording device after he was certain that Rigterink would inculpate himself. Importantly, the detectives repeatedly accused Rigterink of lying with the goal of obtaining a factual summary that explained the evidence and explained the crime scene and explained Rigterink's actions as far as his unusual behavior. That is the information law enforcement was seeking.


While the questioning of a suspect within the confines of a police station does not necessarily convert a voluntary interview into custodial interrogation,29 the manner in which these detectives conducted Rigterink's questioning--which included repeated accusations and confrontations over several hours that he was lying and was somehow involved in these murders (including confrontation with inculpatory evidence)--militates in favor of the conclusion that a reasonable








29. See, e.g., Roman v. State, 475 So. 2d 1228, 1231 (Fla. 1985) ("That an interrogation takes place at a station house does not by itself transform an otherwise noncustodial interrogation into a custodial one." (citing Oregon v. Mathiason, 429 U.S. 492 (1977)) (emphasis supplied)).









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person in Rigterink's position would not have believed that he or she was free to leave the BCI office or to terminate questioning. Many Florida decisions that have determined the defendant was not in custody have emphasized that the interviewing detectives did not directly contradict the defendant's story or accuse the defendant of lying. See, e.g., Meredith v. State, 964 So. 2d 247, 251 (Fla. 4th DCA 2007) (citing Stansbury v. California, 511 U.S. 318 (1994); Pitts, 936 So. 2d at 1128). This is not such a case.


Furthermore, while lower-court case law has recently focused on the absence of force during "voluntary" police interviews,30 Miranda itself deemphasized the importance of this consideration:


Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, "Since Chambers v. Florida, 309 U.S. 227, this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S. 199, 206 (1960). Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.



Miranda, 384 U.S. at 448 (emphasis supplied). Thus, this renewed focus on the lack of physical compulsion or force is overemphasized, and actually overlooks one of the central premises of Miranda--official compulsion is often








30. See, e.g., Pitts, 936 So. 2d at 1126 ("As to the manner of the interrogation, the record is clear that the officers did not in any way subject Pitts to force. There is no indication that the officers ever touched Pitts. He was never handcuffed, and he was never locked in a room." (emphasis supplied)).







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psychological, not physical. Hopefully, our civilized society has progressed far beyond the use of physical mistreatment in connection with the investigative endeavors of law enforcement.


The presence of force would certainly indicate custody, but its absence does not necessarily--or even often--indicate that a reasonable person would feel free to simply get up and leave the interview room. See, e.g., Mansfield v. State, 758 So. 2d 636, 644 (Fla. 2000); Caso v. State, 524 So. 2d 422, 424 (Fla. 1988) (each decision held that the defendant was in custody without ever mentioning or analyzing the absence of physical force). Further, we doubt that the State would ever contend that a suspect was not in custody if a law-enforcement officer physically compelled the suspect's incriminating statements (not to mention that this would raise traditional Fifth Amendment voluntariness concerns even if Miranda had never been decided).


In sum, "the purpose, place, and manner" of Rigterink's interrogation indicate that a reasonable person would not have felt that he or she was free to simply terminate questioning and leave the premises. A four-plus-hour-long interview or interrogation, which included repeated accusations of lying and dissembling, and confrontation with incriminating evidence, all of which took place in a small sound-insulated interview room, with a closed door, in the presence of at least two interrogating detectives, is not conducive to a finding that







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the defendant was free to terminate the questioning process and leave the station house or that a "reasonable person" would have felt free to simply walk out.





c. Rigterink was Confronted with Evidence "Strongly Suggesting" his Guilt--



the Bloody Latent Fingerprints Recovered from the Crime Scene






While not singularly dispositive, this is one of, if not the, weightiest Ramirez factor. See Pitts, 936 So. 2d at 1127-28. Similar to Mansfield, in which we held that the defendant was in custody, Rigterink was "interrogated by [several] detectives at the police station, he was never told he was free to leave, he was confronted with evidence strongly suggesting his guilt, and he was asked questions that made it readily apparent that the detectives considered him the prime, if not the only, suspect." 758 So. 2d at 644. As the Second District observed in Pitts:


