Thomas v. State
| Decision Date | 26 July 1979 |
| Docket Number | No. 51692,51692 |
| Citation | 374 So.2d 508 |
| Parties | Daniel Morris THOMAS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Jack O. Johnson, Public Defender, and Lex M. Taylor and John F. Laurent, Lakeland, for appellant.
Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
Pursuant to the provisions of section 921.141, Florida Statutes (1975), and article V, section 3(b)(1), Florida Constitution, this appeal is before us to review, Inter alia, a judgment of guilt of murder in the first degree and imposition of sentence of death thereon.
On January 1, 1976, a black male wearing a blue ski mask and gloves and armed with a .22 caliber rifle broke into the home of Mr. and Mrs. Charles Anderson, located in Polk County, Florida. Mr. Anderson was shot five times by the intruder who then approached Mrs. Anderson and demanded to be told the location of the victims' money. The man stated that he was a member of the "Ski Mask Gang," a group of blacks who had committed robberies, rapes and murders in central Florida for several months. The intruder informed Mrs. Anderson that she would have to engage in sexual relations with him if she wished to be permitted to help her dying husband and, while holding Mr. Anderson's .38 pistol to her head, he performed sexual battery upon her. During commission of the battery, Mrs. Anderson was forced to put her arms around the attacker and, in doing so, felt several welt-like marks on his legs. The woman was then ordered to go into the bathroom and shower, and was later tied up. The intruder ransacked the home and stole several items, including: the .38 caliber revolver, a .22 caliber rifle, a woman's wristwatch and a pocket calculator. Following the thief's flight from the scene, Mrs. Anderson freed herself and contacted the police. Mr. Anderson died of his wounds.
Subsequent to the New Year's attack, Samuel Coleman, an informant for the Florida Department of Criminal Law Enforcement (F.D.C.L.E.), visited Lee O. Martin, appellant's neighbor. When Mr. Coleman advised Martin that he wished to purchase a weapon, Martin proceeded to appellant's home and obtained a .38 caliber revolver from appellant's wife. The sale of this revolver was consummated at Martin's home. Based upon this sale and discovery that the revolver was the weapon which had been stolen from the Andersons on New Year's Day, search warrants were issued for and executed at the residences of appellant and Lee O. Martin on January 20, 1976. Pursuant to the affidavit of an F.D.C.L.E. agent, a warrant for appellant's arrest for receiving and concealing stolen property was also issued and executed on that date. The murder weapon and a medium blue ski mask were found at Lee O. Martin's residence. A black ski mask was found in appellant's home. In addition, a rifle and calculator, identified as property stolen from the Andersons' home, were seized from appellant's residence. A tackle box and two knives which had been taken from the Andersons' home during the New Year's attack were found in appellant's automobile.
Following his arrest for receiving and concealing stolen property, appellant was advised of his Miranda rights by arresting officers, and questioned. During the questioning, appellant was required to drop his trousers to permit inspection for welt-like marks on his legs. The scrutiny revealed raised scars on appellant's legs. In addition, appellant informed the officers that he was in the business of buying and selling stolen property.
On December 21, 1976, appellant was indicted for the offenses of first-degree murder, robbery, sexual battery and burglary. Thereafter, appellant filed a motion for discharge in the Circuit Court for the Tenth Judicial Circuit claiming a violation of his right to a speedy trial. The trial court denied the motion. Appellant also filed motions to dismiss the indictment, claiming that section 775.082(1), Florida Statutes (1975), was unconstitutional, and for change of venue due to extensive pretrial publicity. The court denied the first motion and reserved ruling on the second pending Voir dire examination of the jury venire. Subsequent to impaneling of the jury, the court denied the motion for change of venue.
At appellant's trial, Mrs. Anderson testified, in part, that she had felt welt-like marks on her assailant's legs during the sexual battery. The victim stated that she was unable to identify appellant as the assailant because the latter was wearing a blue ski mask during commission of the crime. The jury found appellant guilty as charged and recommended imposition of the death penalty. Thomas was adjudicated guilty and sentenced to death by electrocution for first-degree murder and to three consecutive terms of life imprisonment for sexual battery, robbery and burglary. 1
Although appellant has argued sixteen points on appeal, we believe that only four of these issues warrant discussion. The remaining points are without merit.
