Perkins v. State

Citation228 So.2d 382
Decision Date08 October 1969
Docket NumberNo. 37005,37005
PartiesCecil PERKINS, Appellant, v. STATE of Florida, Appellee.
CourtUnited States State Supreme Court of Florida

S. Gunter Toney, of Toney & Guarisco, Tallahassee, for appellant.

Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

PER CURIAM.

This is a direct appeal from a verdict and judgment convicting Appellant of rape without recommendation of mercy. Jurisdiction of the appeal attached under Section 4(2), Article V, Florida Constitution, F.S.A.

Appellant, Cecil Perkins, a seventeen-year-old Negro, was indicted on October 9, 1967 for the rape of a nineteen-year-old white woman. The victim testified she lived in a trailer about five miles north of Havana, Florida, with her husband and her one-year-old child. On Monday, August 14, 1967, she took her husband to work in Tallahassee at 7:15 a.m., and returned with her child to her home at 8:30 or 8:45 a.m. She recalled that at approximately 9:30 a.m. a Negro man appeared at the door and called for her husband, 'Johnny Boy,' and said he wanted to use the telephone. Since a number of the people in the area referred to her husband by that name, the witness assumed her husband knew the man and that it would be all right to make the call for him. Then, after making the telephone call and receiving a recorded answer, she testified the man came through the door, saying that he was going to kill her. At this point in the trial, the witness pointed to Appellant as the person who came through the door at her. When the Appellant lunged at her, the witness recalled she dropped the telephone and ran backwards about thirty feet into the bathroom where she fell, striking her head on the tub. She stated Appellant then grabbed her by the neck and questioned her as to the presence of other persons in the house and as to the amount of money she had. During an ensuing scuffle, the witness testified her slacks were forcibly removed; that she was thrown on the bed; and that appellant 'got on top of' her and had sexual intercourse with her.

The day after the assault, according to the victim's testimony, she identified Appellant from some photographs shown her by Sheriff Edwards and Deputy Martin of the Gadsden County Sheriff's Department. She testified that later in the week, she was taken to the jail in Bainbridge, Georgia, where she positively identified Appellant as the person who assaulted her. During the course of her testimony, the witness identified a pocketbook as her property. She displayed the pocketbook and its contents in the presence of the jury and stated that the pocketbook and its contents disappeared at the time of the assault.

Appellant was taken into custody around 11:00 a. m. on the day of the alleged crime when officers entered the house of Appellant's father located across the Georgia state line and found Appellant in one of the bedrooms. The arresting officers were led by Sheriff White of Decatur County, Georgia, who testified the officers were given permission to search the premises by Appellant's stepmother and wife. These persons testified that no such permission to search was given to the officers. Certain clothes and jewelry alleged to belong to the victim, and alleged to have been found in the room occupied by Appellant, were admitted into evidence over Appellant's motion to suppress. A pocketbook alleged by investigating officers to have been found by Appellant's twelve-year-old sister, as hereinafter more fully explained, was also admitted into evidence over Appellant's motion to suppress. Investigating officers testified the whereabouts of the pocketbook was made known through Appellant's admission after he was placed in the Bainbridge jail, and that this information was given to Appellant's sister after a search of the designated area had failed to produce the pocketbook. Sheriff White and Deputy Martin testified that 'Miranda warnings' were read to Appellant before he was questioned and before any incriminating statements were obtained, and that Appellant was not coerced or threatened in any way. Officer Martin testified as to statements made by Appellant which implicated him in the crime. Appellant testified he was held incommunicado without food until Wednesday evening, at which time he was handcuffed to some jail bars and beaten. At this time Appellant stated he told the authorities he would admit to whatever they said he did. Appellant further testified that at no time was he advised of his rights and that he was told he did not need a lawyer. The officers vigorously denied that Appellant was not warned of his rights and that his statements were not voluntarily given.

Trial commenced on January 23, 1968. The next day the jury returned a verdict of guilty of rape as charged in the indictment, without a recommendation of mercy. Motion for new trial was denied and on January 31, 1968, Appellant was sentenced to death. A notice of appeal was timely filed in the Circuit Court of the Second Judicial Circuit in and for Gadsden County, Florida, on February 1, 1968.

In his appeal to this Court, the following contentions raised by Appellant merit discussion:

(1) Whether the trial court erred in denying Appellant's motion to suppress tangible evidence found in the bedroom Appellant was occupying at the time of his arrest, and in admitting testimony concerning such evidence.

(2) Whether the trial court erred in denying Appellant's motion to suppress the pocketbook, State Exhibit No. 8, and in denying Appellant's motion for a mistrial which was grounded on the introduction of hearsay testimony in connection therewith.

(3) Whether the trial court erred in admitting into evidence testimony of the out-of-court identification of Appellant by the prosecutrix consisting of the photographic identification and the subsequent custodial identification where such out-of-court identifications took place in the absence of counsel for appellant; and whether the in-court identification of Appellant by the prosecutrix was tainted by the prior out-of-court identifications.

