Mackiewicz v. State

CourtUnited States State Supreme Court of Florida
Writing for the CourtROBERTS; THOMAS
Citation114 So.2d 684
PartiesNorman J. MACKIEWICZ, Appellant, v. STATE of Florida, Appellee.
Decision Date11 September 1959

Page 684

114 So.2d 684
Norman J. MACKIEWICZ, Appellant,
v.
STATE of Florida, Appellee.
Supreme Court of Florida.
Sept. 11, 1959.
Rehearing Denied Oct. 19, 1959.

Page 686

Herman Methfessel and Alvin N. Weinstein, Miami, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

ROBERTS, Justice.

This is an appeal from a verdict and judgment convicting appellant of murder in the first degree without recommendation of mercy. He challenges here the sufficiency of the evidence to support the judgment of conviction and, in addition, assigns as error the admission of certain evidence and the granting or denial of certain instructions, referred to hereafter.

The appellant offered no evidence in his defense. From the evidence adduced by the State the jury was entitled to find that the appellant shot and killed Lt. Staab, a police officer, during an altercation occurring in the following manner: Lt. Staab and Sgt. Stahmer, police officers of Bal Harbour, were assigned to work at the Americana Hotel in Miami Beach on the night of October 30, 1957. Each of them was dressed in civilian clothes. They left the Americana at about 2:30 a. m., going from there to the Balmoral Hotel, which is next door to the Americana. While still on the outside of the Balmoral they noticed a person looking out through a small glass window in a fire exit door of that hotel. Stahmer and Staab separated, Stahmer walking toward the fire exit door and Staab going in another direction. Stahmer entered the hotel and as he was walking down the hall he saw the appellant walking toward him. When he was about six feet away from the appellant, Stahmer pulled his badge out of his pocket, exhibited it to the appellant, and said, 'I am a police officer. What are you doing?' The appellant's response was to draw a gun--a .32-caliber automatic--and to motion Stahmer to follow him toward the end of the hall. The jury could have inferred that the appellant's gun was already loaded, cocked and ready to fire. When they reached the stair well door the appellant stopped and said, 'All right. In here.' As they entered the stair well, Stahmer noticed that the appellant had momentarily turned the gun away from him, so he grabbed the appellant's arm. A struggle ensued, during which the gun went off harmlessly. The struggle carried the appellant and Stahmer back into the hall. First appellant, then Stahmer, tripped and fell on the floor of the hallway.

At the time of Lt. Staab's unfortunate entrance upon the scene, Stahmer was on his back on the floor, appellant was standing near Stahmer, pointing the gun at him, and had just warned Stahmer not to 'try anything', to which Stahmer had replied, 'All right. 'Don't shoot.' Stahmer had not, so far, taken his gun from its holster. At this point Staab came around the corner at the end of the hall with his gun in his hand. When Stahmer saw that appellant had noticed Staab, Stahmer yelled, 'Get him, Bob.' As Stahmer yelled this, the appellant brought his arm up across his body and fired at Staab from a position near his hip. An instant later Staab's gun also went off. There was medical testimony that appellant's bullet damaged the parts of Staab's brain that control the eyesight, so that his shot could not have been an aimed conscious shot. There was no evidence that in hit the appellant. After Stahmer saw that Staab had been hit, he kicked the appellant on the arm while the latter was standing there, and the gun went against the appellant's side and he fired again. As Stahmer started getting to his feet, the appellant fired again in the direction of Stahmer. Then the appellant started running with Stahmer in pursuit. Stahmer fired several shots at appellant, but the appellant made his escape. He was, however, apprehended about an hour later.

Appellant's cell-mate in the Dade County jail after his apprehension, one Ferguson, was a state's witness. He testified that appellant discussed the affray at the Balmoral with him and told him that he, appellant, was in the Balmoral to rob the cashier. Ferguson further related the appellant's statements to him, as follows:

'As he [appellant] was going down the hall to approach the lobby where this cashier was, this man came up

Page 688

the hall. It was about two-thirty in the morning, and he said, 'I am a police officer. What are you doing in the hotel?' and he said that he thought they were on to him for robbing the Fontainebleau Hotel, so he started tussling with the man, and he said he was an officer, and he went down, and in the course of this struggle the gun that he had was discharged.

