Damon v. State

• Decision Date: 12 May 1981
• Docket Number: No. 77-1981,77-1981
• Citation: 397 So.2d 1224
• Parties: Marvin Max DAMON and Linda Ladler, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1224

397 So.2d 1224

Marvin Max DAMON and Linda Ladler, Appellants, v. The STATE of Florida, Appellee.

No. 77-1981.

District Court of Appeal of Florida, Third District.

May 12, 1981.

Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellants.

Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.

Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.

SCHWARTZ, Judge.

On August 20, 1976, a man named Wiley Swiney was brutally murdered in his cottage in Dade County. Both the appellants Marvin Max Damon and Linda Ladler confessed to their own and the other's participation in the crime. As each described it, they engaged in a plan in which Ladler, a prostitute, lured the victim to his home. While she was occupying Swiney, Damon entered the house to take his money. When Swiney observed and then attempted to resist Damon, he began to strike the victim with a hammer and, as he stated, "I kept hitting him and kept hitting him and kept hitting him." Swiney's body was found the next day with the hammer still imbedded in his skull.

In a single two-count indictment, Damon and Ladler were charged with (1) first degree murder and (2) breaking and entering a dwelling with intent to commit robbery and making an assault in the course of that offense. After the trial judge denied Damon's pre-trial motions for severance, to suppress his confession, and to permit his attorney to comment on Ladler's projected failure to testify, the defendants went to a joint trial in Dade County circuit court. Both confessions were introduced into evidence. Damon took the stand and stated that his confession had been beaten out of him; that its contents were entirely the suggestion of the investigating officers; and, in essence, that he knew nothing about the crime. ¹ He was directly contradicted by the lead detective who took the statement and heavily impeached, to say the least, by the total lack of corroboration of the physical injuries he had supposedly sustained ² and the extreme unlikelihood that the details related in his confession could have been supplied by someone who was not there. Ladler did not testify.

Both defendants were found guilty of lesser included offenses, third degree murder as to count one, and "breaking and entering a dwelling with intent to commit petty larceny" on count two. ³ Damon was sentenced to consecutive terms of fifteen years; Ladler, to fifteen years for murder and ten concurrent years on the burglary charge. Both appeal. We affirm.

I No Error to Deny Damon Severance

The first issue, which of course is raised only by Damon, claims error in the denial of a severance of Ladler's trial from his own. Damon is correct on neither of the grounds presented to support this contention.

(a). No Bruton Violation. Damon first claims that the joint trial resulted in the denial of his right to confrontation of Ladler as to those portions of her confession which implicated him. He invokes the familiar authority of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). This reliance is misplaced. It is now well-settled that when, as in this case, there are so-called "interlocking confessions" that is, when a defendant who makes a Bruton complaint has himself confessed, and has thus supplied the most persuasive evidence possible against him no severance is required. This has been held to be true either because no sixth amendment violation is essentially involved at all, see Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979) (plurality opinion of Rehnquist, J.) or, employing a more traditional analysis, because the non-testifying codefendant's confession is harmless error. ⁴ Parker v. Randolph, supra (concurring opinion of Blackmun, J.); Mack v. Maggio, 538 F.2d 1129 (5th Cir. 1976); see also, Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Andrews v. State, 372 So.2d 143 (Fla.3d DCA 1979), cert. discharged, 390 So.2d 61 (Fla.1980).

Damon's arguments that the interlocking confession rule does not apply to him lack merit. He claims that Ladler's confession portrayed him in a worse light than his own. But his statement in and of itself showed him to be guilty of first degree-felony murder. ⁵ The fact that Ladler's statement was predictably more exculpatory concerning immaterial details of the crime does not render its admission in any meaningful sense harmful to his case. See Felton v. Harris, 482 F.Supp. 448, 455, notes 12-13 (S.D.N.Y.1979) (per Weinfeld, J.); People v. Williams, 84 Ill.App.3d 247, 39 Ill.Dec. 605, 405 N.E.2d 358 (1980). It is also argued that Ladler's statement impermissibly compromised Damon's attack upon his own confession. The interlocking confession doctrine, however, has full vitality even when the defendant's admissions are themselves challenged at the trial. Felton v. Harris, supra, and cases cited; People v. Williams, supra; see United States v. Webb, 633 F.2d 1140, 1142 (5th Cir. 1981). Furthermore, Damon's particular claims that the statement was involuntary and wholly the result of police prompting were entirely unsubstantial; indeed, patently fabricated. It is apparent that they raised no reasonable question which could have led the jury any more than the trial court in denying suppression to reject the confession, even if Ladler's corroborative statement had not been admitted at all. In sum, we are convinced beyond a reasonable doubt that Damon was convicted because of "his own confession of guilt and not that of his codefendant." Felton v. Harris, supra, at 482 F.Supp. 456; Harrington v. California, supra. Hence, we reject his Bruton contention.

