Black v. State

• Decision Date: 17 December 1993
• Docket Number: 91-3143 and 91-3144,Nos. 91-2888,s. 91-2888
• Citation: 630 So.2d 609
• Parties: 18 Fla. L. Weekly D2683 Robert BLACK, a/k/a Pop, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 609

630 So.2d 609

18 Fla. L. Weekly D2683

Robert BLACK, a/k/a Pop, Appellant, v. STATE of Florida, Appellee.

Nos. 91-2888, 91-3143 and 91-3144.

District Court of Appeal of Florida First District.

Dec. 17, 1993.

Rehearing Denied Jan. 27, 1994.

Nancy A. Daniels, Public Defender, Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Charles T. Faircloth, Jr., and Carolyn Mosley, Asst. Attys. Gen., Tallahassee, for appellee.

SMITH, Judge.

In this consolidated appeal, ¹ appellant raises numerous issues regarding the validity of his convictions and sentences. We affirm the convictions and all but two of the sentences.

Appellant was charged in a twenty count indictment with several counts of armed robbery, armed burglary and armed kidnapping. These offenses arose out of three separate robberies in Duval County: a robbery of a Service Merchandise store (DCA Case No. 91-2888); a Sports Authority store (DCA Case No. 91-3144) and a Scotty's store (DCA Case No. 91-3143). A large quantity of merchandise as well as cash was taken from each store during the robberies. Following a jury trial, appellant was found guilty as charged on all twenty counts. He was found to be a habitual violent felony offender, and received several life sentences.

As noted, appellant seeks reversal based upon numerous alleged errors in the trial of the three cases, as follows: (1) the admission into evidence of items seized, during a search of his residence, which were not identified in the search warrant (Service Merchandise and Sports Authority trials); (2) the denial of a motion to suppress confession (Service Merchandise, Scotty's and Sports Authority trials); (3) the admission of Williams ² rule evidence regarding the Scotty's robbery (Service Merchandise and Sports Authority trials); (4) the admission of testimony regarding out-of-court identification of appellant (Service Merchandise trial); (5) the denial of defense counsel's request to defer opening statement until the close of the state's case (Service Merchandise and Sports Authority trials); (6) prosecutorial misconduct in arguing admissibility of videotapes seized by police during search of appellant's residence (Service Merchandise trial); (7) the trial court's improper comment on the evidence and contradiction of defense counsel in the presence of the jury (Scotty's trial); (8) the denial of motion for judgment of acquittal on the kidnapping charge (Scotty's trial); (9) error in imposing a life sentence as a habitual violent felony offender (Service Merchandise trial); (10) the imposition of consecutive minimum mandatory sentences under the habitual offender statute (Service Merchandise and Sports Authority trials).

I.

Appellant became a suspect after he was identified by a Scotty's employee and a Service Merchandise employee upon viewing a photospread. Armed with a search warrant and arrest warrant, police arrested appellant at a residence he shared with his girlfriend, Phyllis Hill. During the search, police found and seized numerous pieces of jewelry--rings, watches, earrings--electronic equipment, ammunition, sports equipment, a blue "tote bag," burgundy suitcases, and other merchandise. Also found during the search were newspaper clippings concerning the Sports Authority robbery, large quantities of cash, and forty individually wrapped packages of marijuana. The merchandise recovered in the search was recognized by the officers as being similar to items reported to have been taken in the three robberies. The police also found gloves, ski masks, and paint-spattered trousers resembling those worn by the robber which matched the items described in the search warrant. Cocaine was also found on the appellant after his arrest outside his residence at the time of the search.

At the trial of the Sports Authority robbery, the state was allowed to introduce into evidence a sports bag, 11 batting gloves, two Franklin aluminum softball bats, four boxes of ammunition of various calibers, a red gun sleeve, and a .45 caliber pistol case. Witnesses to the robbery testified that the perpetrator took similar items, and that he carried a large caliber automatic pistol. No one saw the robber take batting gloves, but the robber was observed walking past a rack containing gloves similar to those seized at appellant's residence. Similarly, during the trial of the Service Merchandise robbery, the state was allowed to introduce items of jewelry found in a safe located in a closet of appellant's residence, and the state also introduced four blank videotape cassettes bearing a Service Merchandise label.

