284 So. 2d 467 | Fla. Dist. Ct. App. | 1973
Lead Opinion
This is an interlocutory appeal from the Criminal Court of Record for Duval County, seeking a reversal of the order of the trial court suppressing a confession of the defendant-appellee.
From the facts briefly stated, it appears that the appellee found the dead nude body of a Negro female in a tool shed behind a high school in Jacksonville. He reported this finding to the police department. The appellee, at the date he found the body, was employed at this high school doing maintenance and painting. The deceased’s clothes had some paint on them of the same kind as being used on school buildings that were being painted. This body was found and reported to the police on August 2, 1972. Sometime after that, an uncle of the appellee advised the police about some scratches on the back of appel-lee. The date this occurred is not shown nor the circumstances under which the uncle so advised the police. On August 7, 1972, the police were apparently still interested in the homicide, -and armed with the further circumstances procured from the uncle, they picked up the appellee from the school grounds and took him down to the Homicide Division of the Sheriff’s Office about 9:30 to 10:00 a. m.
In the trial court’s order, he relates what he found to be the facts which surround the actions of the police and the appellee from 10:00 a. m. until approximately 8:30 p. m. at the office to which the appellee had been taken. It is undisputed that shortly upon arriving at the Sheriff’s Office, the officers advised the appellee-de-fendant of his constitutional rights under the Miranda decision and the defendant actually signed a card setting forth his constitutional rights. Intermittently from 10:00 a. m. until the statement was made
To this Court, it appears that the officers were very easy in their treatment of the defendant. They tried to give the defendant plenty of time to make up his mind. There is no doubt in our minds from reading the record, that the actions of the officers were no more than their constitutional rights as police officers to run down reasonable leads to solve a crime. If the officers had slapped the defendant around a few times, they probably could have obtained a confession in a much shorter time, but this they did not do, but followed the legal and right method to reach the same result.
The police and the law enforcement bodies must be granted some leeway in trying to solve crimes. The criminal element should not at all times be given all the technical advantages at the expense of the law enforcement, if such advantages do not curtail or encroach upon the constitutional rights of the defendant when viewed in the manner in which a reasonable man would review the same.
For the reasons stated above, we think and so hold, that the trial court abused its discretion in suppressing the confession and that the evidence did not support the finding of the court that the confession was not freely and voluntarily given. The order suppressing the confession is reversed and the case' remanded for a trial.
Concurrence Opinion
(specially concurring) :
I concur in the judgment reversing the order suppressing appellee’s confession for two reasons. First, there is no evidence that the confession was the result of physical coercion or threats, in absence of which factors the confession is reliable and should be admissible at trial. Secondly, I believe the trial court erroneously suppressed the confession on the basis of what I believe to be a misconception of Section 901.23, Florida Statutes, F.S.A. Said provision does not stand alone in our law. It is to be considered in pari materia with other rules of law. It is undisputed that appellee was afforded a statement of his rights under the Miranda decision, yet he did not ask for an attorney.
In Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651, 655 (1969), cert. denied 397 U.S. 1058, 90 S.Ct. 1383, 25 L.Ed.2d 676, it was held that the right of an accused to be taken before a committing magistrate is waived if the accused gives a confession or statement following the Miranda warnings. To like effect, see O’Neal v. United States, 411 F.2d 131 (C. A. 5th 1969), cert. denied 396 U.S. 827, 90 S.Ct. 72, 24 L.Ed.2d 77.
In my view, the reliance by the dissenting opinion upon the Supreme Court’s decision in Jesse Obendale Roberts is unavailing. The Roberts decision explicitly is founded upon the mandate of Section 39.-
For the above reasons, I concur in the reversal.
Dissenting Opinion
(dissenting).
At approximately 9:30 a. m. on August 7, 1972, two police officers took this 17-year old defendant into custody and transported him in a patrol car to the “homicide” office in the courthouse for the purpose of interrogation. A confession was extracted from defendant around 8:30 p. m. that evening. The trial judge, after hearing extensive testimony concerning the voluntariness of defendant’s confession, entered the order appealed suppressing the subject confession. Salient portions of the trial judge’s order are as follows:
“8. At approximately 10:30 A.M., the officers advised the defendant of his constitutional rights under the Miranda decision, and the defendant signed a card which was introduced into evidence setting forth his constitutional rights. The officers interrogated the defendant about the body, and at the suggestion of the officers and with the consent of the defendant, polygraph examination was administered at approximately 12:00 noon on August 7th, 1972. After the polygraph operator reported his findings to the Homicide officers at approximately 2:00 or 2:30 P.M., the defendant was subjected to further interrogation concerning his involvement in the death of the woman. The defendant denied any participation in the death of the woman.
