Smigiel v. State, 82-404

• Decision Date: 08 September 1983
• Docket Number: No. 82-404,82-404
• Parties: Gary George SMIGIEL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 239

439 So.2d 239

Gary George SMIGIEL, Appellant, v. STATE of Florida, Appellee.

No. 82-404.

District Court of Appeal of Florida Fifth District.

Sept. 8, 1983.

Rehearing Denied Oct. 5, 1983.

Edwin H. Duff, III, Daytona Beach, and Donald A. Lykkebak, Orlando, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a judgment of conviction and sentence of three years in prison for the crime of tampering with evidence, in violation of section 918.13, Florida Statutes.

The principal point on appeal is whether the trial court erred in denying the appellant's motion to suppress evidence obtained from an allegedly illegal search and seizure.

Appellant, an attorney, and Larry Deemer, his investigator, were charged by information on October 29, 1981, with tampering with evidence alleged to have occurred on or about December 5, 1980. Appellant sought suppression of a magnetic tape eraser seized October 12, 1981, from appellant's private law office pursuant to a search warrant, and to suppress all testimony concerning said evidence, any scientific reports or memoranda concerning said evidence and any evidence directly flowing from the search and seizure of said tangible evidence. The trial court denied appellant's motion to suppress, both at a pre-trial hearing and before introduction of the tape eraser at the non-jury trial.

Appellant's conviction was based upon the following facts. As defense attorney for Ralph Feathers in a drug case, the appellant sent a letter to an assistant state attorney requesting that arrangements be made for appellant and/or his investigator to listen to numerous incriminating tape recordings to be used against Feathers. Several conversations between Feathers and the state's informant had been recorded by electronic surveillance and the tapes were important in the case against Feathers, for independent corroboration of an informant's testimony.

Allen Kaye, a narcotics officer, testified that he went to appellant's law office on December 4 and 5, 1980, to allow appellant to hear and have a court reporter take down and transcribe the tapes. Kaye had no knowledge of the conversations on the tapes because he had not taken part in that investigation. When Kaye arrived at appellant's office at 9:00 a.m. on December 4th he, appellant, Deemer and Feathers listened to approximately four or five tapes. There were problems hearing them on Kaye's small cassette player so Deemer volunteered to go home and get his better tape player. When he returned they listened to approximately five more of the tapes until 4:00 p.m. when appellant indicated that he would like to finish listening to the rest of the tapes the following day. The court reporter was not asked to return the next day.

When Kaye returned to appellant's office at approximately 9:00 a.m. on December 5, 1980 he met with Deemer and they went to the office library where they had listened to the tapes the day before. They talked there for a few minutes and then Deemer invited him to have a cup of coffee in the room next door, which was approximately ten feet from the library. Kaye testified that he may have placed one or two of the tapes on the table before he left the library to have coffee with Deemer. Kaye said he checked the back door to the library leading down the stairway, and it was locked, but he did not check the library bathroom. According to Kaye, he and Deemer were in the secretary's office talking and drinking coffee for approximately thirty minutes; he could continuously observe the door to the library, and did not see anyone go into the library.

Kaye recalled that after appellant and Feathers entered the room, they all went to the library and began listening to the remaining tapes. Three of them were totally inaudible and the remaining three had only a few words left on them. A court reporter was not present on December 5, 1980.

How the tapes became inaudible was the crux of the case--the state accused appellant of causing the problem. Officer Pat Green testified at trial that he had heard the tapes before they were taken to appellant's office and they were not inaudible; he said he listened to them afterwards and they had been damaged or erased. Kaye and Green checked the evidence locker and found nothing which might have caused the erasure of the tapes and another policeman, Mahoney, said accidental erasure could be ruled out because certain tabs had been punched out to prevent this. The "chain of custody" was established to support the state's position regarding the security of the tapes, except when at appellant's office.

After his conviction for the drug offense, Feathers contacted the state attorney's office concerning the events of December 4 and 5, 1980, and the destruction of several of the tapes. Feathers was promised nothing for the information except immunity for his conduct involved in destroying the tapes and he was told that he would not receive any reduction of his sentence.

Feathers testified that he listened to the tapes in his cocaine trafficking case in December of 1980 in appellant's library and that because there was trouble with the tape recorder on the first day the court reporter had difficulty hearing the tapes. Feathers said that at one time during that first day Deemer went home to get his tape recorder/player. According to Feathers, he, appellant and Deemer passed the tapes around quite a bit so that the officer would get used to their handling the tapes. He said something was to be done with the tapes but they were not sure what. He said that late in the afternoon on December 4th, when it became apparent that the tapes were damaging to Feathers' case, appellant called a recess until the next day.

After the officer left with the tapes the first day, appellant, Deemer and Feathers discussed how to destroy the tapes. Feathers testified that he and Deemer went to a hardware store, bought a magnet, came back to appellant's office and put the magnet inside the tape recorder, but discovered that it could not erase a tape. He said that appellant then went over to the desk of his secretary, who was not there, picked up an electronic magnet and said, "this is the only thing that will really work."

According to Feathers, when the three of them could not figure out how to keep the magnetic tape eraser under the conference table, appellant took the electronic eraser, put it behind the curtain in his library, plugged it in and said "we'll leave it here and tomorrow morning we'll erase the tapes."

Feathers said that the agreed upon plan was for Feathers to hide in the bathroom while Deemer persuaded the officer to go out for coffee with him. Meanwhile, appellant would appear to be trying to locate Feathers. Feathers was to wait in the bathroom and as soon as Deemer and the officer left, Feathers was to leave the bathroom, use the magnetic tape eraser from behind the curtain, walk out the exit door and come back in the front door and join the others who were having coffee.

Feathers admitted that the tapes were erased by him on December 5th as planned, and identified the tapes presented as evidence at trial as appearing to be the same tapes he erased that day. Feathers said that after the event, appellant quoted him a price of $100,000.00 for his services, saying it was worth that amount because if anybody ever found out about the incident, it would be the end of his law practice.

Feathers admitted on cross-examination that the only reason he was testifying against appellant was because he had some faint glimmering of hope that something good would come out of it for him. He said that his sole motive for erasing the tapes was because appellant told him the state had no other evidence against him to sustain a conviction.

A joint stipulation containing the opinions of Dr. Harry Hollien, an expert in the field of communication science, was introduced into evidence. Dr. Hollien examined the tapes and the LaFayette magnetic tape eraser seized from appellant's office and compared the specific switching signature of the LaFayette magnetic tape eraser with the signature found on the erased tapes and found them to be identical. Dr. Hollien was of the opinion that the tapes in question were not erased by the use of a common magnet but, rather, with an electronic tape eraser.

The claimed illegal search warrant to obtain the magnetic tape eraser was obtained by Officer Kaye. Officer Kaye attached a two-page sworn statement relating his recollection of the events on those dates, including the fact that Deemer lured him out of the library and that, upon listening to the remaining tapes, they were blank. This affidavit was made on October 8, 1981, after Officer Kaye became aware of a sworn deposition given by Feathers on October 8, 1981, which was largely corroborative of Kaye's independent observations. In the deposition, Feathers detailed the plan to destroy the tapes which were the most damaging to his case. Feathers related appellant's involvement and admitted erasing the tapes as planned. Feathers also said that to his knowledge the appellant still had the electric eraser used to erase the tapes in his office. The affidavit for the search warrant consisted of Kaye's statements of his personal knowledge and recounted a summary of Feathers' deposition. ¹

The appellant contends that the lower court erred in denying his motion to suppress because the affidavit in support of the search warrant did not meet the "Aguilar--Spinelli test" ² for reliability and because the information in the...