Andrews v. State, 77-796

• Decision Date: 12 June 1979
• Docket Number: No. 77-796,77-796
• Citation: 372 So.2d 143
• Parties: Patricia ANDREWS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 143

372 So.2d 143

Patricia ANDREWS, Appellant, v. The STATE of Florida, Appellee.

No. 77-796.

District Court of Appeal of Florida, Third District.

June 12, 1979.

Rehearing Denied July 13, 1979.

Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.

PER CURIAM.

The appellant and three co-defendants (Mark Sublette, Bruce Dunham and Michael Dias) were charged by indictment with murder in the first degree, robbery, burglary and grand larceny. The larceny count was amended to petty larceny prior to trial. The defendant was arraigned and stood moot; a plea of not guilty was entered by the court. A motion for severance was filed and denied by the court. The defendant was tried in a joint trial with co-defendant Sublette. ¹ At the conclusion of the jury trial, the jury returned verdicts of guilty on all charges. The defendant was adjudicated guilty and a life sentence was imposed on the murder conviction with consecutive life sentences imposed on the robbery and burglary convictions.

On this appeal, four points are presented. The first urges error upon the denial of defendant's motion for severance. The second urges error upon the admission of statements of the defendant by which she confessed to participation in the crimes. The third seeks reversal upon a claimed comment on her right to remain silent when questioned by police officers. The fourth urges error upon the court's refusal to allow defense counsel to depose a co-defendant who, during the trial, agreed to testify for the State in return for immunity from his testimony and a reduction in the charges against him.

The only point requiring extensive discussion is the first point presented, which urges error in the denial of motion for severance. We hold that this point does not present error where the evidence of the co-defendant was cumulative of other evidence presented by the State and the proof of defendant's guilt, without the cumulative statement, was overwhelming.

The body of the victim, Louis Broeker, ² was discovered by his nephew, Joseph Tripp, and his sister, Ella Tripp, at approximately 3:00 a. m. on October 5, 1976, in a bedroom of their residence at 450 Grand Canal Drive in Dade County.

Upon his return home, Tripp observed that the kitchen light was on and also observed several purses belonging to his mother on the floor in a hallway; the purses were open. He conducted a brief search of the house, and then went to the bedroom in which his mother was sleeping. He told his mother that there had been a burglary, and the two of them went to the bedroom in which Broeker slept. Tripp observed that Broeker was not breathing and that his body was cool; he also observed that his ankles were tied. His mother observed a wallet which belonged to Broeker on the floor of the room; money had been removed from the wallet and from her purses. Then when Tripp entered the kitchen of the home, he observed that the cord had been removed from the telephone in the kitchen.

In conducting an autopsy on the body, the examining physician observed bruises to the head, torso and buttocks of the victim. These injuries were stated to be consistent with blunt traumas. Internally, the physician observed several fractured ribs and attendant hemorrhaging, and a bruise to the left lung. He testified that these injuries would have interfered with the ability of the victim to breathe. He also observed ligature markings on the ankles; he stated that the ligatures and the posture of the victim on the bed would have interfered with respiration.

The autopsy also revealed a significant loss of blood. The initial conclusion was that death was caused by the various blunt traumas. However he also stated that there was a possibility of asphyxiation caused by smothering. He further testified that the blunt injuries would have been sufficient to cause death.

The defendant was observed in the vicinity of the Tripp residence at approximately 3:00 a. m. on October 5, 1976, by William A. Tracy, a neighbor. Tracy testified that he observed a gold Chevrolet parked outside of his home at approximately that time, and that he drove his own automobile alongside the Chevrolet to investigate. The defendant subsequently approached, and informed him that the Chevrolet was her automobile. She thereupon agreed to move the vehicle; Tracy drove away, and observed the Chevrolet drive away from his home. After purchasing a newspaper, Tracy returned to his home and observed that the Chevrolet was gone.

Tracy testified that the defendant appeared to be extremely tired. He inquired whether she "had a problem" and the defendant responded that she was looking for her sister.

