Stone v. State

• Decision Date: 01 November 1979
• Docket Number: No. 48275,48275
• Citation: 378 So.2d 765
• Parties: Raymond R. STONE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 765

378 So.2d 765

Raymond R. STONE, Appellant, v. STATE of Florida, Appellee.

No. 48275.

Supreme Court of Florida.

Nov. 1, 1979.

Rehearing Denied Jan. 31, 1980.

David J. Busch and Louis G. Carres, Asst. Public Defenders, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death.

On August 22, 1974, the victim, Jacqueline Smith, reported for work at a General Electric plant. Her hours were from 3:30 p. m. until midnight. She did not return from work and, after searching for her, Marvin Smith, her husband, notified police authorities. Later in the morning her automobile was found parked in a field near her home.

The defendant had been employed by the victim's husband in May 1974 to assist in the farming of his tobacco crop. At the time of the homicide defendant was staying with the Smiths in their home.

On September 1, 1974, a body was found in the Santa Fe River approximately one-fourth mile west of a bridge. The neck region and the head were missing, as well as the left upper extremity. The hand and right upper extremity were also missing. Dr. L. F. Beamer, a pathologist, identified the torso as being that of the victim by virtue of a laminectomy scar and an abnormality of the twelfth rib.

The defendant was involved in an accident in Missouri when a truck collided with the rear of his vehicle. Defendant was hospitalized and, while in the hospital, Missouri police officials arrested him on August 31, 1974. Florida had lodged a detainer against him because the state won an appeal relating to an earlier criminal conviction for sodomy and Florida officials wished to return him for the purpose of serving the remainder of his sentence.

A Florida officer met defendant in Missouri on September 4, 1974, and returned him to Florida. He was taken to Leon County Jail, then to the Lake Butler Reception and Medical Center for further medical treatment. This medical center is a part of the prison system of Florida.

Defendant was informed that he was a suspect in a murder case. Eventually defendant confessed, an indictment was returned, and, upon trial, defendant was found guilty of murder in the first degree. The sentence hearing resulted in a recommendation of death and the trial judge imposed the death sentence. This appeal resulted.

Defendant says that the court should have granted a change of venue on its own motion. Union County, the place of the homicide, was a small county in which two of the state's major penal institutions are located. Defendant contends that the jury venire was prejudiced because the prison system is the major source of revenue, directly or indirectly, for the residents of the county.

During the trial, defendant did not file a motion for change of venue. This precludes appellate review, as the appellate court must confine itself to review of only those questions which were before the trial court and upon which a ruling adverse to the defendant was made. State v. Barber, 301 So.2d 7 (Fla.1974).

Also, there is no provision by rule or statute for the court to change venue on its own motion. The defendant has the constitutional right to a trial where the offense occurred and a change of venue granted without an appropriate motion or the consent of the defendant is of doubtful validity. North v. State, 65 So.2d 77 (Fla.1952), Aff'd North v. Florida, 346 U.S. 932, 74 S.Ct. 376, 98 L.Ed. 423 (1954). See also Ward v. State, 328 So.2d 260 (Fla. 1st DCA 1976).

The record discloses that of thirty-seven prospective jurors only two were excused because they had formed an opinion. Twenty-three prospective jurors indicated that they had heard something about the case. There had been news coverage, but there is no indication that any of the coverage was prejudicial. The ease in selecting the jury is further evidence that a change of venue was not required. See Gavin v. State, 259 So.2d 544 (Fla.3d DCA 1972).

During the voir dire examination, defense counsel requested that each prospective juror be examined individually with the others absent, "so that those who had specific knowledge of the crime would not contaminate the others' minds." The trial court did not commit reversible error in denying this motion. Such a request is addressed to the discretion of the court and the record fails to show an abuse of discretion. Branch v. State, 212 So.2d 29 (Fla.2d DCA 1968).

