463 So.2d 186 (Fla. 1984), 54869, Randolph v. State

Docket Nº:54869.
Citation:463 So.2d 186, 10 Fla. L. Weekly 27
Opinion Judge:Author: Per Curiam
Party Name:Tommy Lee RANDOLPH, Appellant, v. STATE of Florida, Appellee.
Attorney:Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Jerry L. Schwarz, Jon May and Michael A. Mello, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
Case Date:December 20, 1984
Court:Supreme Court of Florida
 
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Page 186

463 So.2d 186 (Fla. 1984)

10 Fla. L. Weekly 27

Tommy Lee RANDOLPH, Appellant,

v.

STATE of Florida, Appellee.

No. 54869.

Supreme Court of Florida.

December 20, 1984

Page 187

Rehearing Denied Feb. 26, 1985.

Page 188

Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Jerry L. Schwarz, Jon May and Michael A. Mello, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., and Robert L. Bogen and Marilyn J. Altman, Asst. Attys. Gen., West Palm Beach, for appellee.

PER CURIAM.

This is an appeal from a judgment of guilt of murder in the first degree and attempted robbery and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

This case involves the shooting death of Joseph Chesser, III, during the early morning hours of February 24, 1978. The state's chief witness was Althea Glinton, a co-defendant, who was allowed to plead no contest to second-degree murder in exchange for her testimony. She was awaiting sentence at the time of trial.

Randolph was charged with, inter alia, first-degree murder, attempted robbery, and conspiracy to commit robbery. Glinton was Randolph's girlfriend and a prostitute. She turned over the money which she made from her work to Randolph. On the night of the homicide, he wanted Glinton to turn one more trick before she went home. Glinton then saw the victim, one of her regular customers, and solicited him. She got into the victim's truck and they pulled up in front of a rooming house. When Glinton and the victim had finished, and Glinton was leaving the truck, Randolph showed up and pushed Glinton away. Glinton then ran into a nearby boarding house because she was scared. She overheard Randolph tell the victim not to try anything and Randolph wouldn't shoot. Glinton then heard two gunshots.

Glinton testified that Randolph had a pistol which would occasionally get stuck when you tried to shoot it. Misfired twenty-five caliber cartridges were found in Randolph's residence and also at the scene

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of the homicide. The bullet which resulted in the victim's death was a twenty-five caliber bullet.

After the shooting, Randolph asked Glinton if the victim had any money. Receiving an affirmative reply, Randolph walked over to the victim's truck (with the victim's body lying inside) and looked in the window. Randolph got into the truck, and a witness testified that she saw him get something.

The state introduced evidence that, just a few days earlier, Ken Eller and Mike Hayes "picked up" Althea Glinton and another woman in the same general area. After finishing their activities, they were approached by Randolph and another individual upon leaving the rooming house. The girls disappeared and Eller and Hayes were robbed at gunpoint. Randolph had a twenty-five caliber gun and was overheard saying that he could have killed one of them because he didn't have any money.

Randolph objected to this testimony on the grounds that it was not proper under the rule as announced in Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). In that case the Court laid down the test of the admissibility of such evidence as being one of relevancy. Even if the evidence in question tends to reveal the commission of a collateral crime, it is admissible if found to be relevant for any purpose save that of showing bad character or propensity.

The Eller and Hayes incident was extremely similar to the incident which resulted in the murder of Chesser. The two incidents took place in the same general area within days of each other, the same participants were involved, the same type weapon was involved, the same modus operandi was involved, the same type of victim was involved, and the same type of offense was involved. Collateral crime evidence was clearly relevant and admissible as it related to a material fact in issue. This collateral crime evidence demonstrated Randolph's motive, intent, and state of mind in approaching the victim's truck and eventually killing the victim.

Where evidence of a collateral crime is relevant and admissible, the prosecution should not go too far in introducing evidence of other crimes. The state should not be allowed to go so far as to make the collateral crime a feature instead of an incident. Williams v. State, 117 So.2d 473 (Fla.1960). Collateral crime evidence was not a feature of this trial.

The state's chief witness was a co-defendant who was a self-declared prostitute. It was important to the state's case to show that the modus operandi had been followed by Randolph in this collateral offense. It certainly corroborated the testimony of Glinton. Testimony was geared toward proving a material issue of the case rather than demonstrating Randolph's bad character. The evidence was admissible. Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981).

Randolph also argues that evidence of the collateral crime greatly prejudiced him on the question of an appropriate sentence. The fact that evidence might prejudice the defendant during the sentencing procedure is not a ground for excluding it during the guilt phase of the trial, as long as the evidence is relevant and admissible. During the sentencing proceedings, Randolph admitted that he had been previously convicted at least three times. This objection to the admissibility of the collateral crime evidence is also without merit.

Randolph argues that the court committed reversible error when it allowed the father of the deceased to testify. He contends, generally, that the testimony of a member of a victim's family is inadmissible. While it is true that the court must guard against the possibility that sympathy will be injected in the trial, and that is why, normally, a family member should not be called to identify the victim, such evidence is admissible if other witnesses could not perform that function as well. If the family member has relevant testimony which is

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peculiarly within his knowledge, such testimony is always admissible. Randolph was charged with first-degree murder, which charge could be proved by evidence of murder having been committed during the course of a robbery. Additionally, Randolph was charged with attempted robbery and conspiracy to commit robbery.

The father testified that the victim was a partner in business with him and, on the night the victim was murdered, the victim received $100 cash from his father as part of the victim's paycheck. This testimony was relevant to demonstrate that just a few hours before his murder the victim had $100 in cash on him. Later, when the victim was found, only $20 was found hidden in a passenger door compartment to his truck. Testimony as to how much money the victim initially had on the evening in question, as compared to how much money was found on his body, was relevant to demonstrate the distinct probability that Randolph approached the victim on the evening in question to rob him, and, in fact, did rob him. Testimony of the father was properly introduced at the trial. See Lewis v. State 377 So.2d 640 (Fla.1979).

Randolph contends that his custodial statements to the police and the physical evidence seized pursuant to a consent to search were the fruit of an illegal arrest. The police arrested Randolph at his home but without an arrest warrant, so Randolph relies upon Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), where the United States Supreme Court held that, absent exigent circumstances, a warrantless arrest at a person's home is a violation of the fourth amendment.

Payton is not applicable. It appears that exigent circumstances were present so that the arrest in the case sub judice was an exception to the general rule requiring a warrant.

Edna Plain testified that she saw Althea Glinton and...

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