[align=left]
- 66 -

wise monkeys," steadfastly refusing to see, hear, or speak of any transgression. In contrast, we reverse Rigterink's convictions and sentences and remand for a new capital trial during which this videotape is excluded. This is not because Rigterink is innocent;33 rather, it is because the rules established to guard fundamental constitutional protections were not followed, and, under these facts, we cannot say that the videotape--which should have been suppressed based upon proper legal analysis--did not "contribute to" his convictions. The murders committed in this case were horrific, gruesome, and worthy of condemnation; moreover, there is evidence to support the verdicts returned by the jury. However, the rule of law must prevail and we must not allow the ends of punishment to trump the means that our state and federal Constitutions require.


The Diguilio Standard







The now firmly established standards that we articulated in Diguilio many years ago control the resolution of whether the publication and admission of Rigterink's videotaped interrogation constituted harmless error. In that decision, we stated:


The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed









33. The question of Rigterink's guilt or innocence remains a question for a jury, not this Court.







- 67 -

to the conviction. Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict. . .

. .



. . . [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 guilt is sufficient or even overwhelming based on the permissible evidence. In a pertinent passage [which we endorsed and adopted], Chief Justice Traynor [of the California Supreme Court] points out:


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 must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review. 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.









- 68 -

Diguilio, 491 So. 2d at 1135-39 (citations omitted) (emphasis supplied) (quoting People v. Ross, 429 P.2d 606, 621 (Cal. 1967) (Traynor, C.J., dissenting), rev'd, 391 U.S. 470 (1968)).


We are not nor do we consider ourselves a super-jury; rather, we are an appellate tribunal charged with the task of determining "whether there is a reasonable possibility that the error affected the verdict." Id. at 1139 (emphasis supplied). If such a possibility exists, it is our duty to remand for a new trial, which shall be free from the offending error. The test is not whether the jury reached what we believe to be the correct result but is, instead, whether a reasonable possibility exists that the constitutional violation contributed to the defendant's convictions. See id. at 1135-3, 1139.


Where, as here, the State makes a defendant's inculpatory videotaped statement a fixture of its opening statement, case-in-chief, and closing argument, and, thereafter, where the jury specifically requests to review this tape yet again during its deliberations just before rendering its verdicts, we cannot say "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 1135.



Diguilio Applied to This Case












- 69 -





The harmless-error standard that we provided in Diguilio has been clearly stated. When applied here, it is apparent that in reaching its verdicts, the jury extensively considered Rigterink's erroneously admitted videotaped interrogation.


This is so because during each stage of Rigterink's capital trial, the State presented this videotape as the centerpiece of its case against the defendant. In fact, this recording was the primary device that the State used to coordinate and describe how the physical evidence and testimony in this case established Rigterink's guilt beyond a reasonable doubt. The State's opening statement, case-in-chief, and closing argument each depended upon the explanatory power of Rigterink's videotaped interrogation. Therefore, it cannot be defensibly maintained that the publication and admission of this videotape constituted harmless error. Such a holding would require speculative logical leaps and force this Court to simply consider itself a super-jury, which somehow possesses the power to tidily divide and segregate erroneously admitted, prejudicial evidence from admissible, probative evidence to declare with finality what the correct verdict(s) should be.


Under the circumstances presented here, we cannot depart from well-established, controlling precedent.



To provide a more complete overview of just how the State used this videotape, brief excerpts from (and explanations of) the State's opening statement, case-in-chief, and closing argument are informative. First, during its opening







- 70 -

statement, the State repeatedly emphasized the significance of Rigterink's videotaped interrogation and pleaded that the jury listen very carefully to what is said in that videotaped statement. The [State] ask[s] you to watch [Rigterink's] demeanor, to watch his manner during the statements he makes in that video, because that video recording will show that [the] Detectives . . . [allowed] him to tell his story. Rigterink even volunteers to make a drawing for the detectives. . . .


