Parker v. State

• Citation: 456 So.2d 436
• Decision Date: 06 September 1984
• Docket Number: No. 61512,61512
• Parties: Norman PARKER, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 436

456 So.2d 436

Norman PARKER, Appellant, v. STATE of Florida, Appellee.

No. 61512.

Supreme Court of Florida.

Sept. 6, 1984.

Benedict P. Kuehne of Bierman, Sonnett, Beiley, Shohat & Sale, Miami, for appellant.

Jim Smith, Atty. Gen. and Paul Mendelson and Carolyn M. Snurkowski, Asst. Attys. Gen., Miami, for appellee.

PER CURIAM.

Parker (defendant) appeals from a judgment of the Eleventh Judicial Circuit, Dade County. The court adjudicated defendant guilty of first-degree murder, four counts of robbery, sexual battery, and unlawful possession of a firearm during the commission of a felony. Defendant was sentenced to death on the first-degree murder count following the jury's recommendation, and to consecutive terms of life imprisonment on the four robbery and one sexual battery counts. Entry of sentence was suspended on the conviction for unlawful possession of a firearm. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions and sentences.

The evidence at trial established that on July 18, 1978, defendant and his partner, Manson, were admitted to a Miami home in order to complete an illegal drug transaction with two male occupants of the home. Soon thereafter, defendant and Manson produced a sawed-off shotgun and a chrome-plated revolver, respectively, and On August 24, 1978, defendant shot a man in a Washington, D.C., bar. A bullet from this victim's body was matched with the bullet taken from Chavez's body. Jewelry found in possession of the defendant in D.C. was similar to jewelry taken from the Miami victims. Defendant testified that he had been in D.C. during the summer of 1978, including the day that the Miami murder was committed. Four other defense witnesses testified by deposition that defendant was in D.C. during the summer of 1978 but, on cross examination, were unable to swear defendant was in D.C. during the period, July 17-19, 1978.

demanded cocaine and money from the two victims. The two victims were forced to surrender jewelry, strip naked, and lie on a bed. Two other occupants, a female and her boyfriend (Chavez), were discovered in another room and also forced to strip naked and surrender jewelry. All four victims were then confined in the same room, on the same bed. Defendant and Manson exchanged weapons and defendant guarded the four victims while Manson searched the home for additional loot. Defendant threatened to kill the victims because he said he had escaped from jail and had nothing to lose. The victims pleaded with defendant and Manson to take what they wanted and leave. Chavez also pleaded with defendant and Manson to leave his girlfriend alone. After a period of time, defendant aimed the revolver at Chavez's back, whereupon Manson handed defendant a pillow. Defendant then shot Chavez through the pillow. The other three victims heard the muffled shot and nothing further from Chavez. Chavez died from a single gunshot wound to the chest. Defendant then committed a sexual battery on the female. Defendant and Manson fled, but were later identified by the surviving victims from a photographic lineup.

During the penalty phase, the evidence showed that defendant had been sentenced previously to life imprisonment in 1967 for a first-degree murder committed in Dade County, Florida, and that he was sentenced to life imprisonment for a second-degree murder committed in D.C. in August, 1978.

GUILT PHASE

Defendant raises eight points on appeal. The first of these points concerns two statements that he gave to the police and which he contends should have been suppressed. Following his arrest for the shooting in D.C., defendant confessed. The only relevance of this statement to the guilt phase of the trial in Florida was that a bullet taken from the body of the D.C. victim was matched to the bullet taken from the body of Chavez. Although defendant and his counsel were furnished copies of this statement several years before the trial and were informed of the state's intent to use the relevant item of information several weeks before the trial, the motion to suppress was not made until the trial was in progress. The trial court denied the motion as untimely, but conducted a hearing for purposes of appellate review. We agree that the motion was untimely, particularly since the trial court had discussed the possible prejudicial effect of admitting evidence from the D.C. shooting and had ruled, prior to trial, that it would limit the evidence to the fact of the shooting only. The defense raised no objection at that time. Fla.R.Crim.P. 3.190(i)(2); Savoie v. State, 422 So.2d 308 (Fla.1982); Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969). Even if we were to consider the issue, the evidence shows that the statement was voluntary. The testimony of the interrogating officer shows that defendant was promised nothing in return for the statement, voluntarily waived his Miranda ¹ rights, did not appear to be in pain or intoxicated, and did not ask to see a doctor. Defendant testified that he understood his rights and what he was doing.

