Cooper v. State, 65133

• Decision Date: 17 July 1986
• Docket Number: No. 65133,65133
• Citation: 492 So.2d 1059,11 Fla. L. Weekly 352
• Parties: 11 Fla. L. Weekly 352 Richard M. COOPER, Appellant. v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1059

492 So.2d 1059

11 Fla. L. Weekly 352

Richard M. COOPER, Appellant. v. STATE of Florida, Appellee.

No. 65133.

Supreme Court of Florida.

July 17, 1986.

Rehearing Denied Sept. 10, 1986.

John E. Swisher and Robert H. Dillinger of Dillinger & Swisher, St. Petersburg, for appellant.

Jim Smith, Atty. Gen. and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Appellant, Richard Michael Cooper, appeals his convictions of three counts of first-degree murder and sentences of death on each count. We have jurisdiction under article V, section 3(b)(1), Florida Constitution, and we affirm.

In the early morning of June 18, 1982, the Clearwater Police Department and the Pinellas County Sheriff's Department received calls from eight-year-old Chris Fridella, pursuant to which several officers were dispatched to his residence. They found three men, one of whom was Chris's father, Steven, lying face down on the living room floor with duct tape binding their hands behind their backs. All were dead, apparently due to gunshot wounds. Medical testimony at trial established that the deaths had resulted from shotgun wounds in the range of three to six feet. The house had been ransacked, the victims' wallets had been emptied, and the television volume was turned to the maximum.

Information received on January 15, 1983, from Robin Fridella, Steven Fridella's ex-wife, led police to appellant and accomplices Terry Van Royal and Jason Dirk Walton. Police contacted appellant and interviewed him on January 20, 1983, at which time he confessed. According to appellant, he, Walton, Royal, and Walton's younger brother, Jeff McCoy, had planned the robbery for a week. On June 17, 1982, they set out with ski masks, gloves and firearms in the trunk of the car, including two shotguns. Upon arrival at the house, McCoy stayed in the car while the other three entered the residence. One of the victims was asleep on the couch, one was in a bedroom, and Steven and Christopher Fridella were sleeping in the back bedroom. The adult victims were put on the living room floor with their hands taped. Chris Fridella was put in the bathroom. Appellant and Royal guarded the victims while Walton ransacked the house. One of the victims recognized Walton, who told his co-perpetrators they therefore would have to kill the adults. Walton's own gun misfired, and he ordered the others to shoot.

After appellant and Royal fired their shotguns at the victims, the perpetrators ran out. Walton told appellant that one of the victims was not dead; appellant returned and shot Fridella a second time. Appellant stated that he had been drinking and smoking marijuana the day of the murders, but that he was aware of what he was doing. In a second statement given January 24, 1983, appellant stated that McCoy accompanied the others into the house but was ordered to return to the car prior to the shootings.

The jury found appellant guilty of first-degree murder as charged and recommended the death penalty on all three counts. The trial court imposed sentences in accordance with the jury's recommendations, finding five aggravating and no mitigating factors.

Appellant first challenges the admission at trial of a ski mask recovered from a box in the closet of the bedroom of his mother's and stepfather's house, where he had lived from January of 1982 until his arrest on unrelated charges in the summer of that year. At the time of the search, June, 1983, appellant was incarcerated for the murders in this case, having confessed to them the previous January. The police had reason to believe the mask was in the house because appellant had told a fellow inmate that it was at his stepfather's house in a box in a closet. They went to the residence and told the stepfather, Mr. Kokx, that there was a ski mask in the bedroom appellant had occupied. The police asked whether they could look for it or if he would do so. Mr. Kokx invited the officers inside, went to the back of the house, and came out with a green ski mask, requesting a receipt therefor. Mr. Kokx testified that it was his understanding that appellant had spoken with them regarding the mask. The police testified, however, that they never told Mr. Kokx that it was appellant who told them that the ski mask was there.

The fourth amnendment prohibits unreasonable searches and seizures, such as a warrantless search and seizure in a place where a person maintains a reasonable expectation of privacy. United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A defendant who has been taken into custody is entitled to fourth amendment protection against warrantless searches of the premises in which he was residing at the time of arrest absent some lawful exception to the warrant requirement. Elson v. State, 337 So.2d 959 (Fla.1976). ¹

When a third party gives permission to search, that third party

must possess common authority over or other sufficient relationship to the premises or effects sought to be inspected to justify a warrantless search. This common authority is decided on the basis of the following criteria: 1) the individual's reasonable expectation of privacy in the area; 2) whether others generally had access to the area; and/or 3) whether the objects searched were personal effects of the individual unavailable to consent.

Preston v. State, 444 So.2d 939 (Fla.1984). The mask was found by Mr. Kokx in a closed box in a closet in the room formerly occupied by appellant at the time of his incarceration, the summer of 1982. ² Assuming that a warrantless search occurred, we find that under the circumstances appellant, at the time of the search, did not have a reasonable expectation of privacy in the bedroom he had formerly occupied. After appellant was convicted of one crime and confessed to participation in three murders and was arrested for them, it would not have been reasonable for him to expect that the room he had occupied in his parent's home for approximately eight months would remain in the same condition as he had left it when he was arrested approximately ten months earlier. There is no evidence that he requested or desired that his belongings be kept in storage until he returned. Our holding is buttressed by the fact that appellant disclosed to a cellmate the existence and whereabouts of the ski mask. We also find that Mr. Kokx had access to the closet of appellant's bedroom. Assuming arguendo that joint access was lacking at the time appellant was arrested, appellant's mother and stepfather had assumed control by the time the mask was obtained. Mr. Kokx had removed most of appellant's belongings from the room when a house guest used it during a visit. Sometime after handing over the ski mask, Mr. Kokx discarded the rest of appellant's effects at the city dump. We find that under the circumstances Mr. Kokx had the requisite common authority to turn the ski mask over to the police. Moreover, in view of the overwhelming evidence against appellant, including his own confessions, as to participation and using the ski mask, any error in admitting the ski mask itself into evidence was harmless. We affirm the guilt phase of the trial.

Appellant's first argument...