Avis v. State, s. J--483

• Decision Date: 10 April 1969
• Docket Number: K--14,Nos. J--483,K--16,s. J--483
• Citation: 221 So.2d 235
• Parties: Horace AVIS, Appellant, v. STATE of Florida, Appellee. Norris EPPS, Appellant, v. STATE of Florida, Appellee. Eugene WOMMOCK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 235

221 So.2d 235

Horace AVIS, Appellant, v. STATE of Florida, Appellee.

Norris EPPS, Appellant, v. STATE of Florida, Appellee.

Eugene WOMMOCK, Appellant, v. STATE of Florida, Appellee.

Nos. J--483, K--16, K--14.

District Court of Appeal of Florida, First District.

April 10, 1969.

Robert E. Pierce, Public Defender, and Landis V. Curry, Jr., Asst. Public Defender, for appellants.

Earl Faircloth, Atty. Gen., Wallace E. Allbritton and George R. Georgieff, Asst. Attys. Gen., for appellee.

SPECTOR, Judge.

Appellants were convicted by a jury on charges of armed robbery. The three cases were consolidated for trial and on this appeal.

Appellants raise four questions on which they rely for reversal. First, whether the trial court correctly permitted to jury to consider testimony regarding in-court identification of the appellants where said appellants had previously been viewed in a lineup. Second, whether the tangible evidence seized from the automobile owned by the appellant, Wommock, was admissible in evidence where the seizure occurred without a search warrant or the automobile owner's consent. Third, whether the trial court erred in admitting evidence that appellants committed separate similar crimes. And lastly, appellants raise the question of the sufficiency of the evidence going to the identity of appellant Epps to sustain his conviction on the robbery charged herein.

After conviction, appellants Avis and Wommock were sentenced to life imprisonment and the third appellant, Epps, was sentenced to a term of ten years. All of the appellants were represented at trial by the public defender. The testimony adduced at the trial revealed that in the early morning hours, approximately 3:00 A.M., of July 25, 1967, the appellants drove into a gasoline service station adjacent to one of the exits from interstate highway 75 in Marion County and robbed the attendant at gunpoint. They were apprehended shortly after the robbery, taken to the county jail in Ocala, placed in a lineup and were there identified by the service station attendant. The lineup identification occurred some 45 minutes after the robbery, so it can be seen that all of the evidentiary facts here being considered occurred in a relatively short time.

The appellants, Avis and Wommock, took the stand and testified at the trial. Appellant Epps did not testify. During their testimony, Avis and Wommock admitted that they along with the third appellant, Epps, were present during the commission of the robbery, but it was their testimony that they were not in any way responsible for or connected with the robbery. Instead they claimed that as they were driving toward Gainesville from Webster, a nearby community, along interstate 75, they picked up two hitchhikers, one of whom was carrying a one-gallon gasoline can. The two hitchhikers apparently had run out of gas. The appellants, Wommock driving, permitted the two hitchhikers to get into the two-door, bucket-seated car, one in front and one in back, and proceeded to the service station where the robbery occurred. Appellants' version of the incident was that the two hitchhikers committed the robbery and appellants watched as it occurred. The hitchhikers then got in the car with appellants and ordered them to drive off. A few minutes later while the alleged unwilling getaway car was speeding from the scene, they were passed by a sheriff's car coming from the opposite direction. The sheriff's car turned and came after them with lights and sirens going full blast. Upon noting that their capture was imminent, appellants' version continued, the hitchhikers ordered them to slow down. Appellants followed the given instructions and the two hitchhikers jumped out of Wommock's car while it was still moving and thus made their escape only a short distance from where appellants were apprehended. Appellants' explanation for the gun and the money bag that were found in the car is that those items were left behind by the hitchhikers in their haste to make their departure.

In contrast to the appellants' version of what had occurred, Kenneth Eugene Oliver, the service station attendant and victim, stated that only three men were in the car; two in front, one in back. The two in front, apparently Wommock and Avis, initiated the robbery with Wommock attracting Oliver's attention by feigning a question about a road map he held in his hand while the other, avis, came out of the front passenger seat and stuck a gun in his ribs. One of this duo announced in typical fashion, 'Give me your money and don't try nothing or I'll shoot you.' They then took the attendant into the office where, under the continuing threats of mayhem, Oliver finally found the keys to one safe, opened it, handed the money bag and some coins to his captors. Not being content with that, they insisted that Oliver open the bottom safe, but he could not because the manager had the key to that. In Oliver's words, 'I was kneeling down on my knees and I just kept pleading with them that I didn't have the keys.' Being disappointed at Oliver's failure to have the key to the bottom safe, Wommock told Avis and Epps, who had by then, Oliver testified, left the car and joined his two companions in their venture, to take Oliver in the back and shoot him so that they could leave. Oliver was taken into the oil room, thrown to the floor, and one of them whom Oliver identified as Epps kicked him in the mouth. There ensued a discussion among the appellants during which they deliberated about shooting their victim as he listened in justified fear. Appellants then left the scene and shortly thereafter Oliver called the sheriff's department.

The principal point raised by appellants is aimed at the legality of the in-court identification given by Oliver because the latter had viewed these appellants in a lineup at the jail shortly after they were apprehended. This contention is grounded on the United States Supreme Court's decisions in United States v. Wade and Gilbert v. California, reported in388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, respectively. The substance of these cases hold that an in-court identification is impermissible in criminal trials if the identification was induced by a lineup or similar procedure which violated the accused's constitutional rights. We do not construe Gilbert and Wade to hold that an in-court identification is automatically tainted where there has been a previous lineup identification...