Colebrook v. State

• Decision Date: 03 January 1968
• Docket Number: 66726--66728,Nos. 66724,s. 66724
• Citation: 205 So.2d 675
• Parties: Charles Hubert COLEBROOK, Cecil Jerry Fernandez, Willie Thomas Jones and Alfonso Sanders, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 675

205 So.2d 675

Charles Hubert COLEBROOK, Cecil Jerry Fernandez, Willie Thomas Jones and Alfonso Sanders, Appellants, v. The STATE of Florida, Appellee.

Nos. 66724, 66726--66728.

District Court of Appeal of Florida, Third District.

Jan. 3, 1968.

Rehearing Denied Jan. 31, 1968.

Robert L. Koeppel, Public Defender and Phillip A. Hubbart, Asst. Public Defender; L. J. Cushman, Michael F. Zarowny, Miami, for appellants.

Earl Faircloth, Atty. Gen., and Arden M. Siegendorf and Harold Mendelow, Asst. Attys. Gen., for appellee.

Before CHARLES CARROLL, C.J., and HENDRY and SWANN, JJ.

PER CURIAM.

A fifteen year old high school girl, while walking on the streets in Dade County, Florida and on her way home from a school dance with her brother, two young girls, and another boy, was forced into a car, taken away, beaten and raped.

The appellants, Charles Hubert Colebrook, Cecil Jerry Fernandez and Alfonso Sanders, defendants below, were all tried by jury for the alleged crime and found guilty. Appellant, Willie Thomas Jones, was found guilty of assault with the intent to commit rape, while a fifth defendant at the trial was found not guilty of the rape. The four appeals taken from the adjudications of guilt and sentences have been consolidated for all appellate purposes.

The main thrust of the appellants' arguments is directed to the admission into evidence of an extra judicial post-indictment statement by the defendant Fernandez while he was in custody. This statement was incriminating to Fernandez and implicated the three other appellants. The basis for the attack are the arguments that a 'proper predicate' was not provided for admission of the statement; that such a statement is inadmissible under Massiah v. United States, ¹ and that the statement was prejudicial to the other defendants. The defendant Jones also argues that it was prejudicial error to deny his motion for a severance.

The so-called 'proper predicate' or laying the predicate for establishing the admissibility of an incriminating statement as free and voluntary, has been most ably discussed by Judge Pierce in Williams v. State, Fla.App.1966, 188 So.2d 320, 328. It is noted that the purpose of the predicate for admission as freely and voluntarily given is to

'* * * 'air out' all the facts and circumstances Surrounding the giving of such statement. This would include statements made by the parties, the acts and doings of the participants, the conditions and general atmosphere prevailing at the time and place the confession was made, the physical and mental condition of the defendant, and the many other innumerable factors that would logically go into the matter of determining the admissibility of the statement.'

It appears that the objections raised by the defense to the 'predicate' during the trial sub judice were directed solely to the general prerequisites for admission of a conversation between parties into evidence, i.e. to 'the date, time and place and who was present,' rather than to matters pertaining to whether the statement was freely and voluntarily made. In Morgan v. State, Fla.App.1965, 177 So.2d 60, 61, the following statement was made, which is appropriate to these facts:

* * *

* * *

'It is now contended that the confession should not have been admitted because the State failed to meet its burden of showing that the confession was freely and voluntarily given. Whether admissions or confessions are freely and voluntarily made is a question for the trial court, and the duty is imposed upon it to determine this question before permitting it to go to the jury. Bates v. State, 78 Fla. 672, 84 So. 373 (1919). Where a confession or admission has been permitted to be introduced into evidence an appellate court may consider its nonadmissibility upon the ground that the confession or admission was not freely and voluntarily made if its introduction was objected to by the defendant and sufficient grounds were stated to call this to the court's attention. Bates v. State, supra.

'In the present instance no action was taken to call to the court's attention the alleged nonadmissibility of the confession upon the ground of involuntariness. Therefore, appellant's first point is governed by Hearn v. State, Fla.1951, 54 So.2d 651, * * *.'

* * *

* * *

See United States v. Indiviglio, 352 F.2d 276, 277 (2d Cir. 1965).

