Palmes v. State

• Citation: 397 So.2d 648
• Decision Date: 05 March 1981
• Docket Number: No. 52045,52045
• Parties: Timothy Charles PALMES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 648

397 So.2d 648

Timothy Charles PALMES, Appellant, v. STATE of Florida, Appellee.

No. 52045.

Supreme Court of Florida.

March 5, 1981.

Rehearing Denied May 20, 1981.

B. Kenneth Vickers and Steven E. Rohan, Jacksonville, for appellant.

Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, 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, in and for Duval County. The appellant was convicted of murder in the first degree and sentenced to death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We affirm the conviction and sentence.

Appellant lived in an apartment with his girlfriend Jane Albert, her daughter Stephanie, and a friend, Ronald Straight. The appellant became acquainted with Ms. Albert's employer James Stone. The evidence showed that appellant, Albert, and Straight plotted the murder and robbery of Stone.

On October 3, 1976, appellant, Straight, and Albert purchased lumber, hardware, and cement from which appellant built a box large enough to hold a man's body. The next day Albert told her employer that a girl named Nancy was waiting for him at the apartment. She then called appellant to let him know that Stone was on his way. Appellant told Stephanie to answer the door and tell Mr. Stone that Nancy was waiting in the back bedroom. Ronald Straight waited behind the front door with a gun. After Stone entered the apartment, Straight directed him to the back bedroom where appellant was waiting. The two men then bound Stone's hands and feet with wire and taped his mouth. They placed a garbage bag over his head and hit him with a hammer and stabbed him approximately eighteen times. This sequence of events took about a half an hour. At one point appellant had the child, Stephanie, come into the room and observe the victim lying in the burial box, mortally wounded.

The next day appellant and Straight moved their possessions, together with the box containing the body, out of the apartment and into a rental truck. They took possession of the victim's watch, credit cards, and car. Albert took about $3100 in cash from Stone's furniture store. They spent that night at a motel. The next day appellant and Straight drove the rental truck to the Buckman Bridge and threw the box into the St. John's River. The appellant, Straight, Albert, and her daughter fled to California in the victim's automobile.

Police apprehended them in California. Appellant was brought back to Florida and placed in the Duval County jail. On October 22, 1976, police officers advised him of his constitutional rights and questioned him. On October 24, 1976, the officers again advised appellant of his constitutional rights and interrogated him further. They read to him excerpts from a statement made by Jane Albert. He refused to make any statement until after he had spoken to her. Although he declined to sign a written waiver of his rights, he did not request an attorney and he voluntarily answered questions. Afterwards he showed the police officers the place on the bridge where the body was dropped. On October 28, 1976, an indictment was returned accusing appellant of murder in the first degree. On October 29, the appellant asked to see the investigating officers. After again being advised of his rights, the appellant specifically stated that he did not want to see a lawyer. He signed a waiver and made a detailed statement of his participation in the murder. The statement was recorded and signed.

At appellant's first appearance on October 23, 1976, the judge entered an order appointing the public defender to represent him. The office of the public defender never undertook representation, however, and on October 29 requested and was granted permission to withdraw from representation on the ground of conflict of interest. Appellant never met with a representative of that office. Throughout the course of his interrogation by police, he never asked to see an attorney.

Before trial, the appellant moved to suppress evidence of his confession. He argued that the confession was inadmissible because he was questioned without benefit of counsel after being indicted. The motion was denied and appellant's statement was admitted in evidence.

At trial the appellant testified that Albert committed the murder and that his participation was limited to assistance in disposing of the body. He said that he did not notify police because he wanted to protect her and that he confessed to the crime for the same reason. When the appellant attempted to further testify about the circumstances of his confession, the prosecuting attorney objected on the ground of lack of relevance. The court sustained the objection, reasoning that the admissibility of the confession had already been decided and was not relevant to any material issue to be decided by the jury. ¹

At the conference on charging the jury, the appellant requested an instruction on the crime of accessory after the fact. The court declined to give the requested instruction.

