DeBenedictis v. Wainwright

• Court: U.S. District Court — Southern District of Florida
• Writing for the Court: SPELLMAN
• Citation: DeBenedictis v. Wainwright, 517 F.Supp. 1033 (S.D. Fla. 1981)
• Decision Date: 16 June 1981
• Docket Number: No. 81-6026-CIV-EPS.,81-6026-CIV-EPS.
• Parties: Roberto DeBENEDICTIS and Vincent Carola, Petitioners, v. Louis L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.

517 F. Supp. 1033

Roberto DeBENEDICTIS and Vincent Carola, Petitioners, v. Louis L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.

No. 81-6026-CIV-EPS.

United States District Court, S. D. Florida.

June 16, 1981.

COPYRIGHT MATERIAL OMITTED

Jerome M. Rosenblum, Hollywood, Fla., for petitioners.

Max Rudmann, West Palm Beach, Fla., for respondent.

MEMORANDUM OPINION AND ORDER OF DISMISSAL

SPELLMAN, District Judge.

Roberto DeBenedictis and Vincent Carola, through counsel, have filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Section 2254, attacking a one year jail sentence imposed by the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida.¹ Such sentence was imposed following a jury verdict of guilty to four counts of grand larceny by fraudulent representations and four counts of criminal attempt.

Petitioners were released on appeal bond by the state trial court during the pendency of the appellate proceedings through the state court system and remain on bond during the consideration of this petition.

As grounds for relief, Petitioners urge two points:

I. The State of Florida violated their sixth amendment right of confrontation and their fourteenth amendment right to due process by the massive use of unreliable hearsay to establish a critical element needed to prove the petitioners' guilt.

II. The information filed did not sufficiently inform the petitioners of the charges against them with sufficient particularity to enable them to prepare an adequate defense as guaranteed by the sixth and fourteenth amendments.

The Petitioners appealed their convictions to the Florida District Court of Appeal, Fourth District, which affirmed per curiam.² A petition for rehearing was denied. Petitions for certiorari were denied both by the Florida Supreme Court³ and the United States Supreme Court.⁴

The Respondent maintains that this action must be dismissed for failure to exhaust state remedies as to Point II of the Petition, failure of the information to apprise the Petitioners of the nature of the charges against them. Respondent contends that the Petitioners' argument to the State appellate court on that point only referred to the Florida Constitution, Florida Rule of Criminal Procedure and Florida case law and failed to discuss the federal constitutional issues raised herein. The Petitioners contend that the pertinent state and federal constitutional provisions are so similar, a remand to the state courts for exhaustion would be futile. In their brief to the Fourth District Court of Appeals of Florida, the Petitioners cite two provisions of the 1968 Florida Constitution: Article I., Section IX and Article I., Section XVI which read as follows:

Article I., Section IX — DUE PROCESS. No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense.

Article I., Section XVI — RIGHTS OF ACCUSED. In all criminal prosecutions, the accused shall, upon demand, be informed of the nature and cause of the accusation against him, and be furnished a copy of the charges...

It cannot be gainsaid that these provisions are the substantial equivalent of the pertinent provisions of the Sixth and Fourteenth Amendments of the United States Constitution upon which the Petitioners herein rely. The exhaustion doctrine requires that a petitioner for federal habeas relief must have first presented his claim to the state court system and the state court system must have been apprised of the facts and the legal theory upon which the petitioner bases his assertion. Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978). The United States Supreme Court has stated that requiring exhaustion does not imply that a petitioner's claim can only be exhausted by citing "book and verse on the federal constitution" but that "the substance of a federal habeas corpus claim must first be presented to the state courts." Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 29 L.Ed.2d 110 (1971). Lamberti v. Wainwright, 513 F.2d 277 (5th Cir. 1975). The record indicates that the Petitioners have presented the substantial equivalent of their federal habeas claim in both the trial court and on direct appeal. Therefore, the claim has been exhausted. It is clear, however, that satisfaction of the exhaustion requirement does not necessarily imply the Petitioners have stated a federal constitutional claim cognizable for habeas relief.

