Dodd v. State

• Decision Date: 04 February 1970
• Docket Number: No. 69--136,69--136
• Citation: 232 So.2d 235
• Parties: Sam DODD, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 235

232 So.2d 235

Sam DODD, Jr., Appellant, v. STATE of Florida, Appellee.

No. 69--136.

District Court of Appeal of Florida, Fourth District.

Feb. 4, 1970.

Rehearing Denied March 20, 1970.

Alton S. Beasley, Stuart, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.

REED, Judge.

This is an appeal from a final judgment and sentence imposed by the Court of Record for Broward County, Florida. The case began with an information which alleged that the defendant, Sam Dodd, Jr., on 29 June 1968 committed the unlawful act of fondling a child as proscribed by Section 800.04, F.S.1967, F.S.A. The trial by jury ended in a verdict of guilty. Upon the rendition of the verdict, the trial judge entered a judgment sentencing the defendant to a term of ten years. A motion for a new trial was denied and this appeal followed.

The issue is whether or not the trial court erred in its finding that a confession which had been elicited from the defendant was voluntarily given.

After preliminary testimony by the child and his father, the State indicated that it intended to go into the matter of the confession. The jury was then excused. The State produced only one witness to support the voluntariness of the confession, Sam George, a deputy sheriff of Broward County, Florida. He testified on direct examination that on 29 June 1968 he advised the defendant of his rights and then took a statement from him. The statement, according to Officer George, was recorded on a Grey Recording Machine and later transcribed. The witness was tendered for cross-examination even though the State had not shown: (a) what advice the defendant was given as to his rights; (b) where or when the meeting between Officer George and the defendant occurred; (c) the circumstances under which the meeting occurred; and (d) the accuracy of the recording and the transcript thereof. After cross-examining Officer George, the defendant's attorney offered rebuttal testimony. Before any action was taken on this offer, both parties' attorneys agreed that the trial judge should hear the record of the defendant's statement. The trial judge was favorably disposed, and the record was played.

After the record had been played, the trial court had before it no more than the brief testimony from Officer George and the record. There was, however, no testimony of a factual nature that would indicate that the confession was voluntarily given and not the result of force, threats, or promises. Nevertheless, the trial judge announced that he was satisfied that the defendant's statement was voluntary. At this point the trial judge Had not heard from a single rebuttal witness. Thereafter, with the jury still out, the trial judge permitted the defendant to present testimony in rebuttal the gist of which will be discussed later. When the defendant's rebuttal testimony was completed, the trial court heard argument from the opposing attorneys and again ruled that the defendant's statement was voluntary. This finding is the judicial act assigned as error.

A conviction which is based in whole or in part on an involuntary confession violates the defendant's right to due process of law guaranteed by the Fourteenth Amendment regardless of the truth or falsity of the confession. ¹ Jackson v. Denno, 1964, 378 U.S. 368, 84 SCt. 1774, 12 L.Ed.2d 908; Chambers v. State of Florida, 1949, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716.

When the State desires to introduce a confession into evidence, it has the burden of making a prima facie showing that the confession was the voluntary act of the defendant. Reddish v. State, Fla.1964, 167 So.2d 858; Young v. State, Fla.1962, 140 So.2d 97. A prima facie showing is simply the quality and quantum of evidence from which an inference of voluntariness can reasonably be drawn. The voluntariness of a confession must be determined by the trial judge in the absence of the jury. Graham v. State, Fla.1956, 91 So.2d 662; Jackson v. Denno and Young v. State, supra.

After the trial judge has heard the evidence submitted by the State in support of the confession, it is his duty to hear and consider any evidence which the defendant desires to offer with respect to the issue of voluntariness. Bates v. State, 1919, 78 Fla. 672, 84 So. 373; Graham v. State, supra. Then the trial judge must resolve conflicts in the evidence, Young v. State, supra; Moffett v. State, Fla.App.1965, 179 So.2d 408, and make a determination on the record as to the voluntariness of the confession. Sims v. State of Georgia, 1967, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. The trial judge is vested with discretion in the determination of the issue of voluntariness, but this discretion must be exercised with great caution, Graham v. State, supra. His determination may be reversed when not supported by competent substantial evidence, Young v. state, supra.

While it is impossible to delineate the type of evidence which will invariably sustain a conclusion of voluntariness, it can be said that the determination of voluntariness must be based upon facts rather than opinions of witnesses which simply express a conclusion that a given confession was voluntarily made, Bates v. State, supra. The kind of evidence which might be useful as proof of the ultimate issue was generally outlined in Williams v. State, Fla.App.1966, 188 So.2d 320, 328, where the court said:

'This would include statements made by the parties, the acts and doings of the participants, the conditions and general atmosphere prevailing at the time and place the confession was made * * *.'

As pointed out in Williams v. State, supra, the hearing on the issue of voluntariness is designed to determine the voluntariness of the confession and not its content. For this reason the confession itself should not normally be used as proof of...