State v. Buchanan

• Decision Date: 04 March 1968
• Docket Number: No. 67--259,67--259
• Citation: 207 So. 2d 711
• Parties: The STATE of Florida, Appellant, v. Talmadge A. BUCHANAN and David Shifrin, Appellees.
• Court: Florida District Court of Appeals

Page 711

207 So.2d 711

The STATE of Florida, Appellant, v. Talmadge A. BUCHANAN and David Shifrin, Appellees.

No. 67--259.

District Court of Appeal of Florida, Third District.

March 4, 1968.

Rehearing Denied March 22, 1968.

Earl Faircloth, Atty. Gen., Arden M. Siegendorf, Asst. Atty. Gen., Richard E. Gerstein, State Atty., Joseph Durant, Asst. State Atty., and L. J. Cushman, Miami, for appellant.

Harry W. Prebish, Horton & Schwartz, Miami, for Buchanan.

Barry L. Garber, Miami, for Shifrin.

Before PEARSON, BARKDULL and HENDRY, JJ.

PEARSON, Judge.

The State of Florida is the appellant here. The appeal is from an order granting appellee, Talmadge A. Buchanan's motion to quash the information and supplemental motion in support of immunity, and appellee, David Shifrin's, motion to quash the information. ¹ The motions were directed to a second information filed pursuant to an indictment returned by the Dade County Grand Jury. The trial judge, having heard the motions, entered an extensive order setting forth the circumstances under which the decision was made. The introductory portion of the order is as follows:

'THIS CAUSE came on to be heard before me on February 17, 1967, upon the defendant, TALMADGE A. BUCHANAN'S, 'Motion to Quash' and 'Supplemental Motion in Support of Defendant's Plea of Immunity,' and upon the defendant, DAVID SHIFRIN'S, 'Motion to Quash.' This Court, having reviewed the file and exhibits in this cause, having heard the testimony offered in support of the motions, having read the transcripts of testimony given by the defendants before the Dade County Grand Jury, Spring Term, 1966, and having heard argument of counsel, finds:

An Information charging the defendants with 'Conspiracy to Commit Bribery (Two Counts)' was filed in this Court by the State Attorney on January 4, 1967, the allegations in the Information having been based upon facts alleged in an Indictment presented on November 4, 1966, by the Spring Term, 1966, Grand Jury. More specifically, the defendants were charged between January 1, 1963, and January 1, 1966, with conspiracy to violate a particular section of Chapter 838 of the Florida Statutes dealing with 'Bribery,' to-wit: Section 838.06.

'* * * It is this Court's opinion from a reading of the transcript comprising 30 pages of questions and answers, and having considered the allegations contained in the Information, the Bill of Particulars, List of Witnesses and all pleadings filed by the State, that the defendant, SHIFRIN, gave testimony or evidence relating to the transaction for which he is being prosecuted, and thus, is immune from prosecution in this case. See State (ex rel. Dolan) v. Kelly, Fla.1954, 71 So.2d 887; State (ex rel. Barone) v. Petteway, 1935, 121 Fla. 822, 164 So. 872; State (ex rel. Reynolds) v. Newell, Fla.1958, 102 So.2d 613; State (ex rel. Johnson) v. MacMillan, District Court of Appeal of Florida, (194 So.2d 627) Second District, January Term, 1967, Case No. 7462.'

'The defendant (Buchanan) cites as authority for his position the recent case of Garrity v. New Jersey, United States Supreme Court, January 16, 1967, 35 L.W. 4135 (385 U.S. 493, 511, 87 S.Ct. 616, 636, 17 L.Ed.2d 562, 574).

'Garrity holds that a decision to waive one's right against self-incrimination is 'infected' and cannot be sustained as voluntary where the basis for the decision to waive is a choice between losing one's means of livelihood or paying the penalty of self-incrimination. The language is clear:

'The choice given appellants (policemen) was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.' Garrity v. New Jersey, supra, page 4136 (87 S.Ct. page 618).

'We think the confessions were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.' Garrity v. New Jersey, supra, page 4136 (87 S.Ct. page 618).

'We conclude that policemen * * * are not relegated to a watered-down version of constitutional rights.' Garrity v. New Jersey, supra, page 4137 (87 S.Ct. page 620).