A reasonable person understands that the police ordinarily will not set free a suspect when there is evidence "strongly suggesting" that the person is guilty of a serious crime. That does not mean that whenever a suspect is confronted with some incriminating evidence, the suspect is in custody for purposes of Miranda. The significance of this factor turns on the strength of the evidence as understood by a reasonable person in the suspect's position as well as the nature of the offense. If a reasonable person in the suspect's position would understand that the police have probable cause to arrest the suspect for a serious crime such as murder or kidnapping, that circumstance militates strongly toward the conclusion that the suspect is in custody. [However,] [i]f the suspect has been advised that he is not under arrest and is free to leave, the significance of this circumstance, of course, would be diminished.


936 So. 2d at 1128 & n.8 (emphasis supplied) (footnotes and internal division omitted).








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Other than a murder weapon or DNA evidence tying the killer to the victims, it is difficult to imagine a more incriminating evidentiary item than one's bloody fingerprints being discovered at the scene of the murders. Along with, and in consideration of, all other factors, a reasonable person in Rigterink's position certainly would not have felt free to leave police custody once the detectives disclosed this fingerprint match. Unlike the "potentially self-serving accusation[s]" of cosuspects or codefendants involved in cases such as Pitts, this fingerprint match was very strong physical, albeit circumstantial, evidence of Rigterink's guilt.





d. Rigterink Was Not Informed That He Was Free to Leave






The fourth and final Ramirez factor is whether the questioning detectives informed the defendant that he or she was not under arrest and was free to leave.


See 739 So. 2d at 574. During the suppression hearing, Detective Connolly conceded that neither he nor any of the other detectives informed Rigterink that he was not under arrest and was free to leave. In response, the State conversely stresses that none of the detectives told Rigterink that he was under arrest or that he had to remain; however, in Ramirez, we were not concerned with this rephrased inquiry. But see Pitts, 936 So. 2d at 1124-25 (engaging in just such a rephrased, converse inquiry). The relevant question is "whether the suspect [wa]s informed that he or she [wa]s free to leave the place of questioning," not whether the







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defendant was informed that he or she was required to remain. Ramirez, 739 So. 2d at 574. The manner in which we framed the inquiry in Ramirez makes abundant sense because Miranda presumes that incommunicado station-house questioning inherently entails some level of compulsion, which the interrogating officers are always free to dispel by informing or reminding the defendant that the interview is strictly voluntary and that the defendant remains free to terminate questioning and leave the premises.


Decisions from the district courts of appeal are replete with examples of conscientious officers reminding the defendant of the voluntary nature of the interview and his or her ability to leave. See, e.g., Meredith, 964 So. 2d at 249, 252 (defendant informed that he was not under arrest and that the interview was "strictly voluntary"); State v. Rodriguez, 785 So. 2d 759, 760-61 (Fla. 3d DCA 2001) (defendant informed that "he was free to leave at any time"). None of the detectives so informed Rigterink. If an interview is truly "voluntary," then it is difficult to understand why any interviewing detective would not undertake this simple expedient, which largely avoids the risk of rendering any unwarned statements inadmissible under Miranda. This is so because a reviewing court is far less likely to find that a reasonable person would have believed that he or she was in custody if the police specifically informed him or her that the interview was strictly voluntary and that he or she was--and continually remained--free to leave







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at any time. See Pitts, 936 So. 2d at 1128 n.8. Here, while not singularly dispositive, this factor militates in favor of finding that Rigterink was in custody for Miranda purposes. See Roman, 475 So. 2d at 1231.





e. Conclusion: Rigterink was in Custody for Miranda Purposes




Based on the "totality of circumstances," we hold that Rigterink was in custody immediately prior to and during his videotaped interrogation. Our custody determination correspondingly triggers the requirement that Rigterink have received constitutionally sufficient Miranda warnings. See, e.g., State v. Powell, 33 Fla. L. Weekly S778, S779, 2008 WL 4379596, at *3 (Fla. Sept. 29, 2008) ("To ensure compliance with the privilege against self-incrimination, the United States Supreme Court outlined in Miranda . . . four procedural safeguards that must be employed to protect the privilege when an individual has been deprived of freedom during a custodial interrogation." (emphasis supplied)).


ii. Rigterink's Right-to-Counsel Warning was Defective Because it



Stated that He Only Had a "Right to Have an Attorney Present Prior to



Questioning"




We recently addressed a similar issue in Powell, where we held:


The [Miranda] Court unequivocally said that "an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation." [Thus,] the right "to talk to a lawyer before answering any . . . questions" constitutes a narrower less functional warning than that required by Miranda. Both Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning.







