Ashley v. State, 40861

• Decision Date: 03 May 1972
• Docket Number: No. 40861,40861
• Citation: 265 So.2d 685
• Parties: Henry Thomas ASHLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 685

265 So.2d 685

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

No. 40861.

Supreme Court of Florida.

May 3, 1972.

Rehearing Denied June 30, 1972.

Lester Bales, Jr., Zephyrhills, for appellant.

Robert L. Shevin, Atty. Gen., Joe Demember, Asst. Atty. Gen., for appellee.

MASON, Circuit Judge.

We have here for review on direct appeal from the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida, appeals from judgments of conviction of murder in the first degree and from death sentences imposed thereon. The two appeals have been consolidated for purpose of briefs and arguments, but since they are from separate trials and raise issues common in some respects to both trials, but divergent in other respects, we will review them separately, though in one opinion.

Five indictments for murder in the first degree were returned against the appellant, defendant below. He moved to consolidate all five cases for purpose of trial and the trial court consolidated four of them for trial, but ordered the fifth to be tried separately. Trial upon the four consolidated indictments was first had, resulting in convictions as charged and without a mercy recommendation in each case. Later trial was had of the fifth indictment, likewise resulting in a conviction of first degree murder without recommendation of mercy. The trial court imposed the death sentence in all five cases.

The victims in the four cases consolidated for the first trial were killed by the appellant around midnight or shortly thereafter on October 3, 1970. They were Andrew Dorn and Mildred Dorn, his wife, owners and operators of Dorn's Hideaway Restaurant, a waitress, Ethel Vaiana, who worked for the Dorns, and her husband, Philip Vaiana, who happened to be in the place at the time of the killings. The restaurant was located in a rather uninhabited area near New Port Richey. Appellant and his companion, hereafter referred to, 'cased' the place, to use the vernacular, prior to the occasion of the killings there. The evidence established that the killings were motivated by robbery on the part of appellant. The appellant shot each of the victims in cold blood without any necessity therefor even for the purpose of perpetrating robbery for no resistance of any character was offered by either of the victims. The eye witness to these four homicides was a witness called by the appellant himself. Other witnesses placed the defendant and the eye witness, a companion and friend of the appellant, at the place of the killings at times between 9:30 and midnight. Appellant was driven to and from the site of the killings in an automobile owned by the eye witness. Subsequently, the witness drove the appellant back to St. Petersburg and left him off near his girl friend's house.

The homicide which is the subject of the second trial occurred an hour or two prior to the homicides at Dorn's Hideaway Restaurant. The appellant and his companion had picked up a hitchhiker, one Richard LaPlante, shortly after they had left Dorn's Hideaway Restaurant earlier in the evening, and after riding him around for a short while appellant demanded that the hitchhiker give him his money. The latter did so, thereupon appellant ordered him to get out of the car which was parked at a lonely spot at the time. The hitchhiker started to walk away from the car and as he did appellant shot him several times in the back, killing him. Appellant and his companion dragged the dead man off the road, got back in the car and drove back to Dorn's Hideaway Restaurant, where appellant murdered the four persons for which murders he was tried in the first trial.

Subsequently, on October 6, 1970, the appellant was apprehended at a bus station in Jacksonville, Florida, by FBI agents and by a special agent of the Florida Department of Law Enforcement. While en route to the Duval County Jail appellant was advised that he was charged with a federal offense of unlawful flight to avoid prosecution. During this trip of about five minutes appellant was advised of his constitutional rights under the Miranda ruling by one of the FBI agents. Between 2:00 a.m. and 4:00 a.m. on October 7th, appellant was escorted to a room in the Duval County Jail and interrogated by an assistant state attorney of the Sixth Judicial Circuit for the purpose of ascertaining his participation in the above crimes. Such interrogation was had in the presence of the chief investigator for the State Attorney's Office of the Sixth Judicial Circuit and two special agents of the Florida Department of Law Enforcement. During the course of this interrogation appellant was given Miranda warnings at three separate times. He confessed the killings at Dorn's Hideaway Restaurant and also the killing of the hitchhiker. Following the arrest of appellant in Jacksonville, he was returned to Pasco County and placed in the Pasco County Detention Center. Five days later while there appellant made incriminating statements to a jailer and to a deputy sheriff which involved a disclosure by him of the place where he had thrown the murder weapon following the killings.

