Sosa v. State, s. 35131

• Decision Date: 05 November 1968
• Docket Number: 35132,Nos. 35131,s. 35131
• Citation: 215 So.2d 736
• Parties: Jose Manuel SOSA, Appellant, v. STATE of Florida, Appellee. Richard Austin GREENE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 736

215 So.2d 736

Jose Manuel SOSA, Appellant, v. STATE of Florida, Appellee.

Richard Austin GREENE, Appellant, v. STATE of Florida, Appellee.

Nos. 35131, 35132.

Supreme Court of Florida.

Nov. 5, 1968.

Rehearing Denied Dec. 12, 1968.

Arnold D. Levine, Tampa, Tobias Simon and Alfred Feinberg, Miami, for appellants.

Earl Faircloth, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.

PER CURIAM.

After a careful review of the voluminous evidence here we are of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree, and that the interests of justice require a new trial. The judgments are accordingly reversed and remanded for a new trial.

It is so ordered.

THOMAS, DREW, THORNAL and ERVIN, JJ., concur.

CALDWELL, C.J., and ROBERTS and ADAMS, (Ret.), JJ., dissent.

ERVIN, Judge (concurring specially):

The appellants, Jose Manuel Sosa and Richard Austin Greene, were indicted on September 7, 1965 for the murder of Nicanor Martinez. The indictment charged that Sosa, from a premeditated design to effect the death of Nicanor Martinez did hire, procure, aid, abet and counsel Richard Greene to murder said Nicanor Martinez. Greene was charged with the premeditated murder of Nicanor Martinez by shooting him with a pistol. On November 25, 1965 after a joint trial in the Circuit Court for Hillsborough County, Florida, the jury returned verdicts finding both appellants guilty of first degree murder, without recommendation of mercy, and the court sentenced each appellant to death.

On February 22, 1966 appellant Greene, in proper person, filed his notice of appeal. Notice of appeal for appellant Sosa was filed by his court-appointed counsel on February 23, 1966. Each notice of appeal was filed while motions for new trial were pending. On June 27, 1966 the trial court entered orders striking the motions for new trial. Subsequently, each appellant filed interlocutory appeals from the orders striking their respective motions for new trial, and by petitions for mandamus sought to compel the trial court to conduct a hearing on their motions for new trial. On September 13, 1966, this Court dismissed the appeals and denied mandamus without opinion. Assignments of error for the purpose of perfecting the present appeals were filed on September 27, 1966.

Pursuant to an order of this Court, these appeals were consolidated for the purpose of briefing, the use of the transcript of record and for oral argument. This opinion will be determinative of both appeals.

The issues presented for determination by this Court, stated in inverse order, are: (1) Whether the trial court's action in striking appellants' motions for new trial is sustainable on grounds that appellants abandoned said motions by filing notices of appeal. (2) Whether the lower court erred in admitting into evidence an inculpatory admission of appellant Greene overheard by police during a telephone call allowed him after his arrest. (3) Whether appellants were entitled to separate trials. (4) Whether the lower court erred in refusing either to enforce production of a letter pursuant to a subpoena issued on behalf of appellant Sosa, or to examine said letter to determine whether it was privileged. (5) Whether the lower court erred in admitting into evidence certain personal belongings of appellant Greene seized from the home of another in a search undertaken without a warrant and without the express consent of Greene. (6) Whether reversible error was committed by the lower court in admitting into evidence certain extrajudicial statements of witnesses for the state. Other errors assigned but not briefed and argued by appellants, do not warrant discussion. We consider the questions presented in the order stated.

Appellants have challenged an order of the trial court striking their motions for new trial. The record reveals that notices of appeal were filed by appellants while their motions for new trial were pending in the trial court. The principle is clearly established in this state that the filing of a notice of appeal in a criminal proceeding while a motion for a new trial is pending constitutes an abandonment of the motion for new trial and thereby vests exclusive and complete jurisdiction in the appellate court. See State ex rel. Faircloth v. District Court of Appeal, Third District, 187 So.2d 890 (Fla.1966); Harrell v. State, 197 So.2d 505 (Fla.1967).

