Resnick v. State

Decision Date07 November 1973
Docket NumberNo. 42467,42467
Citation287 So.2d 24
PartiesErrol RESNICK, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

John Paul Howard, Jacksonville, for appellant.

Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellee.

DEKLE, Justice.

The defendant was convicted of murder in the first degree without recommendation of mercy in the Circuit Court in and for Pinellas County. Subsequently, under authority of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), this Court in Anderson et al. v. State, 267 So.2d 8 (Fla.1972), reduced the defendant's sentence from death to life imprisonment. We now consider his remaining grounds urged for reversal.

The defendant was indicted by the Orange County Grand Jury on a charge of first degree murder. By the Statement of Particulars, the State charged the defendant as a principal under Fla.Stat. § 776.011 F.S.A. (1972), and alleged that the defendant had hired David Hicks a/k/a 'Preacher' and William Brunson to kill Eugene Walker, whom they suspected of being a U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); On October 7, 1971, a motion for a change of venue was granted and the case was transferred to the Pinellas County Circuit Court.

For the sake of brevity, most of the facts will be discussed in conjunction with the defendant's fourth point on appeal, which involves the admissibility of evidence under the 'co-conspirator rule.' Under the 'co-conspirator rule' all the acts and declarations of the members of a conspiracy constitute the acts and declarations of, and are therefore admissible against, each of them. 1 Before invoking the rule, however, independent evidence of the existence of a conspiracy, and of the objecting party's participation in it must be presented by the State. 2

It is the contention of the defendant that the State has failed to prove that a conspiracy to murder Walker in which he participated existed and therefore the admission of certain hearsay testimony was prejudicial error. In particular, the defendant urges as error the admission of the testimony of Brunson to the effect that after going to a motel room at the defendant's direction he met Preacher and was told by Preacher that 'we (are) going to 'hit' Walker.' We find no error in this.

First, as the State points out, there is sufficient independent circumstantial evidence upon which it may be concluded that a conspiracy to murder Walker existed. It is not necessary that the conspiracy be proved only by Direct evidence, any more than in other matters, for it is clear that participation in a criminal conspiracy may be shown by circumstantial evidence. 3

In early August, 1971, as testified to by Greg Lyell, a meeting took place at the ABC Bar in Orlando between Lyell, Brunson and the Defendant. At that meeting the defendant discussed the possibility of a 'leak' in his organization and asked Lyell if he could find out who it was. Lyell testified further that the defendant thought the leak might have been Walker or another man referred to only as 'Bob'. Lyell also testified that he had been sent to Washington, D.C., by the defendant for the purpose of committing a robbery and while there saw Preacher.

The next witness to testify was Brunson. Brunson's testimony corroborated Lyell's testimony as to the meeting at the ABC Bar and the trip to Washington, D.C. Brunson also testified that the defendant stated that if the leak proved true, 'the man had to be wasted.' The defendant also told Brunson and Lyell that he had a way of checking to see if Walker was the leak. According to the defendant, Walker was supposed to have killed a pilot and the way to find out if he was the leak was to have him dig up the pilot; 'if he didn't he would know he was lying and therefore he was the leak and to leave him in the same boat. . . .'--apparently meaning the same 'boat' as the pilot. Brunson also testified that the defendant asked Lyell if he had any objections to killing Walker because they were friends, to which Lyell replied that he did not.

Finally, Brunson testified that the defendant told him he had a 'strongman' that would help Brunson and Lyell steal a $1,000,000 coin collection from a coin collector's convention being held in Washington, D.C. Following a telephone conversation between Brunson and the defendant in Washington, D.C., Brunson met the apparent 'strongman', Preacher.

The robbery in Washington, D.C., did not take place, according to Brunson, because Preacher left for New Orlans and Lyell and Brunson were told by the defendant to return to Orlando. Upon arriving in Orlando the day before the killing, Brunson called the defendant and was told to meet him at a corner. Brunson met the defendant, they drove to a restaurant where the defendant borrowed Brunson's car and upon his return told him to go to Room 224 at a motel. Upon arriving at this room Brunson found Preacher in it. Preacher told Brunson (and it is this testimony which defendant objects to as hearsay) that they 'were to hit Walker.' This was merely the confirmation, the fulfillment, of the earlier conspiracy determining to do so which is based upon direct conversations and plans of the defendant. The 'condition' upon which the conspiracy to kill Walker was based--confirmation of defendant's suspicion of Walker as the 'leak'--was resolved; the act thereupon followed, based upon defendant's determination that Walker be 'wasted' if the suspicion proved true.

