NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

RICHARD EDWARD NOH, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D15-4264 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed November 15, 2017. 

Appeal from the Circuit Court for Pinellas 

County; Frank Quesada, Judge. 

Howard L. Dimmig, II, Public Defender, and 

Ivy R. Ginsberg, Special Assistant Public 

Defender, Bartow, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Susan M. Shanahan, 

Assistant Attorney General, Tampa, for 

Appellee. 

VILLANTI, Judge. 

 Richard Noh appeals his conviction for capital sexual battery and the 

resulting life sentence, raising four grounds for reversal. We find merit only in Noh's 

argument that the trial court erred by denying his motion to suppress the statement he 

gave to police after he made a comment that indicated that he did not understand the 
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Miranda1 warnings that had been given to him. On this basis, we reverse and remand 

for a new trial.2 

 Noh was arrested and charged with capital sexual battery after his former 

stepdaughter told her father that Noh had engaged in certain sexual activity with her 

when she was nine years old. Noh was subsequently brought to the police station for 

an interview. After the investigating detective spoke with Noh for a few minutes, the 

following conversation ensued: 

 DETECTIVE: Okay. All right. I'm just gonna read 

you the questions, then I'm gonna have you read them to 

yourself, okay? Do you understand you have the right to 

remain silent? 

 NOH: Yes. 

 DETECTIVE: All right. Do you understand that 

anything you say can and will be used against you in a court 

of law? 

 NOH: Yes. 

 DETECTIVE: Do you understand that you have the 

right to speak to a lawyer and have him or her present with 

you while you are being questioned? 

 NOH: Yes. 

 DETECTIVE: Do you understand that, if you cannot 

afford to hire a lawyer, one will be appointed to represent 

you before any questioning, if you wish? 

 NOH: Yes. 

 DETECTIVE: Do you understand that you can decide 

at any time to exercise these rights and not answer any 

questions or make any statements? 

 NOH: Yes. 

 DETECTIVE: Do you understand each of these 

rights I've explained to you? 

 NOH: Yes. 

 1Miranda v. Arizona, 384 U.S. 436 (1966). 

2We have specifically considered and rejected Noh's arguments that the 

trial court abused its discretion by admitting the child hearsay testimony, abused its 

discretion by excluding alleged reverse Williams rule evidence, and abused its 

discretion by denying Noh's request for an instruction on attempted sexual battery. 
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 DETECTIVE: Having these rights in mind, do you 

wish to talk to me now? 

 NOH: That's fine. 

 DETECTIVE: Is that a yes? 

 NOH: Yes. 

 DETECTIVE: Okay. All right. What I need you to do, 

if you would for me, I just want you to read through each one 

of these. 

 NOH: All right. 

 DETECTIVE: Just – 

 NOH: It's just kind of funny. You all put it in writing 

now where you used to never do it. 

 DETECTIVE: Yeah. It's just – it's just I wanna make 

sure people understand. 'Cause, see – 

 NOH: I know. 

 DETECTIVE: – see, here's the thing, Richard. I'm 

not here to trick anybody. 

 NOH: I know. 

 DETECTIVE: I wanna talk to you. I wanna clear this 

stuff up and get you home. That's kind of what I wanna do, 

okay. So, um, if – 

 NOH: Kind of what you wanna do? 

 DETECTIVE: That's absolutely what I wanna do. 

You know, I – I mean I gotta – I gotta do my job. You know 

what I mean? 

 NOH: Okay. 

 DETECTIVE: So, what I need you to do is I just need 

you to read through each one, sign each one, and then just 

witness it here for me, if you would. 

 NOH: Just – just sign each one? 

 DETECTIVE: Initial each one. 

 NOH: Oh, okay. 

 DETECTIVE: Read through each one, initial each 

one – 

 NOH: Right. 

 DETECTIVE: – and then, uh, sign right there for me 

at the bottom. Okay? 

 NOH: I can't afford a lawyer anyhow. 

 DETECTIVE: Oops. Sorry. 

 NOH: Okay. Right here? 

(Emphasis added.) At that point, without any further discussion or clarification of the 

fact that Noh could have an attorney appointed at no cost to him, the detective began 
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questioning Noh about his stepdaughter's allegations, and Noh made several 

incriminating statements during the interview. 

 Prior to trial, Noh moved to suppress his post-Miranda statement, arguing 

that the State could not establish that he had knowingly and intelligently waived his 

rights because the detective did not clarify, in response to Noh's comment, that Noh 

was entitled to have a lawyer appointed at no cost to him if he wanted one. The trial 

court denied the motion, concluding that Noh's comment constituted only an ambiguous 

request for counsel; hence, Noh's statement was admitted at trial. Noh was 

subsequently convicted as charged and sentenced to life in prison. 