(b) No de Luna Violation. Relying on the line of cases exemplified by de Luna v. United States, 308 F.2d 140 (5th Cir. 1962), which we followed in Sublette v. State, 365 So.2d 775 (Fla.3d DCA 1978), cert. dismissed, 378 So.2d 349 (Fla.1979), Damon also urges that the joint trial and the lower court's specific pre-emptive instruction erroneously prevented him from commenting upon Ladler's failure to testify. Again, we find no impairment of his substantial rights. As was noted in Gilmour v. State, 358 So.2d 63, 65 (Fla.3d DCA 1978), de Luna and its progeny apply only

when the arguments or defenses of jointly tried defendants are antagonistic, such as here where the arguments and theory of defense for one who did not testify amounted to an attempt to shunt the guilt to the other....

In such a situation, it may well be harmful error to preclude the testifying defendant's attorney from commenting upon the implications to be drawn from the fact that his adverse codefendant did not support his antagonism under oath. But that is not this case. Ladler and her lawyer did not, as in de Luna and Sublette, attempt to escape or diminish her own responsibility by claiming that Damon was alone responsible for the crime. In truth, it is difficult to determine just what her defense was, beyond her apparently successful plea for a jury pardon. In any case, since the positions of the codefendants were entirely consistent, there was in essence no imaginable argument which Damon's lawyer could usefully or helpfully have made concerning her non-appearance; ⁶ no constitutional requirement, therefore, that he be permitted to make it; and manifestly no harm in refusing him the right to do so. As in each case which does not involve conflicting theories of defense, we hold that error has not been demonstrated on this point. Gurleski v. United States, 405 F.2d 253, 264-65 (5th Cir. 1968); Hayes v. United States, 329 F.2d 209 (8th Cir. 1964), cert. denied, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964); United States v. Nakaladski, 481 F.2d 289, 301-02 (5th Cir. 1973); United States v. Enten, 332 F.Supp. 249 (D.D.C.1971).

II Burglary Convictions Proper

The only claim common to both appellants which requires discussion ⁷ is the assertion that, since the murder and the burglary convictions arose from the same criminal conduct, State v. Pinder, 375 So.2d 836 (Fla.1979) requires that the latter be set aside. See also, Mahaun v. State, 377 So.2d 1158 (Fla.1979). Again, we disagree.

At bottom, Pinder represents an acceptance of the argument that, as indicated in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which, on double jeopardy grounds, precludes successive prosecutions for "the same offense," applies to multiple charges in a single trial. At 284 U.S. 304, 52 S.Ct. at 182, 76 L.Ed. at 309, Blockburger articulates the formula which governs the question of when such an improperly duplicative conviction has been secured:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Accord, e. g., Albernaz v. United States, --- U.S. ----, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Brown v. Ohio, supra; Iannelli v. United States, 420 U.S. 770, 785, 95 S.Ct. 1284, 1293, 43 L.Ed.2d 616 (1975); Gore v. United States, 357 U.S. 386, 389, 78 S.Ct. 1280, 1282, 2 L.Ed.2d 1405 (1958). In both Pinder and Mahaun, the court held that the defendant could not be punished both for an underlying felony robbery in Pinder and aggravated child abuse in Mahaun and for first or third degree murder arising from a death caused during the commission of that same felony. In each instance, under the Blockburger test the felony charge fell because it was encompassed in and did not require proof of any fact which was not also required to establish the elements of the felony-murder. ⁸ We need not here discuss the present status of the Pinder doctrine, ⁹ nor certify...