Engdall v. State, 75--72

• Decision Date: 26 September 1975
• Docket Number: No. 75--72,75--72
• Parties: Vincent ENGDALL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 144

319 So.2d 144

Vincent ENGDALL, Appellant, v. STATE of Florida, Appellee.

No. 75--72.

District Court of Appeal of Florida, Fourth District.

Sept. 26, 1975.

Rehearing Denied Oct. 24, 1975.

Warner S. Olds, Public Defender, and Robert S. Horowitz, Asst. Public Defender, Fort Lauderdale, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

CROSS and DOWNEY, JJ., concur.

MAGER, J., dissents with opinion.

MAGER, Judge (dissenting):

In my opinion, the per curiam affirmance by the majority effectively ignores several significant general principles of law as well as decisional law dealing with the application of the Williams rule and the circumstantial evidence rule. I must therefore respectfully dissent for the reasons hereinafter set forth.

This case involves an appeal from a judgment of conviction and sentence for breaking and entering a dwelling house with intent to commit a felony, to wit, grand larceny.

The record reflects that on July 16, 1974, an unidentified individual was observed entering a condominium apartment in Coral Springs during the daylight hours. When the occupants of the apartment returned they found that it had been burglarized and various household goods missing including a set of car keys.

An examination of the apartment revealed the existence of a butter knife and copy of a Coral Springs newspaper several days old, neither of which belonged to the occupants. The newspaper, which was in a rolled up position and opened to the classified want ad section, contained a latent fingerprint (which was Later identified as belonging to the defendant). Although other places and objects were dusted for fingerprints including the butter knife no other identifiable fingerprints were found except the one taken from the newspaper.

The record further reflects that on July 31, 1974, the police authorities, in response to a complaint from the same occupants of the burglarized apartment that someone was tampering with their car, arrived at the parking lot area of the condominum at approximately two-thirty in the morning and observed a car occupied by the defendant's brother parked in a slot with the front of the vehicle facing out into the parking area. The defendant was found some several hundred feet away standing in a public phone booth with the phone in his hand. The explanation given by the defendant to the police authorities was that he and his brother had gotten lost on their way home from Pompano to Hollywood and were attempting to make a phone call at a phone booth located in a shopping center several hundred feet from the parking lot of the condominium. (All of the foregoing, which was elicited from the testimony of the state's witnesses and alluded to in the opening remarks of the prosecutor, was objected by the defendant at trial.)

The defendant was subsequently arrested for prowling and later charged with breaking and entering an auto. ¹ The automobile belonging to the occupants of the apartment was examined but was unable to yield any fingerprints. The testimony in the record reflects that the charges of prowling and breaking and entering an auto were subsequently dropped. Apparently, because of the proximity of the complainants' car to their apartment and the arrest of the defendant in the vicinity, fingerprints taken at the time of the defendant's arrest were compared with the fingerprint lifted off the newspaper and found to be those of the defendant. However, the state's fingerprint expert was unable to establish the Time the print was placed on the newspaper.

It is the defendant's contention that the conviction based upon the fingerprint evidence was error because of the state's failure to prove that the fingerprint was made at the time the crime was committed; and, furthermore, that the evidence of defendant's presence in the vicinity of the prior burglary and accompanying arrest was inadmissible as not being relevant. Defendant has assigned several other errors which we find to be without merit and which will not be discussed herein.

In considering the defendant's contention regarding the 'collateral crime' evidence we are again faced with the interpretation and application of the vexatious 'Williams rule'. In Marion v. State, Fla.App.1974, 287 So.2d 419, 421, this court restated the observation of the late Mr. Justice Thornal regarding the purpose of this rule:

"In Williams v. State, supra, we undertook to examine in depth the rules governing the admissibility of similar fact evidence as proof of a fact in issue in a criminal case. We there held that similar fact evidence is admissible if Relevant, except to prove bad character or criminal propensities. Such evidence is not objectionable merely because it points to the commission of another crime. The objective to be accomplished by allowing such evidence is not proof of a collateral crime outside of the indictment. Its purpose is to prove a fact in issue in the case before the Court. Its relevancy will not be destroyed merely because it would also be relevant to the proof of a separate crime. . . ." (Emphasis added.)

