Opinion
No. 1D21-1632
06-14-2023
Jerrel LEVERETTE, Appellant, v. STATE of Florida, Appellee.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
Kelsey, J. This is Mr. Leverette's direct appeal of his judgment and sentence for trafficking in methamphetamine and heroin, and possession of controlled substances (fentanyl and cocaine) and drug paraphernalia. As to his judgment, he raises two substantive arguments and a cumulative–error argument. As to his sentence, he raises one issue about a cost imposed without citation to the authorizing local ordinance. We find no merit in the two arguments attacking his convictions, and thus no cumulative error. On the cost issue, we find no reversible error because the cost is clearly authorized by county ordinance, and thus we affirm as to this issue without further comment.
Unsealing Search Warrant.
Mr. Leverette argues that the trial court should have unsealed the search warrant affidavit. Our standard of review is abuse of discretion. See Hill v. State , 307 So. 3d 897, 899 (Fla. 1st DCA 2020). We find this issue unpreserved, and therefore affirm.
Twice before trial and once during trial, Mr. Leverette moved to unseal the affidavit the State used to obtain a search warrant. He argued that he needed to see it to determine if it was legally sufficient to demonstrate probable cause. The State opposed unsealing the affidavit, asserting a privilege of nondisclosure as to confidential informants, police investigative tools, and the direction of criminal investigations. The State asserted that this case was just one part of an ongoing investigation "that could be harmed and possible confidential sources could be placed in danger if the affidavit [were] unsealed." The State also represented that, if all protected information in the affidavit were redacted, the only language remaining would be boilerplate language already available to Mr. Leverette in the search warrant itself.
The State maintains that its arguments shifted the burden to Mr. Leverette, who failed to show entitlement to disclosure. We agree that the burden had shifted to Mr. Leverette. Hill , 307 So. 3d at 900 (explaining that once the State asserts the existence of protected confidential information, the burden shifts to the defendant "to show a specific reason why disclosure [is] still warranted"). Mr. Leverette failed to show why disclosure would still be warranted even if the State were asserting valid protected interests.
Further, Mr. Leverette never asked the trial court to review the search warrant affidavit in camera. Therefore, the affidavit did not become part of the record below, and is not part of the record on appeal. We have no way to evaluate the issue. As we held in Hill , a defendant's failure to seek in-camera review and make a proper record on an issue prevents us from conducting meaningful review, requiring affirmance. Id. at 901. We therefore affirm on this issue.
Improper Interrogation.
Mr. Leverette also argues that law enforcement officers deprived him of due process during his post-Miranda interrogation, and that the trial court should have suppressed his statements. Our standard of review is deferential as to findings supported by competent, substantial evidence; and de novo as to legal issues. Smith v. State , 95 So. 3d 966, 967 (Fla. 1st DCA 2012). As to the voluntariness of a confession, "the totality of the circumstances must indicate that such confession is the result of a free and rational choice." Johnson v. State , 696 So. 2d 326, 329 (Fla. 1997). After being Mirandized, Mr. Leverette engaged in a two-part conversation with investigators at his residence, first inside the house and then outside. During the first part of their discussion, Mr. Leverette admitted there were guns in the house, and (apparently sarcastically) asserted the investigators were going to find a large quantity of drugs. During this conversation other law-enforcement personnel were searching the house pursuant to the warrant, and found firearms, currency, and narcotics.
Officers then moved Mr. Leverette to the back yard, let him talk to his wife, and continued their discussion, which focused on whether his cooperation (i.e., telling the truth about "everything that's going on" and leading law enforcement to other criminals) might get him a better deal. Mr. Leverette then disclosed other inculpatory information, including admitting that drugs were present, identifying the drugs that deputies had recovered, and identifying a suspected supplier.
Mr. Leverette moved to suppress these inculpatory statements, arguing that the deputies’ tactics were coercive and deprived him of free will and rational choice. Among the allegedly improper law-enforcement statements were that if he failed to tell them where to find the drugs, they might have to "tear up" his residence as they were authorized to do under the search warrant for drugs, and obtain similar warrants on other houses Mr. Leverette was remodeling. Officers told him they had seen him driving without a license and he could get into trouble for that. They mentioned that the prosecutor has "the ear of a judge." They suggested they could offer him substantial assistance, but he argues that they did not say clearly enough that any assistance was up to the State Attorney and had not been obtained before the interrogation. There were also general comments about how cooperating would be better for Mr. Leverette than not cooperating, and talking about potential sentences and minimum–mandatories depending on what was found during the search.
On the other hand, the investigators repeatedly stated that if Mr. Leverette helped them locate the drugs, he could avoid having his residence damaged in the search—a pragmatic truth. They repeatedly described what kind of mitigation might be available for his cooperation, depending on what helpful information he provided, without promising specific outcomes. They repeatedly said that they could make no promises and had limited discretion. They advised him realistically of worst–case scenarios in sentencing and encouraged him to help himself. They made no specific promises as to scenarios. They specifically said they "could not legally force [him] to answer any questions," that they "can't tell you he's going to keep you out of jail tonight," that they could not coerce him, and that the majority of the time defendants help themselves by helping law enforcement. They denied having any discretion in the outcome.
During the interrogation, Mr. Leverette also asked questions: about the warrant and its scope, about potential sentences, and about what benefits he might receive from cooperating and what information law enforcement would want. He wanted to know whether his cooperation would be "worth it"—his words. He was evaluating the situation and weighing how he could help himself, as much as they were trying to elicit evidence under the warrant. As the lead investigator described it at trial, before the drugs were found Mr. Leverette was balking because he hoped the drugs would not be found; and after the drugs were found, his strategy shifted to bartering. We find this an accurate portrayal of the interrogation.
Reading the interrogation as a whole and in light of the circumstances, we cannot conclude that the law enforcement officers acted improperly. They were not trying to delude Mr. Leverette; they were pragmatic and honest while trying to encourage him to cooperate. See Baker v. State , 71 So. 3d 802, 814 (Fla. 2011). Encouraging cooperation is not coercion. Martin v. State , 107 So. 3d 281, 305 (Fla. 2012). Suggestions that cooperation might be better than non-cooperation are realistic, and certainly not coercive. Teachman v. State , 264 So. 3d 242, 244 (Fla. 1st DCA 2019). Encouraging truthfulness is not coercion. Bush v. State, 461 So. 2d 936, 939 (Fla. 1984). Agreeing to let the prosecutor know Mr. Leverette cooperated does not render a confession involuntary. Caraballo v. State , 39 So. 3d 1234, 1247 (Fla. 2010). The "totality of the circumstances ... indicate[s] that [Mr. Leverette's] confession [was] the result of a free and rational choice." See Johnson , 696 So. 2d at 329. We therefore affirm on this issue.
AFFIRMED .
Ray and Tanenbaum, JJ., concur.