Jordan v. State, 47681

• Court: United States State Supreme Court of Florida
• Writing for the Court: SUNDBERG; OVERTON; ENGLAND; ENGLAND
• Citation: 334 So.2d 589
• Parties: Bruce E. JORDAN, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 47681,47681
• Decision Date: 23 June 1976

Page 589

334 So.2d 589 Bruce E. JORDAN, Appellant,
v.
STATE of Florida, Appellee. No. 47681. Supreme Court of Florida. June 23, 1976.

Page 590

James A. Gardner, Public Defender; and Dennis J. Plews, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen.; and Robert J. Landry, Asst. Atty. Gen., for appellee.

SUNDBERG, Justice.

This is a direct appeal from the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County. Jurisdiction lies under Article V, Section 3(b) (1), Florida Constitution, in that the trial court initially and directly passed on the validity of Subsection 828.04(1), Florida Statutes, by determining that it was not unconstitutionally vague.

Appellant was tried and convicted of violating Section 828.04(1), Florida Statutes. ¹ He was sentenced to a 15-year prison term.

At the time of the alleged offense, September 12, 1974, appellant was living with Ms. Vicki Schieler and her 2-year old son, Brent, in Pinellas Park, Florida. (Ms. Schieler testified that the boy's father is one Rome Madison.) Appellant worked from 7:00 a.m. to 3:30 p.m., while the boy's mother was employed on a shift beginning at 3:30 p.m. and ending at midnight. During Ms. Schieler's absence from home, it was appellant's responsibility to look after Brent. The State's witnesses gave testimony tending to prove that the boy was fine early in the evening on that date, but that when Ms. Schieler arrived home shortly after midnight, he was bruised in the face, back and buttocks. Both eyes were blackened, the left eye was almost closed, and both arms were battered.

Ms. Schieler called the police shortly after midnight, and when they arrived, she went with an officer to the police station while Brent received medical attention. She repeated several times that she had left the child with babysitters whose names, residences, and present whereabouts were unknown to her, but she later admitted that she had left Brent in the care of the appellant.

The appellant was arrested and taken to police headquarters. He was given a Mirnada warning and nodded assent when asked whether he understood the rights contained therein and whether he wished to waive them by talking at that time. Shortly after 3:00 a.m., the appellant admitted to two police officers that during a three-hour period in the early evening, he had struck the boy in the face approximately four times with his hand and also spanked him with a belt approximately ten times. What had occasioned this 'discipline' was Brent's refusal to cooperate when appellant tried to feed him supper. Appellant also said that the cuts and bruises in the region of the boy's left eye were caused by a fall in the bathtub while bathing. These statements were admitted into evidence at trial over the objection of defense

Page 591

counsel that Jordan had never validly waived his Miranda rights.

At trial, the defense presented a witness who testified that he had brought two girls over to appellant's apartment on the evening in question and that the four of them had been there from 8:00 p.m. to about 11:15 p.m. During this time he saw no evidence that the boy had been mistreated. A neighbor testified that she had never seen appellant mistreat Brent, although she had often seen him 'punish' the boy. Jordan testified that, on the evening in question, he had struck the boy with a belt one time, that some other injuries had been occasioned in the bathtub accident, and that when Ms. Schieler returned home after midnight and learned that Jordan had entertained female visitors, she became upset and vented her frustration by beating Brent when he awakened and did not return to sleep.

The points raised for our consideration on this appeal are (i) whether the trial court erred in denying a motion to dismiss the information on the ground that Section 828.04(1), Florida Statutes, is unconstitutionally vague; (ii) whether the trial court erred in overruling objections to the introduction at trial of appellant's alleged admissions; and (iii) whether it was error for the trial court not to grant a mistrial based on comments by the prosecutor during closing argument to the jury. We shall treat the points seriatim.

The statute here under consideration sets forth three distinct crimes, each of which is punishable as a second degree felony. The first is the act of unlawfully or willfully torturing, caging, or mutilating a child under the age of sixteen years. The second is the cruel, wanton, or malicious tormenting or punishing of such a child. The third is the intentional or knowing infliction of great bodily harm, permanent disability, or permanent disfigurement to a child under the age of 16 years while committing a battery upon the child. The description of these independent crimes is sufficiently clear that a person of ordinary intelligence can ascertain what conduct is proscribed 'when measured by common understanding and practice.' Zachary v. State, 269 So.2d 669 (Fla.1972); Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934). This Court held when the predecessor to Section 828.04, Florida Statutes, was challenged that the phrase 'unnecessarily and excessively chastises', which remains in subsection (2) of the instant statute, was sufficiently definite when viewed from this standpoint. Campbell v. State, 240 So.2d 298 (Fla.1970). The Court's reasoning there applies with equal force to the language at issue here.

Additionally, appellant was accused of and tried for the second of the three aforementioned violations; Viz., the cruel, wanton, or malicious tormenting or punishing of a child under the age of 16. The information charged that Jordan 'did cruelly, wantonly, or with malice torment Brent Schieler . . . by beating (him) about the face, thereby causing extensive bruises, abrasions, and contusions.' The horribles of alleged statutory ambiguity paraded in appellant's brief involve the two other categories of activity denounced by the statute. Appellant lacks standing to assert the constitutional invalidity of descriptions of criminal conduct with which he has not been charged. See Lainhart v. Catts, 73 Fla. 735, 75 So. 47 (1917); McSween v. State Livestock Sanitary Bd., 97 Fla. 750, 122 So. 239 (1929).

Accordingly, we concur with the trial judge's conclusion that Section 828.04(1), Florida Statutes, is not unconstitutionally vague in that it does put persons of ordinary intelligence sufficiently on notice of what specific conduct it prohibits.

Appellant next...