It was additionally pointed out in Marion that there must be a correlation between the Crime charged and the Collateral crime' sought to be utilized. In this regard we observed, in part:

'. . . (I)f identity is in issue, the mere fact that a defendant was identified as being involved in another crime does not render such collateral evidence admissible without some similarity in the operation and scheme of both crimes; There is clearly an interrelationship between method of operation, common scheme or design And identity. . . .' (Emphasis added.) (287 So.2d at 422).

See also Whitehead v. State, Fla.App.1973, 279 So.2d 99. Simply stated, there must be some common denominator between the crime charged and the 'collateral crime'; there must be a plateau of sameness or commonality between the separate offenses to justify admissibility. Franklin v. State, Fla.App.1969, 229 So.2d 892; Drayton v. State, Fla.App.1974, 292 So.2d 395.

Manifestly, the intended use of the 'collateral crime' evidence must be Relevant to the crime charged. See Duncan v. State, Fla.App.1974, 291 So.2d 241. Introduction of 'collateral crime' evidence is Not for the purpose of showing that the accused has committed Another crime but, rather, for the purpose of proving an essential or material issue framed within the charge being tried. Duncan v. State, supra. For example, if similar crimes reflect a similarity (or even uniqueness) between the plan or scheme utilized in both circumstances Coupled with the defendant's positive connection with the collateral crime, such 'collateral crime' evidence can be utilized at the trial of the crime charged to establish Identity of a defendant if identity is a material fact issue in such case. However, absent commonality and relevancy the resulting and logical effect of the collateral crime evidence is to show the propensity of the defendant to commit other crimes or prove the defendant's bad character; clearly such use of effect is prohibited. Williams v. State, Fla.1959, 110 So.2d 654.

When measured by the foregoing standard, it is my opinion that the 'collateral crime' episodes occurring on July 31 in the parking lot area adjacent to the burglarized condominium are totally lacking in commonality with the crime of breaking and entering of a dwelling committed on July 16 as to be inadmissible. The events of July 31 resulting in an arrest for prowling and a later dropped charge of auto breaking and entering were dissimilar in every respect from the July 16 crime of breaking and entering a dwelling with intent to commit a felony, to wit, grand larceny. The introduction of this evidence was highly prejudicial and under these circumstances it had the obvious effect of leaving the jury with the impression of defendant's propensity to commit crimes or his bad character.

The dissimilarity in the instant case, between the 'collateral crime' and the crime charged is not the Only basis for rendering the 'collateral crime' evidence inadmissible. As heretofore stated, the 'collateral crime' evidence must be Relevant--it must be introduced to prove a fact in issue in the case before the court. Marion v. State, supra; State v. Norris, Fla.1964, 168 So.2d 541. Since the 'collateral crime' episodes were dissimilar in all respects from the crime charged, evidence of the former could not be characterized as relevant to a common plan, scheme, design or modus operandi. Its arguable relevancy would therefore seem to have been the establishment of Identity.

However, from a review of the evidence in the record of the circumstances surrounding the July 31 incident there is No evidence to connect the defendant with the purported auto breaking and entering so as to establish identity in That offense. It has been held that in order for evidence of collateral crimes to be admissible there must be clear and convincing proof of a connection between the defendant and the collateral occurrences. State v. Norris, supra; Parnell v. State, Fla.App.1969, 218 So.2d 535. As the Supreme Court observed in State v. Norris, supra,' . . . In this respect mere suspicion is insufficient. The proof should be clear and convincing.' While the evidence in the instant case reflects that a crime May have been committed in the parking lot, the evidence is Not clear and convincing that such 'crimes' were committed by the defendant. See also Norris v. State, Fla.App.1963, 158 So.2d 803.

The unusual facts in this case suggests one additional comment regarding the utilization of the 'collateral crime' evidence. The relevancy of any 'collateral crime' evidence is dubious, indeed, where it is shown that the charges giving rise to such collateral crimes have been Dropped. Recent decisions of the first and third districts have recognized that an...