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33 Fla. L. Weekly at S780-82, 2008 WL 4379596, at *3-*10 (emphasis supplied) (quoting Miranda, 384 U.S. at 471). While Miranda warnings need not be a "virtual incantation of the precise language contained in the Miranda opinion," California v. Prysock, 453 U.S. 355, 355 (1981), they must reasonably convey the quintessential essence of the rights described by the United States Supreme Court, which unequivocally includes the right to "the presence" of an attorney "during [not merely prior to, before, or after] interrogation." Miranda, 384 U.S. at 444, 466, 470, 479 (emphasis supplied); see also, e.g., Prysock, 453 U.S. at 361 ("It is clear that the police in this case fully conveyed to respondent his rights as required by Miranda. He was told of his right to have a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at no cost if he could not afford one." (emphasis supplied)). We steadfastly adhere to our conviction that the law-enforcement personnel of this state are more than capable of administering Miranda warnings that accurately reflect the law, and further, the vast majority of Florida's law-enforcement agencies already possess and provide adequate warnings. This pervasive use of Miranda warnings that fully inform a person of his or her right to an attorney prior to and during questioning confirms that our holding in Powell does not unnecessarily burden the proper investigation of crime.


Rather, providing an adequate rights warning constitutes a minimal obligation of law enforcement, which guarantees that the purposes of Miranda are satisfied and







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that the relevant rights under the federal Fifth Amendment and article I, section 9 of the Florida Constitution are satisfactorily communicated. As the United States Supreme Court has observed, Miranda and its rights-warning list have "become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States, 530 U.S. 428, 443 (2000). This firmly established aspect of American legal and popular culture is thus particularly ill-suited to undue experimentation concerning the essential nature of the conferred and communicated rights.


Here, in comparison to Powell, the PCSO detectives provided Rigterink with a similarly defective right-to-counsel warning both verbally and in writing.


Specifically, the relevant portion of the warning stated that Rigterink had "the right to have an attorney present prior to questioning." (Emphasis supplied.) Therefore, Powell directly controls this issue. The right-to-counsel warning was materially deficient because it did not accurately and clearly convey one of the central components of Miranda: The custodial subject enjoys a right to the presence of counsel during, not merely before, a custodial interrogation. See Prysock, 453




U.S. at 361; Miranda, 384 U.S. at 444, 466, 470, 479; Powell, 33 Fla. L. Weekly at S780, S782, 2008 WL 4379596, at *3, *9-*10. As we held nearly seventeen years ago under our state Constitution:





[T]o ensure the voluntariness of confessions, the Self-Incrimination Clause of Article I, Section 9, Florida Constitution, requires that prior







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to custodial interrogation in Florida suspects must be told that they have a right to remain silent, that anything they say will be used against them in court, that they have a right to a lawyer's help, and that if they cannot pay for a lawyer one will be appoint to them. This means that the suspect has the right to consult with a lawyer before being interrogated and to have the lawyer present during interrogation.


Traylor v. State, 596 So. 2d 957, 965-66 & n.13 (Fla. 1992) (emphasis supplied).


iii. The Admission of the Taped Portion of Rigterink's Interrogation



Constituted Harmful Error




Despite our holdings above that (i) Rigterink was in custody during the videotaped portion of his interrogation and (ii) the right-to-counsel warning was materially deficient, the erroneous admission of the videotaped confession during Rigterink's trial remains subject to harmless-error review. See, e.g., Mansfield, 758 So. 2d at 644 ("The erroneous admission of statements obtained in violation of Miranda rights is subject to harmless error analysis." (quoting Caso, 524 So. 2d at 425)); Alvord v. Dugger, 541 So. 2d 598, 600-01 (Fla. 1989) (substantially similar). To affirm a conviction despite error at trial, the State 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." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).


