Breedlove v. State

• Decision Date: 04 March 1982
• Docket Number: No. 56811,56811
• Citation: 413 So.2d 1
• Parties: McArthur BREEDLOVE, a/k/a McArthur Jenkins, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1

413 So.2d 1

McArthur BREEDLOVE, a/k/a McArthur Jenkins, Appellant, v. STATE of Florida, Appellee.

No. 56811.

Supreme Court of Florida.

March 4, 1982.

Rehearing Denied May 19, 1982.

Jim Smith, Atty. Gen. and Alan T. Lipson, Asst. Atty. Gen., Miami, for appellee.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker and Karen M. Gottlieb, Asst. Public Defenders, Eleventh Judicial Circuit, Miami, for appellant.

PER CURIAM.

McArthur Breedlove appeals his conviction of first-degree murder and sentence of death. We have jurisdiction ¹ and affirm the results of his trial.

A five-count indictment charged Breedlove with first-degree murder, attempted first-degree murder, burglary, grand theft, and petit theft. The charges stemmed from the stabbing death of one victim and the wounding of another which occurred during the burglary of their dwelling. The jury acquitted Breedlove of attempted murder, but convicted him of the other charges. Concurring in the jury's recommendation, the trial court imposed the death sentence for the murder conviction. The court also imposed consecutive sentences of life imprisonment for burglary, five years for grand theft, and sixty days for petit theft.

Breedlove presents six points on appeal: 1) Brady ² violation; 2) denial of motion to suppress; 3) improper admission of hearsay; 4) improper remarks by prosecutor during closing argument; 5) conviction and sentence for burglary violate double jeopardy clause; and 6) impropriety of death sentence.

In four motions defense counsel requested the production of police reports made by six police officers and detectives and of field investigation cards filed on "suspicious" persons. The trial court denied all four motions without recorded comment. The requested material, along with other unrequested reports, was deposited with the judge who examined it in camera and ordered portions of the material released to defense counsel. All formal statements of persons connected with the case were also furnished to the defense.

On appeal Breedlove claims that the state violated the admonition of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), that

suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment irrespective of the good faith or bad faith of the prosecution.

In making this claim, Breedlove relies on unfurnished portions of a Detective McElveen's report. ³ This report reflects the substance of a conversation that McElveen had with Breedlove's mother, Mary Gibson, and his brother, Elisha Gibson, to the effect that the mother had not seen several items stolen from the victims' residence in Breedlove's possession and that Breedlove had returned home around 2:30 a.m. (the approximate time of the murder) and had left again between 4:00 and 4:30 a.m. This report also states that both the mother and brother referred to blood on Breedlove's clothes and that the brother described items, later established to have been taken from the victims' residence, which he saw in Breedlove's possession on his return home at approximately 2:30 a.m.

Breedlove's argument on this point, however, ignores, except for one accord reference, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). In Agurs, the Supreme Court identified three discovery situations: 1) undisclosed evidence demonstrates the prosecution's use of perjured testimony; 2) a pretrial request for specific evidence (Brady ); and 3) a general request for "Brady material" (Agurs ). McElveen's report falls within the third category, and Agurs is controlling on this point.

The state provided two lists of witnesses in which the names of sixteen law enforcement persons appear. These include officers, detectives, technicians, and a stenographer.) Although McElveen's name is on the first list, he was not included in the motions for production which specified the reports of six officers and detectives by name. The record reflects no formal request for all "Brady material," but we believe that McElveen's report, as well as those of the other unspecified law enforcement personnel, is within Agurs' third situation.

Brady's broad holding has been limited somewhat by Agurs :

[T]o reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial.

427 U.S. at 108, 96 S.Ct. at 2399, 49 L.Ed.2d 342. Furthermore, "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Id. at 109-10, 96 S.Ct. at 2400. In response to claims very similar to Breedlove's, this Court recently stated that "[d]isclosure requirements for the prosecution principally concern those matters not accessible to the defense in the course of reasonably diligent preparation." Perry v. State, 395 So.2d 170, 174 (Fla.1980). The record shows that the trial court carefully observed Breedlove's discovery rights. Breedlove has failed to demonstrate that the material contained in McElveen's report could not have been found through reasonably diligent preparation or that nonproduction of this report prejudiced him.

