PER CURIAM.
Appellant Owen was convicted of burglary, sexual battery, and first-degree murder. The jury recommended and the judge imposed a death sentence for the murder. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
The victim was baby-sitting for a married couple on the evening of March 24, 1984, in Delray Beach. During the evening, she called home several times and spoke with her mother, the last call taking place at approximately 10 p.m. When the couple returned home, just after midnight, the lights and the television were off and the baby-sitter did not meet them at the door as was her practice. The police were summoned and the victim's body was found with multiple stab wounds. There was evidence that the intruder entered by cutting the screen to the bedroom window. He then sexually assaulted the victim. A bloody footprint, presumably left by the murderer, was found at the scene.
In late May 1984, Owen was apprehended in Boca Raton after he was identified as a burglary suspect. Routine booking disclosed that there were outstanding warrants against him and while being held on these charges, he initiated contact with the police and was interrogated relative to various crimes committed on June 3, 6, 7, and 8. He was also questioned relative to a May 29, 1984, burglary, sexual battery, and murder in Boca Raton. During these interrogations, Owen expressed contempt for lawyers and a desire to help clean up crimes with which he had been charged or suspected. He specifically stated that he did not want a lawyer present but he asked that a certain officer (Woods) from Delray Beach who knew him from previous encounters be present for the interrogation. After confessing to numerous burglaries, sexual batteries, and other lesser crimes, he refused to talk further to the police about the Boca Raton murder and terminated the interrogation. On June 18, he reinitiated contact with the police and renewed his spate of confessions. He also corrected and amplified earlier confessions. On June 21, the Delray Beach police obtained an inked impression of Owen's footprints and the Boca Raton police informed him that, based on fingerprints taken from the crime scene and other evidence, they were charging him with first-degree murder. After the Boca Raton police presented their evidence to Owen, he confessed to the May 29 burglary, sexual battery, and murder. His account of this crime was remarkably similar to his earlier confessions to three crimes where he removed his clothes, committed a burglary, and either choked or bludgeoned sleeping victims into unconsciousness before committing sexual battery.
Immediately after the above confession to the May 29 Boca Raton murder, the Delray Beach police interrogated Owen relative to the March 24 Delray Beach crime. He first denied any knowledge of this crime, but confessed after the police confronted him with the bloody footprint from the crime scene and the inked impression of his foot taken earlier that day. The details were again remarkably similar to those of the earlier confessions.
At trial, the state did not attempt to introduce similar fact evidence, but relied instead on Owen's confession and corroborating evidence. An expert on podiatry testified that the bloody footprint was consistent with Owen's, but did not identify him to the exclusion of others.
The primary issue raised by Owen concerns the admissibility of his confession. He contends that (1) the confession was compelled by improper psychological coercion in violation of his fifth amendment right to remain silent, and (2) the police violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by continuing to question him after he invoked the right to terminate questioning. He claims that the police had no well-founded suspicion upon which to stop and seize him on the street and that all subsequent confessions were thereby tainted. This argument is without merit. Owen was the subject of outstanding warrants and had been identified in a photographic lineup as a burglar. The officer who stopped him had been given a photograph and specifically alerted to watch for him in his known habitat. The police had more than founded suspicion, they had probable cause.
Owen's more serious argument is that he was psychologically coerced into confessing by extended interrogation sessions, feigned empathy, flattery, and lengthy discourse by the police. These interrogation sessions were videotaped and we have, as did the trial judge, the benefit of actually viewing and hearing them. It is clear from these tapes that the sessions were initiated by Owen, who was repeatedly advised of his rights to counsel and to remain silent. Moreover, he acknowledged on the tapes that he was completely familiar with his Miranda rights and knew them as well as the police officers. It is also clear that the sessions, which encompassed six days, were not individually lengthy and that Owen was given refreshments, food, and breaks during the sessions. The tapes show that the confession was entirely voluntary under the fifth amendment and that no improper coercion was employed. Martin v. Wainwright, 770 F.2d 918, 924-28 (11th Cir. 1985), modified, 781 F.2d 185 (11th Cir.), cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986).
Owen next argues that even if the confession was voluntary under the fifth amendment, it was nevertheless obtained in violation of the procedural rules of Miranda. On this point, we agree. Throughout the interrogation sessions, Owen had indicated his desire to confess to crimes for which he felt the police had sufficient evidence to convict. Consequently, there evolved a procedure whereby the police officers would present their evidence and attempt to persuade him that they had the necessary proof. On June 21, after the Boca Raton police presented the fingerprint evidence and the similarity of the crime to earlier burglary rapes to which Owen had confessed, he acknowledged his guilt and responded to further questions. Thereafter, the Delray Beach police took up questioning on the instant crime. After police presented evidence on the "matched" footprints, alluded to evidence they expected to develop and the close similarity of the crime to the Boca Raton murder and earlier burglaries and rapes, Owen closely studied the footprint impression and appeared to acknowledge the conclusiveness. However, when police inquired about a relatively insignificant detail, he responded with "I'd rather not talk about it." Instead of exploring whether this was an invocation of the right to remain silent or merely a desire not to talk about the particular detail, the police urged him to clear matters up. He was soon responding with inculpatory answers and asking questions of his own. After further exchanges and a question on another relatively insignificant detail, Owen responded with "I don't want to talk about it." Again, instead of exploring the meaning of the response, the police pressed him to talk.
