Smith v. State

• Citation: 424 So.2d 726
• Decision Date: 28 October 1982
• Docket Number: No. 57743,57743
• Parties: Frank SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 726

424 So.2d 726

Frank SMITH, Appellant, v. STATE of Florida, Appellee.

No. 57743.

Supreme Court of Florida.

Oct. 28, 1982.

Rehearing Denied Jan. 27, 1983.

Philip J. Padovano, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is before the Court on appeal from a capital felony conviction for which a sentence of death was imposed. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant Frank Smith was convicted of robbery, kidnapping, sexual battery, and first-degree murder. The evidence showed that late in the evening on December 12, 1978, appellant and two accomplices went to a convenience store in Wakulla County and robbed store clerk Sheila Porter of money belonging to her employer. Then they abducted Sheila Porter from the store and took her into neighboring Leon County. There they took her to a motel room where all three men committed sexual battery upon her. Afterwards they took her to a wooded area. Accomplice Victor Hall testified at trial that he waited in the car while appellant and Johnny Copeland walked Sheila Porter into the woods. Then he heard three gunshots, after which appellant and Copeland returned to the car without Sheila. Her body was found two days later with three bullet wounds in the back of her head.

Appellant was initially indicted in Wakulla County for first-degree felony murder, robbery, kidnapping, and sexual battery. After his motion for change of venue was granted, trial commenced in Jefferson County but ended in a mistrial. Thereafter the prosecution was again taken up in Franklin County, where a second grand jury issued an indictment charging appellant with premeditated murder, robbery, kidnapping, and sexual battery. After trial the jury found appellant guilty of first-degree murder, robbery, kidnapping, and sexual battery. In accordance with the jury's recommendation, the trial judge imposed a sentence of death.

Appellant raises several questions regarding the validity of his conviction. He argues that the filing of the second indictment was improper; that the court erred in admitting into evidence some of his pretrial statements; that the court erred in admitting evidence of collateral crimes; and that the court erred in denying his requested instruction on the defense of withdrawal. Appellant also challenges as improper the imposition of the sentence of death. We find no reversible error and affirm the convictions and the sentence of death.

Appellant argues that the indictment was defective and should have been dismissed, on two grounds. He argues that the grand jury had no authority to make a substantive change in the pending indictment and he argues that the new indictment was filed so immediately prior to the commencement of the trial as to prejudice him in the preparation of his defense. Initially, the new indictment was captioned "Amended Indictment." Appellant moved to dismiss on the ground that a grand jury may not amend an indictment. Thereafter, the state moved to have the word "amended" stricken from the caption, asserting that it was a clerical error. The trial court denied appellant's motion and granted the state's. The court determined that the second grand jury had independently examined the evidence and had filed a new rather than an amended, indictment. At the beginning of the trial the state filed a notice of nolle prosequi with regard to the first indictment. Appellant is correct in his argument that a grand jury has no authority to amend an indictment to charge an additional or different offense. See Fla.R.Crim.P. 3.140(j) and Committee Note (1968); State v. Black, 385 So.2d 1372, 1375-77 (Fla.1980) (England, J., concurring). However, a grand jury may file a completely new indictment regarding the same alleged criminal actions, even though a prior indictment is pending. See Committee Note, Fla.R.Crim.P. 3.140(j) (1968); Eldridge v. State, 27 Fla. 162, 9 So. 448 (1891).

So, a grand jury may charge a defendant with an additional or different offense by filing a second indictment. Although it may appear that the result is the same, the process is significantly different. Before filing the second indictment, the grand jury must independently evaluate the case. This requirement ensures that the grand jury itself finds the filing of additional or different charges appropriate. Since there is nothing in the record which refutes the trial court's finding that the second grand jury independently reviewed the evidence before returning the second indictment, there is no basis for us to disturb the court's ruling.

Appellant argues that the second indictment was untimely and prejudicial. We note that it was filed twenty days before the trial. Thus appellant had twenty days to prepare his defense against the additional charge of premeditated murder. This amount of preparation time was not insufficient considering the fact that the question of premeditation was already at issue in connection with the issues of intent to withdraw and intent to murder to avoid apprehension and prosecution.

Appellant's next two points on appeal concern the admissibility of pretrial statements he made to law enforcement officers before and after his arrest. Appellant argues that the statements were inadmissible because they were made after he was illegally detained, because he was denied his right to consult with counsel, and because the statements were not freely and voluntarily made.

Appellant invokes certain constitutional rules of evidence. Statements that are the product of illegal detention are inadmissible. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). A suspect has the right to consult with legal counsel before being questioned. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Pretrial incriminating statements are only admissible if they are freely and voluntarily made. The facts as shown by the record, however, do not support any of appellant's contentions regarding the admissibility of his statements.

In the afternoon of December 13th, after Sheila Porter had been reported missing, police stopped appellant in Tallahassee and questioned him. Investigators had been told by a citizen that appellant owned a car matching the description of a car mentioned on the television news. Appellant allowed officers to photograph his car and told them he had been at his grandmother's house in Tallahassee the previous night.

The officers learned from another officer that the car in their photograph had been seen parked outside a Tallahassee motel the night before. Because of this discrepancy with appellant's story, an officer went to see appellant again that evening. The officer asked appellant to accompany him to the police station for questioning, but advised him he was not obliged to go. Appellant agreed to go. At the police station appellant told investigators he had spent the night alone at the motel after being stood up by a girlfriend. He denied having been in Wakulla County the night before. After the interview appellant declined a ride home and waited several hours for his friend Johnny Copeland who was also there being questioned. He finally was taken home by police officers at about 5:00 a.m., December 14.

Later that day, after gaining information indicating that appellant's car had been seen parked at the convenience store near the time of Sheila Porter's disappearance, police sought a warrant for appellant's arrest. He was arrested at 7:00 p.m., December 14, and again agreed to talk to investigators. He told them that he went with Johnny Copeland to the convenience store, but that he was asleep in the back seat of the car. He said that when he awoke there was a white girl huddled down in the front seat, and he told Copeland to get her out of his car. So, Copeland took the girl and put her in his own car. Appellant said that the next time he saw Copeland, Copeland said that he had done something to the girl and described the area where he left her. Appellant then showed police to the general area where the body was subsequently discovered.

On the morning of December 15, after helping police search for the body, appellant talked to an attorney, but did not reach a formal agreement for representation. At his first appearance later that day, appellant told the judge that he did not have an attorney but was planning to get one. Three days later appellant told his jailer that he wanted to make a statement. Police advised him of his rights and he signed a waiver form. He confessed to participating in the robbery and kidnapping. He said he was present when Johnny Copeland and Victor Hall raped Sheila Porter, but he denied participating in the rape. He said he was present when Copeland shot Sheila, and said he tried to talk him out of doing so. This account was inconsistent with the trial testimony of Victor Hall, who said that Smith did participate in the sexual battery. Hall also testified that when appellant and Copeland took the victim into the woods and three shots were fired, it was appellant who was holding the gun when they came back.

The state introduced all of these statements into evidence. Before each questioning session, appellant was advised of his rights in accordance with the Miranda form. Appellant argues however that his pre-arrest statements were inadmissible because his detention was illegal. The detention was illegal, appellant contends, because the police did not have probable cause for an arrest. The argument is without merit. Before his arrest pursuant to warrant, appellant was not detained and was not required to answer questions. He voluntarily agreed to be interviewed.

Appellant argues that his post-arrest statements were inadmissible because they were made without benefit of legal counsel. This argument also is without merit. The record shows that the statements were freely and...