Defendant next contends that his confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At a hearing on the motion to suppress, it appeared from the testimony that defendant was first taken into custody in Missouri under the authority of a detainer lodged pursuant to section 941.45, Florida Statutes (1973). Defendant's conviction in another case had been affirmed on direct appeal. Stone v. State, 245 So.2d 91 (Fla. 1st DCA 1971), Cert. den. 267 So.2d 329 (Fla.1972).

Defendant then sought and received relief in a federal district court and the United States Court of Appeals, Fifth District. Stone v. Wainwright, 478 F.2d 390 (5th Cir. 1973). The United States Supreme Court reversed the Fifth Circuit Court of Appeals. Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). It was subsequent to this holding that defendant's custody was sought by the prison officials of Florida.

The automobile accident in Missouri triggered a routine identification check and a Florida official was sent to Missouri to take custody of the defendant.

Defendant, while in Missouri, was advised that he was a suspect in a murder case. When defendant was first taken to the Leon County Jail (where he was held for five or six days until his admission to the Lake Butler Reception and Medical Center), he contends that he should have been taken before a booking officer as required by rule 3.111(c), Florida Rules of Criminal Procedure. Defendant was brought to Florida under a detainer related to an entirely different offense. Although he was a suspect, he had not been charged with the commission of any homicide nor had he been arrested for any new offense. Therefore, it was not necessary to take him before a "booking officer" or a magistrate.

Defendant was given Miranda warnings on no less than six different occasions. At 11:05 a. m., September 10th, he was first given the warnings. At this time, he waived his rights and did not ask for an attorney. He was again given the warnings at 1:40 p. m. on the same day, and once again defendant waived his rights and did not ask for an attorney.

On September 16th, the defendant voluntarily took a lie detector test, at which time his rights were explained to him again. He was also warned of his rights on the afternoon of September 16th. On September 18th, defendant was given Miranda warnings at 1:45 p. m. and 7:30 p. m. All of these warnings were read and reviewed with him, and he appeared to understand them.

There is evidence that defendant wanted to get in contact with an attorney during this period of time. The attorney had offices in Missouri and represented the truck driver involved in the accident in Missouri which resulted in the hospitalization of defendant. Defendant had received the attorney's card while he was in the Missouri hospital and indicated that he wished to contact the attorney so he could sue for a neck injury which he received in the accident. The record does not disclose that defendant requested counsel in connection with the homicide under investigation. At first, the defendant apparently was not worried about the murder charge. When defendant called an attorney after the confession, the call was made to this Missouri attorney.

Defendant alleged that he was told a court order required him to take a lie detector test. It was necessary to secure a court order in order to have the defendant released from jail, but defendant was told that he had a choice as to whether to take the test or not. The form delineating his rights, which was explained to him before he took the test, advised him that he did not have to take it. Defendant even admitted that he consented to take the lie detector test.

A request for counsel for an unrelated purpose is not sufficient to require interrogation to cease under Miranda v. Arizona. This was the holding in Hill v. State, 429 S.W.2d 481 (Tex.Cr.App.1968), where the accused indicated that he was going to get counsel for an unspecified purpose.

The law enforcement officers testified that defendant did not request consultation with an attorney before questioning on either September 16 or September 18, the days he admitted his guilt. Even had he requested consultation with an attorney, that would not prohibit a subsequent waiver. In Nunez v. State, 227 So.2d 324 (Fla. 4th DCA 1969), the court stated:

Simply stated, the question is whether an accused in custody, having once made known his desire to have the assistance of counsel, may subsequently voluntarily waive such right.

We think this question must be answered in the affirmative, because an accused in custody is just as much entitled to waive the constitutional rights outlined in the Miranda case as he is to insist upon them.

Just before the polygraph test, the defendant was given adequate Miranda warnings. The examination began at 10:30 a. m. and lasted about one and one-half hours. Within minutes after learning he flunked the test, defendant confessed.

The ruling of the trial judge that the confession was freely and voluntarily made comes to this Court with the same presumption of correctness which attends jury verdicts and final judgments. We are not at liberty to substitute our views of the credibility or weight of conflicting evidence for that of the trial judge and his ruling should not lightly be set aside. Stanford v. State, 110...