Notwithstanding the absence of a specific objection to the admission of the confession on the grounds that it was not voluntarily made, the trial judge considered the circumstances surrounding the statement and found it to have been voluntary. We find no error in the ruling that a proper predicate had been established, both as to identification of time and place and voluntariness. The record discloses the following testimony by Deputy Sheriff Ford, to whom the incriminating statement was made:

* * *

* * *

'A At approximately 9:45 a.m. I advised Cecil Fernandez that the reason he was brought in there was for questioning pertaining to the * * * rape case, for which he had been charged and had been placed under arrest.

'I advised him he didn't have to make any statement unless it was voluntarily given; that anything he said could be used in a court of law; that he would receive no mistreatment or abuse if he did not make a statement.

'I advised him that he had the right to have an attorney at any time he desired. I then asked him if he had anything he would like to tell us about this case. He said yes, he did at that time, * * *'

@ * * *

* * *

Fernandez then made the oral incriminating statement to Officer Ford. Fernandez was then asked if he would like to give a recorded statement to the same effect, and he replied, 'all right.' At approximately 10:28 a.m. a recorded statement before a steno-reporter was given to the officer, which ended at 10:35 a.m. It provided in pertinent part as follows:

* * *

* * *

'Q (By Dectective Ford) State your full name.

'A Cecil Henry Fernandez.

'Q And your age?

'A Twenty.

'Q And your address?

'A 765 Northwest 67 Street.

'Q Cecil, I'd like to advise you again of your constitutional rights, those being you do not have to make any statements or answer any questions unless you wish to. Anything you say must be voluntary on your part, and anything you say may be used in Court. You are not promised any reward, or hope of reward or leniency, if you do make a voluntary statement. You will not be abused or mistreated in any way if you don't make a statement.

'Do you wish to make a voluntary statement under these circumstances?

'A Yes.

'Q Cecil, I have also advised you before that you have a right to an attorney, and you have been brought before the judge and he has advised you of your rights and your right to an attorney, has he not?

'A Yes.

* * *

* * *

'Q Is everything you told me here the truth?

'A Yes.

'Q And have you given the statement freely and voluntarily?

'A Yes.

'Q Have you been abused or mistreated in any way?

'A No.'

'Q This completed your conversation with the defendant Cecil Fernandez?

'A Yes, it did.'

* * *

* * *

Appellants argue that even if the statement by Fernandez had been a voluntary one, its admission at trial is necessarily barred under the doctrine of Massiah v. United States, because it was a post-indictment statement made while the defendant was in custody and in the absence of counsel. We disagree.

We do not impart such a far-reaching interpretation to Massiah. Our understanding ² of Massiah is that it, like Spano ³ before it, represents the attempt to resolve a conflict between two fundamental interests of society, interests which must be weighed according to the facts of each case individually. This is stressed at the outset of Spano (Spano v. People of State of New York) by Chief Justice Warren, where he states,

* * *

* * *

'This is another in the long line of cases presenting the question whether a confession was properly admitted into evidence under the Fourteenth Amendment. As in all such cases, we are forced to resolve a conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement. * * *' (at 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1267).

* * *

* * *

After detailing the circumstances surrounding Spano's statement--that a night-long post-indictment interrogation was held in the police station, Despite the fact that Spano's request for an attorney had been denied, and that the police had resorted to the use of a fledgling police officer, a close friend of Spano, who was ordered 'falsely to importune his friend to confess,' ⁴--the majority concluded that:

* * *

* * *

'The abhorrence of society to the use of involuntary confessions does not turn alone in their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. * * * Our judgment here is that, on all the facts, this conviction cannot stand.' (Id. at 360 U.S. 321, 79 S.Ct. 1205)

* * *

* * *

In Massiah, 'a federal agent succeeded by surreptitious means in listening to incriminating statements' ⁵ made by Massiah after indictment, in the absence of counsel and while he was released on bail. The agent had been permitted by a co-defendant to install a radio transmitter under the front seat of the car in which the co-defendant was to meet Massiah, so that the agent could overhear the ensuing conversation in which the co-defendant was to elicit incriminating statements from Massiah. Justice Stewart, speaking for the court, explained the holding with a quote from Judge Hays' dissent in the Court of Appeals:

* * *

* * *

'* * * (I)f such a rule (Spano) is to have any efficacy it must apply to...