Odom v. State

• Decision Date: 23 July 1981
• Docket Number: No. 50575,50575
• Citation: 403 So.2d 936
• Parties: Eddie ODOM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 936

403 So.2d 936

Eddie ODOM, Appellant, v. STATE of Florida, Appellee.

No. 50575.

Supreme Court of Florida.

July 23, 1981.

Rehearing Denied Oct. 15, 1981.

J. Craig Williams and James O. Brecher of Taylor & Brecher, Jacksonville, for appellant.

Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Fourth Judicial Circuit, Duval County. In a jury trial, appellant was convicted of murder in the first degree. The court imposed a sentence of death. This Court has jurisdiction of the appeal. Art. V, § 3(b)(1), Fla.Const.

Appellant presents several contentions of reversible trial error. For reasons to be discussed below, we find them to be without merit. Furthermore, the verdict is supported by the evidence. There being no reversible error going to the conviction of murder in the first degree, we affirm it. Finding that the state failed to establish any statutory aggravating circumstances, however, we hold that the sentencing court should have adopted the jury's recommendation of life imprisonment. We vacate the sentence of death and order that appellant be sentenced to life imprisonment without eligibility for parole for twenty-five years.

I. FACTS

On January 27, 1976, Joe Richards went to Eddie Odom's home and made threats to Nira Gail Odom, appellant's wife. She called the police. Odom, who had been absent, came home and then police officers arrived. While the police were there, Richards telephoned Odom. The police officers listened on an extension phone as Richards claimed that appellant owed him money and threatened to kill him if he did not pay. That night, Odom, Robert Lewis, and Charles Jimmy Carter went to Richards' home. Carter waited in a van while Odom and Lewis went to a bedroom window of the house and shot Richards, instantly causing his death. Two women were in the room with Richards. One of them sustained a minor shotgun wound.

Charles Jimmy Carter, originally arrested on a charge of first-degree murder, was given immunity and testified that he drove the van to Richards' house with Odom and Lewis as his passengers. Odom and Lewis, he said, armed with a .30-. 30 rifle and a shotgun respectively, went up to the house. Carter testified that he then heard gunshots, after which Odom and Lewis came running back to the van. They got in, and he drove to a bridge over the Trout River. He threw the rifle over the side of the bridge. Carter said that he participated in the killing because he, like Odom and Lewis, mortally feared Joe Richards.

Barbara Jones, sister of Nira Gail Odom, testified that she was at the Odom home on January 27 and heard Richards' threats. She testified that that afternoon, Odom borrowed a .30-.30 rifle from her nephew, Michael Hilliard. She was also there at 10:00 p. m. that night when appellant came in saying, "It's over. He's dead." Barbara Jones testified that Odom then talked in detail about the shooting.

Barbara Jones' husband Gerald Jones testified that he, too, was present and heard appellant admit his participation in the murder. Gerald and Barbara Jones contacted the authorities, they said, because they felt they were in danger from Lewis and Carter on account of their knowledge of the crime. Subsequently Gerald Jones, in cooperation with police, wore a hidden transmitter and engaged Odom in a conversation in which he made incriminating statements which the police recorded. The recording was admitted in evidence and Jones testified about the contents of the recorded conversation.

Police recovered a .30-.30 rifle from the Trout River. Michael Hilliard identified it as the one he gave to Odom. Several months before the crime, the rifle had been fired in a wooded area. Police recovered a spent .30-.30 casing from the place where the rifle had been fired. Three casings were found at the scene of the murder One casing was found in the rifle recovered from the river. A ballistics expert testified that all five were fired by the same weapon. The expert stated further that because of corrosion he was unable to determine whether the rifle recovered from the river was that weapon.

We conclude from our review of the record that the verdict of guilt was supported by competent, substantial evidence.

II. ISSUES ON APPEAL OF THE JUDGMENT OF CONVICTION

A.

Odom argues that the court should not have admitted into evidence the tape recording of his conversations with Gerald Jones. Although we rule that the tape was improper evidence, we do not reach this conclusion on any of the grounds argued by appellant. In support of his motion to suppress the tape, he argued that admission would violate his rights under the Fourth and Fifth Amendments to the United States Constitution. These contentions are without merit. When Jones visited Odom and engaged him in conversation, there was no compulsion used. Odom's statements were purely voluntary. In order for the right against self-incrimination to be involved when statements are made, there must at least be some kind of compulsion. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), cited by appellant, it was held that there is compulsion inherent in custodial interrogation. Here there was no compulsion, so appellant's Fifth Amendment rights were not violated. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Having heard the appellant voluntarily make statements of an incriminating nature concerning his participation in the crime, Jones clearly could have testified from memory about the content of the statements. The Fourth Amendment does not protect a person from the possibility that one in whom he confides will violate the confidence. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). If this is so, then there is no bar under the United States Constitution to the introduction of more reliable and perhaps more credible evidence recordings made by the informer or agent to whom the statements are made. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

Appellant also argues that the admission of the tape into evidence violated chapter 934, Florida Statutes (1975). Under the statute as written this argument is without merit. In enacting chapter 934, the legislature did not give article I, section 12, Florida Constitution, the interpretation we give it today. Thus the legislature did not intend to require a court order for the interception of wire or oral communications when one of the parties to the communication consents to the interception. § 934.01(4), Fla.Stat. (1975). Chapter 934 declares that it is lawful

for a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

§ 934.03(2)(c) Fla.Stat. (1975). Since the tape in question was made by way of the cooperation of Mr. Jones acting under the direction of law enforcement officers, the interception did not violate chapter 934, and was admissible evidence as far as the statute is concerned. See § 934.06, Fla.Stat. (1975).

We find, however, that the admission of the tape into evidence was error under the constitutional rule excluding evidence obtained in violation of article I, section 12 of the Florida Constitution. That section of our Declaration of Rights provides:

SECTION 12. Searches and seizures. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

In State v. Sarmiento, 397 So.2d 643 (Fla.1981), we held that the warrantless electronic monitoring by state agents of a conversation between the accused and an undercover police officer was an unreasonable interception of a private communication in violation of article I, section 12. Based on this principle, we held that the trial court should have excluded the testimony of police officers who, without obtaining an interception warrant, listened to the conversation by means of an electronic transmitter concealed on the person of the undercover agent. Applying the same principle to the present case, we find that the warrantless recording of the conversation between appellant and witness Jones was an unreasonable interception.

Evidence obtained in violation of article I, section 12 is inadmissible in Florida courts. Sing v. Wainwright, 148 So.2d 19 (Fla.1962); Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927). This constitutional principle applies regardless of whether the evidence in question was obtained in violation of the Fourth Amendment, and regardless of the scope of the Fourth Amendment exclusionary rule. Taylor v. State, 355 So.2d 180 (Fla.3d DCA 1978).

The evidence, therefore, should have been excluded. The admission of the tape into evidence, however, does not require reversal of the judgment. There was other evidence of appellant's guilt sufficient to support the jury's verdict. The improperly obtained evidence was merely cumulative. The error of allowing such evidence to go to the jury was harmless.

B.

Appellant also contends that the tape of the conversation was so...