'The reasoning in the Garrity case is brought in sharp focus in this case since it is to be noted the codefendant, SHIFRIN, not being a County Officeholder, first chose not to sign a waiver of immunity; then, after such refusal, he was advised by the Assistant State Attorney that he would gain immunity as a consequence of his testifying. Garrity stands for the proposition that a County Officeholder should be in no worse position than one who is not a County Officeholder as regards a waiver of a constitutional right. (This Court is in substantial agreement with the principles set forth in the dissenting opinion of Justice Harlan; however, it is of course, bound by the ruling of the majority).

'The waiver of immunity, being involuntary, the subject matter of the inquiry being one of the crimes enumerated in 932.29, Florida Statutes, and the testimony of BUCHANAN constituting a link in the chain of evidence required to prosecute him for the offenses charged, the defendant, BUCHANAN, is immune from prosecution for these offenses charged.'

The State has presented two points on appeal. The first urges that the trial court erroneously applied the decision of Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), in a retroactive manner by granting immunity to the appellee, Buchanan. The basic contention upon which the appellant's argument is founded is that the State had a right to rely upon the law as it existed at the time Buchanan appeared before the grand jury, and that the lower court invalidated a valid procedure by applying the Garrity rationale retroactively.

Appellant's second point is applicable to both appellees. It urges that the testimony given by the appellees did not constitute a link in the chain of evidence needed to prosecute them for the crimes alleged in the information and that therefore the court erred in quashing the information.

The State, as appellant, argues under point one that Garrity v. State of New Jersey, supra, does not apply to the case at bar and supports this position by three lines of argument:

(1) Appellee Buchanan appeared as a witness before the Dade County Grand Jury three times. On each occasion before he testified, he was asked whether he understood the waiver of immunity tendered to him and whether he was willing, freely and voluntarily to sign it. Each time he assured the grand jury that he understood the nature and the effect of the waiver and was willing to sign it. He did so without protest, objection or even a hint of reluctance. Therefore appellee Buchanan, in effect, volunteered his testimony.

(2) At the time appellee Buchanan was arraigned, he plead 'not guilty' to the information and although granted 20 days within which to file motions, he failed to do so within that time. His motions on December 29 were therefore too late and he had waived any right he might have had to claim immunity.

(3) The trial court erroneously applied the holding in Garrity v. State of New Jersey, supra, because the testimony was given prior to the publication of the decision in that case. Therefore to apply the decision is to apply it retroactively.

The State, in effect, is asking this Court to overrule the trial court upon a finding of fact by urging, as in '(1)' above, that appellee Buchanan, even though responding on each occasion to a subpoena from the grand jury, actually testified voluntarily. In his order of 24 February 1967, which is the order here appealed, the trial judge found:

'The State claims BUCHANAN waived immunity; BUCHANAN claims the waiver was involuntary in view of the provisions of Section 8.02 of the Charter of Metropolitan Dade County, ² and the provisions of Section 2--51 ³ and Section 2--55 ⁴ of the Code of Metropolitan Dade County, Florida. These sections provide for forfeiture of office upon refusal to waive immunity. At the hearing on the defendant's 'Supplemental Motion in Support of the Plea of Immunity,' the defendant testified that he was motivated to sign the waiver by the provisions of the Charter; he did not want to forfeit his position by refusing to execute the waiver.'

There is sufficient evidence in the record to support this finding by the trial judge. See Stanford v. State, Fla.1959, 110 So.2d 1.

Appellant's argument set forth in '(2)' above, to the effect that appellee Buchanan did not timely file the motions to quash, is not supported by an objection in the proceedings before the trial court. Nevertheless, examination of the record reveals that the motions were timely filed after the filing of a second information. The order granting 20 days for the filing of motions was entered upon the first information. The second information was filed after the court had quashed count one of the first information. The second information was filed on January 4, 1967. On January 5 appellee Buchanan filed a motion to quash the information and on January 6 appellee Buchanan filed his supplemental motion to quash. The record thus reveals that both motions were timely filed.

The State makes its main thrust under '(3)' above where it urges that the decision of the Supreme Court of the United States in Garrity v. State of New Jersey, supra, was, but should not have been, retroactively applied. We are here dealing with a fundamental constitutional right of one not to incriminate himself. The import of the Garrity decision is that a public officeholder may not be required to incriminate himself in order to escape sanctions imposed by public law.

The Supreme Court, in the Garrity opinion, discussed a waiver which was signed under similar circumstances to the waiver in the instant case and concluded,

'The choice given appellants was either to forfeit their jobs or to incriminate themselves. The...