Jordan v. State

• Decision Date: 23 June 1976
• Docket Number: No. 47681,47681
• Citation: 334 So.2d 589
• Parties: Bruce E. JORDAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 589

334 So.2d 589

Bruce E. JORDAN, Appellant, v. STATE of Florida, Appellee.

No. 47681.

Supreme Court of Florida.

June 23, 1976.

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 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 asserts that he is entitled to a new trial because his confession statement which was admitted into evidence at trial was not properly admissible under Miranda v. Arizona, 384 U.S. 436 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He maintains that acknowledgment of rights by a mere nod of the head does not constitute a waiver of those rights where there was no showing that they were waived either orally or in writing. He contends that such a position is buttressed by the provisions of Subsection 3.111(d)(4), Fla.R.Cr.P. ²

Decisions rendered in this jurisdiction lead us to the conclusion that waiver of Miranda rights need not be by affirmative response or express waiver once the warning has been given. See Davis v. State, 275 So.2d 575 (1st D.C.A. Fla.1973), Cert. denied, 280 So.2d 684 (Fla.1973); Hill v. State, 223 So.2d 548 (3d D.C.A. Fla.1969). In United States v. Hayes, 385 F.2d 375, 377 (4th Cir. 1967), the United States Court of Appeals for the Fourth Circuit made it clear that there is no constitutional requirement that a waiver is valid only if written and signed in the presence of two witnesses:

'Just as the mere signing of a boiler-plate statement to the effect that a defendant is knowingly waiving his rights will not discharge the government's burden, so the mere absence of such a statement will not preclude as a matter of law the possibility of an effective waiver.'

Under the teaching of the cited cases Jordan's confession would clearly be admissible, particularly when it is observed that the trial judge specifically found that Jordan was explained his rights and that he understood and appreciated them, indicating such understanding and appreciation by nodding his head. There was an implicit waiver in the act of the appellant in proceeding to give the statement after he had been given an explanation of his rights and had indicated comprehension of that explanation.

Appellant urges that Florida has imposed by rule a stricter requirement, but his reliance on Subsection 3.111(d)(4), Fla.R.Cr.P., as providing an independent ground for making the confession inadmissible is misplaced. Read out of context, the provisions of the Rule relied upon by appellant might lead to the result urged. But we find two flaws in appellant's attempted application of Rule 3.111 to the facts here. First, the title of the Rule is 'Providing Counsel to Indigents.' Reading the Rule in its entirety makes it clear that its provisions relate to the subject indicated in its title. The remedy for its violation would be to require a new trial with counsel available to represent the indigent. We do not understand that appellant complains about the lack or quality of his representation in the instant proceedings. Second, there is nothing in Rule 3.111 which calls for suppression of evidence, the result appellant seeks to achieve. Our rules must be sensibly construed. They are not to be given a strained interpretation or stretched to the limit of every conceivable construction conjured up by the fertile imagination of counsel. For the reasons stated, it was not error to admit the confession in evidence.

The prosecutorial comment during closing argument of which appellant complains is as follows:

'. . . The only reasonable explanation, reasonable hypothesis, is that the Defendant committed that beating and yet now he...