McDole v. State

• Decision Date: 16 May 1973
• Docket Number: 41906,Nos. 41843,s. 41843
• Citation: 283 So.2d 553
• Parties: James Steddo McDOLE, Appellant, v. STATE of Florida, Appellee. Thomas Henry BLACKWELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 553

283 So.2d 553

James Steddo McDOLE, Appellant, v. STATE of Florida, Appellee.

Thomas Henry BLACKWELL, Appellant, v. STATE of Florida, Appellee.

Nos. 41843, 41906.

Supreme Court of Florida.

May 16, 1973.

Rehearing Denied Oct. 26, 1973.

Michael J. Minerva, Asst. Public Defender, for appellants.

Robert L. Shevin, Atty. Gen., and William E. Whitlock, III, Asst. Atty. Gen., for appellee.

ERVIN, Justice.

Appellants in these consolidated cases were convicted of rape and sentenced to death. Pursuant to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), this Court temporarily relinquished jurisdiction to the Circuit Court for resentencing. See Anderson, et al., v. State, 267 So.2d 8 (Fla.1972). Both appellants were resentenced to life imprisonment and the cause is now before us for consideration of the remaining points on appeal.

During the course of appellants' trial, the jury was excused and the court heard evidence on the admissibility of alleged confessions made by each appellant. A motion to suppress these confessions as not having been voluntarily given was denied by the court with the simple statement, 'The motion will be denied.' Following this, the court stated that each side could present the same evidence on the issue of voluntariness to the jury 'so that they can give what weight they consider appropriate to this alleged confession.'

Appellants argue, first, that the trial judge did not make an unequivocal and explicit finding of voluntariness as required by the Fourteenth Amendment. Second, they contend that such a finding, if it had been made, would not have been supported by the evidence presented. Appellants are correct on both points.

The United States Supreme Court, in Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), said that

'. . . it is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with Unmistakable clarity.' (Emphasis supplied.)

We do not believe that such 'unmistakable clarity' appears simply from the trial judge's statement that the motion to suppress the confessions is denied. The requirement of the Fourteenth Amendment is that the trial judge make a determination that a confession was freely and voluntarily given before he allows it to be considered by a jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). A specific finding of voluntariness is necessary to ensure that a judge has properly met this requirement. The necessity of such a requirement is particularly evident where, as here, a strong showing is presented by defendants in support of their contention that they were subjected to brutal beating coercing their confessions.

Without a specific finding, we do not know if the judge properly based his ruling of admissibility on the issue of voluntariness, and we cannot infer a specific finding of voluntariness simply from a specific denial of a motion to suppress. The judge might have based his denial of the motion on the idea that any error in admitting the confessions would be harmless, or he might have felt that the primary determination of voluntariness should have been left to the jury. The only indication we have in the record of this case of the basis for the judge's denial of the motion to suppress is his statement that he would let the jury hear and consider the evidence as to voluntariness. The judge might have been referring to the fact that a jury may still find a confession to have been involuntary and disregard it, despite a judge's finding that it was voluntary. Sims v. Georgia, supra.

If a finding of voluntariness had been made in this case it would not have been supported by the evidence, regardless of the standard of proof necessary to establish the fact. Recently the United States Supreme Court, in Lego v. Twomey, 404 U.S. 447, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), held that the prosecution has the burden of proving by a preponderance of the evidence that a confession was freely and voluntarily given, but the Court added that the states could adopt a higher standard of proof. Prior Florida decisions have required such a higher standard of proof. E.g., Perkins v. State, 228 So.2d 382 (Fla.1969). We are now, however, in agreement with our highest Federal court that proof of voluntariness by a preponderance of the evidence is a more appropriate requirement. Nevertheless, even by that less onerous standard the prosecution in this case did not meet its burden.

Concerning the evidence in the record relating to the voluntariness of the confessions, this is not the typical case wherein the only evidence is the statements of the police officers that the confessions were not coerced and those of the defendants that they were. If it were such a case, a finding of voluntariness--had it been made--could, of course, have been considered as supported by a preponderance of the evidence.

In this case the police officers who took the defendants' statements testified that they were voluntarily given, with no coercion of any kind, after the defendants had been advised of their rights and had signed waivers.

Appellant McDole testified that he was told if he didn't confess to this crime he would be made to go outside and run 'so they could shoot me and claim it was an accident.' He said he was slapped, kicked, forced to take all his clothes off and wait in the interrogation room by himself, where he was beaten and 'fed' the facts of the rape by the police officers, including the fact that a third suspect was with him and Appellant Blackwell and also raped the victim. He claimed that he 'confessed' the facts as 'fed' to him by the police officers.

The third suspect, one Jimmy Reese, was arrested the same night and he also 'confessed' to the crime. The victim, however, testified that only two men raped her. The third suspect testified that he was taken to the...