'He pulled the gun and this gun went off. So, he overpowered this policeman and he was down, and as he started to get up, another man came around the hall--from around the corner, and he stated that he 'took aim at him and shot him right between the eyes, and he went down like a champ,' and then he said he got up on his feet and he turned around and looked at the other fellow on the floor and he shot at him three times and 'the son-of-a-bitch kept moving, or I would have hit him, because he was the only witness to the thing,' and then he ran out of the hotel and got in his car and got caught in the two roadblocks.'

On cross-examination Ferguson said he was not sure that the appellant told him he 'took aim' but reiterated that appellant said he shot 'the fellow coming around the corner between the eyes'.

Other state's witnesses identified appellant as the person who had robbed some guests at the Fountainebleau Hotel on the night of October 26th, just five days prior to the shooting of Lt. Staab. Defense counsel objected vigorously during the trial to the admission of this testimony, as well as that of Ferguson relating to the Fountainebleau robbery, recounted above, on the ground that evidence of an unconnected, independent crime was not admissible against the appellant. The trial judge's admission of such evidence was assigned as error, and it is here contended that such evidence is not within any of the exceptions to the general rule of inadmissibility of such evidence allegedly adhered to by this court in many...

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15 practice notes
  • Swafford v. State, No. 68009
    • United States
    • United States State Supreme Court of Florida
    • September 29, 1988
    ...79 L.Ed.2d 726 (1984); State v. Statewright, 300 So.2d 674 (Fla.1974); Bryant v. State, 235 So.2d 721 (Fla.1970); Mackiewicz v. State, 114 So.2d 684 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960). The examples given in Williams and in subsection 90.404(2)(a) are ......
  • Macias v. State, No. 94-1626
    • United States
    • Court of Appeal of Florida (US)
    • May 15, 1996
    ...precedent that evidence of escape may be admissible to show a defendant's consciousness of guilt. In Mackiewicz v. State, 114 So.2d 684, 689 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960), a prosecution for first-degree murder, our supreme court recognized this e......
  • Green v. State, No. 6828
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 1966
    ...to Williams. Thus, where collateral crime or 'similar fact' evidence has been held admissible, such as in Mackiewicz v. State, Fla.1959, 114 So.2d 684; Johnson v. State, Fla.1961, 130 So.2d 599; Reddish v. State, Fla.1964, 167 So.2d 858; San Fratello v. State, Fla.App.1963, 154 So.2d 327; B......
  • Heiney v. State, No. 56778
    • United States
    • United States State Supreme Court of Florida
    • February 2, 1984
    ...to the question of motive for the murder of a police officer. See, e.g., Johnson v. State, 130 So.2d 599 (Fla.1961); Mackiewicz v. State, 114 So.2d 684 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960); McVeigh v. State, 73 So.2d 694 (Fla.), appeal dismissed, 348 U.......
  • Request a trial to view additional results
15 cases
  • Swafford v. State, No. 68009
    • United States
    • United States State Supreme Court of Florida
    • September 29, 1988
    ...79 L.Ed.2d 726 (1984); State v. Statewright, 300 So.2d 674 (Fla.1974); Bryant v. State, 235 So.2d 721 (Fla.1970); Mackiewicz v. State, 114 So.2d 684 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960). The examples given in Williams and in subsection 90.404(2)(a) are ......
  • Macias v. State, No. 94-1626
    • United States
    • Court of Appeal of Florida (US)
    • May 15, 1996
    ...precedent that evidence of escape may be admissible to show a defendant's consciousness of guilt. In Mackiewicz v. State, 114 So.2d 684, 689 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960), a prosecution for first-degree murder, our supreme court recognized this e......
  • Green v. State, No. 6828
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 1966
    ...to Williams. Thus, where collateral crime or 'similar fact' evidence has been held admissible, such as in Mackiewicz v. State, Fla.1959, 114 So.2d 684; Johnson v. State, Fla.1961, 130 So.2d 599; Reddish v. State, Fla.1964, 167 So.2d 858; San Fratello v. State, Fla.App.1963, 154 So.2d 327; B......
  • Heiney v. State, No. 56778
    • United States
    • United States State Supreme Court of Florida
    • February 2, 1984
    ...to the question of motive for the murder of a police officer. See, e.g., Johnson v. State, 130 So.2d 599 (Fla.1961); Mackiewicz v. State, 114 So.2d 684 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960); McVeigh v. State, 73 So.2d 694 (Fla.), appeal dismissed, 348 U.......
  • Request a trial to view additional results

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