State v. Galasso

• Decision Date: 20 December 1968
• Docket Number: No. 37220,37220
• Citation: 217 So.2d 326
• Parties: STATE of Florida, Petitioner, v. Robert J. GALASSO, Respondent. STATE of Florida, Petitioner, v. Joseph A. MANCUSI, Respondent.
• Court: Florida Supreme Court

Page 326

217 So.2d 326

STATE of Florida, Petitioner, v. Robert J. GALASSO, Respondent.

STATE of Florida, Petitioner, v. Joseph A. MANCUSI, Respondent.

No. 37220.

Supreme Court of Florida.

Dec. 20, 1968.

Earl Faircloth, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for petitioner.

C. Wendell Harris, Vero Beach, for respondents.

HOPPING, Justice.

The respondents, Robert J. Galasso and Joseph A. Mancusi, were tried jointly on two court informations charging them with (1) the unlawful possession of marijuana and (2) the cultivation of marijuana. After a jury trial, verdicts were returned against each of the respondents on both courts charged. On appeal the Fourth District Court of Appeal reversed and remanded both respondents for a new trial. See Galasso v. State, 207 So.2d 45 (Fla.4th DCA 1968).

The State thereafter filed its petition for writ of certiorari to this Court alleging direct conflict between the District Court's decision and the Supreme Court's prior decisions on the same point of law in State v. Hines, 195 So.2d 550 (Fla.1967) and Flowers v. State, 59 Fla. 16, 52 So. 11 (1910).

An understanding of the facts and issues herein can best be gleaned from the District Court's opinion.

'The record indicates that on May 24, 1966, Mr. James B. Powers, a narcotics inspector with the Florida State Board of Health, went to an apartment occupied by the defendants in the City of Vero Beach accompanied by a detective from the police department of the City of Vero Beach and Lem Brumley, Jr., an investigator from the Indian River County Sheriff's Department. Upon arrival at the apartment, the officers served on the defendants a warrant for their arrests and a search warrant pursuant to which the officers searched the apartment. During the course of the search, one of the officers came across an envelope containing about four ounces of suspected marijuana and handed the envelope to Mr. Powers. Thereafter, Mr. Powers, the defendants, and the officers went out behind the apartment and examined a garden patch in which cannabis plants, commonly known as marijuana, were found growing.

'After the close of the state's case in chief, the defendant Joseph Mancusi took the stand in his own behalf and testified that he though the plants which he had protected and cultivated by watering were oregano, not marijuana. The defendant Galasso did not testify.'

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Defendant Mancusi also testified that he was not aware of the envelope containing marijuana which was found on the dresser in the defendants' room. The District Court's opinion continues:

'The state called Mr. Lem Brumley, Jr., as a rebuttal witness. By the following questions and answers, Mr. Brumley related what occurred in the defendants' apartment when the envelope containing the suspected marijuana was found and given to Mr. Powers:

'Q. What, if anything, did the Defendant Mancusi say to you concerning this packet sitting on the dresser?

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'A. Mr. Powers examined the packet there that had the marijuana in it and he turned around and he made a statement to the effect, he says 'Look here, boys,'--

'(Objection by defendants.)

'BY THE COURT:

'Q. Were the defendants there at the time?

'A. Yes, sir.

'THE COURT: The objection is overruled.

'A. He said, 'Look here, boys, Look what I found; whose is this?' And Galasso, they were both sitting on the bed there and Galasso said, 'Some man. Don't say anything.' And that is all that was said. (Emphasis added.)

'The defendants promptly moved to strike the answer given by Officer Brumley, and the motion was denied. In our opinion this testimony was inadmissible as to both defendants and should have been stricken.'

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The District Court upon the above facts held:

'The ruling in the Miranda decision to the effect that it is impermissible to penalize an individual who while in police custody exercises his privilege against self-incrimination by remaining silent, prohibits the admission of testimony relating to the silence of a defendant during the investigatory stages of a criminal case, even though the defendant later chooses to take the stand at the trial and testify in his own behalf, cf. Jones v. State, Fla.App.1967, 200 So.2d 574, 576. To permit the use of such testimony would penalize the defendant for having remained silent at the investigatory stage because evidence of such silence tends to derogate his testimony at trial and also implies guilt.'

In Footnote 1 of its opinion the District Court stated that it did not believe its holding was inconsistent with our prior decision in State v. Hines, 195 So.2d 550 (Fla.1967), because that case commenced prior to the effective date of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. Were it not for this statement in the footnote, there would be little doubt that State v. Hines, supra, is in direct conflict with the District Court's decision herein. Although this footnote distinguishes the two decisions for the purposes of the District Court's opinion, it does not foreclose our taking jurisdiction of this cause, because on its face the decision of the District Court of Appeal is clearly and admittedly in direct conflict on the same point of law with the decisions of this Court in State v. Hines. For additional conflict see also Jones v. State, 200 So.2d 574 (Fla.3rd DCA 1967).

We are again compelled to treat with another facet of the collateral issues raised by the now famous Miranda cases. The pivotal issue at hand is whether or not 'Miranda-tainted' pre-trial statements are nevertheless admissible for the limited purposes of impeachment when defendant voluntarily chooses to testify on the same subject in his own behalf. It is upon this very limited issue that we focus our inquiry.

A brief review of the pertinent decisions in this area will prepare the way for our disposition of this case. Taken in chronological order, we specifically direct attention to the Federal Supreme Court's decision in Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), the Miranda cases, and subsequent federal cases interpreting Walder in light of Miranda.

In Walder, the defendant had been indicted in 1950 for possession of heroin but the indictment had been dismissed because the evidence of such possession had been obtained by an illegal search and seizure.

The same defendant was indicted again in 1952 for another, distinct offense of possession of heroin. In defense of this second charge, the defendant testified before the jury that he had never had any heroin in his possession. The trial court thereafter allowed the government to introduce the evidence of the defendant's earlier possession for the purpose of impeaching his testimony. The evidence was admitted over the objection that the impeaching evidence had been obtained in violation of the fourth amendment. The Supreme Court in sustaining the trial court's ruling wrote:

'It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine (Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652) would be a perversion of the Fourth Amendment.

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'Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility.' 347 U.S. at 65, 74 S.Ct. at 356.

For discussion of the various lower federal court interpretations of Walder, see the majority opinion in Groshart v. United States, 392 F.2d 172 (9th Cir. 1968).

In 1966 the U.S Supreme Court published its far reaching Miranda decisions. It should be remembered that the precise question herein concerning the admission of tainted pre-trial statements for the purpose of impeaching the testimony of an accused who voluntarily takes the stand, was not before the Court in Miranda. Nevertheless in Miranda the Supreme Court did say:

'The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between Statements which are direct confessions and statements which amount to 'admissions' of part or all of an offense. The privilege...