Taylor v. State, T--480

• Decision Date: 26 March 1974
• Docket Number: No. T--480,T--480
• Citation: 292 So.2d 375
• Parties: Robert Jerome TAYLOR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 375

292 So.2d 375

Robert Jerome TAYLOR, Appellant, v. STATE of Florida, Appellee.

No. T--480.

District Court of Appeal of Florida, First District.

March 26, 1974.

Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

McCORD, Judge.

Appellant was convicted of robbery and appeals from his judgment and sentence. He first contends that the court erred in allowing in evidence an alleged inculpatory statement made by him which was first made known to the defense thirty minutes before the trial. Two police officers testified that they overheard the statement from the hall and office adjoining the hall outside the closed door of the line-up room (which is used for a conference room) where appellant was placed for a visit with his wife. The officers testified they could not help overhearing appellant say in a loud voice, 'That mother _ _ couldn't identify me; I had a stocking over my face' (obscene word omitted). Appellant had previously been advised of his constitutional rights.

The state attorney advised the defense attorney approximately thirty minutes before trial that the officers would testify to the statement. It appears that the state attorney had just then learned of the statement himself. On April 16, 1973, appellant had made a demand for discovery pursuant to Rule 3.220(a), Florida Rules of Criminal Procedure, 33 F.S.A. that the state disclose to him 'any written or recorded statement and the substance of any oral statements made by the accused and known to the prosecutor. . . .' To which the State on May 4, 1973, replied: 'None known to the State.' At the outset of the trial, (May 23, 1973) before any testimony was taken, appellant objected to the statement on the ground that the state had violated its duty to furnish him any statements made by appellant. Appellant relies upon State v. Coney, Fla.App., 272 So.2d 550. We stated in Coney as follows:

'. . . If actual possession of information by the state attorney is to be the criterion for determining the defendant's entitlement to it, then much of such information, although fully known to the state attorney, could be retained by the sheriff or other investigating officers and by the Bureau of Law Enforcement in Tallahassee and not actually transmitted to the state attorney until so close to the hour of trial that it would be of no useful benefit to the defendant even if disclosed to him at that time. Such a possibility does not square with any responsible concept of fairness in the trial of a criminal case. So long as the pertinent and relevant information requested by a defendant is readily available to the state attorney from other state governmental agencies for his use in the prosecution of the case even though not reduced to his actual possession, then it should likewise by made available to the defendant upon his timely demand.'

Appellant did not depose the officers who overheard the statement. Appellant's counsel did confer with them and there is conflict between the officers and appellant's counsel as to whether or not the conference was broken off by appellant's counsel before they could get...