Brownlee v. State

• Decision Date: 13 November 1985
• Docket Number: No. 84-2054,84-2054
• Citation: 478 So.2d 467,10 Fla. L. Weekly 2528
• Parties: 10 Fla. L. Weekly 2528 Eugene BROWNLEE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 467

478 So.2d 467

10 Fla. L. Weekly 2528

Eugene BROWNLEE, Appellant, v. STATE of Florida, Appellee.

No. 84-2054.

District Court of Appeal of Florida,

Fourth District.

Nov. 13, 1985.

Richard L. Jorandby, Public Defender, and Thomas F. Ball, III, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

Appellant was charged by information with one count of armed robbery, one count of attempted robbery and two counts of aggravated assault, found guilty of all charges by a jury, and adjudicated and sentenced by the trial court. We affirm.

The pre-trial motion to sever appellant's case from that of his codefendant, Darryl Whitfield, was based entirely on the fact that the state was seeking to introduce the taped confessions of appellant and his codefendant in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The prosecution objected on the ground that the confessions were interlocking and admissible under Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).

The state presented three witnesses to the crimes, Mr. and Mrs. McHugh, and Samuel DeNoms. All three identified appellant immediately, at the show-up fifteen minutes after the robbery took place, and at trial. The state also presented the testimony of several police officers involved in the arrest.

Mr. McHugh testified that the two defendants approached them at a store and got within arm's distance. Whitfield pointed the gun at his face and said he wanted his wallet. Mrs. McHugh testified that as she got out of the car, she noticed the two men walking towards them very quickly; she caught up with her husband and grabbed hold of his arm and put her purse on her shoulder because "they looked like they were coming at us." Whitfield said, "This is a holdup." She said, "Oh no. Please don't hurt us," and appellant said, "Give me your purse." Appellant then grabbed her purse. She was then either told to get down or pushed down.

Mr. DeNoms testified that he was driving down Second Street, heading west, en route to Seventh Street. As he reached Southwest Second Street and First Avenue Mr. DeNoms heard a woman's loud scream. He looked around and saw some people in front of Sterling's (the store), some with their hands up in the air, and an individual "apparently holding them at bay." He pulled over and noticed an individual (he later identified as appellant) running from the crowd and carrying something. The individual ran across the street directly in front of Mr. DeNoms and between some buildings. Mr. DeNoms decided to try to follow appellant. Not locating appellant, DeNoms parked and stood by his car looking around the area. He then noticed appellant across the railroad tracks with a bicycle and still carrying something under his arm. Appellant then put the bicycle in some bushes and headed back toward the buildings he had left. DeNoms tried to follow appellant again and saw appellant meet a second man. The two men spoke briefly, then departed. Appellant, still carrying something under his arm, came within 25 yards of DeNoms. Mr. DeNoms started walking slowly in the direction of appellant when "all of a sudden something came behind [him] and knocked [him] to the ground." Mr. DeNoms was kicked in the back of the neck, and this individual began screaming threatening obscenities and pulled a gun on DeNoms. Mr. DeNoms was lying on the ground, looking up at the person holding a gun down to his face, then covered his face with his arms, and heard the gun go off. When he looked to see what had happened, he noticed the individual (identified by DeNoms as Whitfield), trying to get the wallet out of his pocket. Mr. DeNoms, believing it to be a cap gun, kicked Whitfield, knocking him off balance, then jumped up and ran to his car. Whitfield yelled at DeNoms to stop, and the gun was fired a second time, the bullet hitting a puddle less than a foot from DeNoms' tracks.

As DeNoms was attempting to drive away, a police car arrived and DeNoms told the police where they could find Whitfield (who was chased down by the police). DeNoms testified he identified appellant at a show-up shortly after he was arrested.

Detective DeAngelis, the officer who arrested appellant, stated that when he encountered two individuals on bicycles who matched the BOLO description, he ordered them to freeze, whereupon appellant jumped off the bike. Detective DeAngelis stated he noticed appellant was carrying a purse in his hand. When appellant jumped off the bike he threw the purse over his left shoulder and it landed about five feet behind DeAngelis. When Detective DeAngelis recovered the purse an identification card in it identified it as Mrs. McHugh's. The detective also found several .22 caliber bullets (the same caliber as the gun used) in appellant's pocket. The two confessions of the codefendants were also introduced.

The issue is whether the trial court erred in denying appellant's motion for severance where a non-testifying codefendant's confession was admitted into evidence against appellant. We conclude it did not.

Appellant first suggests that the confessions of the codefendants are not interlocking and severance should have therefore been granted under Bruton v. United States. Parker v. Randolph created an exception to Bruton When two codefendants each confess to a crime and each confession implicates the other, and the two confessions interlock such that the salient facts against the first defendant that appear in the confession of the second defendant also appear in the confession of the second defendant also appear in the confession of the first, and vice versa, then each confession is admissible in full against the maker thereof at a joint trial.

442 U.S. at 72-74, 99 S.Ct. at 2138-39, 60 L.Ed.2d at 722.

Appellant contends that the confessions are not interlocking and points out the following discrepancies:

                         Whitfield                     Appellant
                ----------------------------  ----------------------------
                1.  Said that both he and      1. Said that Whitfield
                Appellant initiated the idea  came to him and told that
                to get some quick money.      Whitfield was going to pay
                                              back an old debt to
                                              Appellant
                2. Said that not only did     2. Said he had no
                Appellant know of the         knowledge that a gun
                intended use of a gun, but    would be used until
                he even supplied the          Whitfield pulled his own gun
                gun that was used in the      on the victims
                robbery
                3. Said that only two         3. Said that there was
                people, he and Appellant,     another, third person
                were involved.                involved in the robbery.
                4. Said that Appellant        4. Said that Whitfield
                took Mrs. McHugh's purse      took the purse from Mrs.
                from her and left with the    McHugh and threw it to
                purse in his possession.      him. Appellant then

...