McDonnell v. State, 73--102

• Decision Date: 15 March 1974
• Docket Number: No. 73--102,73--102
• Citation: 292 So.2d 420
• Parties: Lawrence Rodney McDONNELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 420

292 So.2d 420

Lawrence Rodney McDONNELL, Appellant, v. STATE of Florida, Appellee.

No. 73--102.

District Court of Appeal of Florida, Fourth District.

March 15, 1974.

Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, Judge.

Defendant was charged with forgery in September 1972. On January 16, 1973, one week prior to trial, defendant filed a motion to suppress any oral or written confessions or statements, and immediately attempted to obtain a hearing thereon. There was no time available on the judge's calendar, so the motion was not heard prior to trial.

The case was called for trial on January 23, 1973, and after the jury was sworn, defendant requested the court to hear the motion to suppress, but the court refused on the ground that counsel should have filed the motion at an earlier date so as to have it heard prior to trial. Thus, the cause proceeded to trial, and defendant's confession was admitted into evidence over defendant's objection.

The uncontradicted evidence showed that defendant presented a signed savings account withdrawal slip to the First National Bank of Pompano on an account belonging to Edmond E. Stafford. The signature on the slip did not coincide with the bank's signature card so the teller sought the advice of a bank vice-president. The latter officer discussed the matter with defendant, who attributed the difference in the signatures to a recent serious illness and hospitalization. When asked for some identification, defendant advised the officer he had none as his wallet was stolen or lost while he was in the hospital. The officer then had defendant sign another signature card and instructed the teller to honor the withdrawal. Defendant was identified unequivocally by both the teller and officer as the person who had made the withdrawal in question. The owner of the account testified he had never given defendant permission to make the withdrawal. Other Williams rule evidence (Williams v. State, Fla.1959, 110 So.2d 654) showed defendant had made numerous subsequent similar raids on the same account.

It is our view that under the circumstances the trial judge committed error in refusing to hear the motion to suppress upon defendant's request before proceeding with the trial. Defendant complied with Rule 3.190(i) RCrP, 33 F.S.A., by filing his motion prior to trial. That it was not heard prior thereto could not be helped; defendant tried to obtain a hearing before trial, but the trial judge was engaged with other matters on his docket.

However, the error in denying defendant's motion and admitting the confession without an evidentiary hearing is harmless beyond a reasonable doubt, Harrington v. California, infra, because there is other overwhelming evidence establishing defendant's guilt. We have not overlooked the question of the propriety of applying the harmless error rule to constitutional errors; in fact we find adequate precedent therefor. The appellate courts of Florida have acknowledged the applicability of the harmless error rule to the erroneous admission of confessions. Daughterty v. State, 154 Fla. 308, 17 So.2d 290 (1944); Melton v. State, 159 Fla. 106, 30 So.2d 916 (1947); Simpson v. State, Fla.App.1968, 211 So.2d 862; Blatch v. State, Fla.App.1968, 216 So.2d 261. So also has the Supreme Court of the United States recognized the application of the harmless error rule to constitutional errors, including confessions. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). Considering the evidence in its totality, it appears to us this is an appropriate case for application of the harmless error statute. § 924.33 F.S.1971, F.S.A.

Accordingly, the judgment and sentence of the lower court is affirmed.

OWEN, C.J., concurs.

WALDEN, J., dissents, with opinion.

WALDEN, Judge (dissenting):

A cursory reading of the majority opinion would leave a good taste in the mouth of the uninitiated. It indicates that the trial court's violation of a pre-trial procedure rule was harmless because obviously the defendant was guilty. It commends itself to those critics who are frequently heard to clamor and cry that courts are forever turning loose criminals based on 'technicalities.' It catalogs under the currently popular heading of 'law and order.'

I view the proposition differently, with my thinking 180 in opposition to that of the majority. As I see it, and respectfully suggest, the gravity and wrongness of the majority decision cannot be overstated. And yet, while disagreeing, I hope to do so agreeably and with respect for my differing brethren.

