Guilder v. State, 4D01-3035.

• Decision Date: 30 March 2005
• Docket Number: No. 4D01-3035.,4D01-3035.
• Parties: Albert GUILDER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

899 So.2d 412

Albert GUILDER, Appellant, v. STATE of Florida, Appellee.

No. 4D01-3035.

District Court of Appeal of Florida, Fourth District.

March 30, 2005.

Rehearing Denied April 29, 2005.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

This appeal arises from a rather bizarre set of circumstances resulting in the Appellant, Albert Guilder, being charged with unlawfully intercepting and/or endeavoring to intercept an oral communication in violation of section 934.03, Florida Statutes (1999). Contrary to Guilder's position, we find that recording a face-to-face conversation in which the defendant is a participant, without prior consent of the other person, does constitute an interception of an oral communication. We are also unpersuaded by Guilder's argument that the trial court failed to conduct a proper Faretta¹ hearing. Accordingly, we affirm for the reasons that follow.

Guilder had a son who was charged with burglary. After his son was convicted, Guilder uncovered juror misconduct warranting a new trial for his son. At the son's second trial he was again convicted of burglary. Guilder again set out to obtain a new trial for his son by uncovering juror misconduct. Guilder contacted Thomas Carney, a retired FBI agent now working as a private investigator, who had earlier helped his son's attorney in the burglary cases. Guilder sought help in taking and recording formal statements. Carney instructed Guilder that he should not record any interviews surreptitiously.

On November 4, 1999, Guilder proceeded to interview former juror Rose Connelly. Guilder, who was wearing a press badge² and carrying a clipboard, approached Connelly's house where he found Connelly and her sister sitting on the porch. Connelly's sister left the porch to give Connelly and Guilder privacy, but testified that she never saw a tape recorder. Likewise, Connelly never saw a tape recorder nor was she even aware that her conversation was being recorded. On November 7, 1999, Guilder went to the home of Debra Ventura, another juror who served on Guilder's son's case. Guilder again wore a press pass and initially failed to display a tape recorder or seek permission to record the conversation. It was not until the middle of the conversation that Guilder revealed that he had a tape recorder. Ventura noticed Guilder remove the tape recorder from his pocket and fidget with it back and forth. Ventura assumed he was going to start recording at that point but Guilder never sought permission and the issue was not discussed until later. Toward the end of the conversation, Guilder finally sought permission to record the conversation, at which point Ventura chose not to object believing any objection would be futile. At some point in this conversation Guilder acknowledged recording his earlier conversation with Connelly and that his son's attorney informed him that he should not have done so. Both Connelly and Ventura later made contact with the State Attorney's Office.

After Guilder's encounters with the former jurors, Guilder went to his son's attorney's office. After only casually listening to the tape, the attorney filed a motion for new trial, which was later withdrawn after careful consideration for a lack of merit. On November 12, 1999, Assistant State Attorney Jason Grosz went to the attorney's office with a subpoena to obtain the tape recording. While Grosz was at the attorney's office, Guilder showed up and remarked "it may have been illegal ... to do so but at least [I] had all of the jurors documented." Likewise, when Guilder was subsequently arrested, he stated "can you believe all this just because I recorded somebody." At no point prior to any of these incidents had Guilder informed anyone, nor did anyone observe or even suspect, that Guilder had a disability,³ which under the ADA would allow him to record conversations.

Guilder first appeared for arraignment before a judge on January 13, 2000. At this point, Guilder started providing substantial resistance to the legal process.⁴ Although Guilder did not have an attorney, he did want representation. Before the issue of representation could be discussed, Guilder requested a copy of the charging document and interrupted the trial court as it was trying to read the charges against him. The trial court lost its patience with Guilder and decided to enter a not guilty plea over Guilder's objection.

