Hawthorne v. State

• Decision Date: 07 December 1979
• Docket Number: No. II-28,II-28
• Citation: 377 So.2d 780
• Parties: Joyce Bernice HAWTHORNE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 780

377 So.2d 780

Joyce Bernice HAWTHORNE, Appellant, v. STATE of Florida, Appellee.

No. II-28.

District Court of Appeal of Florida, First District.

Dec. 7, 1979.

Leo A. Thomas of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.

Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appellee.

BOOTH, Judge.

This cause is before us on appeal from a judgment of conviction of murder in the first degree and sentence to life imprisonment. Appellant raises some 17 issues on appeal. Our determination as to four of those issues renders consideration of the other issues unnecessary. The following errors below require reversal of the conviction and remand for a new trial:

I. Illegally obtained confessions and incriminating statements were improperly admitted into evidence.

II. Testimony of witnesses for the State whose names were not disclosed to the defense until the day of the trial were improperly admitted without a factual inquiry by the court as required by Richardson v. State, 246 So.2d 771 (Fla.1971).

III. Certain rebuttal witnesses for the State were improperly allowed to testify as to the reputation of the deceased.

IV. Testimony as to the deceased's prior threats and acts of violence toward the defendant, her children and third persons was improperly disallowed.

The deceased, Aubrey Hawthorne, was defendant's husband. He was shot to death during the early morning hours of January 28, 1977, in the Hawthorne home by bullets fired from a number of weapons belonging to the deceased. The police were called, and private counsel contacted on behalf of defendant.

Defendant was arrested at 4 a. m. immediately following the shooting, advised of her rights and taken to jail. Defendant's children, the youngest age six, were also transported to the jail for interrogation. The record reveals that defendant, a 36-year old mother of five minor children, had married at age 18; not worked outside the home and had no prior experience with law enforcement personnel or procedures. The record establishes that at the time of her arrest and throughout the 12 hours of incarceration prior to her recorded confession, she was suffering from mental and physical distress, anguish and exhaustion.

Private counsel had been retained and advised defendant to make no statements. At 11:30 a. m. on the day of her arrest, defendant was transported from jail to a bond hearing, but bond was denied due to lack of background information concerning the defendant. ¹ Defendant was, in the words of Officer Dunn of the Escambia County Sheriff's Department, "noticeably shaken." Defendant was represented at the bond hearing by counsel. After the hearing, Officer Dunn asked if he could drive defendant back to the jail. Defendant's lawyer testified that he said to Dunn: "Okay, but no statement," and that Officer Dunn agreed. Officer Dunn testified he remembered asking to drive defendant back; knew defendant had been told to make no statements; but could "not recall" whether defendant's attorney had told him "no statement" or not. Dunn testified that there "could have been" an agreement not to question defendant, but he did "not recall."

On the trip back to jail from the bond hearing, Officer Dunn testified that he discussed with defendant the advantages of giving a statement; that defendant told Dunn her attorney had advised her not to make a statement; that she expressed concern about her children and Dunn replied that her children were being held at the Sheriff's Department and being questioned by investigators. Further, Dunn testified he told defendant that it was "hard on the children" and that "they weren't taking it real well;" it was "tearing them up" and that "it was necessary to question the children" because they were the best source of information and that defendant's giving of a statement would save the children from further questioning. ² Again, the defendant stated that her attorney had advised her not to make a statement.

Defendant was returned to jail during the lunch hour, but she was so upset that she was unable to eat. She had not slept the previous night because she and two of the children were ill and her husband had threatened both her and the children. She was, in the words of Officer Dunn, "noticeably shaken," "upset," "depressed and tired."

After the noon hour, Officer Dunn took defendant to his office for interrogation. Concerning his advising her of her Miranda Rights at that time, he testified:

"Q You indicated that the first time you gave her her rights, she didn't fully comprehend or understand them; did I understand you correctly?