“9. Intermittant questioning continued until approximately 8:30 P.M., when the defendant at that time made a statement that was reduced to writing.
“10. At no time during the entire interrogation was the defendant advised that he could leave at any time that he wished, and on occasion was fed cola and crackers and was also permitted to use the bathroom.
“11. That the State announced its intention to introduce said statement into evidence in the trial of this case which by its motion the defendant has sought to suppress.
“Based upon the preceding findings of fact, it is ordered that the statement sought to be introduced in this case is found to be inadmissible as evidence at the trial of this cause because it was not freely and voluntarily given, and is hereby suppressed.”
One of the police officers testified that around 2:00 or 2:30 p. m., defendant became a prime suspect when he “flunked” the polygraph test which had been given to him two or more times. This officer further testified that he nor any other officer informed the defendant that he had a right to go before a judge. In response to the Court’s inquiry as to why defendant was not placed under arrest after he “flunked” the polygraph test and became a prime suspect, this officer stated, “We didn’t place him under arrest until he gave us a statement. It was just that way, the way it happened.”
The majority opinion observes that:
“If the officers had slapped the defendant around a few times, they probably could have obtained a confession in a much shorter time, but this they did not do, but followed the legal and right method to reach the same result.
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“The criminal element should not at all times be given all the technical advantages at the expense of the law enforcement . . .
“The right of a free man to be presented to a sworn judicial officer promptly upon his arrest is not a technical or trivial right. Such rights are the bedrock of our liberties and have grown out of mankind’s experiences over hundreds of years. . . . Every person who can read is familiar with the methods used in some areas of the world to obtain confessions. The methods there used have become commonly known as brainwashing.” [Emphasis supplied.]
Years before other states saw the light, Florida adopted the rule that a judicial confession be proffered to the trial judge to first determine whether it was freely and voluntarily made, and in such proceeding, the trial judge resolves conflicts in evidence. This rule stands despite the fact, that the incriminating statements are made while the accused is under arrest.
F.S. § 901.23 F.S.A. mandates an equally cogent reason to uphold the trial judge’s order suppressing the instant confession:
“Duty of officer after arrest without warrant. — A peace officer making an arrest without a warrant shall take the arrested person without unnecessary delay before the most accessible magistrate in the same county and shall make a complaint stating the facts constituting the offense for which the person was arrested.”
The verbiage of the subject statute does not require an exercise in sophistry to comprehend the meaning of simple English words. Was the defendant in the instant case taken before the most accessible magistrate without unnecessary delay ? As related above, around 2:30 p. m. in the
“We find that the totality of circumstances in these cases manifestly requires nullification of these convictions on account of the failure of local law enforcement officials to comply with Fla.Stat. §§ 901.06 and 901.23, F.S.A. The rationale supporting our decision may be found in the cases of McNabb v. United States, 318 U.S. 332, at 343-344, 63 S.Ct. 608, 87 L.Ed. 819 (1942), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) . . . . See Jacobs v. State, 248 So.2d 515 (Fla.App.1971), wherein the District Court of Appeal, First District, required a new trial for a defendant who was not brought before a magistrate until long after his arrest.” [Emphasis supplied.]
Analogous to the facts in the instant case is the recent opinion of the Supreme Court in Roberts v. State
“The person taking and retaining a child in custody . . . shall, without delay for the purpose of investigation or any other purpose, deliver the child . to the court . . . .”
After observing that “[i]n view of the explicit mandatory language of Section 39.-03,” the Supreme Court remanded Roberts’s case for a new trial. In view of the explicit mandatory language of F.S. § 901.-23 F.S.A., and in view of the trial judge’s finding of fact, upon competent substantial evidence, that the subject confession was an involuntary one, it is my firm opinion that the instant cause should be affirmed.
I, therefore, dissent.
. Dawson v. State, 139 So.2d 408, 422 (Fla.1962).
. State ex rel. Carty v. Purdy, 240 So.2d 480, 481 (Fla.1970).
. Young v. State, 140 So.2d 97 (Fla.1962).
. Oliver v. State, 250 So.2d 888, 889 (Fla.1971).
. Roberts v. State, Supreme Court Case No. 43,608, Opinion filed October 3, 1973; not yet reported.