He relates facts to the two detectives, facts that no one could possibly know except for the killer himself. . . . And those statements will be verified by the testimony of [other witnesses] and the physical evidence at the scene. There was only one killer, and that was [Rigterink], just like he told them on the 16th. . . .


. . . .



These are facts that only the killer would know.




. . . .



The evidence would show [that] nobody would know that detail and nobody would know those facts unless it was the killer who actually committed [these offenses].


. . . .



Rigterink, in the video, says, when I was out there with Jeremy [Jarvis], I can tell you exactly what position we were in.


. . . .



You need to listen. The State would ask you . . . to listen to this tape carefully, because these things are said, these things that only the killer would know.


Second, during its case-in-chief, the State sought admission of the videotape through Detective Connolly, and, once admitted, played the entire recording for the jury. As part of this examination, the State questioned Detective Connolly in order to demonstrate and stress the significance of Rigterink's videotaped statement.


Third, during closing arguments, the State again presented Rigterink's statement as the keystone supporting its theory of the case:







- 71 -






[W]hen confronted with those types of questions, with that kind of pressure, that we don't believe you, you're lying to us, you're lying to us just like you did the first [few] stories, this isn't true, this isn't true, what you see[,] is what you see on the tape.


. . . .



You've had an opportunity twice to listen to that tape. I invite you to listen to it again. . . .


. . . .



Watching him talk to the police, invoking the Almighty, drawing diagrams of where he was . . ., telling them that [he] had [Jarvis] up against the wall with [his] hand under [Jarvis's] throat and the knife in [his] hand, but there's no action in this still photo [Rigterink] ha[s] in [his] brain. Does that sound any more convincing to you than what he said in court? But he'll tell you that . . . was a lie.


. . . .



When you correlate that with the physical evidence, that is exactly what the officers and the crime scene investigators discovered . . . .


. . . .



He is describing what Jeremy [Jarvis] did to him. And he actually, in the video, demonstrates for the officers the manner in which Mr. Jarvis was using the [the bubblegum dispenser] to fend him off . . . .


Again, as [the State] told you in the opening statement, details that only the killer would know.


. . . .



Very accurate description of his behavior.



. . . .



Completely consistent with the physical evidence.



. . . .



Mr. Rigterink, in his statement, also talks about things that are very specific, very specific . . . . He's being very descriptive about the location of where these events took place.


Finally, to avoid the risk that the jury would somehow overlook the videotape's significance, the State allocated time during its closing argument to replay Rigterink's statement, which the State spliced with recordings of the 911







- 72 -

calls placed by victim Sousa and the female eyewitness to the Polk County Sheriff's Office on the day of the murders. The only reasonable conclusions to draw from this chain of events are: (1) that the State considered this videotape the central component of its case against Rigterink; and (2) that it did not wish to squander any opportunity that it had to highlight the tape's significance for the jury.



In addition, the jury's actions during its deliberations provide further insight concerning the proper resolution of this issue. Specifically, Rigterink's videotaped interrogation was the final evidentiary item that the jury specifically requested and reviewed while deliberating before it returned its guilty verdicts. Therefore, we know with uncommon certainty that the jury (quite commendably) wished to be as thorough as possible in its deliberations and, thus, heeded the State's call to review the videotape once more in determining whether Rigterink committed these murders. Soon after considering the tape, the jury emerged from its deliberations and found Rigterink guilty of both counts of first-degree murder. As a result, it cannot be gainsaid that the jury did not consider this tape in reaching its verdicts.


To the contrary, we have pages of record evidence demonstrating that the State repeatedly emphasized the videotape's significance and that, in response, the jury requested to review the tape yet again before finding Rigterink guilty of two capital offenses. After "an examination of the entire record," it is simply impossible to







- 73 -

conclude that the State has proven "beyond a reasonable doubt that the error complained of did not contribute to the [jury's] verdict[s]." Diguilio, 491 So. 2d at




1135.