Appellant argues five questions raised by his assignments of error. Three of them apply to both trials, the fourth is directed to the first trial and the fifth to the second trial. We will treat them seriatim.

Appellant contends that the trial court erred in refusing to grant his motion for consolidation of all five cases in one trial. He contends that the court's failure to join for trial the indictment for the homicide of the hitchhiker with the trial of the homicides of the other parties at Dorn's Hideaway Restaurant prejudiced him in the preparation of his defense. With this we cannot agree. The trial court in refusing to join the hitchhiker homicide with the other four stated that the hitchhiker case was factually unrelated to the other four cases and that if the facts were found to be related on the question of the defense of insanity raised by the appellant, the failure to consolidate would not prejudice appellant's right to make such a presentation. With this we agree.

It is well recognized that the consolidation for trial of criminal cases rests within the sound discretion of the trial court. Baker v. Rowe,102 Fla. 622, 136 So. 681; Hall v. State (Fla.) 66 So.2d 863. The consolidation of the Dorn Hideaway Restaurant cases was proper because each of the killings arose one immediately following the other, were at the same place, were of the same nature, grew out of the same transaction and the decision of all of them rested largely on the same evidence. On the other hand, the hitchhiker murder was committed at a different time and was factually unrelated to the other cases. As we have stated it occurred at least an hour earlier than the Dorn Hideaway Restaurant homicides.

The reason given by the state for objecting to the consolidation of the hitchhiker case with the other cases was that if the state used Osteen's (the companion of appellant) testimony in the consolidated cases, he would be immunized from prosecution in the hitchhiker case. It was the view of the state that the prosecution had a stronger case against Osteen in the hitchhiker case than it did in the others. The defense was relying upon a claim of insanity and hoped to establish this defense through cross examination of Osteen if he were called as a witness for the state. Appellant also relied upon his claim of intoxication as it might effect the issue of premeditation and hoped to establish it by the witness Osteen on cross examination. He claims that he was prejudiced, therefore, when the trial court refused to consolidate the hitchhiker case with the other cases. We find that the trial court did not abuse its discretion in refusing to consolidate the hitchhiker case with the other cases. We know of no rule that requires the prosecution to use any particular witness in any given case, and this being true, appellant cannot say that he was prejudiced by the refusal of the trial court to consolidate all of the cases. Even had they all been consolidated, the appellant had no assurance that the state would call Osteen as a witness, for the state had the confession of the appellant as well as other circumstantial evidence to connect the appellant with the hitchhiker case. Furthermore, no prejudicial harm resulted to the appellant for the reason Osteen freely took the stand for the appellant at the first trial, waiving his immunity to subsequent prosecution after full advice from his own attorney. As a result appellant got the full benefit of Osteen's testimony as it bore upon the issue of his mental condition and his state of intoxication.

The second and third points raised by appellant concern the validity of the out-of-court confession made by him in the County Jail in Duval County and the admissions against interest made by him in the Pasco County Detention Center. We consider these points in reverse order to the manner in which they have been raised by appellant in his argument and briefs.

The Duval County statement was made some 5 days prior to the statements made by him in Pasco County. In route to the Duval County Jail a FBI agent advised appellant of his constitutional rights. Subsequently, he was interviewed by four law enforcement agents, after having been again given the Miranda warnings by the Assistant State Attorney. He was then asked if he knew of the homicides in Pasco County. At the outset of the interrogation appellant was advised that he could terminate the questioning at any time he desired. At this point and before the interrogation reached any critical area of self-incrimination, he terminated the questioning, and started back toward his cell. As he walked toward his cell he instigated a conversation with one Etchison, a Special Agent for the Florida Department of Law Enforcement, and in the course of his conversation with the agent stated that he desired to...