Defendant was also interviewed by two policemen from Metro-Dade County on August 29, 1978, while in the custody of the D.C. police, awaiting trial for the D.C. murder. While being taken to the interview In his brief defendant urges that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), mandates that the statement be suppressed in that he requested counsel prior to the interview. Since the parties submitted their briefs, the United States Supreme Court has held that Edwards will not be retroactively applied to interrogations occurring before Edwards issued. ² Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). At oral argument, defendant conceded that his Edwards argument was no longer viable but argued nevertheless that his Miranda rights were violated. We disagree. First, defendant did not object at trial to the introduction of the three items of information and, thus, has not properly preserved the issue for appeal. Routly v. State, 440 So.2d 1257 (Fla.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984); DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA), review denied, 389 So.2d 1108 (Fla.1980); Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978). Second, even if the merits are reached, the totality of circumstances surrounding the interview clearly show that defendant voluntarily waived his Miranda rights and agreed to talk to the Metro-Dade police without his counsel present. Defendant claims that he did not know the Metro-Dade police wished to talk with him about the July, 1978, Dade County crimes and thought they only wanted to talk about his escape from the life imprisonment sentence he was serving in Florida. This contention is belied by his testimony at trial that he knew the D.C. police had received a detainer from Florida on the July 18, 1978, crimes. Thus, after defendant was introduced to the Metro-Dade police in the interview room, he had every reason to believe they were there in connection with the detainer. Third, the impeachment of defendant on cross examination by eliciting contradictory statements on whether he knew Manson and where he received the jewelry was proper to attack his credibility even if the statement itself had been inadmissible as direct evidence. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 Defendant's second point is that he was denied his sixth and fourteenth amendment rights to a fair trial because the statute governing excusals from the jury venire excuses expectant mothers and mothers not employed full time, with children under fifteen years of age. The trial court conducted a pretrial hearing on defendant's motion raising this issue and denied the motion. Defendant has not furnished us with a transcript of this hearing and we are unable to consider the trial court's ruling. McMann v. State, 55 So.2d 538 (Fla.1951). In any event, we have previously ruled contrary to defendant's position. Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982); McArthur v. State, 351 So.2d 972 (Fla.1977). Defendant's reliance on Alachua County Court Executive v. Anthony, 418 So.2d 264 (Fla.1982), is misplaced, because that case concerned denial of equal protection to male parents not employed full time with children under fifteen years of age. ³

room, defendant told the D.C. policeman that he wanted to see the attorney appointed to defend him on the D.C. murder charge. The D.C. policeman delivered defendant to the interview room without obtaining his counsel. There, the Dade County officers identified themselves as Metro-Dade policemen and defendant signed a waiver of his Miranda rights, agreeing to talk to them. During this interview, defendant stated that he did not know Manson, and that jewelry he was wearing was given to him by his girl friend. Defendant also surrendered the jewelry to the Metro-Dade policemen. Defendant's pretrial motion to suppress the statement was denied. At trial, one of the Dade County robbery victims testified, without objection, that certain items of the surrendered jewelry were taken from him during the July 18, 1978, episode. A Metro-Dade policeman testified, without objection, that the jewelry was surrendered to him by defendant in D.C. on August 29, 1978. Later, during the case for the defense, defendant testified that he knew Manson and had received the jewelry when Manson visited him in D.C. in late July 1978, after the Dade County crimes. On cross examination, the prosecution elicited from defendant, without objection, that he had told the Metro-Dade police that he did not know Manson and that he had received the jewelry from his girl friend. (1971); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).

Defendant's third point is that the trial court abused its discretion in refusing his request for additional peremptory...