The Circuit has consistently held that the sufficiency of a state indictment or information is not a matter for federal habeas corpus relief unless it can be shown that the indictment or information is so defective that the convicting court had no jurisdiction. Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969); Branch v. Estelle, 631 F.2d 1229 (5th Cir. 1980). In this case, the sufficiency of the information was squarely presented to the state courts and was apparently determined to be sufficient under state law. The Petitioners contend, however, that because the felony counts did not specifically allege what the false representations were that they were required to defend against, the State was granted extreme latitude in the way the case was presented, and the Petitioners were denied their federal constitutional rights of due process and to be apprised of the nature and cause of the accusation against them. The Petitioners' contention that none but the clairvoyant would have known before the trial the prosecution's theory of the case is groundless and does not state a claim cognizable for federal habeas corpus relief.⁵

Petitioners also contend as grounds for relief that the State of Florida violated their sixth amendment right of confrontation and their fourteenth amendment right to due process by the massive use of unreliable hearsay to establish a critical element needed to prove Petitioners' guilt. Petitioners were charged, along with three others, in a ten (10) count Information filed on October 19, 1977, with six (6) felony counts of grand larceny by fraudulent misrepresentation and four (4) counts of criminal attempt. The State alleged that Petitioners, as corporate officers of a publishing company, ran a fraudulent telephone solicitation operation whereby donations were sought for various police organizations and publications. The elements of the crime charged in the first six counts of the information are (1) false representation of a past or existing fact, (2) knowledge of its falsity, (3) intent to defraud, (4) reliance on the misstatement by the other party, (5) surrender by the other party of property because of the representation. Green v. State, 190 So.2d 614 (Fla. 3d DCA 1969); Koltay v. State, 360 So.2d 802 (Fla. 2d DCA 1978).

Petitioners recognize that questions involving the admission of evidence are not subject to review by federal habeas corpus unless there is an error of such magnitude as to deny fundamental fairness to the criminal trial. Heads v. Beto, 468 F.2d 240, 241 (5th Cir. 1972), cert. den. 410 U.S. 969, 93 S.Ct. 1454, 35 L.Ed.2d 704 (1973). However, Petitioners contend that constitutionally inadmissible out-of-court declarations were improperly admitted by the State court and operated so as to deny fundamental fairness to their criminal trial. The Petitioners urge that the trial court allowed at least two groups of testimony which were constitutionally impermissible: (1) statements made by telephone solicitors and related by the alleged victims of the fraudulent telephone solicitation and (2) testimony of a Fort Lauderdale Detective as to a conversation between one of the Petitioners' employees and a police informant which the Detective overheard on a radio transmitter while sitting outside the Petitioners' premises.

As is explained below, the Petitioners were not denied their rights under the sixth or fourteenth amendments and are not entitled to relief from the state court sentence.

Hearsay and Confrontation

The State contended at trial, as does the Respondent herein, that the statements to which the witnesses testified were not hearsay and were properly admitted as the statements were introduced to show the fact that they were uttered and not for the truth of the matters asserted therein. "An out-of-court statement is considered hear-say only if the witness (other than the declarant) is testifying to the statement in order to prove or demonstrate the truth of the statement." United States v. Fox, 613 F.2d 99 (5th Cir. 1980). The Fifth Circuit's discussion of such statements in United States v. Fox, supra, is applicable to the challenged statements herein:

The purpose of the introduction of each of the statements here challenged was to show that one or the other of the Defendants had made certain statements. The prosecution's theory was to prove through independent admissible evidence that the statements were false. Indeed appellants admit that these challenged statements were offered to prove their falsity rather than their truth.

Id. at 101.

In the instant case, the statements were offered to show that one or another of Petitioners' employees or agents had made certain statements to the witnesses and that the witnesses had relied on the misstatement by the other party and had surrendered their property because of the rep-resentation.

The Petitioners state that even if the statements were not hearsay, they were inadmissible as none of the witnesses was able to testify as to the true identity of the callers or as to where the calls came from. Therefore, they urge that since the identity of the telephone solicitors was unknown, the Petitioners were denied their constitutional right to confront and cross-examine adverse witnesses. The Petitioners contend that as a prerequisite to admissibility of the telephone conversation each witness would have had to identify the voice or person who called and made the statements.

The "identity of the person with...