A I can't . . . I advised her that afternoon. As I say, she was shaken and at that point in time we did not get into the criminal act. I cannot swear that Mrs. Hawthorne totally understood what her rights were at that point."

Dunn further testified that defendant "was upset at that time and she needed someone, anybody to sit down and talk with her." Dunn also testified, however, that prior to the commencement of this 2:00 interview he had contacted prosecuting attorneys Ron Johnson and Chuck Williams, told them that defendant was not making a statement on advice of counsel and been told by prosecuting attorney Williams to get a statement. Dunn specifically testified:

"Mr. Williams instructed me at that time and said if it was possible to go ahead and get a statement."

Admittedly, these law enforcement officials all knew that defendant was claiming fundamental rights, yet they continued in their efforts to obtain a waiver of counsel and incriminating statements from her. ³

Beginning at 2:00 p. m. on the same day as her arrest, Officer Dunn interviewed the defendant for 21/2 hours. This interview was unrecorded. During that time Dunn admits defendant repeatedly told him that her attorney had advised her to make no statements. She also stated that she did not understand why her attorney had given her that advice since she had nothing to hide. Officer Dunn testified he told Mrs. Hawthorne:

"If she was not going to deny the events of that evening that a statement could not hurt her and it might possibly help even in getting into the background of the family itself and into the true reason that the death came about . . ."

The defendant testified that Officer Dunn told her she did not have to listen to her attorney and could make her own decisions since she, after all, would have to pay her attorney who was from the private sector. She testified Dunn told her a public defender could be provided to her if she wished to dismiss her private attorney. Defendant's testimony was, in part, as follows:

"He said all attorneys told their clients not to talk, it was just an ordinary thing, but it would be best for me to make a statement. He said it would help me. . . . And he said if you can make this statement, I couldn't promise you, but I'm sure I can get you out on bond tonight and you will not have to spend the night in jail. He said he couldn't promise me, but kept assuring me he could and that I didn't need to be upstairs with the lesbians, et cetera and it was sort of frightening because at this time they had not put me in the cell. . . . I wanted to wait and he said it was getting close to five o'clock and he couldn't go talk to the State Attorney if I didn't hurry and make a statement. . . ."

At 4:30 in the afternoon, after having not eaten for 24 hours, nor slept for 36 hours, and having been "interviewed" for 21/2 hours, the defendant signed a waiver of counsel and agreed to make a statement. At that point the tape recording machines were turned on. The transcript of that statement reveals that on a number of occasions the defendant was too tired to go on or too upset to continue talking. At one point, Officer Dunn stated for the record that the tape had been turned off so that the defendant could "regain her composure." Finally, at about 7:00 that night, the tape machines were turned off and the defendant was sent back to the jail cell with a pad and pen to continue making notes on her relationship with her husband and the circumstances surrounding his death.

Defendant's concern for her children is apparent throughout the recorded statement. Officer Dunn knew it meant a great deal to her to get out of jail and be allowed to take care of her children. In fact, he represented to the defendant that he would do everything in his power to secure bond for her release. Dunn testified at trial that he did not "guarantee" or "promise" her a bond in exchange for a statement. However, Dunn's testimony in his deposition of record was as follows:

"I told her that I would do everything, I promised her . . . I didn't promise her anything. I told her that I had contacted the State Attorney's office and that Mr. Williams was receptive to a bond and I was in hopes that we would be able to get a bond set . . ."

The foregoing and other testimony of Dunn establish repeated assurances to defendant that he would assist in obtaining a bond.

A confession, to be admissible, must not be extracted by any sort of threat or violence, nor be obtained by any direct or implied promise, however slight, or by the exertion of any improper influence. This basic rule of law is stated in Bran v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897):

" 'But a confession, in order to be admissible must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises however slight, nor by the exertion of any improper influence. * * * A confession can never be received in evidence where the prisoner had been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.' "

The foregoing is a statement...