Echols v. State

• Decision Date: 19 September 1985
• Docket Number: No. 64246,64246
• Citation: 484 So.2d 568,10 Fla. L. Weekly 526
• Parties: 10 Fla. L. Weekly 526 Robert ECHOLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 568

484 So.2d 568

10 Fla. L. Weekly 526

Robert ECHOLS, Appellant, v. STATE of Florida, Appellee.

No. 64246.

Supreme Court of Florida.

Sept. 19, 1985.

Rehearing Denied March 31, 1986.

Jerry Hill, Public Defender, and W.C. McLain, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Jim Smith, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

SHAW, Justice.

Appellant Echols was convicted of one count each of first-degree murder, robbery with a firearm and armed burglary with an assault. The jury recommended life imprisonment on the first-degree murder conviction but the trial court imposed a death sentence. The trial court also sentenced appellant to life imprisonment on the robbery conviction and sixty years on the burglary conviction, with the court retaining jurisdiction for one-half of the latter sentence. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The victim, Waldamar Baskovich, and his wife, Faye, moved to Clearwater, Florida, from Gary, Indiana, in the early 1960s. In the late 1970s, Faye's sister and brother-in-law, Gari and Alex Dragovich, also moved to Clearwater from Gary and resided with the Baskovichs for approximately two years. Waldamar Baskovich and Alex Dragovich had been business partners in Gary, but apparently the relationship between the men became unfriendly although Faye Baskovich retained a friendly relationship with her sister and brother-in-law. In late 1981 or early 1982, Alex Dragovich contacted appellant and hired him to murder Waldamar Baskovich. The motive for the murder was both personal antipathy and a desire to obtain control of the victim's estate through Dragovich's relationship with his sister-in-law. Dragovich and appellant planned to use the assets of the victim's estate as a means of promoting certain business enterprises and to share in the proceeds. In March 1982, appellant and an accomplice twice flew into Clearwater from Gary to murder Baskovich, but aborted the crime because of unfavorable circumstances. However, at approximately 2 p.m. on April 20, 1982, appellant and "Mad Dog" Nelson flew into Clearwater. At approximately 7:20 p.m. that evening, appellant and Nelson entered the Baskovich home where they found the Baskovichs. They confined Faye to a bathroom and placed Waldamar face down on the floor of the family room. Nelson fired two lethal shots from a handgun into Baskovich's head. Appellant and Nelson robbed and burglarized The focus of the investigation then shifted to appellant and Gary, Indiana. The Clearwater police requested a photograph of appellant from the Indiana state police. The state police then asked an informant, Adams, who lived in a common law relationship with appellant's daughter, to obtain the photograph. Instead, Adams wired himself with a small hidden tape recorder and asked appellant if he was involved in a Florida murder. Appellant promptly stated that he was and boastfully recounted details of the crimes and the scheme between himself and Dragovich to obtain control of the victim's estate. Adams allowed the state police to hear the tape but retained custody, apparently as a bargaining ploy to obtain their assistance on criminal charges against him. Approximately fifty days later, Adams surrendered the tape to the police and agreed to, and did, tape another conversation with appellant. The Clearwater and Indiana police then executed an arrest warrant on appellant at his home and, with his permission, searched the home. They found evidence corroborating appellant's trips to Clearwater and statements he had made on the tapes. Very shortly after the arrest of appellant, and before Dragovich had heard of the arrest, Adams and an undercover Florida policeman contacted and met Dragovich for the purported purpose of receiving payment for the murder of Baskovich. The two meetings were simultaneously recorded on video and audio tapes. Although Dragovich was guarded in his remarks, the tape corroborated appellant's statements that he and Dragovich had planned and executed the Baskovich murder.

the home, taking jewelry and a substantial sum of cash. They then struck Faye, leaving her dazed and apparently unconscious, and fled the scene. En route to the airport, the men discarded a handgun, jewelry boxes, the victim's wallet, and a bag taken from the home. They flew out of Clearwater at approximately 9 p.m. that evening. Through what can only be described as excellent police work, the police uncovered the connection between Dragovich and appellant: the handgun had been stolen from a Gary liquor store approximately seven years prior, records of toll phone calls between Dragovich's home in Clearwater and appellant's home in Gary were discovered, along with rental contracts on cars that appellant had used during his three trips to Clearwater.