 In this appeal, as he did below, Noh argues that his motion to suppress 

should have been granted because the transcript does not establish that he knowingly 

and intelligently waived his Miranda rights before speaking with the detective. We 

agree. 

 This case is quite similar factually to that of Chavers v. State, 115 So. 3d 

1017 (Fla. 1st DCA 2013). There, the defendant was suspected of shooting a teenager 

following a confrontation. Id. at 1018. As the officer was reading Chavers his Miranda 

right concerning the appointment of an attorney, Chavers said, "I don't even have no 

money to call a lawyer." Id. The officer responded, "Okay. But, understand, you know, 

you could have one, but—do you have any questions about these?" Id. (emphasis 

omitted). When Chavers did not ask any other questions, the officer went forward with 

the interrogation, and Chavers made a number of incriminating statements. Id. 

Chavers filed a pretrial motion to suppress the statements, which was denied. Id. at 

1018-19. Chavers was subsequently convicted as charged. Id. at 1019. 
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 On appeal, the First District reversed the order denying suppression, 

concluding that the State had not established that Chavers had validly waived his 

Miranda rights. Id. The court first noted that the State carries "a heavy burden . . . to 

demonstrate that the defendant knowingly and intelligently waived his privilege against 

self-incrimination and his right to retained or appointed counsel." Id. (quoting United 

States v. Rodriguez, 518 F.3d 1072, 1076 (9th Cir. 2008)). Further, "[a]n ambiguous 

waiver must be clarified before initial questioning." Id. (quoting Alvarez v. State, 15 So. 

3d 738, 745 (Fla. 4th DCA 2009)); see also Rodriguez, 518 F.3d at 1080 (holding that 

the interrogating officer has a duty to clarify any ambiguity before beginning an 

interrogation). Hence, because the officer did not make it clear to Chavers that he had 

the right to appointed counsel even if he could not afford one, the State did not establish 

that Chavers' waiver of his rights was knowingly and intelligently made. Chavers, 115 

So. 3d at 1019. 

 Here, as in Chavers, Noh commented while the detective was still reading 

him his Miranda rights that he could not afford an attorney. Rather than attempting to 

ensure that Noh understood that he had the right to have counsel appointed even if he 

couldn't afford one, the detective encouraged Noh to finish signing the Miranda waiver 

form, took the signed form from Noh, and began questioning him. But an officer cannot 

simply ignore a comment by a suspect that indicates that the suspect does not fully 

understand his or her Miranda rights and assume that a waiver predicated on that 

misunderstanding will be valid. Thus, because the detective never clarified for Noh that 

he had the right to appointed counsel at no cost, the State did not establish that Noh's 
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waiver of his right to counsel was knowingly and intelligently made.3 And faced with, at 

best, an ambiguity as to whether Noh understood the rights he was waiving, the trial 

court should have suppressed Noh's statement to the detective. 

 Moreover, on this record, we cannot say that the error was harmless. We 

recognize, as the State points out, that Noh also made certain admissions during a 

controlled telephone call between himself and his stepdaughter and that a recording of 

that telephone call was admitted into evidence. However, the admissions made during 

that call were not as clear as those he made to the detective post-Miranda. During the 

controlled call, Noh repeatedly said that he would admit to doing the things his 

stepdaughter claimed had happened if his admission would "help her heal." The tenor 

of Noh's comments during that call was, "If that's what you say I did and if it will help you 

heal, then I will say I did it." But for the most part, he denied the conduct alleged by his 

stepdaughter. In light of the nature and entire context of those comments, the State 

cannot show beyond a reasonable doubt that the admission of Noh's more incriminating 

statement to the detective did not contribute to the jury's verdict. See State v. DiGuilio, 

491 So. 2d 1129, 1139 (Fla. 1986) (noting that the test for harmless error is whether 

there is a reasonable possibility that the error affected the verdict). Accordingly, we 

reverse Noh's conviction and sentence, quash the order denying Noh's motion to 

suppress, and remand for a new trial without the suppressed statements. 

 3We note that this error was compounded by the fact that the detective 

never told Noh that counsel would be appointed at no cost to him. When the detective 

was reading Noh his rights, he asked Noh only whether he understood "that, if you 

cannot afford to hire a lawyer, one will be appointed to represent you before any 

questioning." Nowhere during any of the detective's statements did he advise Noh that 

such an appointment would be made without any cost to Noh. 
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 Reversed and remanded for a new trial. 

KHOUZAM and SLEET, JJ., Concur.