Stansel v. State, 74--685

• Decision Date: 18 June 1974
• Docket Number: No. 74--685,74--685
• Citation: 297 So.2d 63
• Parties: Raymond G. STANSEL, Jr., Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 63

297 So.2d 63

Raymond G. STANSEL, Jr., Petitioner, v. STATE of Florida, Respondent.

No. 74--685.

District Court of Appeal of Florida, Second District.

June 18, 1974.

Bernard H. Dempsey, Jr., Tampa, for petitioner.

E. J. Salcines, Jr., State Atty., Tampa, for respondent.

PER CURIAM.

Petitioner was recently indicted by the Statewide Grand Jury on a charge on conspiracy to possess marijuana. At the time of his arrest, bail was fixed at $1,000,000. Petitioner filed a motion for reduction of bail. Following the taking of extensive testimony, the circuit judge entered an order reducing the bond to $500,000.

Petitioner has now filed a petition for writ of habeas corpus in this court asserting a deprivation of constitutional rights by reason of an excessive and unreasonably high bond. A record containing 850 pages of testimony and numerous exhibits have been filed with this court.

During the course of the proceeding below, the state submitted certain evidence to the judge In camera over petitioner's objection. The State Attorney represented this evidence to be the record of certain testimony given before the Grand Jury on the subject of petitioner's likelihood of flight. The State Attorney stated that several lives could be in jeopardy should the name of the witness or witnesses who gave this testimony become known. Thus, defense counsel and the defendant do not know the substance of the evidence received In camera by the lower court. The order entered by the court did not refer to the In camera evidence, so it cannot be determined the extent to which such evidence may have influenced the ruling.

One of the bulwarks of American jurisprudence is the right to be confronted by the witnesses who testify against you and to have those witnesses subjected to cross-examination. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). There can be no doubt that to accept In camera evidence during the course of a criminal trial would constitute a violation of fundamental constitutional rights. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The question we must consider is whether such rights carry over to a bail proceeding.

By dictum in two cases, the Supreme Court has indicated that the same rights apply. In Ex parte Nathan, Fla.1908, 50 So. 38, which was a habeas corpus proceeding to set bail in a capital case, the court said that 'a usual right to cross-examine and impeach witnesses exists as to the state and the petitioner.' Likewise, referring to testimony concerning whether the proof of guilt was evident or the presumption great for purposes of setting bail in a capital case, the court in State v. Kelly, Fla.1953, 68 So.2d 351, said:

'The accused has the right to a full opportunity to examine State's witnesses as to the elements of crime of murder in the first degree and a full hearing should be afforded him for that purpose.'

The official transcript of the testimony given before the grand jury by an eyewitness to a murder was held to be incompetent evidence in a bail reduction hearing in Young v. Russell, Ky.App.1960, 332 S.W.2d 629. See also State v. Obstein, 1968, 52 N.J. 516, 247 A.2d 5. There is a clear distinction between protecting the identity of a confidential informant in determining the admissibility of relevant evidence and permitting unknown testimony by unknown witnesses to be considered as substantive evidence. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

While a bail reduction hearing does not necessarily have all the formalities of a trial, it is clearly an adversary hearing. Cf. Primm v. State, Fla.App.2d, 1974, 293 So.2d 725. To permit the trier of fact to receive evidence in secret from one side would place the other side in an untenable position. There could be no way in which the evidence could be rebutted because it would not be known what the evidence was. Therefore, we hold that the court erred in having received and read the In camera testimony.

There remains the problem of making an appropriate disposition of the case. One alternative would be to refer the matter once again to the trial judge and ask him to enter a new order in which the In camera evidence would not be considered. This doesn't seem fair and would probably be impossible anyway since the judge could hardly be expected to be able to exclude such evidence from his consideration.

Another alternative would be to require the parties to start over with a new trial judge. However, there has already been substantial time and effort expended upon the issue and petitioner is entitled to a reasonably prompt determination of what his bond is finally going to be. Therefore, we have concluded to consider the matter ourselves upon the record which was made below following the procedure approved by the Supreme Court in State ex rel. Scaldeferri v. Sandstrom, Fla.1973, 285 So.2d 409. In that case the court said:

'. . . Or if there has been a circuit court adjudication upon Motion either to increase or reduce bail under CrPR 3.130(f) And there is a sufficient accompanying record thereupon, then it is proper in that instance also, for consideration in the appellate court upon original habeas corpus. . . .'

In our consideration of this question we have expressly declined to accept or to look at the In camera record which was submitted to the trial court.

Until adjudged guilty, every person charged with a crime other than a capital offense or an offense punishable by life imprisonment is entitled to release on nothing more than the posting of reasonable bail. Art. I, § 14, Fla.Const., F.S.A. Among the factors to be considered in determining the amount of bail are the nature of the offense and the penalty for it, the accused's character and reputation, his general financial status, his family ties and employment, the state of his health, the length and stability of his residence in the community, his accessibility to means of flight, his respect for law, and his record of appearing or failing to appear at prior court proceedings. See 8 Am.Jur.2d, Bail and Recognizance, Sec. 71; Cf. Younghans v. State, Fla.1956, 90 So.2d 308.

The evidence reflects that petitioner has a wife and four children. He maintains a home in Tarpon Springs but spends at least six months away from home each year. Petitioner's wife testified that when he is gone she does not normally know how to contact him even in emergency situations. She said that petitioner has suggested that they ought to move to Central...