Neary v. State
| Decision Date | 15 May 1980 |
| Docket Number | No. 51691,51691 |
| Citation | 384 So.2d 881 |
| Parties | Jack J. NEARY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Richard M. Saccocio, Sp. Public Defender, Fort Lauderdale, for appellant.
Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
The appellant, Jack J. Neary, was convicted by a jury of first-degree murder, robbery, burglary, and sexual battery. After a jury recommendation of life imprisonment, the trial judge imposed the death sentence for the first-degree murder conviction. We have jurisdiction. 1 We affirm the conviction but reduce the sentence to life imprisonment in accordance with the jury recommendation.
The relevant facts are as follows: On September 25, 1976, a Volkswagen automobile was found submerged in a canal in Hollywood, Florida. Investigating officers found a woman's purse in the car. Contents of the purse revealed that its owner was Mrs. Laura Cagle, a sixty-six-year-old resident of a nearby trailer park. The initial attempts to locate her, including a visit to her trailer home, were unsuccessful. In the second visit to her trailer home, officers found Mrs. Cagle's half-clothed body hidden underneath a foldout bed. An examination of the victim's body revealed that she had been raped and strangled. Investigators found two blue buttons on the floor of the bedroom where the victim's body was discovered.
After conferring with Mrs. Cagle's relatives, the investigators determined that certain diamond rings were missing. The rings were later recovered by the officers from Wayne Edward Morris who stated that he received them from Darry Smithers. Smithers gave a sworn statement on September 28 stating he had received the rings from the appellant, Jack Neary.
Appellant was eighteen years of age and resided with his grandmother in the same trailer park as the Cagle trailer home. Neary had previously served as an informer in several local burglaries. On September 29 two detectives visited appellant's residence. Neary was awakened by his grandmother and agreed to talk with the officers. The grandmother asked them to withdraw from the living room in order for her to continue to watch television. The officers and Neary went to the rear of the trailer to Neary's bedroom. The record fails to reflect any objection by Neary to the officers' moving with him to this location. The officers and Neary talked for a short time but not about any specific crimes. While in the bedroom Detective Jadwin noticed a blue shirt hanging in an open closet. He reached in and removed it from the clothes rack and remarked that he owned one like it. Both detectives noticed that buttons were missing from the shirt. Jadwin also noticed a shirt with a reddish-colored stain on it lying on the floor of the closet. At the conclusion of the questioning, Neary accompanied the officers to the police station.
While Neary was at the police station, the police obtained a warrant to search Neary's room. The affidavit in support of the warrant specifically set forth the following: (1) the discovery of Mrs. Cagle's car; (2) the two searches of the Cagle home; (3) the discovery of the body of Laura Cagle, its position, and the fact that her death was caused by strangulation; (4) that missing diamond rings of the deceased had been recovered by the police and were traced through a chain of possession which began with Neary; (5) that a blue shirt was hanging in Neary's closet and a shirt with a reddish-colored stain was lying on the floor of the closet; and (6) that buttons were missing from the blue shirt, as observed by Detectives Jadwin and Cormican during the visit to Neary's trailer, and the buttons remaining on the shirt appeared to be the same type as those discovered in the bedroom of the deceased. Pursuant to the warrant, items of clothing including the stained shirt and the blue shirt with the two missing buttons were seized from the residence of the appellant.
Upon his arrival at the police station, Neary had been given Miranda warnings. Two interrogation sessions were held, during the latter of which officers confronted Neary with the incriminating results of the search. At the conclusion of the interrogations Neary confessed to the Cagle murder and implicated the codefendant, Mark Eubank.
Neary and Eubank were tried jointly. At trial, all references to Eubank were deleted from the Neary confession pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Also, expert testimony revealed that the buttons found in the victim's trailer contained the same thread and cloth fiber as that of the blue shirt, and that the threads securing the buttons were knotted in an identical fashion. At the close of the state's case, Eubank's motion for directed verdict was granted. Neary's motion for directed verdict was denied, and he subsequently was convicted of all counts charged.
