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followed the blood trail to unit 1, and then ran down the hallway in unit 1 where he crashed through the doorway separating the rear-office and warehouse areas. Once inside the warehouse area, he discovered both victims. According to Rigterink, Jarvis was still alive and reached up and grabbed Rigterink's hand and arm and then slumped back to the floor. Rigterink then heard what he thought were car doors slamming shut, so he ran outside. As he exited unit 1, he saw a dirty white van drive away. When the van drove past, Rigterink made eye contact with the driver and a passenger. The driver was a taller white male, while the passenger was a shorter, stockier, shirtless man with tattoos on his upper body. Rigterink also thought that he saw movement in the rear of the van, so (in his mind) there may have been a third person in the vehicle.


In an apparent attempt to explain his unorthodox response to discovering two very bloody murder victims (one of whom was an acquaintance or friend), Rigterink consistently described himself as "freaked out," and explained that he had never encountered this type of situation. He never called 911 and never told anyone about the gory, blood-filled scene that he had discovered because on the 24th he was still "freaked out," and on the 25th, Mullins allegedly visited Rigterink at his condo and issued the death threats.


Under oath, Rigterink denied: (1) owning a black hunting knife; (2) having a bag to transport marijuana; (3) owning a black Jansport backpack; (4) changing







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his clothes or throwing his clothes away; (5) carrying a knife or attacking either of the victims; (6) injuring his wrist; and (7) ever having been in a fight or struggle.


Rigterink further claimed that the detectives suggested many of the details and evidentiary items that he identified and discussed during the interrogation.


Rigterink testified that he simply "went along with" what the police wanted to hear. In his mind, if he concocted enough stories, the PCSO detectives would then see through his intentional façade and would conduct a thorough examination, which would exonerate him without requiring him to implicate Marshall Mark Mullins. In the words of Rigterink:


Well, I didn't do it, and I figured they'd be able to tell that I had nothing to do with it. As far as the knife, I never had a knife. I never got in a confrontation with Jeremy. . . . I figured the system would work.



In contrast to his claim that he believed the detectives would simply see though his stories, Rigterink also testified that he wanted to provide enough detail "to make it believable." Further, despite the apparently very real, very serious death threats that Mullins delivered on behalf of himself and a dangerous group of unnamed drug dealers, Rigterink had consistently provided Mullins' name to the investigating detectives when they asked him to identify additional associates of Jarvis who might have information relevant to his murder. In fact, the name "Marshall Mark Mullins" was among the first pieces of information that Rigterink provided to PCSO detectives during their first visit to speak with him on







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September 25, 2003. Moreover, Rigterink provided Mullins' name to law enforcement on the night of September 25 notwithstanding the fact that he claims Mullins issued the death threats that very morning.


Much of Rigterink's trial testimony was also inconsistent with the testimony of other witnesses. For example, his ex-wife testified that he always kept a large military knife with a curved tip and a ten- or eleven-inch black blade lodged between their mattress and box spring.16 Also, both the male and female eyewitnesses testified that one man--not a group of two or three men--pursued Jarvis. An additional concern with Rigterink's testimony involved the amount of time between when the PCSO received the 911 calls (close to 3:08 p.m.)17 and when the first responders arrived on scene (close to 3:18 p.m.), which would have made it difficult for Rigterink to have arrived after the murders occurred and to have then explored units 5 and 1 before "freaking out" and leaving all before law enforcement arrived. Finally, on cross-examination, Rigterink was not able to explain why he never called out to his friend Jarvis when he entered unit 1--where the female eyewitness happened to be on the phone with the 911 dispatcher--or









16. Despite repeated searches, the PCSO was never able to recover this weapon.





17. The female eyewitness also testified that the scuffling and banging in unit 1 continued for approximately one minute while she was on the phone with the 911 dispatcher, which pushes the relevant time ahead to approximately 3:09



p.m.









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why he felt compelled to charge down a blood-soaked hallway and crash through a door when, by his own admission, he was not there to render aid and was unsure what had occurred in units 1 and 5.





D. Rigterink's Claims on Appeal






Rigterink's primary claim on appeal is his challenge to the admissibility of the single videotaped account of his activities and whereabouts on September 24,




2003. He does so based on the defective right-to-counsel warning provided by the interrogating detectives. In addition, he raises six other claims: (1) the trial court erred in excluding additional testimony that corroborated Rigterink's testimony concerning the violent nature of the drug trade and Mullins' alleged reputation for violence within this "community"; (2) Florida's capital-sentencing scheme is unconstitutional because the judge rather than the jury determines the sentence and the jury's recommendation need not be unanimous; (3) automatic aggravators should not bar the application of Ring v. Arizona, 536 U.S. 584 (2002), to Florida's capital-sentencing scheme; (4) Florida's standard penalty-phase jury instructions unconstitutionally shift the burden to the defendant to prove that mitigating factors outweigh aggravating factors; (5) Florida's standard penalty- phase jury instructions unconstitutionally denigrate the role of the jury in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985); and (6) death by lethal injection constitutes cruel and unusual punishment.







