Brown v. State
| Decision Date | 09 January 1970 |
| Docket Number | No. 67-357,67-357 |
| Citation | 230 So.2d 177 |
| Parties | Jesse BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender, Frank H. White, Asst. Public Defender, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
This is an appeal from a judgment of conviction and sentence to imprisonment for the crime of rape. This case arose out of the same circumstances involved in the DeLaine et al. v. State, 230 So.2d 168, opinion filed January 9, 1970, and appellant was a co-defendant in the trial in the lower Court. The judgment and sentence appealed here is affirmed on authority of the DeLaine et al. case, as supplemented by the authorities hereinafter cited.
Defendant Brown adopted all the points argued in his co-defendants' appeal and raises four additional points which will be treated seriatim.
Brown was not arrested along with the other six defendants on the premises where the alleged crime occurred, but was arrested approximately eleven hours later, shortly after midnight on the morning after the incident took place. There was a 'pickup' out on him, but the arresting officer had no warrant for his arrest.
Point 1. Defendant contends that he was deprived of his fundamental right to a fair trial because an exculpatory statement, which he claims was made by him to the arresting officer, was not furnished to him by the State upon timely motion for production of said statement. The order granting said motion was entered on April 3, 1967.
At a bench conference the trial Judge said that counsel for the State had assured him on several occasions that they knew of no such statements. Counsel for defendant stated that the defendant would testify that the police department did take a statement from him and that he signed it, but that he did not know the name of the police officer who took the statement. The trial Court suggested that if the police officer who allegedly took the statement appeared, defendant should immediately let the Court know and the Court would stop the proceedings right there and inquire into the matter. He also offered to let defense counsel take the defendant in the witness room to see if he could identify the officer.
Defendant did not testify at the trial, nor did he question any of the police officers who testified for the State relative to the alleged statement. The State did not produce such a statement and therefore there was no evidence before the Court that such a statement existed.
Defendant further claims that it was necessary that the defense have said statement prior to trial in order to prepare for cross-examination of certain state witnesses.
As was stated in Barton v. State, Fla.App.1966, 193 So.2d 618:
Defendant has failed to show that the withholding of his statement, if indeed there was such a statement, hindered him in the preparation of his defense.
Point 2. Defendant questions the sufficiency of the evidence to support his conviction.
Defendant was not arrested on the premises with the six other defendants and he claims that there was no direct testimony linking him to the alleged crime. He therefore contends that his conviction must be based upon circumstantial evidence and cites cases to support his claim that such evidence must be of a conclusive nature.
This contention is not supported by the record, however. The prosecutrix testified that she knew defendant prior to the incident and that even though defendant had a white scarf across part of his face at the time he assaulted her, she knew him and testified:
We also believe that the jury was warranted in not accepting Brown's alibi. Officer Kapocsi of the police department testified that he first received the report at 1:13 P.M. that a colored female was being assaulted by a group of colored males, and he arrived at the scene of the crime approximately four or five minutes later. Defense witness McNorton testified that he was working at the clinic at Gibbs High School at the time of the alleged rape; that Jesse Brown came in about 1:30 P.M. on the day in question and said his tooth was hurting. He asked Brown what time he wanted to be put down in the log as having gotten there and defendant told him 1:00 o'clock. Defendant remained lying down in the clinic from 1:30 until school was out about 3:00 P.M.
The premises where he incident occurred at 13th Avenue and 25th Street were only a short distance from Gibbs High School, which was located at 9th Avenue and 31st Street according to the testimony of the prosecutrix.
According to the physical facts, Brown could easily have committed the crime and then returned to the school at 1:30.
We therefore conclude that this appeal point is without merit and must be rejected.
Point 3. Defendant's third point relates to information elicited by the prosecutor regarding what Brown terms 'the illegitimacy of the defendant.'
During cross-examination of the defense witness McElroy, the prosecutor asked:
'Q. Did you see--who is that fellow who lives across the street from Mr. Knight, from Knight? Mr. Collins do you know Frank Collins?
A. Yes, I do.
Q. He is Jesse Brown's father, isn't he?
A. That's what--
Q. He is Jesse Brown's father isn't he?
A. That's what I understand.'
Defense counsel immediately objected on the grounds that counsel was testifying and that it was hearsay information.
Defendant contends that this information was elicited solely for the purpose of discrediting Jesse Brown by impressing upon the jury's mind that Jesse Brown is illegitimate and that his own father was a witness against him. Defendant claims that this deprived him of his right to a fair trial.
Frank Collins had testified for the State that he saw Irving Knight, one of the defendants, pulling the prosecutrix by the arm down the street and when they got to the door he unlocked it and pushed her in. The witness McElroy testified that he saw Knight and the prosecutrix walking along the street just normally towards Knight's house. This testimony was evidently produced for the purpose of discrediting the testimony of Frank Collins, as well as that of the prosecutrix.
The Court, in overruling the objection to the testimony in regard to Jesse Brown's father, said:
'I think it probably bears on the question of credibility of the witness, and he has a right to lay a predicate.'
In the prosecutor's closing argument he mentioned that Frank Collins is allegedly the father of Jesse Brown, the defendant here. Again defense counsel objected on the ground that it was not in the record, and the Court said:
'Well, I think the jury will recall that Mr. Allweiss asked a witness if--whether or not that witness knew or understood him to be Jesse Brown's father. * * *
Defense counsel moved for a mistrial, stating that even though the Court had done what it could to perhaps erase the prejudicial effect, he did not believe that it would be...
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