Dorsey v. State

• Decision Date: 30 July 1981
• Docket Number: 58886,Nos. 58365,s. 58365
• Citation: 402 So.2d 1178
• Parties: Willie Albert DORSEY, Appellant, v. STATE of Florida, Appellee. Norman Luther BRITTEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1178

402 So.2d 1178

Willie Albert DORSEY, Appellant, v. STATE of Florida, Appellee.

Norman Luther BRITTEN, Appellant, v. STATE of Florida, Appellee.

Nos. 58365, 58886.

Supreme Court of Florida.

July 30, 1981.

John A. Henninger of the Law Offices of Robert W. Pope, St. Petersburg, for appellant, Willie Albert Dorsey.

Joseph M. Ciarciaglino, Jr. of Osborne & Ciarciaglino, St. Petersburg, for appellant, Norman Luther Britten.

Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

OVERTON, Justice.

These causes are consolidated appeals from judgments of a trial court which upheld the validity of section 943.462, Florida Statutes (1977), the Racketeer Influenced and Corrupt Organization (RICO) Act. We have jurisdiction under article V, section 3(b)(1), Florida Constitution (1972). We uphold the constitutionality of the act as applied to appellants. We also hold that there can be no expectation of privacy in "beeper" messages sent over the airwaves and that these messages are not protected by Florida's wiretap law. We find, however, that we must reverse appellants' convictions and remand for new trials because of trial error in admitting prejudicial evidence of a murder allegedly committed by the organization but not charged against appellants. We conclude that this type of error is not harmless.

Appellants Dorsey and Britten were tried and convicted of one charge each of violating section 943.462. Trial testimony indicated that appellants' arrests stemmed from an investigation by the St. Petersburg Police Department into the operation of a narcotics ring headed by one John Bailey. The investigation commenced with the use of a paid informant, whose information prompted the police to monitor, by means of a radio scanner, messages received by Bailey and others on a "pocket pager" or "beeper" rented by Bailey. The information the police gathered from the intercepted radio broadcasts was used to obtain a court order authorizing a wiretap of Bailey's telephone. This wiretap produced information eventually leading to sixteen arrests. The state entered a nolle prosequi in one case, and all other defendants pled guilty except the two appellants.

Both appellants filed pretrial motions to dismiss, alleging that the RICO Act is unconstitutional for a variety of reasons. Both motions were denied.

Some of appellants' arguments against the statute have been rejected in State v. Whiddon, 384 So.2d 1269 (Fla.1980), and Moorehead v. State, 383 So.2d 629 (Fla.1980). In this appeal, appellants contend that the statute is unconstitutional as applied to them because the definition of the term "enterprise," ¹ which specifically includes illicit as well as licit enterprises, conflicts with the expressions of legislative intent in the uncodified preamble of the act. ² The argument has no basis. Even if we were to find that the preamble's emphasis on organized crime infiltrating legitimate business poses some conflict with the inclusion of illicit enterprises in the definitional section, such conflict would present at most a problem of construction and not a constitutional defect. What appellants are really asking this Court to do is to read the words "illicit enterprises" out of the statute on the basis of the act's preamble. This would be totally inappropriate. It is well settled that such "prefatory language" cannot expand or restrict the otherwise unambiguous language of a statute. (T)he preamble is no part of the act, and cannot enlarge or confer powers nor control the words of the act, unless they are doubtful or ambiguous.