Appellant correctly states the law governing seizure of contraband, not described in a search warrant, discovered in plain view by police while lawfully executing a search warrant. Items in plain view may be seized when (1) the seizing officer is in a position where he has a legitimate right to be, (2) the incriminating character of the evidence is immediately apparent, and (3) the seizing officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112, 123 (1990). Under the third requirement, police must have probable cause prior to seizure. Id.; Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S.Ct. 1149, 1153-54, 94 L.Ed.2d 347 (1987).

Appellant urges, however, that the items listed in the search warrant--the ski mask, pants with paint spots, and brown work gloves--were found by the police within the first 10 to 15 minutes of the 45 minute search. Once the police have acquired the items named in the search warrant, appellant argues, no additional search may take place. Horton v. California, supra. Upon examination of these arguments in the light of the record presented, we find that it is difficult to piece together the precise order of events that occurred during the search. This is especially complicated by the fact that several officers simultaneously searched various parts of appellant's residence and his automobile, and it is not clear at exactly what point each of the officers had specific knowledge that the search warrant items had been recovered.

At the suppression hearing there was testimony that appellant's automobile, which was included in the search warrant, was searched immediately after appellant was arrested. In the automobile were found baseball bats matching the description of bats stolen from the Sports Authority store; also found in the car was a gold chain believed to have been taken from the Service Merchandise store. There was testimony that a large quantity of jewelry was found on top of a dresser prior to discovery of the mask and gloves covered by the search warrant. Marijuana was found in a dresser located in a bedroom, and was also seized, prior to discovery of the items listed in the search warrant. The search of the garage, which yielded the ammunition and the gun case, also apparently occurred before the search for the items listed in the search warrant was completed. A blue, sports-type "tote bag," similar to the tote bags known to have been stolen, was discovered by one officer immediately upon entering a bedroom of the residence.

The conclusion is inescapable that the officers conducting the lawfully authorized search were immediately confronted with a virtual "cornucopia" of merchandise recognizable by them as matching the description of merchandise stolen from the several robberies. Considering the evidence in its entirety, we are of the view that appellant has failed to demonstrate that the trial court erred in denying appellant's objections to admissibility of this evidence. While it may appear that some items were seized by some officers after other officers had discovered the items apparently matching those listed in the search warrant, it is difficult to determine at exactly what point the discovery of each item of contraband took place, and at what point each officer was aware that the search for the items listed in the search warrant had apparently been discovered. It is clear, however, from the totality of the circumstances, that the officers had probable cause to believe that the items plainly visible in the house were the fruits of the several robberies appellant was suspected of having committed, and that their seizure of these items was not unreasonable. In Horton v. California, supra, the supreme court held that police armed with a valid search warrant may permissibly seize items not listed in the warrant when the incriminating nature of the items is immediately apparent. To the same effect was the court's earlier decision in Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983), in which the court pointed out that the seizing officer is not required to "know certain items are contraband or evidence of a crime ..."; what is required is that "the facts available to the [seizing] officer would 'warrant a person of reasonable caution in the belief,' that certain items may be contraband or stolen property or useful as evidence of a crime...." 460 U.S. at 741-42, 103 S.Ct. at 1543, 75 L.Ed.2d at 508. Accord, State v. Heiser, 583 So.2d 389 (Fla. 4th DCA 1991), rev. denied, 593 So.2d 1052 (Fla.1991).

The determination of a trial court in ruling on a motion to suppress comes to an appellate court clothed with a presumption of correctness, and a reviewing court will interpret the evidence and reasonable inferences therefrom in a manner most favorable to the trial court's ruling. State v. Pye, 551 So.2d 1237 (Fla. 1st DCA 1989). We therefore affirm on this issue.

II.

We next review appellant's contention that his confession was improperly admitted. During the course of the search of appellant's residence, Phyllis Hill, appellant's girlfriend, arrived on the scene and acknowledged the home as being her place of residence. Marijuana was found in a dresser containing women's clothing, and Phyllis Hill was...