Brown v. State

• Decision Date: 30 December 1965
• Docket Number: No. G-294,G-294
• Citation: 181 So.2d 578
• Parties: James Donald BROWN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 578

181 So.2d 578

James Donald BROWN, Appellant, v. The STATE of Florida, Appellee.

No. G-294.

District Court of Appeal of Florida, First District.

Dec. 30, 1965.

Richard W. Ervin, III, Public Defender, and John D. Buchanan, Jr., Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for appellee.

CARROLL, DONALD K., Judge.

The appellant was convicted of the crime of robbery by the Circuit Court for Leon County and has appealed from the judgment and sentence entered by that court.

The principal question for determination in this appeal is whether the trial court committed reversible error by admitting the appellant's confession into evidence without having determined in the absence of the jury whether the confession was voluntary or involuntary.

The record shows that at the trial the State presented testimony that laid a predicate for the introduction of the appellant-defendant's extra-judicial confession, in which he acknowledged using a certain gun in the commission of the robbery. After the defendant's arrest, he made a confession, taken down on a recording machine, before a deputy sheriff, who testified that the confession, taken after he received some physical evidence from the defendant, was voluntary and given of the defendant's own free will; that the defendant was informed of the nature of the interrogation and of his right to remain silent, that he was not to be harmed, and that anything he said could be used against him in court. The prosecutor then offered the said confession in evidence, whereupon the defense counsel objected on the grounds that it was not shown that the defendant was under oath when he gave the confession nor shown that he was given an opportunity to procure counsel; that the confession was of an extrajudicial nature; and that at the said time the defendant was an infant and the confession was not made in the presence of his parents.

The trial court overruled the defense counsel's said objection and, at the defendant's request, admitted into evidence the recording of the confession. The court then allowed the defendant to testify concerning the taking of the confession, and he testified that he had confessed because police held a revolver against his head during the interrogation. The latter testimony was directly rebutted immediately thereafter by further evidence presented by the State.

So far as the trial record shows, all of the proceedings set forth in the preceding two paragraphs took place in the presence of the jury sworn to try the case. This was a procedural error in Florida, as the appellee has wisely conceded, but not, as it contends and we agree, a reversible error, for the reasons stated below.

In order that our opinion herein may with precise accuracy reflect the trial record before us, we note therein a perplexing omission: the lack of a recital definitely showing the trial court's final ruling on the defense objection to the admission of the confession. The record does show, however, that immediately after the defense counsel made that objection, the court declared that the said objection was overruled. The court had previously, at the defense counsel's request, ordered the recording of the confession to be played in court before the jury. After the recording was so played and the court had overruled the defense objection to the confession, the defense counsel told the court that he might put the defendant on the stand to testify concerning the circumstances of the confession, whereupon the court stated that it would hear such testimony and would reserve its ruling on the confession until it had heard that testimony. The defendant then testified on that subject, but the record of the subsequent proceedings at the trial fails to mention any further or final ruling on the said objection by the court, whether sustaining the objection or adhering to its original ruling overruling the objection. Apparently, all persons at the trial, including all counsel, the jurors, and perhaps even the judge himself, assumed that his original ruling overruling the said objection--in the absence of an announcement of a change in that ruling--was still in effect and still represented the view of the court. In order to reach and determine the principal question presented by the appellant in this appeal (the trial court's conducting of the examination into the question of voluntariness in the presence of the jury), we shall make the same assumption in this opinion.

While the rule is different in some other jurisdictions, the rule in Florida has long been firmly established that the question of whether a confession was freely and voluntarily given by a defendant is a question for the determination of the trial court, not the jury, and that the court's investigation into this question should be made in the absence of the jury.

The leading case in Florida laying down the just-stated rule appears to be Bates v. State, 78 Fla. 672, 84 So. 373 (1919), in which the Supreme Court of Florida held:

'The rule seems to be well settled in this and other jurisdictions that, before admissions made by a party while under arrest can be introduced in evidence, the court should determine the principal question of whether the admissions were free and voluntary .