Yazoo & Mississippi Valley Railroad v. Thomas, 132 U.S. 174, 188, 10 S.Ct. 68, 73, 33 L.Ed. 302 (1889). Accord, Coosaw Mining Co. v. South Carolina, 144 U.S. 550, 12 S.Ct. 689, 36 L.Ed. 537 (1892); Association of American Railroads v. Costle, 562 F.2d 1310 (D.C.Cir.1977); Hughes Tool Co. v. Meier, 486 F.2d 593 (10th Cir. 1973); In re Camden Shipbuilding Co., 227 F.Supp. 751 (D.Me.1964); Idaho Commission on Human Rights v. Campbell, 95 Idaho 215, 506 P.2d 112 (1973). The language of section 943.461(3) is clear. Moreover, its intended scope is clear when one examines the federal RICO act, ³ in which the definition of enterprise is identical to Florida's except for this state's specific inclusion of illicit enterprises. Clearly, the Florida legislature intended to avoid the dispute over construction which plagued the federal courts of appeals. Compare United States v. Turkette, 632 F.2d 896 (1st Cir. 1980), rev'd, --- U.S. ----, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); and United States v Anderson, 626 F.2d 1358 (8th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981); with United States v. Sutton, 642 F.2d 1001 (6th Cir. 1980) (en banc); United States v. Whitehead, 618 F.2d 523, 525 n.1 (4th Cir. 1980); United States v. Rowe, 598 F.2d 564 (9th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); and United States v. Altese, 542 F.2d 104 (2d Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 750 (1977). This dispute has only recently been resolved. United States v. Turkette, --- U.S. ----, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (Federal RICO Act defined to encompass "illegitimate" as well as "legitimate" enterprises). Whatever may have been the congressional intent in defining "enterprise" in the federal act, the deliberate insertion of clarifying words in the Florida act has settled the matter in state prosecutions.

The second point for discussion concerns appellant Dorsey's contention that the court should have granted his motion to dismiss on the basis of vagueness of the information and statement of particulars, which specifically listed seven examples of drug-dealing.

Dorsey complains that the information is void because it is so vague as to subject him to multiple prosecutions, since it alleges a "pattern of racketeering activity ... which includes but is not limited to the following described acts." However, through the statement of particulars and Florida's broad discovery procedures, the appellants had full knowledge of the specific facts justifying the charge in the information.

Dorsey argues that the information must be written so as to avoid double jeopardy. United States v. Cuesta, 597 F.2d 903 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). Determining exactly what offenses for which jeopardy has attached under a RICO prosecution may be difficult in some cases, but clearly in this case jeopardy has attached for any racketeering charge, brought under section 943.462, for the time period of April, 1978, through May, 1979. The fact that a RICO charge covers a period of months does not mean that jeopardy automatically attaches for any factually related charges based upon incidents during that period, except for another prosecution under RICO itself. Whether a predicate offense underlying a RICO charge may be separately prosecuted depends upon a close examination of the two offenses. We need not reach the issue of whether the double jeopardy clause would prohibit prosecutions for drug offenses at the times and places included in the statement of particulars, since no such charges have been brought. In our opinion, it is clear that since the state's evidence in the instant case would be limited to those incidents of which the defendant was given notice in the statement, jeopardy has not attached for any other drug offenses during that period. We conclude that Dorsey's contention that the information and statement of particulars were fatally vague and defective is without merit.

The third issue is the contention of appellants Dorsey and Britten that they were substantially prejudiced by references, in the information and in testimony allowed at trial over their objections, to the murder of one Clara Yarn, allegedly committed by other members of the Bailey organization. The state asserts that the evidence, which included the testimony of the coroner as to cause of death, was relevant to show the "existence," "scope," and "purposefulness" of the organization. We find we must agree with appellants that this testimony, in the manner it was presented, constituted prejudicial error.

The record reflects that the organization member or members who allegedly committed the murder were not on trial with Dorsey and Britten. This was an execution-style murder of the girl friend of an organization member, which was not alleged as a specific offense charged against these appellants. Further, the trial judge had previously denied a requested statement of particulars on the murder, so appellants were not apprised of the specifics in order to "defend" against his crime which the state conceded they did not commit. The record shows that the trial judge was clearly bothered by this evidence at the time of its admission.

It is one thing for evidence to be presented to a jury concerning the structure and drug-dealing procedures of the organization when specific drug offenses are charged, but it is quite another to hear in detail about a murder not specifically charged or proven.

The state relies upon United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). Elliott is not controlling in this case. In Elliott four defendants who did not commit murder stood trial jointly with, and as confederates of, two others who committed the murder, all in the course of a broad-ranging RICO prosecution involving over a dozen distinct predicate crimes. The Fifth Circuit in Elliott concluded that the United States Constitution "does not guarantee a trial free from the prejudice that inevitably accompanies any charge of heinous group crime; it demands only that the potential for transference of guilt be minimized to the extent possible under the circumstances in order to 'individualize each defendant in his relation to the mass.' " Id. at 905...