Barton v. State

• Decision Date: 28 December 1966
• Docket Number: No. 6786,6786
• Parties: William L. BARTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 618

193 So.2d 618

William L. BARTON, Appellant, v. STATE of Florida, Appellee.

No. 6786.

District Court of Appeal of Florida, Second District.

Dec. 28, 1966.

Rehearing Denied Feb. 1, 1967.

Robert E. Jagger, Public Defender, Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

ADKINS, JAMES C., Jr., Associate Judge.

Appellant was convicted of murder in the second degree under an indictment charging murder in the first degree of Alfred Corbin, and a sentence of life imprisonment was imposed.

Corbin was shot and killed on February 3, 1965, in an automobile parked in a secluded pasture while he was engaged in sexual intercourse. His companion, a Mrs. O'Brien, testified that a man came to the window of the automobile, said 'I finally caught you', and fired the five or six shots that wounded her and killed Corbin. Neither the appellant nor his vehicle could be positively identified by Mrs. O'Brien.

The appellant, Barton, was arrested in Pennsylvania pursuant to a Pennsylvania breach of peace warrant and an alert stating that he was wanted in Florida for questioning. A deputy sheriff from Pinellas County flew to Pennsylvania, interviewed appellant, learned the name of William Russ, and returned to Florida. Russ was then incarcerated and questioned. As a result of this interrogation, an arrest warrant was issued for appellant. Extradition was waived and appellant was brought to Florida where a statement was procured from him.

The case proceeded to trial before a jury and upon appellant's motion the court directed a verdict of not guilty to murder in the first degree at the close of the State's case. The defendant then waived his right to a jury trial. The court accepted the waiver and the defendant rested. The court adjudicated the defendant guilty of murder in the second degree and sentenced him to life imprisonment.

Appellant has listed 73 assignments of error, the first group of which relates to matters occurring in Pennsylvania. He first complains that the trial judge should have granted his motion to suppress because of the invalidity of his arrest by the Pennsylvania authorities on March 15, 1965. Appellant was arrested upon the Pinellas County warrant on March 23, 1965, and charged with homicide. This was the legal process by which jurisdiction was obtained over the person of the appellant.

Evidence obtained as a result of an illegal arrest is subject to suppression. Jones v. State, 123 So.2d 385 (Fla.App.3rd Dist. 1960). It does not appear from the record that any evidence used at the trial was obtained from appellant prior to his arrest on March 23, 1965, and his return to Florida. Therefore, the legality of his arrest by the Pennsylvania authorities becomes immaterial.

When the subject was taken into police custody, and the police carried out a process of interrogations that lended itself to eliciting incriminating statements, the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on appellant as a particular suspect. At the point the principles enunciated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), became applicable. The Pennsylvania authorities advised appellant of his right to an attorney while he was being held in Pennsylvania. Also, when defendant was arrested by the Pinellas County officials, he was advised that he didn't have to make a statement: that anything he said could be used against him; and that he had the right to have an attorney. No incriminating statements were made in Pennsylvania, but through the appellant the police learned the name of William Russ.

The decision of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was rendered June 13, 1966. This decision prescribed the procedural safeguards to be employed in the custodial interrogation of a defendant. Appellant's trial was held ten months prior to the rendering of Miranda v. State of Arizona, supra, and the procedures of the police authorities were valid and constitutional under the interpretations of the Florida Supreme Court and the United States Supreme Court as they existed on the date of trial. The rationale set forth in Miranda v. State of Arizona, supra, should not be applied retroactively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. See also, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601.

The appellant, after being informed of his constitutional rights by a Pennsylvania judge, signed a waiver of extradition and was taken by automobile to Clearwater, Florida, arriving there at approximately 5:00 A.M. on Thursday, March 25th. No information was obtained from the appellant during the trip from Pennsylvania to Clearwater.

