Meek v. State, 93-1048
| Decision Date | 20 April 1994 |
| Docket Number | No. 93-1048,93-1048 |
| Citation | 636 So.2d 543 |
| Parties | 19 Fla. L. Weekly D868 Thomas MEEK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Arthur W. Tifford of Arthur W. Tifford, P.A., Miami, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellee.
This is the third appeal in this case. Appellant was convicted of first degree murder in 1982. Years later, Appellant sought post conviction relief claiming that he had "transactional" immunity from prosecution. In the first appeal, this court held that the immunity issue could be raised post-trial. Meek v. State, 566 So.2d 1318 (Fla. 4th DCA 1990), rev. denied, 581 So.2d 167 (Fla.1991) (Meek I). In the second appeal, we held that Appellant could assert his claim of immunity, pursuant to a retroactively applicable precedent, Jenny v. State, 447 So.2d 1351 (Fla.1984), and notwithstanding the legislature's subsequent abolishment of "transactional" immunity in 1982. Meek v. State, 605 So.2d 1301 (Fla. 4th DCA 1992) (Meek II). In Meek II, we directed the trial court to conduct an evidentiary hearing on the issue. A hearing was subsequently conducted, over 10 years after the trial, and the trial court concluded that Appellant is not entitled to immunity because he was not testifying under the compulsion of a subpoena. We affirm.
At the time Appellant gave testimony relevant to this appeal, he was not a suspect. In fact, Appellant, who was a known informant, initiated the subsequent criminal investigation by advising the sheriff's office that he had information about a homicide. In the course of his initial contact with the sheriff's office, Appellant inquired about "transactional" immunity, and was advised by the detective in charge, who had spoken with the state attorney's office concerning Appellant's request, that since Appellant was a voluntary witness accusing a third party, he would not receive transactional immunity for his testimony. There is testimony that Appellant understood this. Appellant advised the sheriff's office that his stepbrother committed the crime. He did not implicate himself by his statements, which were exculpatory.
Arrangements were made for Appellant to testify to the grand jury. He was not initially subpoenaed, and no promises were made to him concerning his testimony. Shortly before his appearance, Appellant spoke with the assistant state attorney presenting the case to the grand jury. She told him that he would not receive or be entitled to transactional immunity by his voluntary appearance. She also advised Appellant that he would be immunized by "use" immunity, thus prohibiting the use of his testimony against him. Appellant was also warned that he could be charged if it was later discovered that he committed the crime.
There is testimony indicating that Appellant requested the assistant state attorney to issue him a subpoena for limited purposes; so that he could show his probation officer why he left his county of residence, so that he could be paid, and because he feared his stepbrother's family, who did not want him testifying. Appellant apparently was then given a subpoena.
There is no contention that Appellant made self incriminating statements, or that he said anything to the state attorney or grand jury that would be used against him. In fact, at the time Appellant testified, he was not the focus of the investigation. Rather, Appellant's argument is, essentially, that under the transactional immunity statute, his mere appearance, even if totally exculpatory, fatally taints any charges against him later developed independently, even though he initiated the investigation by his accusation. Appellant further contends that his formal release by the state from the subpoena, before his testimony and on the record, was ineffective because it was not issued by a "court."
It cannot be disputed that Appellant was formally "released" from subpoena by the state, before his testimony was given. The grand jury record reflects the following:
Now, Mr. Meek, I've subpoenaed you to the grand jury. However, I'm releasing you from that subpoena and we discussed this prior to you coming in. If you testify here today, you're testifying voluntarily. You have no immunity, whatsoever, for your testimony.
Do you understand that Mr. Meek?
Do you understand that?
HIS ANSWER: Yes.
Do you wish to testify voluntarily before the grand jury about the events that you witnessed sometime during either June, July or August of 1980?
MR. MEEK: Yes.
There was also testimony indicating that Appellant was free to leave. The assistant state attorney testified that Appellant was released "on the record" so that there would be no doubt that his testimony was not compelled and that he would not receive transactional immunity.
On a subsequent occasion, October 5, 1981, Appellant, while still in his capacity as a prosecution witness, was issued a second subpoena. The state claims that the subpoena was issued in anticipation of trial, however, there was no trial on that date. The state contends that no one spoke to Appellant on that occasion. Appellant disputes this, and says he did talk to an assistant state attorney on that date, in his capacity as a state witness.
The primary issue on appeal is whether a state attorney, or assistant state attorney, has authority under the law to release a witness from a subpoena, thereby enabling the witness to testify to a grand jury voluntarily without a resulting cloak of transactional immunity.
Section 914.04, Florida Statutes (1979) provided:
Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him; immunity from prosecution.--
No person having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying ... upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.
(emphasis added). This statute was amended in 1982 to delete the transactional immunity provision. See Sec. 914.04, Fla.Stat. (1983).
Appellant argues that the state attorney can never lawfully release a witness from a subpoena issued pursuant to section 914.03, Florida Statutes (1979). That section, in part, states:
Attendance of witnesses
A witness summoned by a grand jury or in a criminal case shall remain in attendance until excused by the court. A witness who departs without permission of the court shall be in criminal contempt of court.
Appellant asserts that this statute is explicit, and that any release of a subpoenaed witness by a state attorney without a court order to that effect is unauthorized by law. Therefore, it is argued, Appellant's subpoena must have remained enforceable during his testimony, notwithstanding the fact that the subpoena was expressly cancelled with the witness' knowledge and consent. Appellant asserts that the subpoena triggers automatic immunity from prosecution for the offense concerning which he testified under section 914.04. See State v. Weir, 380 So.2d 1297 (Fla. 3d DCA), rev. denied, 389 So.2d 1115 (Fla.1980). See also Putnal v. State, 468 So.2d 444 (Fla. 1st DCA), rev. denied, 476 So.2d 675 (Fla.1985).
In Weir, an assistant state attorney continued questioning a subpoenaed witness after telling the witness that he was released from subpoena and was free to leave. The court held, inter alia,
While the assistant in charge of the investigation purported to "excuse" the defendant from that requirement [to appear...
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Dean v. Com.
...Id. Therefore, the state's actions "did not contribute substantially to the witness's failure to appear." Id. See also Meek v. State, 636 So.2d 543 (Fla.Dist.Ct.App.1994) (state attorney has authority to release witnesses from a grand jury subpoena or investigative subpoena issued by the He......
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