Bryan v. State

• Decision Date: 20 February 1974
• Docket Number: No. 70--150,70--150
• Citation: 290 So.2d 515
• Parties: Richard Henry BRYAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 515

290 So.2d 515

Richard Henry BRYAN, Appellant, v. STATE of Florida, Appellee.

No. 70--150.

District Court of Appeal of Florida, Second District.

Feb. 20, 1974.

Rehearing Denied March 21, 1974.

Raymond E. LaPorte or Ragano & LaPorte, Tampa, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Warren H. Petersen, Asst. Atty. Gen., Tampa, for appellee.

McNULTY, Judge.

We have carefully reviewed the record herein of more than 3,200 pages, together with the briefs on the seven points on appeal raised by appellant, and find no reversible error in his conviction for first degree murder and the life sentence imposed therefor.

In view of the multiloquent dissent by our brother Mann, however, we deem it propitious to point out, with regard to the pre-indictment identification procedures (i.e., the corporeal and photo lineups) used by the investigating officers in this case, that even assuming them to be unfair and impermissibly suggestive as Judge Mann apparently says (with which we do not necessarily agree), the truth-finding process was not contaminated thereby.

The 'witnesses' of whom Judge Mann speaks were all those who 'identified' appellant as being one of two white men involved in events leading up to the kidnapping of the victim after forcing her husband out of the car involved. But there is no dispute on this identity point. Appellant admitted in his own testimony that he was one of the two white men involved up to that point, his co-felon Durham being the other. ¹ His sole defense was, and is, that he did not wilfully participate or acquiesce in the kidnapping, and that after the victim's husband was ejected from the car as aforesaid, and when the Only persons present were Durham, the victim and he, he expressed his disassociation from Durham and his disavowal of the whole affair. He then got out of the car, he says, leaving Durham and the victim to their own pursuits, and knows nothing of subsequent events leading up to the murder except that which he says Durham later told him, viz., that Durham was the sole perpetrator of the murder. Durham, of course, contradicted appellant and testified that appellant participated all the way. Moreover, said Durham, appellant was, in fact, the actual killer. But admittedly there were no witnesses after the kidnapping save Durham and appellant. It follows, then, that the other 'witnesses' testimony as to the identity of appellant could only have related to that which appellant admits, i.e., that he was initially involved Prior to the kidnapping. Their testimony as to which of the two white men was the aggressor in these admitted preliminary incidents, or as to which of them had which of two guns admittedly involved, merely tended to corroborate or rebut the testimony of either Durham or appellant in their respective versions of pre-kidnap events; and this, of course, could not have been suggested by pre-indictment corporeal or photo lineup procedures which relate only to Who was involved and not as to What they did assuming their involvement. 'Who' in this case, as noted, were admittedly both Durham And appellant, and the witnesses' testimony concerning the Conduct of the 'dark-haired one' (Durham) or the 'blond-headed one' (appellant) was unrelated to their actual identity otherwise established by their own admission. How, then, could appellant be prejudiced by the 'identification'? ²

The case boiled down to a swearing match between Durham and appellant, the only two persons left with the victim after all other 'witnesses' were out of the picture, as to whether appellant participated in the murder. ³ The jury resolved such match against appellant and we cannot, as a matter of law from this record, articulate a reversal of that finding nor can we find prejudicial error otherwise.

Affirmed.

HOBSON, J., concurs.

MANN, C.J., dissents with opinion.

MANN, Chief Judge (dissenting).

'A state may not rely in a criminal prosecution . . . On an identification secured by a process in which the search for truth is made secondary to the quest for a conviction.' ¹

Sometimes a singleminded law enforcement officer finds it difficult to keep the totality of circumstances in mind when showing photographs to witnesses. I would reverse Bryan's conviction because one of Florida's most experienced law enforcement officers conducted identification procedures in a prejudicial manner. I write at some length about the problems involved because of the frequency with which they are encountered, the possibility of convicting the innocent through misidentification, and the confused state in which we appellate judges have left the law. My hope is to bring clarity out of chaos. I am not at all confident of success.