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'Whether admissions or confessions are freely and voluntarily made is a question for the court, and the duty is imposed upon it to determine this question before permitting it to go to the jury. The introduction of this testimony was objected to by defendant, and sufficient grounds were stated to call this to the court's attention . The duty then devolved upon the court to make the investigation.'

The Supreme Court further held with reference to the trial court's said investigation:

'The question of whether an admission is freely and voluntarily made is for the court to determine, and it is not a matter of the opinion of the witness. The proper method is to have the witness state the circumstances under which they were made so that the court and not the witness may determine if they were free and voluntary. This investigation should be made in the absence of the jury.'

Among the many subsequent Florida Supreme Court decisions recognizing the procedural rule set forth above from the Bates case are Harrison v. State, 149 Fla. 365, 5 So.2d 703 (1942), Williams v. State, 156 Fla. 300, 22 So.2d 821 (1945), Hearn v. State, Fla., 54 So.2d 651 (1951), Graham v. State, Fla., 91 So.2d 662 (1956), Nelson v. State, Fla., 97 So.2d 250 (1957), and Young v. State, Fla., 140 So.2d 97 (1962).

Before applying such a rule to a given state of facts, a court should consider the purpose of the rule to see whether that purpose will be fulfilled by such application. The Florida Supreme Court in one of the above-cited cases--Hearn v. State--described the purpose of the rule in question as follows:

'The purpose of the procedure of excluding a jury while determining the admissibility of a confession was and is to prevent a jury from being prejudiced against an accused in the event it develops that a confession was not voluntarily obtained, thus causing the court to have to grant a mistrial.'

That purpose would not, of course, be fulfilled by applying the said rule in a case wherein the trial court holds that the confession was voluntarily obtained, for in such a case the jury could not have been prejudiced. Our reasoning in this respect closely parallels that of the Supreme Court of Arkansas in House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959), which said the following:

'Several of the appellant's arguments pertain to the admissibility of the written confession. One contention is that the court erred in permitting the introduction of this document without first conducting a preliminary hearing in chambers to determine whether the confession was voluntary.

We have often said that it is the better practice for the court to conduct a preliminary hearing in the absence of the jury, Austin v. State, 193 Ark. 833, 103 S.W.2d 56; Lee v. State, 229 Ark. 354, 315 S.W.2d 916; but the reason for the rule is to avoid the possibility of the jury's being prejudiced if the court rules the confession inadmissible, and hence the accused has no basis for complaint if the confession is actually admitted in evidence. Greenwood v. State, 107 Ark. 568, 156 S.W. 427; Bullen v. State, 156 Ark. 148, 245 S.W. 493. The fact that the confession was properly admitted in evidence also answers the argument that the prosecuting attorney should not have been permitted to mention the confession in his opening statement to the jury. Mouser v. State, 216 Ark. 965, 228 S .W.2d 472.'

The same result has been reached through similar reasoning in several decisions of the highest courts of other states, including those of the Supreme Court of South Carolina in State v. Harrison, 236 S.C. 246, 113 S.E.2d 783 (1960), and State v. Robinson, 238 S.C. 140, 119 S.E.2d 671 (1961).

In the case at bar the failure of the trial court to exclude the jury during the investigation of the voluntariness of the confession does not constitute reversible error for another reason--the absence of a request by the defense counsel that the jury be excused during such investigation. This conclusion is based upon the decision of the Supreme Court of Floirda in Espinola v. State, 82 So.2d 601 (1955), holding that, in the absence of a request by the defendant's counsel that the jury be excused while the circumstances surrounding a confession were being explored, and on a record which supported the admissibility of the confession, the trial court's failure to excuse the jury during the court's consideration of the confession's admissibility would not invest the trial with harmful error.

The trial record before us does not show that the defense made such a request that the jury be excused, and we hold that the evidence on the question of...