THE ERROR

Defendant was tried by jury and convicted and sentenced for forgery. In so doing there was committed a judicial error of constitutional dimension. Its fundamental nature is of such moment as to defy being swept under the rug as some sort of harmless error.

For beginning and basics, the defendant was deprived of a hearing on a motion to suppress. He made his motion to suppress, and there is no doubt but that the motion was timely, sufficient under the Rule, and properly brought to the trial court's attention. Regardless, the trial court refused to conduct a hearing--refused to allow evidence--and refused to adjudicate the legality of the defendant's confession and whether the same should be thereby suppressed. Instead, the trial proceeded and the confession was received in evidence over defendant's objection and he was convicted. Simply stated, the defendant was deprived of his right to show that he was being compelled to be a witness against himself and deprived of due process of law contrary to the protections of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, § 9 of the 1968 Florida Constitution, F.S.A. The vehicle, the way, the procedure whereby these constitutional rights are protected and afforded to defendants in criminal cases in Rule 3.190(i), F.R.Cr.Proc., as follows:

'(i) Motion to Suppress a Confession or Admissions Illegally Obtained.

'(1) Grounds. Upon motion of the defendant or upon its own motion, the court Shall suppress any confession or admission obtained illegally from the defendant. (Emphasis added.)

'(2) Time for Filing. The motion to suppress shall be made prior to trial Unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial. (Emphasis added.)

'(3) Hearing. The court Shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion.' (Emphasis added.)

This is the procedural law of this state. It is prescribed by the Florida Supreme Court and as such it is binding upon the courts and the judiciary of this state--and not just sometimes. Its multiple use of the word, 'shall,' admits of no discretion or question. When the motion is made the trial court Shall conduct a hearing and Shall receive evidence and Shall suppress illegal confessions. When a hearing is denied on such a motion, there could hardly be a clearer reflection of error. And the majority concedes that error, but deems it harmless.

THE LAW

The harmless error rule was designed to make the judicial 'process perform . . . without giving men fairly convicted the multiplicity of loopholes which any . . . rigid . . . scheme of errors . . . will reflect in a printed record.' Kotteakos v. United States, 328 U.S. 750, at 760, 66 S.Ct. 1239 at 1245, 90 L.Ed. 1557 (1946). The harmless error rule, then, was designed to be a check on needless and unmerited appeals based on technical niceties or on reasonable claims that were simply not important enough to merit reversal. The error at hand cannot by any stretch of the imagination be called a technical nicety or a claim which would not merit reversal.

The majority turns its decision upon the theory of harmless error. They rely, without any particular discussion, upon the following state and federal cases: Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Daugherty v. State, 154 Fla. 308, 17 So.2d 290 (1944); Melton v. State, 159 Fla. 106, 30 So.2d 916 (1947); Blatch v. State, 216 So.2d 261 (3d D.C.A.Fla.1968); and Simpson v. State, 211 So.2d 862 (3d D.C.A.Fla.1968).

It is this writer's opinion that neither Florida nor federal authority mandate the majority's finding of harmless error. The Florida cases cited by the majority are distinguishable by time and by fact. In each case, except Daugherty, the subject defendant Did not request a hearing on the confession. (In Melton the court decided that, in fact, the confession was Not coerced.) In Daugherty, decided in 1944, a confession was allowed into evidence though the defendant claimed it was not freely made. The court said, 'it cannot be said that the evidence affected the verdict.' In the present day, when guards against involuntary confessions are so strong as to warrant the rule of suppression, this view can not be controlling.

What Is controlling can be found in both Florida and Federal Law. The Florida cases of Foster v. State, 255 So.2d 533 (1st D.C.A.Fla.1971) and Allen v. State, 239 So.2d 33 (1st D.C.A.Fla.1971) stand for the proposition that the inclusion of a confession without a hearing on admissibility is improper per se. True, the question of...