When presented with the motion to suppress, the trial judge initially indicated that the continuation of the questioning after the responses appeared to be a clear violation of Miranda, rendering the statements thereafter inadmissible. However, after reviewing the complete interrogation sessions, the judge concluded that the responses were not an invocation of the right to remain silent. The ruling of the trial court on a motion to suppress comes to us clothed with a presumption of correctness and we must interpret the evidence and reasonable inference and deductions in a manner most favorable to sustaining the trial court's ruling. McNamara v. State, 357 So.2d 410, 412 (Fla. 1978). The state urges that on the totality of the circumstances, we should affirm the ruling below. Counterposed to this argument is the well-established rule that a suspect's equivocal assertion of a Miranda right terminates any further questioning except that which is designed to clarify the suspect's wishes. See Long v. State, 517 So.2d 664 (Fla. 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988), and cases cited therein; and Martin, where although there was no violation of the fifth amendment by continuing questioning after an equivocal invocation of Miranda rights, the court held that the continued questioning was reversible error under Miranda. Given this clear rule of law, and even after affording the lower court ruling a presumption of correctness, we cannot uphold the ruling. The responses were, at the least, an equivocal invocation of the Miranda right to terminate questioning, which could only be clarified. It was error for the police to urge appellant to continue his statement. Such error is not, however, per se reversible but before it can be found to be harmless, the Court must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapman v. State, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Martin v. Wainwright. Applying this standard, we are unable to say in this instance that the error was harmless beyond a reasonable doubt. Even though there was corroborating evidence, Owen's statements were the essence of the case against him. We accordingly reverse Owen's convictions on the basis of the inadmissible statements given after the response, "I'd rather not talk about it."
Statements made before this response do not implicate Miranda rights.
We address additional issues which may recur should a retrial occur. In accordance with section 921.143, Florida Statutes (1983), the trial judge heard testimony from the victim's family on the impact of the crime after receiving the jury's advisory recommendation of death. The judge did not have the benefit of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, (1987), and of Grossman v. State, 525 So.2d 833 (Fla. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989), but nevertheless recognized that victim impact evidence by family members could not be used as an aggravating factor. If a death penalty phase is reached in a retrial, such evidence should not be received.
During the guilt phase, the victim's mother was permitted to testify, over objection, concerning certain corroborating evidence. Owen claims that the evidence was not at issue and that permitting the victim's mother to take the stand was unduly prejudicial. At trial, the basis of the objection was that the mother had been unable to control her emotions during an earlier deposition and her testimony was being presented for the sole purpose of creating improper sympathy. The record does not show that the mother was unduly emotional during her testimony, which corroborated Owen's confession. The mother's testimony meets the relevancy test; we see no error.
Appellant also claims that the jury should have received a special instruction during the penalty phase stressing the extreme importance of the jury's advisory recommendation. In appellant's view, Florida's standard jury instruction denigrates the role of the jury contrary to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). We have previously held, contrary to appellant's position, that the standard jury instructions accurately reflect Florida law. Combs v. State, 525 So.2d 853 (Fla. 1988).
Owen also argues that the trial court erred in not directing a verdict on the sexual battery charge because the evidence shows that the victim was dead before sexual union and Florida law does not criminalize necrophilia. In support, he cites the testimony of the medical examiner that the victim had "probably" died from her massive wounds before being transported to the bedroom, where appellant confessed that he "raped her, I guess you could say."
In defining sexual battery, section 794.011, Florida Statutes (1983), refers to the victim as "another" and as "the person." We are satisfied that under the legislative definition a victim must be alive at the time the offense commences. Sexual union with a previously deceased person, as in a morgue, would not meet the definition of sexual battery. However, we do not believe that the legislature intended that a person who is alive at the commencement of an attack must be alive at the end of the attack. Here we need not decide this precise issue because the jury was instructed regarding the distinction between sexual battery on a live person and attempted sexual battery on a victim killed in the course of the crime before sexual union is achieved. The verdict of guilt on the sexual battery count resolves this question of fact. In denying the motion for a directed verdict, the trial court relied on the well-established rule that a defendant's motion for acquittal admits "every conclusion favorable to the [state] that a jury might fairly and reasonably infer from the evidence" and the motion should not be granted "unless the evidence is such that no view which the jury may lawfully take . . . can be sustained under the law." Lynch v. State, 293 So.2d 44, 45 (Fla. 1974).
Owen has filed two pro se briefs, in addition to the briefs filed by his counsel. Most of the issues raised duplicate those raised by appointed counsel, but one issue merits comment. Owen claims that his trial counsel, who is also serving as his appellate counsel, was ineffective. Although this issue is customarily handled in a 3.850 hearing, it may be raised on direct appeal under rare circumstances where it is preserved and the ineffectiveness is apparent on the face of the record. Refusal to address the issue under such circumstances would be a waste of judicial resources. No such circumstances exist here. Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987). Here, there is nothing on the face of the record even remotely suggesting ineffective assistance of trial counsel and appellant repeatedly expressed satisfaction with trial counsel's performance in response to queries from the trial judge. What concerns us is not only that appellant makes such an assertion concerning his current appointed counsel, but also his apparent belief that he is entitled to independently defend his case by submitting pro se briefs without reference to the actions of his appointed counsel. On remand, assuming retrial, the trial judge is directed to clarify this situation and make the appellant aware of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and his choices thereunder. We reverse all convictions and remand for retrial.
It is so ordered.
OVERTON, McDONALD, SHAW and KOGAN, JJ., concur.
BARKETT, J., concurs specially with an opinion, in which KOGAN, J., concurs.
GRIMES, J., dissents with an opinion, in which EHRLICH, C.J., concurs.