The evidence of appellant's guilt is overwhelming. Appellant argues, however, that much of the evidence was obtained in violation of his rights and should be excluded. We disagree. Appellant's initial point is that the first tape obtained by informant Adams in appellant's Gary, Indiana, home violates either State v. Sarmiento, 397 So.2d 643 (Fla.1981), or chapter 934, Florida Statutes (1981). Appellant does not deny that under Indiana and federal law the tape is admissible, but argues that we should apply Florida law to the actions of Adams and the Indiana police because Florida's interest in the prosecution of this capital felony is greater than that of Indiana. In support, appellant cites People v. Rogers, 74 Cal.App.3d 242, 141 Cal.Rptr. 412 (Ct.App.1977), vacated on other grounds, 21 Cal.3d 542, 579 P.2d 1048, 146 Cal.Rptr. 732 (1978). We agree that Florida's interest in prosecuting the case is greater than that of Indiana and that it would be appropriate to apply Florida law if we found that Florida's interests were served thereby. However, we do not agree that Florida's interests are served by excluding relevant evidence which was lawfully obtained in Indiana in conformity with the United States Constitution and Indiana law. McClellan v. State, 359 So.2d 869 (Fla. 1st DCA), cert. denied, 364 So.2d 892 (Fla.1978). The primary purpose of the exclusionary rule is to deter future official police misconduct. United States v. Janis, 428 U.S. 433, 446 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976). We do not believe exclusion of the evidence would have any discernible effect on police officers of other states who conduct investigations in accordance with the laws of their state and of the United States Constitution. Further, we do not believe that the interest of Florida is served by imperially attempting to [A]ny rule of evidence that denies the jury access to clearly probative and reliable evidence must bear a heavy burden of justification, and must be carefully limited to the circumstances in which it will pay its way by detering official unlawlessness.

require that out-of-state police officials follow Florida law, and not the law of the situs, when they are requested to cooperate with Florida officials in investigating crimes committed in Florida. We agree with Justice White that:

Illinois v. Gates, 462 U.S. 213, 257-58, 103 S.Ct. 2317, 2342, 76 L.Ed.2d 527 (1983) (White, J., concurring in the judgment). See also United States v. Leon, 468 U.S. 897, 104 S.Ct. 3430, 82 L.Ed.2d 702 (1984).

Appellant also argues that the second tape obtained by informant Adams was obtained through exploitation of the illegally obtained first tape in violation of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Our determination that the first tape was admissible disposes of this argument. In any event, even if it were error to admit the second tape, the first tape contained a full statement of appellant's participation in the crimes. Indeed, the second tape appears to have been made primarily for the purpose of obtaining information on the role of "Mad Dog" Nelson and Dragovich in the crimes. Thus, admission of the second tape, even if error, was harmless.

Appellant next argues that the trial court erred in denying a motion for continuance and a related motion for the appointment of a voiceprint expert to determine if it was appellant speaking on the second tape. This issue requires some factual background. Appellant was advised in January 1983 that the state possessed recorded oral statements made by him to Adams. Copies of the two tapes were first furnished to appellant in April 1983, and additional copies provided in May 1983. However, appellant maintained that the copies were inaudible. A third set was provided in June 1983, but appellant maintained that both tapes were copies of tape one and that an audible copy of tape two was not provided until July 14, 1983. On July 19, 1983, appellant moved for a continuance of the trial which was set for July 26, 1983, on the ground that it was not his voice on the second tape and that additional time was needed for the appointment of voiceprint experts and their analyses of the voices on the tape. The motion was denied on July 20, 1983, again on July 22, 1983, and on commencement of the trial on July 26, 1983. The granting or denial of a motion for continuance is within the sound discretion of the trial court and will not be overturned absent a palpable abuse of discretion. Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Zeigler v. State, 402 So.2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982). We see no abuse of discretion. We note, first, that two earlier continuances had been granted and that appellant had known for months that the state had two tapes purporting to contain inculpatory statements that he had made to Adams. No one was in a better position than appellant to know...