Anderson v. State, 38778

• Citation: 241 So.2d 390
• Decision Date: 12 November 1970
• Docket Number: No. 38778,38778
• Parties: Alvin Eugene ANDERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 390

241 So.2d 390

Alvin Eugene ANDERSON, Appellant, v. STATE of Florida, Appellee.

No. 38778.

Supreme Court of Florida.

Nov. 12, 1970.

Rehearing Denied Dec. 18, 1970.

Robert T. Jameson, Jr., Ocala, for appellant.

Earl Faircloth, Atty. Gen., Rodney Durrance, Jr. and Wallace E. Allbritton, Asst. Attys. Gen., for appellee.

ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of rape and a sentence of death.

On the night of December 24, 1968, the victim was proceeding from Ocala to Gainesville when an automobile behind her began blinking its headlights. Thinking this was a law enforcement officer, the victim pulled off the road and stopped her car.

A male came to the side of her car, shoved a rifle in her face and ordered her to open the door and move over. Another male got in the other side of the car and they drove her to a secluded area. A second car came to the same area. She was raped by three of the males.

Co-defendants Howell and Harvey testified that defendant Anderson was at the scene of the rape and participated. The victim testified that after the rape she gave her unlisted telephone number to one of her rapists at his request. According to her testimony, she did this through fear.

The victim was then released and continued to her place of employment at a hospital in Gainesville. She was then examined by physicians and interrogated by law enforcement officers.

A few days later, one of the rapists telephoned the victim. After several of these calls between December 25, 1968 and January 3, 1969, she agreed to a meeting place in order to enable the police to capture the caller. As a result, co-defendants Tuggerson and Howell were apprehended. They admitted the rape and named defendant Anderson as one of the others who participated in the rape.

On March 8, 1969, defendant Anderson was arrested on a charge which is not the subject of this appeal and has never been released from custody. On March 24, 1969, he was granted a preliminary hearing before the County Judge on that charge and was represented by an attorney. One day later defendant was arrested, while still in custody, on the charge of rape which is the subject matter of this appeal. On March 26, 1969, the County Judge arraigned him on the charge of rape and asked him if he was still represented by the same attorney. Defendant responded that he was and the County Judge inquired if he would like to sign a waiver of preliminary hearing. Defendant signed the waiver.

On March 31, 1969, defendant's attorney filed a motion for preliminary hearing along with an affidavit wherein he challenged the validity of the waiver. On the same day the County Judge entered an order denying the motion on the ground that a preliminary hearing had been waived and the defendant had been bound over to the Grand Jury. An indictment charging defendant with the crime of rape was returned by the Grand Jury on April 2, 1969.

Defendant contends that the County Judge should have granted the preliminary hearing under the circumstances of this case and by denying the preliminary hearing defendant 'lost a valuable right at a critical stage of the prosecution.' This contention is without merit.

A preliminary hearing is for the purpose of determining if probable cause exists to hold one accused of a crime for trial. Such a hearing is not a critical stage in the proceedings, Harris v. State, 208 So.2d 108 (Fla.App. 1, 1968), unless prejudice results to the defendant in some subsequent proceedings, or under the circumstances of the case the preliminary hearing was a critical stage in the proceeding. Abbott v. State, 164 So.2d 243 (Fla.App.2d, 1964). It is not a prerequisite to a criminal prosecution or the filing of an indictment or information. Sangaree v. Hamlin, Fla., 235 So.2d 729 (opinion filed May 13, 1970).

Defendant in his affidavit attached to a subsequent motion for preliminary hearing admitted that he signed the waiver, but said that he did not read it and signed it only 'because he thought it had something to do with his attorney representing him.' Rule 1.122(b), Cr.P.R., 33 F.S.A., provides for the waiver of a preliminary hearing by the defendant. Contrary to the contention of defendant, waiving the preliminary examination does not admit that either the circumstances or the character of defendant's offenses are different from what they really are, or that his offense is more grievous or of higher grade of criminality than the evidence makes it in the eyes of the law. By such waiver the defendant does not abandon any subsequent remedy given him by the law. Benjamin v. State, 25 Fla. 675, 6 So. 433 (1889).

