Chandler v. State, 77-2624

• Citation: 366 So.2d 64
• Decision Date: 19 December 1978
• Docket Number: No. 77-2624,77-2624
• Parties: Noel CHANDLER and Robert Granger, Appellants, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 64

366 So.2d 64

Noel CHANDLER and Robert Granger, Appellants, v. The STATE of Florida, Appellee.

No. 77-2624.

District Court of Appeal of Florida, Third District.

Dec. 19, 1978.

Rehearing Denied Jan. 17, 1979.

Hirschhorn & Freeman and Joel Hirschhorn, Miami, for appellants.

Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.

Steel, Hector & Davis and Talbot D'Alemberte and Donald M. Middlebrooks, Miami, for Post-Newsweek Stations of Florida, Inc. as amicus curiae.

Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.

PER CURIAM.

Appellants Noel Chandler and Robert Granger were the defendants to a four count information ¹ growing out of the burglary of Picciolo's Restaurant, Miami Beach, Florida, on May 23, 1977. At the time of the filing of the information on July 1, 1977, the two defendants were police officers with the City of Miami Beach Police Department.

During the trial, the defendants filed various motions and challenges to Florida's Experimental Canon 3 A(7). Pursuant to this canon, cameras were permitted to televise portions of the defendants' trial. The challenges were overruled and requests to exclude live television coverage were denied. In addition, the defendants' request to sequester the jury was also denied.

The trial in this case began on December 5, 1977. During the trial, evidence was presented to the effect that a few days prior to the burglary in question, defendant Chandler was one of several Miami Beach police officers who investigated another burglary at Picciolo's Restaurant.

On Sunday, May 22, 1977, Picciolo's Restaurant closed at 12:30 a.m., early on the morning of May 23, 1977. Upon reopening the restaurant at 8:00 a.m. on the morning of May 23rd, one of the cooks noticed that the floor safe, which had contained the previous day's receipts, had been "drilled" and was empty. Also, a door leading outside was open.

During the trial, defense counsel sought a Writ of Body Attachment against Don Froschneider, who had been subpoenaed as a defense witness and whose testimony was said to be essential, inasmuch as he had brought a condensed cassette tape to the Miami Beach Police Department. This tape had been made by John Sion. The court stated that the condensed tape was not material except insofar as it might shed some light on when the original tape was made. Defense counsel argued that this was the reason, in fact, that he was seeking Froschneider's testimony. Defendants here argue that this fact is especially important in light of their affirmative defense of alibi for the night in question.

The recording originally made by John Sion has an extremely interesting origin. During May, 1977, Sion, who lived with his mother in an apartment near Picciolo's Restaurant, was awakened one morning (on an undetermined date) at 2:50 a.m., at which time he switched on his ham radio receiver and began reading a book. Upon hearing a conversation over the radio about "registers," he thought that the conversation might concern a robbery and, therefore, he began taping the conversation. Sion was unable to give the exact date of the making of the tape, although he testified that he had discussed the matter with Froschneider on May 26, 1977. ² During their first conversation about the tape recording, Sion gave Froschneider the frequency numbers on which the conversation had been overheard and Froschneider wrote the numbers on a piece of paper. Froschneider contacted Sion about hearing the tape and Sion played the tape for him, but Froschneider had trouble understanding it. ³ Therefore, Sion made a condensed version of the original tape, omitting the numerous pauses.

Miami Beach Police Office Charles Hayes testified that he had observed defendant Granger at about 3:00 a.m. on the morning of May 23, 1977, driving a marked Miami Beach Police vehicle. He testified that he observed Granger, who was in uniform, four or five times that morning within a two block radius of Picciolo's Restaurant. During the direct examination of Hayes, the jury was excused for the purpose of inquiring into the admissibility into evidence of Sion's original tape. The tape was played in its entirety. Hayes stated that he had previously heard the condensed version of the tape. Defense counsel objected to the admission of the original tape, arguing that there was no evidence linking it to the allegations contained in the information and that no testimony existed that the tape was made on May 23, 1977. The objection was overruled by the court and the tape was admitted into evidence. Upon the jury's return to the courtroom, the original tape was again played in its entirety for the jury. Hayes identified the voices on the tape as those of the two defendants. The tape contained numerous statements purporting to link the defendants to the burglary. On cross-examination, Hayes admitted remembering something about a complaint once made by Chandler and an Officer Wilson against him (Hayes) to the police supervisor. Upon objection by the prosecutor, the court limited any further inquiry into Chandler's complaint against Hayes.

