Brey v. State, 78-2727
| Decision Date | 09 April 1980 |
| Docket Number | No. 78-2727,78-2727 |
| Citation | 382 So.2d 395 |
| Parties | John BREY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
This appeal by the defendant is from a judgment and sentence adjudicating him guilty of auto theft and sentencing him to five years imprisonment. The defendant claims reversible error in the admission at trial of oral statements made by him which were not previously disclosed by the state in its response to his demand for discovery.
At trial evidence was introduced which tended to show that defendant had possession of a stolen motor vehicle which had been painted over and which was discovered in his garage. Neighbors of the defendant testified to overhearing a loud domestic quarrel emanating from the home of the defendant and his wife, during which defendant was overheard stating that he had a stolen vehicle in his garage and didn't care who knew it. Both neighbors had seen the car in its original condition and again after it had been painted over.
The neighbors called the police and complained of the disturbance created by the domestic quarrel. A police officer was dispatched to defendant's home and questioned the defendant. No Miranda 1 warnings were given, the officer indicating that defendant was not then suspected of any criminal offense. At trial, over defendant's objection, the police officer testified that defendant denied the alleged admissions overheard by his neighbors concerning the stolen vehicle and also refused to allow a search of his garage to determine whether there was a stolen vehicle inside. The existence of defendant's statements to the police officer was not disclosed in the state's answer to defendant's demand for discovery. Defendant contends that the trial court erred in admitting the oral statements made by him without conducting a Richardson 2 inquiry into the state's discovery violation.
In addition to the above evidence, further testimony established that the police returned the following day, secured permission to search the garage from defendant's mother-in-law, the owner of the house, and discovered the stolen vehicle.
At trial, when the police officer was called as a prosecution witness, the following discussion ensued:
MR. CARLSON: Judge, the first thing I would like to say is that on the State's Answer to Discovery, it indicates that there are written, recorded and/or oral statements of the Defendant, oral statements witnessed by Daniel and Annette Morgan and Charles and Dorothy Flaer.
This comes as a surprise to me that there are any oral statements made to this witness.
I would also object to the introduction of any statements. I do not think it is proper because to begin with, it is hearsay evidence; that it is not an admission of any kind; that while it contains certain exculpatory statements, I think the jury would get a very bad view of it; it also makes reference to belligerent attitude. The statements are in response to a complaint and also in response to a report of a stolen vehicle, and I think that any time a Defendant is questioned by this sort of thing, that he has a right to be advised that he does not have to answer statements, in view of a police interrogation.
I think this is awfully important in this case, because here these statements are intended to be used against him at trial. That is what the State is trying to introduce at this time. This is doubled by the fact that the defense was not even informed of such statements.
I will show these to the Court. Where testimony is not a part of in-custody, custodial interrogation, and where they are spontaneous, that statements which are not in response to in-custody interrogation Miranda is not required to be read and the Miranda case itself talked about in-custody interrogation.
We do not have an in-custody and we do not have interrogation. All we have is somebody just asking some questions that she said she did not consider this man a suspect in a crime at that point.
I need time to get the cases together.
Had Mr. Brey said, "Yes, there is a stolen car in the garage and I stole it," then he would have certainly been arrested at that time; but there was an investigation being made. There was also an investigation being made on the disturbance, itself.
THE COURT: Your objection before the Court will be overruled.
Defense counsel was then allowed to proffer a cross examination of Officer Harrell in an attempt to establish a possible Miranda violation. At the conclusion of the proffer, defense counsel renewed his request to have the "res gestae" statements excluded for lack of compliance with the rules of discovery and noted that, at the very least, the court should make "some sort of inquiry as to what the prosecution was about when this was accomplished." The court denied the objection and the officer was allowed to testify.
Under the Florida Rules of Criminal Procedure, the state is required to disclose all known oral or written statements along with the identity of any persons witnessing such statement. Fla.R.Crim.P. 3.220(a)(1)(iii). Compliance with the rules requires more than the mere inclusion of such a person's name in a list of witnesses who may have information about the crime. Boynton v. State, 378 So.2d 1309 (Fla. 1st DCA 1978); Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977).
Upon objection by the defendant, the burden is on the state to initially demonstrate that previously...
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