Porter v. State

• Decision Date: 17 November 1981
• Docket Number: No. 79-822,79-822
• Citation: 410 So.2d 164
• Parties: Wallace Jerome PORTER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 164

410 So.2d 164

Wallace Jerome PORTER, Appellant, v. The STATE of Florida, Appellee.

No. 79-822.

District Court of Appeal of Florida, Third District.

Nov. 17, 1981.

On Rehearing Feb. 25, 1982.

Bennett H. Brummer, Public Defender, and David Hertzig, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, NESBITT and FERGUSON, JJ.

FERGUSON, Judge.

After a jury trial, appellant, Wallace Jerome Porter, was adjudicated guilty of first-degree murder and kidnapping and sentenced to two consecutive terms of life imprisonment. Porter appeals claiming error as to four points. We reverse.

Porter was brought to the Public Safety Department building on June 6, 1977 by Detective Derringer for questioning with respect to the death of Charley Tyrone Haggins. Porter was not given his Miranda rights. He testified that he was beaten during this interview.

On September 18, 1977, Detectives Gergen and Derringer stopped Porter while he was driving his automobile and asked him On November 5, 1977, Detective Gergen obtained an arrest warrant and again arrested Porter, taking him to a homicide office where he was held for nearly nine hours. Porter testified that he was handcuffed, slapped, had the barrel of a pistol pushed into his nostril, and was further physically abused by Gergen who pulled hairs out of his moustache and chin over a two-hour period. He testified also that he was given his Miranda rights, but signed the waiver form to avoid further beatings. On the basis of additional statements made at that time, Porter was jailed on murder charges.

for his driver's license. When Porter failed to produce his license, he was arrested, taken to the Public Safety Department building and questioned by Gergen. Porter testified that he was told to give a statement or he would be arrested on the charge and that he was instructed how to answer questions that would be asked him in the presence of a stenographer. Porter was advised of his rights. Porter also testified that during this interview of nearly five to six hours, he was beaten, punched in the stomach, hit in the head with telephone books, struck in the face and chest by Gergen's elbow, and that the detectives pulled down his undershorts and shot rubber bands at his penis. He further testified that a broom handle was broken over his head, a gun pointed to his forehead, a burning substance sprayed in his face as he stood handcuffed in a corner with his undershorts covering his face. Porter was released from police custody "around 11:00 P.M." and was seen at Hialeah Hospital one minute after midnight. This testimony of physical abuse was supported by evidence as to the physical condition of Porter when he returned home and by medical records from Hialeah and Jackson Memorial Hospitals where Porter subsequently went for treatment. The physician who examined Porter on the night of September 18th was called by the state as a rebuttal witness. He agreed that defendant's injuries to the face and abdomen were consistent with a recent beating.

Four days later, Porter first saw his attorney, Robert Gross, who advised him not to talk to police without his presence and wrote Porter a note explaining that Porter did not wish to be questioned or to submit to a polygraph test without the presence of Gross. Later that day detective Gergen took Porter from the county jail for the purpose of having him submit to a polygraph examination. ¹ Porter handed him the note from Gross. Gergen read the note. Porter testified that Gergen told him that Gross would not represent him at the trial and would not let him call the attorney and that he signed a second waiver form because he was afraid that he would be attacked again. After the polygraph exam, Porter was taken back to the homicide office by Gergen, signed another waiver form, and gave additional statements to Gergen.

Detective Gergen testified that he did not physically abuse the defendant. There was also testimony by the reporter who recorded the statements from Porter on June 6, 1977, September 18, 1977 and November 10, 1977 that she did not remember anything out of the ordinary insofar as Porter's physical condition and recalled no comments made about his condition. The polygraph examiner testified that there was nothing about Porter's appearance that would lead him to believe that Porter had been physically abused.

The five statements given by Porter as to events immediately preceeding the victim's death and his role in the gang slaying all vary-the first being completely exculpatory and the last being a confession. Porter's accounts of the victim being beaten in the head or face with a baseball bat and pistol are not supported by findings of the medical examiner who examined the body of the victim. The confession is the only evidence which linked Porter to the homicide.

