Johnson v. State
| Decision Date | 07 November 1972 |
| Docket Number | No. 72-89,72-89 |
| Citation | 268 So.2d 544 |
| Court | Florida District Court of Appeals |
| Parties | Prince Albert JOHNSON, Appellant, v. The STATE of Florida, Appellee. |
Gross & Krause, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appellee.
Before BARKDULL, C. J., and CHARLES CARROLL and HAVERFIELD, JJ.
The appellant was a juvenile at the time he was indicted for murder in the first degree on November 2, 1971. 1 He was tried before a jury in the circuit court of Dade County. A verdict of guilty was rendered, with recommendation of mercy. Following adjudication of guilt of the crime and imposition of a life sentence, the defendant filed this appeal.
The facts relating to the homicide, in short summary, were as follows: The victim's husband Emondo Roman was an ice cream vendor, doing business on the streets from a motor truck. His wife accompanied and assisted him. On July 25, 1971, while so engaged, Roman stopped his vehicle on a certain street in Miami, in front of an apartment house, into which he entered and stayed for a few minutes. His wife remained seated in the parked truck. Located behind a refrigerator within the truck there was a small lock-box containing $28 and some personal papers belonging to Roman. In order for a person to get to the box it was necessary to enter through a front door of the truck and proceed to the rear between the passenger seats. During the short period that Roman was absent, someone entered the truck, shot and killed Mrs. Roman, and removed the money box.
At the trial, each of two six year old girls testified she heard a gunshot and shortly thereafter saw two boys running away from the truck, and that one of them was carrying such a box. The box was found by the police, behind a church about a block away. The box and papers were identified by Roman as his. Fingerprints on the box matched those of the defendant. The arrest of the defendant was made a day after that upon which the homicide occurred.
The defendant was taken to the juvenile and domestic relations court of Dade County, where a pre-detention hearing was held, at which his mother and officers Griffin and Anderson were present. An assistant public defender who had been assigned to that court was 'called in' for the hearing, and appointed by the court to represent the defendant. The court ordered that the defendant be held in the county jail. After that hearing the assistant public defender did not talk with the defendant or see him again until the occasion of another hearing in the juvenile court in September. The nature of that later hearing is not shown. Sometime after the first hearing in the juvenile court and prior to the September hearing, private counsel was employed for the defendant.
Upon conclusion of the July 26 pre-detention hearing in the juvenile court, the defendant was incarcerated in the Dade County jail. The next day he was interrogated by officers Griffin and Anderson at approximately 10:00 A.M. and again in the afternoon when a statement given by the defendant was put into writing, and was signed by him. On both occasions the defendant was advised of his Miranda rights, and, according to the testimony of the officers at the subsequent hearing on motion to suppress, the defendant voluntarily submitted to interrogation and waived the right to have counsel present.
On this appeal the first contention made by the appellant is that because counsel was appointed for him at the pre-detention hearing in the juvenile court, and the interrogating officers had knowledge thereof, no interrogation of him was legally permissible unless his attorney was present, and that no consent to be interrogated or waiver of counsel at such interrogation could be valid or legally effective unless made in the presence of counsel.
We hold that contention is without merit. Where a defendant has employed counsel, or one has been appointed for him, the presence of his counsel is not essential to the validity or effectiveness of a waiver by the defendant of the right to have counsel present at some critical stage of the proceedings. United States v. Crisp, 7 Cir. 1971, 435 F.2d 354, 358, 359; Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 726.
The situation presented in this case is materially different from that in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. There, after an indictment, and out of the presence of the defendant's counsel, a statement was obtained from the defendant surreptitiously, without a knowing consent of the defendant to interrogation or waiver of right to have counsel present. An attempt to interpret Massiah to stand for the proposition that no valid interrogation of a defendant (whether surreptitious or otherwise) can take place out of the presence of his attorney where he has one, must be rejected in view of the subsequent Miranda decision wherein the Court expressly...
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Arnold v. Wainwright
...See, e. g., State v. Silva, Fla.1972, 259 So.2d 153; Jones v. Florida, Fla.Dist.Ct.App.1973, 276 So.2d 83; Johnson v. State, Fla.Dist.Ct.App.1972, 268 So.2d 544, aff'd Fla.1974, 294 So.2d 69; State v. Bethel, Fla.Dist.Ct.App.1972, 268 So.2d 557.8 The appellants contended at the hearing on r......
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...The petition for writ of certiorari reflected that the decision of the District Court of Appeal, Third District, in Johnson v. State, 268 So.2d 544 (Fla.App.1972) conflicted with State v. Graham, 240 So.2d 486 (Fla.App.1970) and Perkins v. State, 228 So.2d 382 (Fla.1969), and accordingly, w......
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