Guilder next appeared in court on March 29, 2000, this time before Judge Tobin.⁵ Judge Tobin readdressed the issue of Guilder's representation. Guilder sought representation, yet refused to have a member of the bar represent him. Rather, Guilder apparently wished to have an unlicensed attorney represent him, as he distrusted all bar members. The trial court refused to allow lay or unlicensed representation, but offered (1) self-representation, (2) representation by a member of The Florida Bar, or (3) representation by a member of the Bar of any other state. Guilder refused to chose from those options. When the trial court attempted to swear in Guilder to determine indigence and/or conduct a Faretta hearing, Guilder refused to be sworn or to answer the trial court's question regarding his indigence, responding:

I'm not represented by counsel, Your Honor. Therefore, in an abundance of caution, my life and my liberty is at stake here, and I'm not going to be answering any questions from the bench because I don't know if you are trying to trick me into giving you jurisdiction or what's going on.

The trial court gave up and appointed a public defender.

At a later hearing again in front of Judge Tobin, the public defender's office informed the trial court that it had no correspondence with Guilder with the exception of a letter from Guilder which stated that he does not seek representation from that office. After another frustrating dialog in which Guilder again refused to answer questions on his indigence, the trial court relieved the public defender's office. On May 4, 2000, a hearing was held on Guilder's motion to set aside his arraignment and entry of a plea. After yet another frustrating dialog on the issue of representation, the trial court found Guilder competent to represent himself based on his in-court appearances and a review of his pleadings filed with the court. Later, Judge Tobin conducted an evidentiary hearing, based on Guilder's motion to suppress, in which the court found that no attorney-client privilege existed between Guilder and his son's attorney and that the tape was not work-product.

The case was again transferred, this time coming before Judge Lebow. Judge Lebow found Guilder's pleadings legally senseless and again attempted to conduct a Faretta hearing. Guilder stated:

Well, your Honor, I've never represented myself. I do not represent myself and I will not represent myself. I don't have the ability to represent myself. I am here defending my life and my liberty and I am granted assistance of counsel of my choice that will not be a member of the bar association. I must continue on defending my life and my liberty.

Judge Lebow inquired as to whether Guilder suffers any mental or emotional problems as a result of his alleged illness and Guilder responded: "under the American Disability Act the court does not have the right to inquire ... in anyway, shape or form." Judge Lebow ultimately found that Guilder was not competent to represent himself and appointed a special public defender. Guilder's new counsel moved to supplement Guilder's earlier motion to suppress again arguing that Guilder was working on his son's behalf and therefore the tape is work-product or, alternatively, that the son's attorney violated his ethical duty of keeping his client's confidences. Judge Lebow, after hearing counsel's full argument, denied the renewed motion to suppress. The case finally went to trial and the jury eventually found Guilder guilty. The trial court withheld adjudication and placed Guilder on probation for 2 1/2 years.

On appeal, Guilder argues that tape recording a face-to-face conversation in which one is participating, without prior consent from all participants, does not constitute an interception of an oral communication prohibited by section 934.03(1)(a), Florida Statutes (1999). Guilder recognizes that the Florida Supreme Court has already addressed this issue directly, and in favor of the State here, but argues that the supreme court misapplied prior precedent and misinterpreted legislative intent.

Section 934.03 provides, in relevant part, that "any person who ... intentionally intercepts, [or] endeavors to intercept, . . . any ... oral ... communication ... is guilty of a felony of the third degree." The legislature defines intercept as "the aural or other acquisition of the contents of any ... oral communication through the use of any electronic, mechanical, or other device." § 934.02(3), Fla. Stat.

In Shevin v. Sunbeam Television Corp., 351 So.2d 723, 725 (Fla.1977), two media entities claimed that secret recordings during investigative reporting activities were necessary to insure the accuracy of the information gathered and to preserve the conversation. Accordingly, the entities argued that the then recent amendment to section 934.03(2)(d)⁶ impaired its news gathering dissemination activities and constituted a prior restraint in violation of the First Amendment. Id. The supreme court, apparently under the belief that recording a conversation in which one is a participant constituted intercepting a conversation, held the amendment constitutional finding that "[t]his was a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the...