In this case, we conclude that the admission and presentation of the videotaped portion of Rigterink's interrogation during his capital trial was harmful error. Although each of the three prior inconsistent stories that Rigterink provided







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would remain admissible to demonstrate his complete dishonesty, and despite the fact that there is circumstantial evidence demonstrating that he committed these murders, we cannot say that the erroneously admitted videotape did not "contribute to" 31 his convictions. There is evidence that on October 15, 2003, pursuant to the written consent of Rigterink's father, PCSO CSTs searched his father's 1992 blue Toyota pickup--which Rigterink had previously admitted that he was driving on the day of the murders. Inside the truck, the CSTs discovered large amounts of victim Jarvis's blood. Relatedly, Rigterink could not be excluded as the donor of the foreign organic material discovered under Jarvis's fingernails. During the period when PCSO investigators were attempting to eliminate Jarvis's known associates as suspects, Rigterink barricaded himself inside his home, concealed himself on his parents' roof for at least two days, and repeatedly failed to show up for scheduled fingerprint-examination appointments. The male and female eyewitnesses provided descriptions that were consistent with Rigterink's appearance and physical characteristics on the day of the murders. The female eyewitness also identified Rigterink from a PCSO photograph spread as the suspect who most resembled the attacker. Two to three days following the murders, Rigterink visited his barber for a "drastically" different haircut. Rigterink's ex- wife testified that he always kept a black military knife with a ten-to-eleven-inch







31.



DiGuilio, 491 So. 2d at 1135.







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blade lodged between their mattress and box spring. Despite repeated searches, PCSO investigators were never able to locate this knife. During the guilt and penalty phases, the medical examiners testified that the victims' stab wounds, cuts, and abrasions were consistent with injuries caused by just such a weapon.


Rigterink could never provide a verifiable alibi. The State provided clear evidence of Rigterink's motive: he was addicted to drugs, but lacked the funds necessary to feed his addiction, so he attempted to rob Jarvis, his dealer, but ended up killing him along with an innocent bystander. Finally, Rigterink's fingerprints were discovered in blood at the crime scene on the inside portion of Jarvis's front door.


In addition, a fingerprint analyst testified that these bloody prints were consistent with the print donor's fingers having already been covered in blood and the donor then touching the door, rather than the surface of the door having blood on it with the print donor merely touching the freshly deposited blood.




In sum, the evidence suggests that Rigterink has entangled himself in a web of deceit and these circumstances may indicate guilt. However, our harmless-error test is not guided by a sufficiency-of-the-evidence, correct-result, not-clearly- wrong, substantial-evidence, more-probable-than-not, clear-and-convincing, or overwhelming-evidence test. See Diguilio, 491 So. 2d at 1139. If any of these were the proper test, we might agree that the admission and publication of Rigterink's videotaped interrogation constituted harmless error. The simple







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answer to the simple question of whether there is competent, substantial evidence to support the charges that Rigterink committed these crimes is "Yes." However, the actual question that we must ask--and the constitutional protection that we must address--are not so simple. We have specifically rejected sufficiency-of- the-evidence approaches through our decision in Diguilio, and we will not recede from established precedent by, on the one hand, paying lip service to its requirements and then, on the other, employing reasoning that would be clearly contrary to the pertinent legal standard. See id. Here the videotaped portion of Rigterink's October 16, 2003, interrogation was not just evidence, it was utilized as the centerpiece of the State's opening statement, case-in-chief, and closing argument. Further, the very last evidentiary item that the jury specifically requested and considered as it conducted its deliberations was this same videotaped statement.


Under a proper analysis, we conclude that the jury most assuredly, and very seriously, considered and substantially included Rigterink's videotaped interrogation in reaching its verdicts. Therefore, the erroneous publication and admission of this videotape during Rigterink's capital trial "contributed to"32 his convictions. Any other holding with regard to this issue would elicit alternating images of an ostrich with its head buried firmly in the sand or the proverbial "three







32.


Diguilio, 491 So. 2d at 1135.
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