First, appellant argues that the trial judge erred in denying his motion for discharge based upon an alleged violation of his right to a speedy trial. Florida Rule of Criminal Procedure 3.191(a)(1) requires that a person charged with a felony be brought to trial within 180 days of the date "when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged." Subsection (d)(3) of the rule provides, Inter alia, for discharge of an accused if his trial is not commenced within the designated 180 days unless a time extension has been granted by the trial judge as provided by subsection (d)(2). The purported violation of rule 3.191(a)(1) is predicated upon an allegation that, on January 20, 1976, the date of appellant's arrest for receiving and concealing stolen property, he was actually "taken into custody" for the murder, robbery, sexual battery and burglary committed at the Andersons' residence on January 1, 1976. In support of this contention, appellant notes that his arresting officers compelled him to drop his trousers to permit inspection for welt-like marks on his legs. This action, it is maintained, could only be relevant to the crimes of January 1 because Mrs. Anderson informed police that she had felt such marks on her attacker's legs. In addition, appellant points out that the probable cause affidavit in support of the application for a search warrant as to his residence recited the events surrounding the robbery and murder committed against the Andersons. Appellant's arrest on January 20, 1976, followed the search of his home and automobile and discovery of property stolen from Mr. and Mrs. Anderson on New Year's day. It is posited that, although no formal arrest in connection with the New Year's incident was effected until appellant's indictment on December 21, 1976, the running of the 180-day time period under rule 3.191(a)(1) commenced upon his arrest for receiving and concealing stolen property. Because he was not brought to trial within the period mandated by subsection (a)(1) of the rule and no time extension was granted by the trial judge or exigent circumstances were shown, concludes appellant, he should have been discharged as provided by subsection (d)(3) of the rule.
We do not accept appellant's position and hold that the speedy trial time pursuant to rule 3.191(a)(1) commenced to run with respect to the crimes committed against the Andersons on December 21, 1976, when he was formally arrested for these offenses. Appellant's arrest on January 20 was for receiving and concealing stolen property and, as of that date, the speedy trial time began to run only with respect to that offense. Although it is clear that, as of January 20, 1976, law enforcement officers had "leads" tending to connect appellant with the Anderson crimes, it is not apparent from the record that these officials were possessed of sufficient evidence to arrest appellant or to seek a grand jury indictment for the offenses at that time. As set forth in the affidavit in support of the application for a search warrant with respect to appellant's home, the police were aware that the .38 caliber revolver purchased from Lee O. Martin by the informant, Samuel Coleman, was obtained from appellant's residence. The affidavit set forth the facts surrounding the murder and robbery and listed the property taken at that time, which included the revolver, in order to establish the origin of the weapon and thereby identify it as stolen property.
The fact that the revolver was obtained from appellant's house did establish a link between him and the Anderson incident. However, prior to the sale of the .38 caliber revolver, Coleman, Martin and appellant had negotiated concerning other revolvers which the informant ultimately decided not to purchase. In addition, Coleman and Martin had conducted prior dealings with respect to the possible purchase of weapons and Coleman had observed television sets, stereos, rods and reels, and other property in a bedroom in Martin's home. In light of Coleman's prior dealings with Martin and appellant, Martin's sale of a stolen weapon which was obtained from appellant's residence, and their possession of goods under circumstances which strongly suggested that the items had been stolen, it was reasonable at that time for police to believe that appellant was a dealer in stolen goods and had merely purchased the revolver from the ski-masked bandit, and to seek a warrant enabling them to search his home for more of the items which had been stolen from the Andersons. This search might reasonably have been believed to aid in apprehension of the true criminal. Contrary to appellant's assertion, the affidavit in question does not establish that he was, in reality, taken into custody for the murder, rape and robbery committed against the Andersons; it merely indicated the origin of the .38 caliber...
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