Porter v. StatePorter v. State
After a jury trial, appellant, Wallace Jerome Porter, was adjudicated guilty of first-degree murder and kidnapping and sentenced to two consecutive terms of life imprisonment. Porter appeals claiming error as to four points. We reverse.
Porter was brought to the Public Safety Department building on June 6, 1977 by Detective Derringer for questioning with respect to the death of Charley Tyrone Haggins. Porter was not given his Miranda rights. He testified that he was beaten during this interview.
On September 18, 1977, Detectives Gergen and Derringer stopped Porter while he was driving his automobile and asked him
On November 5, 1977, Detective Gergen obtained an arrest warrant and again arrested Porter, taking him to a homicide office where he was held for nearly nine hours. Porter testified that he was handcuffed, slapped, had the barrel of a pistol pushed into his nostril, and was further physically abused by Gergen who pulled hairs out of his moustache and chin over a two-hour period. He testified also that he was given his Miranda rights, but signed the waiver form to avoid further beatings. On the basis of additional statements made at that time, Porter was jailed on murder charges.
Four days later, Porter first saw his attorney, Robert Gross, who advised him not to talk to police without his presence and wrote Porter a note explaining that Porter did not wish to be questioned or to submit to a polygraph test without the presence of Gross. Later that day detective Gergen took Porter from the county jail for the purpose of having him submit to a polygraph examination.1 Porter handed him the note from Gross. Gergen read the note. Porter testified that Gergen told him that Gross would not represent him at the trial and would not let him call the attorney and that he signed a second waiver form because he was afraid that he would be attacked again. After the polygraph exam, Porter was taken back to the homicide office by Gergen, signed another waiver form, and gave additional statements to Gergen.
Detective Gergen testified that he did not physically abuse the defendant. There was also testimony by the reporter who recorded the statements from Porter on June 6, 1977, September 18, 1977 and November 10, 1977 that she did not remember anything out of the ordinary insofar as Porter‘s physical condition and recalled no comments made about his condition. The polygraph examiner testified that there was nothing about Porter‘s appearance that would lead him to believe that Porter had been physically abused.
The five statements given by Porter as to events immediately preceeding the victim‘s death and his role in the gang slaying all vary — the first being completely exculpatory and the last being a confession. Porter‘s accounts of the victim being beaten in the head or face with a baseball bat and pistol are not supported by findings of the medical examiner who examined the body of the victim. The confession is the only evidence which linked Porter to the homicide.
As his first point on appeal, Porter claims the trial court erred in denying his
Though we reverse on the first point, we address the other issues so as to guide the trial court in the retrial of the case. As the second point on appeal, Porter claims that the State failed to prove, apart from appellant‘s statements and confessions, the corpus delecti in that the body was not adequately identified. We find this claim to be without merit.
As the third point on appeal, Porter claims that the trial court erred in failing to compel production of the police report of Officer Blyth because Officer Blyth was listed as a witness and the report was subject to discovery under
As the fourth point on appeal, Porter claims that the trial court erred in sentencing defendant to two consecutive sentences for crimes which arose out of the same transaction. Defendant claims that in this case the murder was not premeditated, therefore, he could have been convicted for the crime of first-degree murder only on the basis of the kidnapping felony. If on retrial, there is no evidence of premeditation and the kidnapping charge is the sole basis for a verdict of first-degree murder, Porter may be convicted but not sentenced for both first-degree murder and kidnapping. If there is evidence of premeditation and kidnapping, Porter may be convicted and sentenced for both first-degree murder and kidnapping. State v. Hegstrom, 401 So.2d 1343 (Fla. 1981); State v. Pinder, 375 So.2d 836 (Fla. 1979); Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981);
Reversed and remanded for new trial.
ON MOTION FOR REHEARING
SCHWARTZ, Judge.
On consideration after oral argument of the state‘s motion for rehearing of our decision and opinion of November 17, 1981, we adhere to the conclusion that the judgment
We have concluded, however, that we were unjustified in requiring suppression of the statements of September 18, 1977 and November 5, 1977 on the ground that they were the product of physical brutality by the police. Our review of the record reveals that whether any such abuse took place was the subject of sharply conflicting testimony,1 which was solely for the trial judge and then the jury — and decidedly not this court — to resolve. Tibbs v. State, 397 So.2d 1120 (Fla. 1981); Stone v. State, 378 So.2d 765 (Fla. 1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Stanford v. State, 110 So.2d 1 (Fla. 1959); Holland v. State, 39 Fla. 178, 22 So. 298 (1897).
But the record also shows that the trial court did not in fact make its determination on this question with the “unmistakable clarity” required by the Constitution. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); Peterson v. State, 382 So.2d 701 (Fla. 1980); see generally, Dino v. State, 405 So.2d 213, 216 (Fla.3d DCA 1981) (Pearson, J., dissenting). Indeed, in ruling on the motion to suppress the court was almost exclusively concerned with the difficult Miranda issues surrounding the November 9-10 statements,2 so that the brutality question relating to the earlier statements was not directly decided at all. On this point, the court said only:
There was ample evidence before this Court to indicate that on three prior occasions, at least three prior occasions, he never made any inculpatory statements despite the fact he was physically abused, to which there is also a substantial question as to whether or not he was physically beaten.
The doctor testified that he didn‘t find any objective symptoms of that alleged beating. It was all subjective.
Since it can hardly be said that this statement constitutes a clear-cut determination of voluntariness concerning the statements of September 18 and November 5, Sims v. Georgia, supra; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Peterson v. State, supra, there must be a new hearing and a proper ruling on the motion to suppress these statements3 prior to Porter‘s retrial. Greene v. State, 351 So.2d 941 (Fla. 1977); Land v. State, 293 So.2d 704 (Fla. 1974).