Appellants contend that the operation of the 'abandonment rule' as above described is arbitrarily discriminatory and onerous to appellants since, as incarcerated, indigent defendants, they could not reasonably be expected to be informed of the loss of rights resulting from the filing of notices of appeal. We do not agree. The procedural rule under attack does not operate to cause forfeitures peculiar to incarcerated indigent defendants. There is no similarity between the procedure condemned in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and the procedure here involved. The rule of law under review is designed to foster and implement an orderly procedure for reviewing criminal convictions. In the absence of a showing that it operates to precipitate an unreasonable and discriminatory forfeiture of rights, we are reluctant to impede its intended purpose.

The record indicates that the trial court admitted into evidence an inculpatory statement made by appellant Greene and overheard by a police officer during a telephone call allowed to Greene subsequent to his arrest. No electronic listening device or telephone tapping or 'bugging' was involved. The police officer simply overheard Greene's telephone conversation because he was nearby when Greene spoke on the telephone. The telephone used was located in a common hallway in the jail and the officer who overheard and testified to the conversation was standing approximately ten feet from the appellant, waiting for him to finish in order to return him to the proper security. An attack is lodged against the admissibility of this statement on the ground that it was overheard by the police officer after Greene had been placed in custody and subsequent to his indicated, but unacknowledged and unsatisfied, desire to be assisted by the services of a lawyer. A challenge grounded on such facts does not disclose a violation of Greene's constitutional rights. The limitations circumscribing the rights of appellant Greene in the present case are distinctly stated in Miranda v. State of Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966): ¹

'In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. * * * Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.'

In the present case, Greene's inculpatory statement was entirely voluntary and was not compelled in any way through a process of questioning or interrogation conducted by state officers. We conclude that it was properly admitted into evidence.

Appellant Sosa contends that the trial court committed reversible error in denying his request for a separate trial. The principle is well established in this state that a motion for severance is addressed to the sound discretion of the trial court. Suarez v. State, 95 Fla. 42, 115 So. 519 (1928); Manson v. State, 88 So.2d 272 (Fla.1956); Rankin v. State, 143 So.2d 193 (Fla.1962). Before this Court will disturb a ruling denying severance, it must clearly appear that the challenged ruling constitutes an abuse of the discretion vested in the trial court and the burden of establishing such abuse rests with the party attacking the ruling. Manson v. State, supra; Jackman v. State, 140 So.2d 627 (Fla.App.1962).

The record is devoid of any showing that appellant Sosa was prejudiced by the introduction of evidence competent only to the charge against his co-defendant. Although the trial court permitted testimony before the jury relating to admissions by Greene which implicated Sosa, the record clearly reveals that such evidence was competent as to Sosa under the conspiracy nature of the charges brought by the state. As to evidence concerning admissions made by Greene subsequent to the termination of the circumstances of the alleged conspiracy and therefore incompetent as to Sosa, there is no showing that such evidence was prejudicial or in any way injurious to Sosa. See Saurez v. State, supra. This conclusion is buttressed by the fact that the trial court carefully instructed the jury that this evidence was not to be considered in any way related to the charge against appellant Sosa.

Appellant Sosa asserts that the trial court's refusal to grant a severance precluded Sosa from exercising his right to call his co-defendant as an exculpatory witness. In support of this contention, reliance is placed principally upon United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). In Echeles there was a substantial showing that the testimony of the co-defendant could reveal exculpatory evidence since the record showed that the co-defendant had made pre-trial statements exculpatory of defendant Echeles. In a situation such as this, the interest and constitutionally secured right of a co-defendant in remaining silent may well be antagonistic to the interest of a joint defendant in presenting the exculpatory testimony of the co-defend...