On June 17, 1977, state attorney office investigator William Riley secured the original tape from Sion. Both Sion and Riley initialed the tape and dated it. On July 12, 1977, Riley obtained the inner-mechanisms of several locks from Picciolo's Restaurant, including the lock from the door which had been discovered open. The locks were submitted to the Public Safety Department Crime Lab for analysis and it was determined that there were scratches in the lock that had come from the exterior side of the opened door and which were relatively fresh. A locksmith, Earl Hall, concluded that as the marks had been made on the pins of the lock, the lock had been "picked."

Police testimony revealed that Granger and Chandler did not work the shift from 11:00 p.m. on May 22, 1977, to 9:00 a.m. the following morning. Further testimony revealed that in May and June of 1977, because of the large number of police vehicles owned by the Department, some of the unused vehicles were kept on the street behind the station.

The chief maintenance engineer at LaGorce Country Club testified that in January of 1977, defendant Chandler had approached him with regard to radio equipment and that Chandler had shown him two walkie-talkies on June 3, 1977.

Upon the prosecution's resting its case, defense counsel moved for a judgment of acquittal on the basis of insufficient evidence and the lack of a prima facie case. Defense counsel further argued that the case of the prosecution consisted solely of inferences piled upon inferences. The court denied the motion and the defense proceeded with its testimony and evidence.

Donald Froschneider testified about his conversation with Sion concerning the tape recording and, although not recalling the exact date of the conversation, placed it at about Memorial Day (May 29) of 1977. He testified that he had listened to the condensed version of the tape at a subsequent time and that Sion had written down the frequency numbers on a piece of paper. He stated that he had brought the numbers to Lieutenant Webb of the Miami Beach Police Department, as well as the condensed version of the tape. Lieutenant Webb testified that he received the tape from Froschneider at the end of May, 1977, and that he immediately turned over the tape to Sergeant Morgan. Sergeant Morgan testified to receiving the tape from Lieutenant Webb on June 3, 1977, and that a piece of paper with numbers accompanied the tape, but he could not explain what happened to the piece of paper.

Sergeant Monteagudo of the Miami Beach Police Department testified that he received the condensed tape from Morgan on June 7, 1977, that he initialed it, which was standard police procedure, that he wrote the words "B and E, Granger and Chandler" on the tape but that later he obliterated the writing and subsequently turned the tape over to Martin Dardis of the state attorney's office.

Defendants moved that the condensed tape be admitted into evidence but the prosecutor's objection to that motion was sustained, and the defendants, therefore, renewed the motion, which was denied, at the conclusion of all the testimony.

Defendants sought to call Miami Beach Police Officer Robert Wilson, but the prosecution objected to any testimony by Wilson concerning a complaint by Wilson and Chandler against Hayes. Defendants submitted that the testimony involved two issues: (1) Hayes's bias and prejudice and (2) the impeachment of Hayes's prior statements in court. The court ruled that the testimony was inadmissible as it was independent evidence of bias and prejudice.

Defense counsel then proffered that Warren Holmes would testify that he was told by Sion that the original tape recording was made during the Memorial Day weekend. This testimony was excluded by the court over the defendants' objection.

Sion's mother, Helen Sion, testified that she had been present at the time that the recording was made and that this took place at the end of May, 1977, subsequent to an eye operation she had undergone. Records of the date of her operation were placed into evidence.

The wives of both defendants testified that they were with their respective husbands during the entire period of the evening of May 22nd to the morning of May 23, 1977, and that neither defendant left home after retiring to bed between 11 o'clock and midnight on the 22nd.

At the conclusion of all the testimony, the defense renewed its motion for judgment of acquittal, which was denied, and the case was submitted to the jury. During consideration, the jury requested (through a written note) that the condensed tape be sent into the jury room. The court denied this request because the condensed version of the tape had not been introduced into evidence. The defense had previously attempted to introduce, out of the presence of the jury, the testimony of an expert...