Breedlove also claims that the police reports are discoverable per se as "statements." Florida Rule of Criminal Procedure 3.220 covers statements which are discoverable and defines a "statement" as

a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the State and recorded contemporaneously with the making of such oral statement....

Fla.R.Crim.P. 3.220(a)(1)(ii). The courts of this state have generally held that police reports are not "statements," except of the officers making them, and that generally they are not discoverable per se as statements of those officers. See State v. Johnson, 284 So.2d 198 (Fla.1973); Lockhart v. State, 384 So.2d 289 (Fla. 4th DCA 1980); Black v. State, 383 So.2d 295 (Fla. 1st DCA 1980); Dumas v. State, 363 So.2d 568 (Fla 3d DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979); Pitts v. State, 362 So.2d 147 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1372 (Fla.1979); Miller v. State, 360 So.2d 46 (Fla. 2d DCA 1978); State v. Latimore, 284 So.2d 423 (Fla. 3d DCA 1973), cert. denied, 291 So.2d 7 (Fla.1974); STATE V. GILLESPIE, 227 SO.2D 550 (FLA. 2D DCA 1969)⁴. The material in the instant reports does not comprise "statements" because the reports have not been signed, adopted, or approved by the persons (other than the officers) to whom they have been attributed, they do not appear to be substantially verbatim, and they were not recorded contemporaneously with their making. We do not find that these reports are discoverable as "statements" as set out in rule 3.220.

The motions to suppress filed by Breedlove's attorneys sought exclusion of any statements by Breedlove, of evidence found at his mother's home, and of evidence found on his person. On appeal Breedlove only alleges error regarding admission of his statement of November 21, 1978. In that statement Breedlove admitted breaking into a dwelling, taking numerous items, stabbing a man, who had been asleep in a bedroom, with a butcher knife that Breedlove had taken off a table in the living room, and stealing a bicycle to make his getaway. Breedlove alleges that the police violated his fifth amendment rights in obtaining that statement.

Upon learning that Breedlove was in custody, a Detective Nagle of the Hallandale Police Department requested permission to interview him concerning a murder that had occurred in Hallandale several years earlier. Detective Zatrapalek of the North Miami Beach Police Department, lead officer on Breedlove's case, had Breedlove brought over from the county jail. Robert Shultz, a counselor at the jail, escorted Breedlove downstairs and turned him over to two officers.

At the suppression hearing, Shultz testified that Breedlove had said something like "They had better be the people I want to talk to" or "I don't want to talk to certain detectives." He also stated that, on seeing the officers, Breedlove said, "I am not talking to them," and the officers "said something to the effect that 'Eventually you will talk to us.' " On appeal Breedlove claims that these statements show that he tried to exercise his right to remain silent and that his subsequent statement is invalid because the police did not "scrupulously honor" (Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975)) his refusal to talk to them. ⁵

Shultz also testified that it was his duty to report any improper police behavior but that he had not observed any improper behavior regarding Breedlove. Shultz had known Breedlove since his incarceration and testified that he had never noticed signs of Breedlove's being physically abused and that Breedlove had never complained to him about being abused. Shultz also said that prisoners could refuse to leave their cells in order to avoid being interrogated, but that Breedlove had never done so.

After arriving at the station, Detective Zatrepalek read Breedlove his Miranda rights and Breedlove signed the rights form. Breedlove then asked to speak with his mother and was not questioned during the hour or so before she arrived. He spoke with her in private and then asked her to tell Zatrepalek that he would make a statement. After speaking with the detectives, Breedlove was again read his rights, signed another card, and made a formal statement. Zatrepalek testified that he had never beaten Breedlove and that,...