Preacher and Brunson remained at the motel until they received a call from defendant the night before Walker was killed, instructing them to go to Frisch's Big Boy at 9:00 p.m. that evening and he would have Walker with him. They followed these instructions and about 9:00 p.m. the defendant arrived with Walker. Brunson thought he saw some police cars there and so Preacher and Brunson got in their car to leave. Their suspicions proved to be correct for as Agent Moniack of the Department of Law Enforcement testified he was at Frisch's and saw the defendant and Walker but did not know Brunson and Preacher.

Defendant came over to Preacher and Brunson in their car and asked if they 'got a look at him'--'did they see Walker' and gave them a $50.00 bill for expenses. Preacher then told the defendant that he didn't like the place and Brunson suggested that they meet at a Waffle House. About 45 minutes later a meeting took place at the Waffle House between Brunson, Preacher, Walker and the defendant. At this meeting Walker was told he was to drive a truckload of coins, which, according to Brunson, did not exist. According to Brunson, Walker was told this so that they could get him alone. Brunson then told Walker he would call him at 8:00 the following morning.

The next morning, Brunson called Walker and agreed to meet him at the Waffle House at 12:00 noon. At approximately 11:30 a.m. Agent Moniack and several other agents met Walker at the Waffle House. After a short conversation in the men's room, Walker sat at a table by himself and the agents waited nearby. No one showed up and about 1:30 p.m. Walker left.

Brunson testified that he did not meet Walker because it was feared that 'he was being watched.' Later the same day, Brunson called Walker and asked him to be at the ABC Lounge in 10 or 15 minutes. The purpose for such short notice, according to Brunson, was to prevent anyone from following Walker. Brunson and Preacher met Walker around 5:30 p.m. and after a few drinks at the lounge and various other bars the three men went to an isolated junk yard. At this point, under the pretense of shooting Walker's pistol, they all got out of the car. While Walker was sitting on the right rear fender of the car, Preacher shot Walker to death. Walker's body was then placed in the trunk.

After having a few more drinks, Brunson and Preacher met the defendant at 11:00 p.m. at the Azalea Lounge. At this meeting the defendant asked them 'how everything went'. Brunson replied that Walker was dead. The defendant gave them $200.00 and told them to go to Miami. Brunson and Preacher departed, decided not to bury Walker, and headed for Tampa. En route, they took Walker out of the trunk and left him on the side of the road.

Upon arriving at Tampa, Brunson rented a room at the Old Orleans Motel and Preacher left for the airport. A few days later Brunson asked a girlfriend to call the defendant and ask him to pick him up. Brunson was later called by defendant and following their conversation the defendant drove to Tampa to pick up Brunson. As Brunson and the defendant were leaving the motel, they saw the motel's bellman and paid him for the room but the bellman could not corroborate the defendant's presence at the motel.

Based upon this evidence we conclude that there was sufficient circumstantial evidence, constituting independent proof of a conspiracy to murder, and therefore the statement objected to, which Preacher made to Brunson in the motel room, was admissible against the defendant.

The defendant next contends that the suppression of certain evidence in the State's possession and known to the State is grounds for a new trial. The evidence in question came to the attention of the State on October 22, 1971, while taking a sworn statement from Lyell. During the statement Lyell stated that Brunson had told him that he, Brunson, was the one who killed Walker and not Preacher.

It is the defendant's position that this evidence should have been voluntarily disclosed by the State as it was the State's constitutional duty to provide any evidence favorable to the defendant. In particular it is argued that had this evidence been made known to the defendant, the credibility of Brunson, upon testifying that Preacher had killed Walker, may have been impeached to such an extent that the jury might have reached a different verdict.

It has been held that where suppression of evidence by the State is 'deliberate,'--a...

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