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Everett v. State11/24/2004
a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death sentence rests elsewhere." This claim also fails. We have repeatedly upheld the jury instructions against such claims. Floyd v. State, 808 So. 2d 175 (Fla. 2002); Sochor v. State, 619 So. 2d 285, 291 (Fla. 1993) ("Florida's standard jury instructions fully advise the jury of the importance of its role and do not violate Caldwell.").
D.
Finally, Everett's fifth claim is that use of the "under sentence of imprisonment" aggravator is unconstitutional because there is no evidentiary nexus between the factor and the homicide. This issue is not preserved for review and does not constitute fundamental error.
III. THE FIFTH AMENDMENT AND MIRANDA
We now address Everett's first claim, which is one of first impression in this Court. Everett contends that his motion to suppress his confession and the biological samples he provided should have been granted because they were obtained in violation of his rights under the Fifth Amendment. In reviewing a motion to suppress evidence, the trial court's findings of fact are accorded a presumption of correctness. This Court, however, must "review independently mixed questions of law and fact that ultimately determine constitutional rights." Connor v. State, 803 So. 2d 598, 607 (Fla. 2001), cert. denied, 535 U.S. 1103 (2002). The pertinent facts are undisputed; thus, we review de novo the constitutional issue raised.
A. The Facts
Within hours of the murder, an Alabama bail bondsman, unaware of the murder but searching for Everett because he was a fugitive, found him in Panama City, Florida, and transferred him to Alabama authorities. On November 14, 2001, roughly two weeks after the murder, two Panama City Beach police officers investigating the case, having traced the wooden fish bat found near the crime scene to Everett, traveled to Alabama. They read Everett his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Everett agreed to talk. During the questioning, however, he abruptly stated, "I wish to have a lawyer present. . . . I mean I want a lawyer." The officers immediately stopped their questioning.
Several days later, on November 19, the Panama City Beach Police requested an Alabama deputy to ask Everett to provide DNA samples for the Florida murder investigation. Everett consented both verbally and in writing. After the DNA swabs were taken, however, Everett advised the Alabama deputy that he had information for Florida authorities. The officer read Everett his Miranda rights, and Everett began his statement. At that point Sergeant Tilley of the Panama City Beach Police Department arrived to retrieve the DNA samples. On the record, Tilley noted that Everett had previously invoked his right to counsel, but had now contacted him desiring to provide information. Sergeant Tilley also read Everett his Miranda rights before Everett continued. At the conclusion of his statement, Everett said, "I do want to talk to a lawyer, but I did want to let you know to get you in the right direction." Sergeant Tilley immediately stopped the interview. Appellant's November 19 statement was not offered at trial.
Finally, on November 27, Alabama authorities informed Everett that Sergeant Tilley was en route to serve an arrest warrant for the Florida murder. After Sergeant Tilley served the warrant, Everett asked to speak to him. At the outset of the interview, Everett acknowledged that he had previously invoked his right to have counsel present but had now asked to speak to Sergeant Tilley without an attorney present. In the ensuing statement, Everett confessed to the
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