In every other respect we readopt the court‘s opinion of November 17, 1981.
FERGUSON (dissenting to rehearing).
I agree that statements obtained from Porter on November 9-10, 1977 are inadmissible because they were taken after he had invoked his right to counsel but disagree that there is a need to retreat from our initial determination that the statements of September 18, 1977 and November 5, 1977 were the product of physical brutality by the police. In light of the decision by two members of the court that suppression of the confessions was unjustified I would supplement the original opinion.
There is no record evidence which disputes the testimony of Porter, his mother, sister, three other eyewitnesses, and the physician called by the state that after release from police custody on September 18, 1977 Porter had a bloodied mouth and facial swelling.
Pertinent parts of the doctor‘s testimony appear in cross-examination at page 814 of the record:
Q. [By Mr. McWilliams] It was a cut on his lip?
A. [Dr. Goellner] Yes, sir.
Q. And it was open?
A. Yes, sir.
* * * * * *
Q. All right. You did note on your diagnosis that there was abdominal wall trauma, correct?
A. Yes.
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Q. Now, you also said — and you diagnosed that there was soft tissue trauma to the nose. Doctor, what is the soft tissue in the nose? Where is it?
A. The soft tissue in the nose is the skin, the layer of fibrous tissue underneath the skin. It does not include the bone, the nasal bones, and it does not include the cartilage in the nose.
Q. Now, doctor, even though the patient had told you about being beaten, you wanted to check if there were any signs of this, correct?
A. That‘s correct.
Q. And in order to make your diagnosis of soft tissue trauma to the nose, first of all, you looked at the nose, correct?
A. Yes, sir.
Q. And second of all, you touched to check for reactions as to tenderness, correct?
A. Yes.
Q. And it was your diagnosis, based upon what you saw and the tests that Wallace Porter did indeed have injury to the soft tissue in his nose, right?
A. Yes, sir.
[Recross Examination at page 821]
Q. Doctor, on the word “voluntary“, if the patient had been struck by somebody in the stomach, to produce the injuries that you observed, you still would have used the term “voluntary” guarding, correct?
A. That‘s correct.
Q. What that means is the patient‘s reaction upon being touched, correct? As opposed to involuntary, a spasm over which there is not control whether you touch it or not.
A. Yes, sir.
Q. Sir, it doesn‘t mean you thought he was faking, right?
A. What you say is correct, it does not mean he was faking.
Q. In fact, it was your impression that there was soft tissue trauma to the abdomen and to the nose, correct?
A. Yes, sir.
Judge Schwartz‘s opinion focuses on commentary and argument rather than record evidence in arriving at the conclusion that there was sharply conflicting evidence as to whether any abuse took place. First there is the comment of the trial judge that “there is a substantial question as to whether or not he was physically beaten” and there were no “objective symptoms of that alleged beating.” Those comments, it is now somewhat conceded, are inconsistent
[Cross-Examination at page 589]
Q. [By Mr. McWilliams] Prior to entering the police service, you had some formal training in karate, correct?
A. [Detective Gergen] Yes, sir.
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Q. Part of that training is a detail study of the internal organs of the body, correct?
A. In some aspects, yes, sir.
Q. All right. The areas which to strike to cause internal injuries, correct, you studied that in your formal karate training?
A. Yes, sir.
Q. And also, part of that training is which parts of your body to use to strike another person to cause such injuries, correct?
A. That‘s correct.
Footnote one of the majority opinion calls attention to that part of the physician‘s testimony indicating that Porter may not have been physically abused with the degree of force testified to — suggesting, perhaps, that a little brutality is o.k. Lastly, the majority says the trier of fact has a right to believe that Porter harmed himself so as to justify a claim of police brutality. In the record such a theory originates with the prosecutor as mere hypothesis while examining the state‘s own physician-witness, refers only to puffiness of the nose, and consumes all of a single question and answer. At page 236:
Q. [By Mr. McHale] If someone took their fist and punched themselves in the nose would it cause that puffiness?
A. [Doctor Goellner] Yes, sir. Any amount of trauma would cause puffiness.
A conflict in the testimony is raised only by the denials of Detectives Gergen and Derringer — whose propensities for frenzied expediency are elsewhere chronicled in this court1 — that they are responsible for Porter‘s injuries. The testimony of the police stenographer was that she could not recall anything about the defendant.
Porter‘s steadfast denial of any complicity in the killing of Charley Haggins on three separate days of interrogation totalling some twenty hours, during at least one of which sessions he suffered physical injuries, is subject to no other reasonable inference than that he was compelled by persistent interrogation and physical abuse to forego his Fifth Amendment privilege. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state has the burden of proving by at least a proponderance of evidence that the challenged confession was given voluntarily. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Brewer v. State, 386 So.2d 232 (Fla. 1980). On the facts of this case if that burden is discharged with the mere denial by police officers that they physically abused the defendant, then the duty placed upon appellate courts to independently review the entire record to ascertain voluntariness is a farce. My disagreement is not on grounds that the evidence at trial is legally insufficient or that the weight of the evidence will not support a conviction. The majority recognizes as well that there is not the required finding by the trial court that defendant voluntarily and freely waived his Fifth Amendment privileges against incrimination, and it is my opinion that on this sordid record there can be no such finding. See Cason v. State, 373 So.2d 372 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1202 (Fla. 1980) (where there is evidence of illegality surrounding confession state has a heavy burden of proving voluntariness with unmistakable clarity).