During the sentencing phase the jury was presented with the entire confession which reflected that Eubank played a significant role in the perpetration of the offenses. Mitigating evidence was also provided by appellant's grandmother who testified that Neary was a slow learner and had needed special assistance to keep up in school. Further testimony established that Neary had grown up without a father and had been reared by his mother and another woman.
The jury recommended a sentence of life imprisonment. The trial judge, however, rejected this recommendation and imposed the death sentence, finding that the capital felony was committed in the course of a burglary, robbery, and rape; that it was committed both for pecuniary gain and to avoid arrest; and that it was especially heinous, atrocious, and cruel. The trial court considered all the statutory mitigating circumstances and rejected each. In considering Eubank's participation as a codefendant, the trial court found that Neary's "participation in this capital felony was extremely dominant and major, and the capital felony was committed by the defendant, Jack Joseph Neary." The trial court further found:
(T)he Defendant was under no duress or disturbance. The Defendant did drop out of school in the eighth grade. He has an I.Q. of approximately 90 and on a full scale approximately 103. Generally, I would say average to below average. He is neither brilliant nor is he dumb. His formal education speaks for itself. He has not seen his father since the age of three and has seen his mother often during his life. He was raised by his maternal grandmother. Disciplining the Defendant was difficult for the grandmother because of the age discrepancy; but his grandmother definitely raised this Defendant teaching him right from wrong and providing him with great moral guidance and religious and theological training. She loved and cared for him by high standards and the Defendant was taught those standards and was fully aware and conscious of them. The Defendant did appreciate the criminality of his conduct and his ability to conform his conduct to the requirements of law was not impaired at the time of the capital felony.
Neary contends that his conviction should be set aside on the grounds that: (1) the entry into his room by the detectives which led to the discovery of the incriminating blue shirt constituted an unreasonable search; (2) if the search was unreasonable, then the confession must also be suppressed as "fruit of the poisonous tree", (3) the incidental observance by four jurors of Neary wearing handcuffs and shackles prior to the commencement of the third day of the trial unduly prejudiced those jurors against him; (4) cumulatively, the admission of a deposition by a physician leaving the country together with the admission of a vial of the victim's blood and comments by the prosecution in final argument deprived him of due process; and (5) the evidence against him was insufficient.
The first two grounds concern the validity of the seizure of the blue shirt with two missing buttons. The record is clear that Neary permitted the officers to enter his bedroom, and that their presence together with the observance by one officer of the blue shirt hanging in the closet was proper and reasonable. The only possible improper conduct resulted from the officer's removing the shirt from the clothes rack to determine if two buttons were missing. The officers, however, did not seize the shirt at that time and only made their findings known in the affidavit for the search warrant which was subsequently issued.
We recognize that there is a problem concerning the extent to which an officer may take overt action to determine whether an object in open view is evidence of a crime. Only a few cases have dealt with this particular issue. In State v. Holloman, 197 Neb. 139, 248 N.W.2d 15 (1976), officers went to the home of a suspect in a rape case, knocked on the door, and were admitted by the defendant. The officers informed him that they wished to question him. The defendant agreed to accompany the officers but first retired to a bedroom to dress. While the defendant was out of the room, one officer noticed several pairs of shoes lying on the floor. Prior to his arrival, the officer knew that several footprints and heelprints were left on the ground outside the home of the victim. He picked up some shoes and noticed that the heels of one pair resembled the imprints left on the ground. The shoes were seized. The Nebraska Supreme Court, in considering the defendant's plain view challenge to the search, held the seizure proper. The court recognized that although the shoes were in open view and the heels were not, the officer had the "right to scrutinize these shoes more carefully, and to examine them, including lifting them up and turning them over." Id. at 144, 248 N.W.2d at 19. In United States v. Woods, 560 F.2d 660 (5th Cir. 1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1452, 55...
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