Neither defendant's motion nor the record suggest the existence of factors which would make the preliminary hearing a critical or essential stage of the criminal proceeding, nor does it appear that prejudicial harm resulted to the defendant because of the denial of the subsequent motion for a preliminary hearing. A legal waiver of preliminary hearing was effected and the defendant has failed to allege sufficient grounds to withdraw the waiver. There could be no prejudice to the defendant in view of the fact that the Grand Jury by indictment found probable cause only two days after the County Judge denied the motion for preliminary hearing.

The palm print of defendant was taken on March 25, 1969. The deputy sheriff could not recall the exact dates defendant's fingerprints were taken or whether they were taken at the same time as the palm print. Defendant contends that upon arrest the State is entitled to take defendant's fingerprints or such other prints they desire at such time. However, defendant says, any further requests for prints should be with all of the safeguards provided by law against self-incrimination. He contends that the State should have taken all of the prints considered necessary at the time of arrest.

Palm prints are frequently left at scenes of crimes and are just as reliable and accurate as fingerprints. Modern Scientific Evidence by Richardson, § 18.12, p. 459 (1961).

Fingerprints and palm prints are not evidence of a testimonial or communicative nature and are, therefore, not protected by the Fifth Amendment strictures against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Under the latter decision, Gilbert v. California, Supra, the taking of a palm print is not a critical stage of the criminal proceeding entitling appellant to advice of counsel. See also Gentille v. State, 190 So.2d 200 (Fla.App.3d, 1966), where the fingerprints of the accused, taken after a lawful arrest and appointment of counsel without said counsel being present, were admitted into evidence.

Fingerprints taken by the police before a defendant is arrested and without probable cause would violate his Fourth Amendment protection against unreasonable search and seizure. Under these circumstances, the fingerprints have been held inadmissible. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In the case Sub judice defendant's palm print was obtained after a lawful arrest based upon probable cause. This is in accord with the decision in Smith v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1968), cert. den., 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1963); where the Court said:

'We find no error in the admission of the palm print of Smith taken the day before trial for purposes of comparison with the palm print on the victim's credit cards. Unlike the situation in Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1958), appellant here was in lawful custody at the time his prints were recorded. Cf. Bynum v. United States, 107 U.S.App.D.C. 109, 274 F.2d 767 (1960) (per curiam). And it is elementary that a person in lawful custody may be required to submit to photographing, United States v. Amorosa, 167 F.2d 596, 599 (3d Cir., 1948), and fingerprinting, United States v. Krapf, 285 F.2d 647, 650--651 (3d Cir., 1961), as part of routine identification processes. United States v. Kelly, 55 F.2d 67, 83 A.L.R. 122 (2d Cir., 1932).' (p. 882)

Many decisions in other states have held that the correspondence of palm prints or bare hand marks found at the scene of the crime with those of the accused is admissible in evidence to prove the latter's identity. See Annotations, 3 A.L.R. 1706; 28 A.L.R.2d 1115, 1127. Under these authorities where a defendant has been arrested and fingerprinted pursuant to such arrest and later obtains counsel and thereafter is requested to give his palm print without being advised of his rights, such taking of the palm print does not constitute self-incrimination.

Nola Bryant testified that on the day after the alleged rape defendant discussed with her his actions of the night before, saying, 'I made that whore crawl in the back seat and she was saying, 'please, please. " Defendant contends that this conversation was too general to have probative worth and was completely irrelevant and prejudicial.

Ruth Crosby testified on behalf of defendant that he was at her mome on the night when the rape occurred. The testimony of Nola Bryant as to the alleged admission by defendant was relevant in that it tended to discredit the alibi testimony. Furthermore, the testimony was relevant in that the admission tended to corroborate the testimony of the two accomplices as to the details of what took place at the rape scene and as to defendant's part in the commission of the offense.

Nola Bryant further testified that the statements of defendant were made in a jocular manner. This fact goes to the weight of the evidence rather than to its admissibility. The jurors were entitled to decide the truth or falsity of the admission given under such circumstances.

Defendant filed a general motion for production of State's evidence and included therein a demand that h...