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Through prior decisions, we have rejected the majority of claims that Rigterink asserts on appeal.18 In addition, Rigterink did not object below to the penalty-phase jury instructions or to Florida's lethal-injection protocol; hence, these claims are unpreserved for purposes of direct appeal. See, e.g., Walls v. State, 926 So. 2d 1156, 1180 (Fla. 2006); Harrell v. State, 894 So. 2d 935, 941 (Fla. 2005). Finally, because the ultimate resolution of the Miranda claim is determinative of this case, we address only that issue.


With regard to the Miranda claim, we hold: (i) that Rigterink was in custody for purposes of Miranda; (ii) that the right-to-counsel warning he received was constitutionally deficient; and (iii) that the admission and publication of his videotaped confession was harmful error. As a result of this holding, we reverse Rigterink's convictions and sentences and remand for a new capital trial.


II. ANALYSIS














18.



See, e.g., Frances v. State, 970 So. 2d 806, 822 (Fla. 2007) (rejecting assorted Ring claims), cert. denied, 128 S. Ct. 2441 (2008)); Taylor v. State, 937 So. 2d 590, 599 (Fla. 2006) (noting that, time and again, this Court has "rejected the argument that the standard penalty phase jury instructions impermissibly shift the burden to the defense to prove that death is not the appropriate sentence"); Mansfield v. State, 911 So. 2d 1160, 1180 (Fla. 2005); Combs v. State, 525 So. 2d 853, 855-58 (Fla. 1988) (rejecting Caldwell challenges to Florida's standard penalty-phase jury instructions); Ventura v. State, No. SC08-60, at 13 (Fla. Jan. 29, 2009); Lightbourne v. McCollum, 969 So. 2d 326, 349-53 (Fla. 2007); Schwab v. State, 969 So. 2d 318, 321-25 (Fla. 2007) (upholding Florida's current lethal- injection protocol in the face of Eighth Amendment challenges based upon either a substantial, foreseeable, or unnecessary-risk standard).








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A. Introduction--the Evolution of Miranda's Custody Framework






In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that the Self-Incrimination Clause of the Fifth Amendment19 applies to custodial interrogation. This Court has generally followed federal Fifth Amendment precedent in interpreting article I, section 9 of the Florida Constitution. See, e.g., Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007) ("Article I, section 9 of the Florida Constitution provides in pertinent part that `[n]o person shall . . . be compelled in any criminal matter to be a witness against oneself.' This fundamental right is mirrored in the Fifth Amendment to the United States Constitution."). However, unlike article I, sections 12 ("Searches and seizures") and 17 ("Excessive punishments"), section 9 does not contain a proviso that we must follow federal precedent with regard to the right against self-incrimination.


Cf. Traylor v. State, 596 So. 2d 957, 962 (Fla. 1992) ("When called upon to decide matters of fundamental rights, Florida's state courts are bound under federalist principles to give primacy to our state Constitution and to give independent legal import to every phrase and clause contained therein.").


Thus, in this context, the federal Constitution sets the floor, not the ceiling, and this Court retains the ability to interpret the right against self-incrimination








19. Previously, in Malloy v. Hogan, 378 U.S. 1, 6 (1964), the Court held that the Self-Incrimination Clause applies to the states through section 1 of the Fourteenth Amendment.








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afforded by the Florida Constitution more broadly than that afforded by its federal counterpart. See, e.g., In re T.W., 551 So. 2d 1186, 1191 (Fla. 1989) ("State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law. . . . [W]ithout [independent state law], the full realization of our liberties cannot be guaranteed." (quoting William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977))). This Court is the ultimate "arbiter[] of the meaning and extent of the safeguards provided under Florida's Constitution." Busby v. State, 894 So. 2d 88, 102 (Fla. 2004).


To protect this right within the "incommunicado" confines of such questioning, the United States Supreme Court created a prophylactic framework comprised of a standard list of four warnings:


Prior to any questioning, [1] the person must be warned that he has a right to remain silent, [2] that any statement he does make may be used as evidence against him, and [3] that he has a right to the presence of an attorney, [4] either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.


Miranda, at 444 (emphasis supplied). These warnings are not themselves federal constitutional rights;20 rather, they are required "to dispel the compulsion inherent











20.

But see Dickerson v. United States, 530 U.S. 428, 432, 444 (2000) (holding that Miranda was "a constitutional decision," which "may not be in effect







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in custodial surroundings." 384 U.S. at 458; see also Michigan v. Tucker, 417 U.S. 433, 444 (1974).21 If the State cannot demonstrate (1) that its officers issued these warnings prior to custodial interrogation and (2) that the defendant executed a knowing, intelligent, and voluntary waiver22 of his or her associated rights, then it "may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant" in its case in chief. Miranda, 384 U.S. at 444; see also Oregon v. Elstad, 470 U.S. 298, 307 (1985) (statements obtained in violation of Miranda are available to impeach a defendant's trial testimony). "The Miranda exclusionary rule . . . serves the Fifth Amendment [but] sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a [traditional] Fifth Amendment [voluntariness] violation." Elstad, 470 U.S. at




306.