Police investigators discovered a hammer and a letter opener outside the house and two knives inside the house, one found on a sofa and another found in the kitchen. A total of one hundred and eleven latent fingerprints were lifted from various surfaces and objects in the house. Latent fingerprints were also lifted from the Chevrolet automobile belonging to the defendant. Latent fingerprints which were lifted from the front door of the residence and from the letter opener recovered by investigators were identified as belonging to the defendant. A latent fingerprint removed from the rear view mirror of the automobile was also identified as belonging to the defendant.

The prosecution introduced several oral statements and a written statement made by the defendant. Prior to trial, the defense filed a motion to suppress these statements on the grounds that the statements were made involuntarily. The motion was heard prior to trial. The defendant testified that on the day of her arrest, she had not slept in forty-eight hours and that during this period of time, she had continually consumed alcoholic beverages. She testified that she had been drinking every night for a period of eighteen months and that she was heavily intoxicated at the time of her arrest.

She was initially interrogated by Detective Steven Jackson. A second interrogation was conducted by Detective Thomas Gergen. The defendant testified that she did not remember being read her rights by Jackson, and that she was "not really aware" of her rights at the time of her arrest.

Approximately six hours after her arrest, Detective Gergen interrogated her. The defendant testified that she requested the presence of an attorney, but that she was not given an opportunity to contact a lawyer. She stated that the actions of the officers "influenced me to make a statement I would not have made."

After Detective Gergen took a statement from her, the defendant was given an opportunity to review her statement. She was requested to initial the pages of the statement; after a period of time, she stopped doing so and requested the presence of an attorney.

She testified at trial that the statement was not entirely true, and that her admission that she had struck the victim was not true. She testified that she had been told of the statements given by codefendants, and that she was questioned repeatedly until she made a similar statement. She stated that she gave the statement because she had been abused, and feared further abuse if she did not make an inculpatory statement.

At trial, Detective Jackson testified that he obtained a statement from the defendant by 3:30 a. m. on the day of her arrest; he first spoke with her at approximately 2:30 a. m. Detective Gergen, who did not testify at the hearing on the motion to suppress, testified that he subsequently took a statement from the defendant during the early morning hours of October 6th, and that he made no promises or threats to the defendant. The defendant made no complaints about the manner in which she had been treated. He did not detect an odor of alcohol about the defendant, and testified that there was nothing unusual about her gait. The motion to suppress was denied; it was renewed at trial and was denied.

Defendant's Oral and Written Statements

The oral confession given by the defendant was related by Detective Jackson at trial. He stated that he first interviewed the defendant at approximately 2:30 a. m. on October 6th, at which time he advised her of her constitutional rights. The defendant told Detective Jackson that she had gone to the Tripp residence to seek assistance in the company of three other individuals. She knocked on the door, and when no one answered, the other individuals went to the rear of the house, entered through a window, and let her in through the front door. The defendant stated that she obtained food from the kitchen, but "(a)t no time" entered the bedroom.

When the State sought to introduce the written statement of the defendant at trial, defense counsel objected on the grounds that the statement was unsigned and had not been acknowledged by the defendant. The court ruled that the pages which the defendant had initialed would be admitted. The court further ruled that the stenographer who recorded the statement could read her notes of the remaining pages.

The statement reflects admissions by the defendant that she met an individual identified only as "Joe" at a lounge in Sweetwater in 1975. At the time that she met this individual, the defendant was with Bruce Dunham, one of the co-defendants. Joe allowed the defendant and Dunham to stay at his residence for several days.

The defendant stated that on October 4, 1976, she was at an establishment known as the Pine Tree Bar with Dunham when they encountered an individual identified only as "Richard." With Richard were the other co-defendants, Michael Dias and Mark Sublette. The five of them subsequently went to the motel where Richard, Dias, and Sublette were living; Richard left, and the four of them then went to the Jamaica Motel where the defendant and Dunham were...