Upon arrival in Clearwater, appellant was placed in a cell and not questioned until 3:00 or 4:00 that afternoon. Between 8:00 and 9:00 that evening the defendant made a verbal statement and signed a written statement shortly after midnight. A deputy sheriff testified that prior to securing the written and oral statements he asked the appellant if he wanted a lawyer and told appellant he did not have to make any statement. The appellant replied 'I don't want a damn lawyer.' The testimony was conflicting as to whether appellant was sufficiently advised of his rights and whether the confession was voluntary or induced by threats. The credibility of the witnesses was for the trial judge.

A confession should not be rejected because it was made under excitement or mental distress or disturbance not induced by extraneous pressure exerted to compel a confession, but which arose from the confessor's own apprehensions due to the situation in which he found himself. Cullaro v. State, 97 So.2d 40 (Fla.App.2nd Dist. 1957).

Appellant's statement was narrated by him to a court reporter. After it was transcribed, he read the statement, corrected it in some minor details, and initialed it. In his own handwriting, he added, 'I am very sorry this happened. I wish I could change places with that man but I can't. I would like to tell his wife I am very sorry. I didn't mean to do this. Please forgive me.' He then signed the statement again. The confession was clearly admissible. See Patterson v. State, 157 Fla. 304, 25 So.2d 713 (1946).

The appellant contends that the preliminary hearing was 'fraudulently' delayed for the purpose of eliciting a confession from the defendant. On March 25, 1965, appellant was incarcerated in Pinellas County. It then became the duty of the officers, without unnecessary delay, to take the person arrested before the magistrate who issued the warrant, F.S.A. § 901.06. The confession was made during the night of March 25, 1965, and transcribed into writing during the early morning hours of March 26. Due process is not violated by a delay in taking an accused before the committing magistrate unless it is shown that the delay in itself resulted in the confession under attack. It will not be presumed that such was the case. Romanello v. State, 160 So.2d 529 (Fla.App. 1st Dist. 1964). The failure of the officers to take the accused before a committing magistrate during the first day of incarceration in Pinellas County was not fatal to the confession's admission in evidence, even though the accused was subjected to questioning during the afternoon and night. See Harris v. State, 162 So.2d 262 (Fla.1964).

The appellant was taken before the committing magistrate on Monday, March 29th. In the meantime, on Friday, March 26th, the public defender was appointed by the court to represent the appellant. The delay from Friday until Monday was not unreasonable, and could have no bearing upon the admissibility of a statement which had been secured on Thursday evening.

Appellant has raised serveral questions concerning the preliminary hearing. Such proceedings partake of the nature of an inquiry and serve only to determine whether or not probable cause exists to hold a person for trial. A prosecution may be instituted and maintained regardless of such an investigation. Baugus v. State, 141 So.2d 264 (Fla.1962); 6 F.L.P. Criminal Law, § 204. In fact, the denial of a preliminary hearing cannot deprive a defendant of due process of law and the substance of a fair trial, in the absence of a showing that prejudice results from defendant's failure to have a preliminary hearing. Gibson v. State, 173 So.2d 766 (Fla.App. 3rd Dist. 1965). Appellant has failed to show that his rights were prejudiced at the preliminary hearing, in view of the finding of probable cause by the grand jury.

After the indictment was returned, appellant moved in circuit court to quash the arrest warrant on the ground that the affidavit for arrest warrant was based upon conjecture and suspicion and did not set forth sufficient facts to establish probable cause. Prior to the return of the indictment these questions could have been raised by habeas corpus. 11 F.L.P. Habeas Corpus, §§ 15, 16, and 17. By returning an indictment, the grand jury found probable cause and the motion to quash was properly denied.

The indictment was in the usual from charging murder to have been committed with a premeditated design to effect the death of Corbin. The appellant argues that he should have been furnished with a bill of particulars specifying whether the State would proceed on the theory of felony murder or premediated murder. Without being apprised of the specific theory under which the State was electing to proceed, appellant says he was placed at a burden-some disadvantage by being forced to prepare defenses to each, which defenses necessarily are inconsistent. Appellant contends that forcing such a burden upon him constituted a denial of due process.

The allegations of the indictment were sufficient to charge murder in the first degree, regardless of whether the...