As his first point on appeal, Porter claims the trial court erred in denying his Though we reverse on the first point, we address the other issues so as to guide the trial court in the retrial of the case. As the second point on appeal, Porter claims that the State failed to prove, apart from appellant's statements and confessions, the corpus delecti in that the body was not adequately identified. We find this claim to be without merit.

motion to suppress the statements he made at the various questionings. Since appellant agrees that the admissibility of the statement taken at the questioning on June 6, 1977 may not have been preserved at trial and is not fundamental to the case, we give our attention to the statements of September 18, 1977, November 5, 1977 and November 10, 1977. We find the statements of September 18, 1977 and November 5, 1977 inadmissible because they were not voluntarily made. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (American system of justice demands that the government seeking to punish an individual produce the evidence against him by its independent labors rather than the expedient of compelling it from his own mouth); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940) (conviction of petitioner solely upon confessions and pleas extorted by violence and torture is a denial of due process and equal protection); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) (confession shown to have been extorted by state using brutality and violence inconsistent with due process). The state is required to establish voluntariness by a preponderance of the evidence. Brewer v. State, 386 So.2d 232 (Fla.1980). On this record, especially in light of the independent medical evidence presented by both sides tending to corroborate Porter's testimony, we hold the state has failed to establish the requisite voluntariness. In addition, we specifically find that the statements obtained from Porter November 10, 1977 are inadmissible because the statements were taken after Porter invoked his right to counsel. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

As the third point on appeal, Porter claims that the trial court erred in failing to compel production of the police report of Officer Blyth because Officer Blyth was listed as a witness and the report was subject to discovery under Florida Rule of Criminal Procedure 3.220(a)(1)(i). Unfortunately, the written demand for discovery was not made part of the record on appeal so we are unable to determine whether that demand was sufficiently specific in limiting the request for the documents as required by State v. Dumas, 363 So.2d 568 (Fla.3d DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979). Our reversal on the first point raised by appellant makes it unnecessary for us to issue an order directing a party to supply the omitted part of the record under Florida Rule of Appellate Procedure 9.200(f)(2), effective January 1, 1981.

As the fourth point on appeal, Porter claims that the trial court erred in sentencing defendant to two consecutive sentences for crimes which arose out of the same transaction. Defendant claims that in this case the murder was not premeditated, therefore, he could have been convicted for the crime of first-degree murder only on the basis of the kidnapping felony. If on retrial, there is no evidence of premeditation and the kidnapping charge is the sole basis for a verdict of first-degree murder, Porter may be convicted but not sentenced for both first-degree murder and kidnapping. If there is evidence of premeditation and kidnapping, Porter may be convicted and sentenced for both first-degree murder and kidnapping. State v. Hegstrom, 401 So.2d 1343 (Fla.1981); State v. Pinder, 375 So.2d 836 (Fla.1979); Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981); § 775.021(4), Fla.Stat. (1979).

Reversed and remanded for new trial.

ON MOTION FOR REHEARING

SCHWARTZ, Judge.

On consideration after oral argument of the state's motion for rehearing of our decision and opinion of November 17, 1981, we adhere to the conclusion that the judgment must be reversed for a new trial because the confessions of November 9-10, 1977 were, as a matter of law, invalidly obtained contrary to the strictures of Edwards v. Arizona, 450 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

We have concluded, however, that we were unjustified in requiring suppression of the statements of September 18, 1977 and November 5, 1977 on the ground that they were the product of physical brutality by the police. Our review of the record reveals that whether any such abuse took place was the subject of sharply conflicting testimony, ¹ which was solely for the trial judge and then the jury-and decidedly not this court-to resolve. Tibbs v. State, 397 So.2d 1120 (Fla.1981); Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Stanford v. State, 110 So.2d 1 (Fla.1959); Holland v. State, 39 Fla. 178, 22 So....