III. CONCLUSION






A review of the entire record reveals that the State attached great importance to this videotape and repeatedly requested that the jury consult the tape to quash any doubts that it might have with regard to Rigterink's guilt. From this same record, we also know that the jury specifically requested and considered the videotape during its deliberations. We thus possess ample evidence that the videotape affected the jury's decision to convict Rigterink. Consequently, the law requires that we reverse Rigterink's convictions and sentences and remand for a new capital trial during which this videotape is excluded. However, if, on remand, Rigterink were to take the stand and again offer a version of events that differed from that which he described during his videotaped interrogation, the State would remain free to use the videotape, and the statements contained therein, to impeach his testimony. See Oregon v. Elstad, 470 U.S. 298, 307 (1985) (holding that the State may use statements obtained in violation of Miranda to impeach a defendant's trial testimony).


In sum, we are not members of a super-jury; therefore, the proper result is to reverse and remand for a new capital trial during which Rigterink may decide







- 74 -

whether to (i) remain silent in the face of the State's case-in-chief, or (ii) take the stand and face the powerful impeachment which is sure to follow.


It is so ordered.


QUINCE, C.J., PARIENTE and LEWIS, JJ., concur.


ANSTEAD, Senior Justice, concurs in result only.


WELLS, J., dissents with an opinion.


CANADY, J., dissents with an opinion, in which WELLS, J., concurs.


POLSTON, J., did not participate.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.


WELLS, J., dissenting.



I join Justice Canady's dissenting opinion and believe, as I have previously written, that the majority was in error in State v. Powell, 34 Fla. L. Weekly S2 (Fla. Sept. 29, 2008). It is my view that this case is an example of why strict adherence to technical readings of Miranda rights forms can bring about an unreasonable and unnecessary result. Here, the tape of the police interview of Rigterink plainly shows to me that Rigterink was so intent on talking to the police officers in his effort to convince the police of his story that he paid no attention to what the Miranda warning said. Thus, language used in the warning made no difference in this case. Simply the substance of what actually happened should prevail over the form of the Miranda warning.







- 75 -





In addition to Justice Canady's point and my view of the effect of the form in this case, I dissent for two other reasons in respect to the defendant's confession.


First, I find no error in the trial court's factual determination that in considering the totality of the circumstances, the October 16, 2003, encounter was noncustodial.


The defendant came to the police substation voluntarily. Rigterink talked to the police voluntarily, and the obvious reason from the record that he did so was that the defendant believed that he could convince the police that he was not involved in the murders. The defendant was not told while he was talking to the police that he could not leave. I would find this situation analogous to the one in Fitzpatrick




v. State, 900 So. 2d 495, 511 (Fla. 2005). The trial judge set out her findings in detail in her order denying the motion to suppress, and I would affirm her order.


This Court has specifically held that a trial judge's findings as to whether a suspect was in custody is clothed with a presumption of correctness. Caso v. State, 524 So. 2d 422, 424 (Fla. 1988). I would respect this Court's precedent.



Second, even assuming that the trial judge erred in her findings as to the defendant not being in custody and accepting Powell as the applicable law, I would find that any error was harmless beyond a reasonable doubt. We have held that Miranda violations are subject to harmless error analysis. Caso, 524 So. 2d at 425; see also Kight v. State, 512 So. 2d 922, 926 (Fla. 1987). Here, I conclude that the other evidence in the record establishes Rigterink's guilt beyond a reasonable







- 76 -

doubt. Among the facts proven was that just thirty minutes before the murder, Rigterink called one of the victims to confirm that the victim had a new supply of marijuana for sale. Rigterink had no money with which to purchase drugs. Two witnesses described the victim's attacker consistent with Rigterink. The victim's blood was consistent with blood found in the truck that Rigterink drove the day of the murders. DNA consistent with Rigterink's was found under the fingernails of one of the victims who was brutally attacked. Rigterink's bloody fingerprints were found at the scene. Rigterink made changes to his appearance shortly after the murders. Rigterink's explanation at trial for his fingerprints being at the scene was completely implausible.


