Horn v. State

• Decision Date: 02 July 1974
• Docket Number: No. T--371,T--371
• Parties: Bertram G. HORN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 194

298 So.2d 194

Bertram G. HORN, Appellant, v. STATE of Florida, Appellee.

No. T--371.

District Court of Appeal of Florida, First District.

July 2, 1974.

Rehearing Denied Aug. 6, 1974.

Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.

BOYER, Judge.

Appellant, defendant below, appeals his conviction of murder in the second degree.

The facts relative to our determination of the point before us are not in dispute.

On August 19, 1972 a badly decomposed body was discovered in an isolated section of St. Johns County. An autopsy revealed the body to be that of a black female, death having been caused by a bullet wound in the chest eight to twelve days prior to the autopsy. Fingerprints revealed the body to be that of one Gloria Horn, estranged wife of appellant.

The decedent's mother testified that she had last seen her daughter on the evening of August 10, 1972 when she took her to work at Gilmer's Nursing Home in St. Augustine, Florida, where she was a nurse's aide working the shift from 11:00 p.m. to 7:30 a.m. Gloria had been living with her mother in St. Augustine while the defendant, appellant here, had been living in Daytona.

One Joyce Walker, also employed as a nurse's aide at Gilmer's, testified that at approximately 5:00 a.m. on the morning of August 11, 1972, Gloria Horn was told by a nurse that she had a telephone call. There were two nursing stations in the L-shaped nursing home, each containing a telephone, one of which was an extension of the other. When Glorida lifted the telephone receiver at one station to accept the call of which she had been informed by the nurse, Joyce Walker, who had been conversing with Gloria when the call came through, lifted the telephone receiver at the other station without Gloria's knowledge. Witness Walker testified that she did this because she was 'being nosey' and was 'eavesdropping'. She further testified that she recognized the voice of the caller as that of the defendant (although she had never before heard the defendant's voice and only recognized it affter commencement of the trial while she was sitting in the front row of the courtroom and heard the defendant talking to someone at the attorney's table) and that he said:

"Hello, Glo,' and she (Gloria) spoke and then he said, 'well, I am at the Palms,' he said, 'I will be leaving this morning, I have two months money for' her and asked what time you get off and she said, '7:30' and at that point I hung up.'

Another nurse's aide testified that the last time she saw Gloria was about 7:30 a.m. August 11, 1972 at Gilmer's parking lot at which time Gloria was getting off from work and heading south towards the Palms Motel.

The defendant denied killing his wife and adduced testimony from several witnesses supporting his alibi that he was elsewhere at the time and on the day that Gloria received the telephone call which was overheard by witness Walker.

The sole issue before us relates to the admissibility of the testimony of Joyce Walker relative to the telephone conversation which she allegedly overheard.

There is no question but that the testimony of Joyce Walker was relevant, material, significant and if wrongfully admitted, extremely prejudicial. It tended to bolster the State's contention that on the morning of August 11, 1972 the appellant was awaiting the arrival of his wife at the Palms Motel so that he could kill her, all of which is contrary to his alibi defense that he was engaged in various other activities in the company of other persons at that crucial time.

Appellant first contends that Joyce Walker's testimony violated the privilege of confidential communications between husband and wife. We find that contention to be without merit. Testimony of a third person who overhears a confidential communication is admissible. (Wigmore on Evidence, Vol. VIII, § 2336, McNaughton Rev.1961, at 648--649, citing from Sexton v. Sexton, 129 Iowa 487, 105 N.W. 314 (1905); Com. v. Everson, 123 Ky. 330, 96 S.W. 460 (1906). See also: State v. Thorne, 43 Wash.2d 47, 260 P.2d 331 (1953).

In 63 A.L.R. 107 (1929) it is stated:

'As, under the common-law rule and the statutory enactments thereof, the prohibition is directed to the testimony of husband or wife regarding a confidential communication from one spouse to the other, and not to the testimony of a third person regarding such a communication, there is no reason for excluding the testimony of such third person, and the rule is well settled that a third person who overhears a communication between husband and wife, whether with or without their knowledge, and whether surreptitiously or openly, may testify regarding what he thus learns, although the communication may be, as between the husband and wife, one of a confidential character.' (63 A.L.R. 108 and 109)

Appellant further contends that the denial by the trial court of his motion to strike the testimony of Joyce Walker relative to the intercepted telephone conversation, including the identification of the voice, violated appellant's due process rights under the Constitutions of the United States of America and the State of Florida. We find that contention, too, to be without merit.

Finally, appellant urges that admission of witness Walker's testimony is prohibited by Chapter 934, Florida Statutes, F.S.A.

There is no question but that Joyce Walker was acting without the consent, knowledge or acquiescence of either party to the communication when she allegedly overheard the telephone conversation complained of. By her own testimony she was simply 'being nosey' and was 'eavesdropping.'

Florida Statute 934.02, F.S.A. defines 'oral communication' to mean any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. The word 'intercept' is defined to mean the aural acquisition of the contends of any wire or oral communication through the use of any electronic, mechanical, or other device. 'Electronic, mechanical, or other device' is defined to mean any device or apparatus which can be used to intercept a wire or oral communication Other than: 'any telephone * * * instrument * * * furnished to the subscriber or user * * * being used by the subscriber or user in the ordinary course of its business * * *.' (and other exceptions not here material)

Florida Statute 934.03, F.S.A. provides in material part as follows:

'(1) Except as otherwise specifically provided in this chapter, any person who:

'(a) Willfully intercepts * * * any wire or oral communication;

'shall be guilty of a felony of the third degree, * * *'.

Florida Statute 934.01, F.S.A., entitled 'Legislative Findings' contains the following recitations:

'On the basis of its own investigations and of published studies, the legislature makes the following findings:

'(2) In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of intrastate commerce, it is necessary for the legislature to define the circumstances and conditions under which the interception of wire and oral communications may be authorized and to prohibit any unauthorized interception of such communications and the use of the contents thereof in evidence in courts and administrative proceedings.

'(4) To safeguard the privacy of innocent persons, the interception of wire or oral communications when none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire and oral communications should further be limited to certain major types of offenses and specific categories of crime with assurance that the interception is justified and that the information obtained thereby will not be misused.' (Emphasis added)

The fundamental basis of American criminal jurisprudence rests upon a presumption of innocence which abides with an accused until proof is properly and legally adduced demonstrating guilt beyond and to the exclusion of a reasonable doubt. It is apparent therefore that Subsection (4) of the legislative findings above quoted applies to the privacy of all citizens, including those accused of crimes.

The historical note following 934.01 F.S.A. provides, in material part, as follows:

'* * * It has long been recognized by law enforcement officers that one of the key instruments utilized by organized crime in the conducting of its business is the telephone. The wire tapping statute will now permit state, county and municipal law enforcement officers to conduct an electronic surveillance under certain conditions, after following proper procedures, as outlined in the act, and after obtaining court permission. It further provides that any evidence Lawfully obtained can be used in evidence in prosecution of any case made. With one exception The state law follows closely the Federal act. The Florida act however, does not contain the provision for an 'emergency' wiretap as contained in the Federal act. It must be noted that this act does not permit indiscriminate wire tapping under any and all conditions but as a matter of fact prohibits the same and calls for civil and criminal damages for the illegal possession of wire tapping or electronic surveillance equipment or the unlawful placing of a wiretap without court authority or the conducting of an electronic surveillance without court authority. * * *' (Emphasis added)

Harkening back now to the definition of 'electronic, mechanical, or other device' as used in the statute; it has been recently held in United States v. Harpel, 10th Cir., 493 F.2d 346, opinion filed March 12, 1974, construing...