The dictates of Miranda apply exclusively to "in-custody interrogation."


Miranda, 384 U.S. at 441-42 (emphasis supplied); see also Jones v. State, 748 So.


overruled by an Act of Congress"; "Miranda announced a constitutional rule that Congress may not supersede legislatively" (emphasis supplied)).





21. "[T]he requirement of giving Miranda warnings before custodial interrogation is a prophylactic rule intended to ensure that the uninformed or uneducated in our society know they are guaranteed the rights encompassed in the warnings." Davis v. State, 698 So. 2d 1182, 1189 (Fla. 1997).





22. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (articulating the Sixth Amendment right-to-counsel waiver standard, which the Miranda Court subsequently adopted in part with regard to the waiver of the implicitly derived Fifth Amendment right to counsel).







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2d 1012, 1019 (Fla. 1999) ("Miranda only applies when a defendant is subject to custodial interrogation." (emphasis supplied)). Further, there is a limited public- safety exception to the rule that law-enforcement officers must first Mirandize custodial subjects prior to interrogation. See New York v. Quarles, 467 U.S. 649, 655-56 (1984) (issuing this holding within the context of an on-scene arrest of a rape suspect who had discarded a firearm in or near a grocery store). For Miranda purposes, "custody" has a disjunctive meaning: "[W]e mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384




U.S. at 444 (emphasis supplied). Based on this definition, Miranda applies to a broader range of situations than custodial interrogation within police stations. See,




e.g., Mathis v. United States, 391 U.S. 1, 3-4 (1968) (holding that Miranda applied when an IRS agent questioned a defendant who was already incarcerated in state prison concerning an unrelated offense); Orozco v. Texas, 394 U.S. 324, 326-27 (1969) (holding that Miranda applied to intense police questioning of a defendant within his own bedroom).


Following Miranda, commentators and lower courts attempted to determine the proper parameters of measuring whether an interrogated suspect is in "custody," and thus entitled to Miranda warnings. See, e.g., United States v. Hall, 421 F.2d 540, 543 (2d Cir. 1970) (citing Kenneth W. Graham, What Is "Custodial







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Interrogation?": California's Anticipatory Application of Miranda v. Arizona, 14




U.C.L.A. L. Rev. 59, 114-15 (1966), and Yale Kamisar, "Custodial Interrogation" Within the Meaning of Miranda, in Criminal Law and the Constitution 339-40 (1968), as examples of relevant scholarship). Much of this early debate centered on the meaning of Miranda's fourth footnote:


This is what we meant in Escobedo[ v. Illinois, 378 U.S. 478, 490-91 (1964) (a Sixth Amendment right-to-counsel decision),] when we spoke of an investigation which had focused on an accused.


Miranda, 384 U.S. at 445 n.4 (emphasis supplied); see also 2 Wayne R. LaFave et al., Criminal Procedure § 6.6 (a), at 720-23 (3d ed. 2007). The Court eventually ended this debate in Beckwith v. United States, 425 U.S. 341 (1976), where it rejected a taxpayer's suggestion that he was "in custody" simply because IRS


Intelligence Division agents had "focused" upon him as a suspect in a criminal tax- fraud investigation. The Court explained that "Miranda implicitly defined `focus,' for its purposes, as `questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,' " which meant that "focus" alone was insufficient to trigger the requirement that the defendant receive Miranda warnings. Beckwith, 425 U.S. at 347 (emphasis supplied) (quoting Miranda, 384 U.S. at 444).


The Court next faced a two-fold question with regard to defining "custody" for purposes of Miranda: (1) whether the test is objective or subjective; and (2)







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whose perspective--that of law enforcement or that of the defendant--is the proper point of reference. By this time, the better-reasoned decisions from the lower federal courts had already settled on an objective test, which is based on the perspective of the defendant. See, e.g., Hall, 421 F.2d at 544-45 ("The test must thus be an objective one. Clearly the [High] Court meant that something more than official interrogation must be shown. . . . [I]n the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so."


(emphasis supplied)).


The United States Supreme Court explicitly adopted this objective test in Berkemer v. McCarty, 468 U.S. 420 (1984), where it held that




[a] policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.


Id. at 442 (emphasis supplied).23 The Court later reiterated this position in Stansbury v. California, 511 U.S. 318 (1994), by stating that its "decisions make







23. In that same opinion, the Court held that Miranda did not apply to typical traffic stops, which it assumed to be brief, non-interrogative events. However, the Court cautioned that "[i]f a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him `in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." Berkemer, 468 U.S. at 440 (emphasis supplied).
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