CANADY, J., dissenting.



I dissent from the reversal of Rigterink's convictions and sentences. I agree with the majority's analysis of the issues which the majority concludes lack merit.


I disagree, however, with the majority's analysis of Rigterink's Miranda34 claim. I recognize that State v. Powell, 34 Fla. L. Weekly S2 (Fla. Sept. 29, 2008), supports the conclusion that the warning given to Rigterink was defective, but I conclude that the Court should recede from this recent precedent. I would conclude that the







34.



Miranda v. Arizona, 384 U.S. 436 (1966).







- 77 -

Miranda warning given to Rigterink was not defective and that the admission of Rigterink's statement was therefore not erroneous.



In People v. Wash, 861 P.2d 1107, 1118 (Cal. 1993), the California Supreme Court considered a challenge to the sufficiency of a Miranda warning which contained the statement, "[Y]ou have the right to have an attorney present before any questioning." (Emphasis added.) The defendant contended that the warning was defective because it "failed to inform him that he was entitled to counsel during questioning." Id. (emphasis added). Rejecting this argument, the court held: "[W]e are not persuaded--as defendant's argument implies--that the language [of the warning] was so ambiguous or confusing as to lead defendant to believe that counsel would be provided before questioning, and then summarily removed once questioning began." Id. at 1118-19.



Other decisions have also upheld the validity of Miranda warnings that advise of the right of access to counsel before questioning without explicit reference to access to counsel during questioning. See United States v. Anderson, 394 F.2d 743, 476-47 (2d Cir. 1968); United States v. Vanterpool, 394 F.2d 697, 699 (2d Cir. 1968); State v. Arnold, 496 P.2d 919, 922-23 (Or. Ct. App. 1972); but see United States v. Noti, 731 F.2d 610, 614 (9th Cir. 1984); Windsor v. United States, 389 F.2d 530, 533 (5th Cir. 1968).







- 78 -





The analysis employed in Wash and similar cases is consistent with the principle articulated by the Supreme Court that the proper inquiry in evaluating the sufficiency of Miranda warnings is "whether the warnings reasonably `conve[y] to [a suspect] his rights as required by Miranda.'" Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (alteration in original) (quoting California v. Prysock, 453 U.S. 355, 361 (1981)). The warning given in this case did reasonably convey to Rigterink his right of access to counsel as required by Miranda.



In short, the words "prior to questioning" in the warning can only reasonably be understood in context as denoting the point of commencement of the right to have counsel present--not the point of termination of that right. As the Wash court recognized, a defendant could not reasonably understand the warning as suggesting that at his request an attorney would be summoned to the scene of an impending interrogation, only to be sent away once the interrogation began.


Instead, the advice that counsel is available "prior to questioning" is naturally understood as conveying the idea that no question can be asked until requested counsel is available to assist the defendant in the course of the interrogation.



Although I acknowledge that we should not recede cavalierly from our precedents, I conclude that given the serious implications of the Powell decision for the administration of justice and given the absence of any reliance interests, we should not adhere to Powell. See Payne v. Tennessee, 501 U.S. 808, 827-30







- 79 -

(1991). Accordingly, I would adopt the view of the California Supreme Court in Wash with respect to the sufficiency of the Miranda warning, reject Rigterink's claim that the warning given to him was defective, and affirm his convictions and sentences.


WELLS, J., concurs.


An Appeal from the Circuit Court in and for Polk County,





J. Dale Durrance, Judge - Case No. CF03XX


Andrea m. Norgard and Robert A. Norgard of Norgard and Norgard, Bartow, Florida, for Appellant

Bill McCollum, Attorney General, Tallahassee, Florida, and Scott A. Browne, Assistant Attorney General, Tampa, Florida, for Appellee
[/align]