(4) Whether the trial court erred in admitting into evidence testimony as to the alleged admissions and confessions of Appellant.

(5) Whether the trial court excused for cause prospective jurors who merely voiced opposition to capital punishment or expressed conscientious scruples against same, thereby violating Appellant's constitutional right to an impartial jury.

We proceed to dispose of Appellant's contentions in the order stated above.

As to the issue the trial court erred in refusing to suppress certain evidence found in the bedroom Appellant was occupying at the time of his arrest, and in admitting testimony pertaining to such evidence, we do not understand Appellant to question the well-settled and oft stated rule that a warrantless search is permissible if properly incident to a lawful arrest. Rather, the thrust of Appellant's argument on this issue is grounded on the contention that the disputed evidence was secured as a product of a search incident to an arrest which was not bottomed on the existence of the necessary element of probable cause. Examination of the record does not sustain Appellant's contention on this point.

First, the investigating officers, consisting virtually of a team of Florida and Georgia officers headed officially by Sheriff White of Decatur County, Georgia knew that the victim was assaulted by a young Negro male. The officers were given a description of the assailant by the victim. The officers discovered a pick-up truck with Georgia license plates located in relative proximity of the victim's home. A license check of this vehicle precipitated an interrogation of the registered owner's wife which in turn revealed that Appellant, the owner's brother-in-law, had possession of the truck on the morning of the attack and was supposed to have used it for transportation to work that morning. The investigating officers also discovered the victim's car, which was stolen by the assailant, abandoned about a mile from the location of the residence of Appellant's father. Further investigation led to witnesses who related they had seen the 'Perkins boy' walking from the direction of the victim's abandoned car, through a cornfield, emerging on the main road where he caught a ride in a pick-up truck. Interrogation of a Mr. Ford revealed that he owned a pick-up truck and had on the day in question picked up Appellant near the cornfield and given him a ride to a location close to his father's house.

Thus, the record in this case reveals the investigating officers possessed information in the form of a sequence or chain of occurrences which would indicate to a prudent man, knowledgeable of the information possessed by the investigating officers, that a reasonable ground existed for belief of Appellant's guilt or implication in the alleged crime, and that this basis for belief existed prior to the time the officers entered the room occupied by Appellant and placed him under arrest. See State v. Outten (Fla.1968), 206 So.2d 392; Diaz v. State (Fla.1949), 43 So.2d 13; see also, U.S.C.A.Const. Amend. 4.

Although there is conflicting testimony in the record as to whether the investigating officers actually obtained permission from Appellant's stepmother and wife to search the premises, the question of whether sufficient and valid consent to search existed is not germane to the legality of Appellant's arrest and the search incident thereto under the independent showing of probable cause attending the factual circumstances above enumerated. Thus, having concluded Appellant was validly and legally arrested, it follows that the disputed evidence seized in his bedroom and on his person as incident to his arrest, and testimony relating thereto, was admissible into evidence. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

Appellant contends the trial court erred in...

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23 cases
  • Perryman v. State
    • United States
    • Texas Court of Criminal Appeals
    • 16 Septiembre 1971
    ...107 N.J.Super. 128, 257 A.2d 377; State v. Fields, 104 Ariz. 486, 455 P.2d 964; Hayes v. State, 46 Wis.2d 93, 175 N.W.2d 625; Perkins v. State, 228 So.2d 382 (Fla.); Gaitan v. State, Mo., 464 S.W.2d 33, 35; State v. Borchert, 479 P.2d 454 (Mont.). See also Comment, 'The Right to Counsel Dur......
  • Kirby v. Illinois 8212 5061
    • United States
    • U.S. Supreme Court
    • 11 Noviembre 1971
    ...to pre-indictment confrontation has severely divided the courts. Compare State v. Fields, 104 Ariz. 486, 455 P.2d 964; Perkins v. State, 228 So.2d 382 (Fla.); Buchanan v. Commonwealth, 210 Va. 664, 173 S.E.2d 792; State v. Walters, 457 S.W.2d 817 (Mo.), with United States v. Greene, 139 U.S......
  • State v. Graham, 69--681
    • United States
    • Florida District Court of Appeals
    • 30 Octubre 1970
    ...eliminates any argument that our Supreme Court would apply the standard requiring exclusion of a reasonable doubt. And Perkins v. State, Fla.1969, 228 So.2d 382, would indicate clearly that the allegations of one who seeks to suppress a confession 'must appear to be negatived by clear and c......
  • Baker v. State
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    • Nevada Supreme Court
    • 21 Junio 1972
    ...inapplicable to out-of-court photographic and custodial identifications, because they occurred before indictment. Perkins v. State, 228 So.2d 382 (Fla.1969). Similarily, Missouri has approved a lineup after arrest but before any formal charges, saying Wade and Gilbert apply only post-indict......
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