The appellant raises a number of points going to the propriety of his conviction, three of which we find merit discussion. He contends that the court erred in refusing to suppress his confession, in refusing to instruct on accessory after the fact, and in refusing to allow him to tell the jury the circumstances of his confession.

I.

The appellant contends that he was denied his fifth and sixth amendment rights to due process and the assistance of counsel because his confession was obtained after indictment and in the absence of counsel. In support of this contention he cites Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Williams v. State, 188 So.2d 320 (Fla. 2d DCA 1966) cert. discharged, 198 So.2d 21 (Fla.1967). Massiah v. United States concerned a defendant who, after being indicted, retaining a lawyer, pleading not guilty, and being released on bail, made incriminating statements to one of his codefendants which were detected by means of a radio transmitter. The Court held the statements inadmissible under the sixth amendment guaranty of the right to assistance of counsel. Williams v. State was a case where the investigating officer,

knowing that the defendant ... had been in jail for three weeks ... that he had already been indicted for first degree murder, and that he had a lawyer and who his lawyer was, took the defendant out of his jail cell and transported him to a small room ... in which room there was only a desk and three chairs. They went inside, closed the door, sat down....

188 So.2d at 326. There the officers elicited an incriminating statement.

These cases do not control the situation at bar. In the instant case the defendant had already been indicted but was not yet represented by counsel. He was repeatedly advised of his right to consult with counsel and to have counsel present during questioning. The formal appointment of the public defender at first appearance did not initiate legal representation since nothing was done toward actually providing legal counsel. The interview at which appellant made the recorded confession took place at his own request. He made no request to speak to an attorney and executed a written waiver of counsel. The right to counsel during questioning can be waived. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 774 (1977). Investigating officers are not required to try to convince a defendant that he needs an attorney. State v. Craig, 237 So.2d 737 (Fla.1970). We therefore hold that the court properly admitted the confession into evidence.

II.

The appellant contends that the court erred in not instructing the jury on the crime of accessory after the fact because his defense was that his only participation in the crime was in helping his girlfriend dispose of the body.

It is axiomatic that a defendant is entitled to a jury instruction on the theory of his defense. Florida courts have reversed convictions where juries were not instructed about the defenses of alibi, Davis v. State, 254 So.2d 221 (Fla. 3d DCA 1971); Watson v. State, 200 So.2d 270 (Fla. 2d DCA 1967); coercion, Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967), entrapment, Kwasniewski v. State, 303 So.2d 373 (Fla. 1st DCA 1974); Stiglitz v. State, 270 So.2d 410 (Fla. 4th DCA 1972), justifiable homicide, Stinson v. State, 245 So.2d 688 (Fla. 1st DCA 1971); Whitehead v. State, 245 So.2d 94 (Fla. 2d DCA 1971), and withdrawal, Laythe v. State, 330 So.2d 113 (Fla. 3d DCA), cert. denied, 339 So.2d 1172 (Fla.1976). All these defenses concern either the defendants' innocence or their legal excuse in committing a crime. None of them entail the commission of a crime other than the one charged in the indictment.

That a person committed a crime other than the one he is charged with is not a legal defense requiring a jury instruction. Furthermore, the crime of accessory after the fact is not a lesser included offense of the crime of premeditated murder. Cf. Newkirk v. State, 222 So.2d 435 (Fla. 3d DCA 1969) (accessory after the fact is a separate offense, not a lesser included offense of robbery). Therefore, the defendant was not entitled to an instruction on accessory after the fact as a lesser included offense. See State v. Anderson, 270 So.2d 353 (Fla.1972); Brown v. State, 206 So.2d 377 (Fla.1968). If the jury had been instructed about accessory after the fact, a conviction on that charge would not be valid since it would not be supported by the facts alleged in the indictment. Newkirk v. State, 222 So.2d 435 (Fla. 3d DCA 1969). Since the jury could not legally convict the defendant of accessory after the fact, no purpose would be served by requiring that they be instructed on the charge. Therefore, the court did not err in refusing to instruct the jury about accessory after the fact either as a defense or as a lesser included...