This is an exceedingly close case, but for reasons which I shall attempt to explain herein, the errors relating to identification procedures might have been prejudicial. I agree with the majority that there is no question whatever that Bryan was physically present with Durham on the night in question, but there is some evidence from the other witnesses that one of the two men was not aggressive and we have Bryan's testimony that he was not implicated in the kidnapping beyond physical presence with Durham, and that at the earliest practicable moment asked to be taken home. Durham complied. My vote to reverse rests upon the belief that Bryan's remaining with Durham until they left the scene of the abduction of Mrs. Brooks might have been believed by a jury of reasonable persons to have been a lawful act. The identification procedures in this case are material because their cumulative effect has been to heap upon Bryan alone the guilt of two men and the conduct of the trial judge is such as to forbid Bryan access to other evidence respecting crucial matters of identification. Thus, since I view the identification procedures and the trial judge's action cumulatively to constitute a deprivation of dur process, I cannot attest the conviction to be harmless beyond a reasonable doubt under the standard pronounced in Chapman v. California. ²

The Crime

Richard Henry Bryan and John Henry Durham were in a party which left Conner's Corner as it closed early one Sunday morning. They had been drinking, and Durham nearly hit another patron in the parking lot as he drove off. As the man protested, Durham drew his .22 caliber Derringer and Bryan his .25 caliber automatic, and that argument subsided. They proceeded to Van Winkle's home, where all were staying that night, but Durham and Bryan had not drunk their fill. Hunting for beer after hours, they came upon Willie Brooks and his wife Theresa and C. C. Barker, who offered to help. While Barker was inside one of the places they went in search of beer, a third man, Fordoms, came out, at a bad time for him. Bryan and/or Durham were getting impatient. Either Bryan or Durham--each says the other--threatened to shoot Fordoms, who used whichever of Bryan or Durham was not the aggressor as a shield, and escaped. After the incident involving Fordoms, Barker emerged with the beer. Either Bryan or Durham took it in through the window and they drove off with Mr. and Mrs. Brooks in the car. After driving a short distance, Mr. Brooks was forced out of the car and Durham drove off, with Mrs. Brooks and Bryan in the car. Bryan's story fills parentheses at this point: he says he had no part in the kidnapping and asked Durham to take him home, which he says Durham did. Durham and Mrs. Brooks, certainly, and Bryan, says Durham, then went to the phosphate pit near Dover, east of Tampa, in which Mrs. Brooks' body was found. The ballistics expert identified the bullet found in her as a .22 caliber bullet, such as would be fired by a gun like Durham owned. Durham says he had the .22 stack-barrel Derringer until after he had had sexual intercourse with Mrs. Brooks and that it was in the car while she and Bryan remained there, that he heard Bryan make an unreasonable demand for sexual gratification, and Durham says he then heard a shot.

The Identification Procedures

We know little of the investigation by the City of Tampa police. They came promptly, and Brooks gave a description of the two men to two investigating officers. He said at trial that this description was accurate at the time. Bryan's attorney moved for its production, but the trial judge denied his motion, and further refused to grant In camera inspection. The State declined to bring these officers as witnesses.

Detective Stamatakis was given a description, and testified at the trial. This description is fairly consistent with the admitted facts: Durham has dark hair, Bryan was blond. Nothing appears in this description about a scar on Durham's cheek.

We do not know everything about the procedures employed by the Sheriff's office. We do know this: Pictures of Bryan and five other men were shown to witnesses on June 15, the day Bryan was taken in custody on another charge, but probably before he was in custody. Sheriff's records do not accurately place the time. On June 17, pictures of Bryan and five men not shown in the first array were displayed at 8:45 a.m. Bryan was in custody. Neither his counsel nor substitute counsel was present. On the afternoon of June 17, Bryan appeared in a line-up with five men, none of whom was pictured in either batch of photographs. His counsel was present. No positive identification was made. At the close of the line-up, Bryan's counsel went with him into an interrogation room. The deputies apparently interviewed the witnesses out of the presence of Bryan's counsel, and apparently no objection was made. It does not appear clearly what procedure was followed at this point, although it is important. As the witnesses were leaving, accompanied by deputies but not by Bryan's lawyer, Brooks told a deputy he thought Bryan was the man, but wasn't sure because his hair was short. Bryan admits asking for a haircut, and the State is not entirely responsible...