Thomas v. State
| Decision Date | 03 September 1986 |
| Docket Number | No. 85-2707,85-2707 |
| Citation | 11 Fla. L. Weekly 1909,494 So.2d 240 |
| Parties | 11 Fla. L. Weekly 1909 Curtis Lee THOMAS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Douglas N. Duncan and Robert P. Foley of Foley, Colton & Butler, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant appeals his conviction and sentence. We affirm.
On May 7, 1983, at approximately 7:30 p.m., Maurine Collins, a sixty-three year old woman, was working in the front office of her travel agency located on Datura Street in West Palm Beach, Florida. Ms. Collins had living quarters above the business. She was grabbed from behind by an intruder wearing a stocking cap. However, Ms. Collins was able to observe that the intruder was a black male, had a short beard and a moustache, was approximately five feet eight inches tall and weighed approximately one hundred forty-five to one hundred fifty-five pounds. The intruder walked Ms. Collins through the offices and at one point he stopped her and she turned around, seeing his face clearly as if they were standing "face to face." At that point appellant reached to pull his stocking cap down and told Ms. Collins "[i]f you look at me I will kill you." Ms. Collins stated that he had the stocking cap off and on, during the burglary, sexual battery, and robbery of the victim's collection of pre-1965 silver dimes.
Subsequent to appellant's arrest, the trial court judge conducted a hearing upon appellant's motion to suppress; and his subsequent order recites:
On May 8, 1983, Sgt. James R. Miller of the West Palm Beach Police Department, pursuant to information given to him by a fellow officer, went to J.B.'s Market located at 814 Georgia Avenue in West Palm Beach. He spoke with the manager who showed him five rolls of silver dimes he had purchased from a black male earlier that day for $50. On the following day, May 9, 1983, Miller returned to the market and recovered the five rolls of dimes. Later that afternoon, Miller showed the five rolls of dimes to the victim. However, she was only able to identify two dimes from among the five rolls, based on corrosion marks thereon.
Based on additional information from another fellow officer, Miller went to Mae's Place, 601 Clematis Street, West Palm Beach on the afternoon of May 9, 1983. At that location, Miller recovered three rolls of silver dimes the owner had purchased earlier in the day from a black male "in his twenties, wearing dark clothing." Miller left his card with the owner, instructing her to call him should the black male return to her place of business. Thereupon, Miller returned to his headquarters where he filled out a "hot sheet" on the foregoing information, preparatory to going off duty. He also spoke with Sgt. Alex B. Barrett who was coming on duty, filling him in on the above facts. It should be noted at this point that the three rolls of dimes recovered at Mae's Place had not been shown to the victim for identification purposes.
About 4:30 P.M. that same day, May 9, 1983, Sgt. Rob Robertson received a telephone call at the police department from Mae's Place to the effect that the black male from whom the three rolls of dimes had been purchased was then on the premises at Mae's Place. She gave Robertson a detailed description of the black male. Shortly thereafter, Barrett and Robertson, in civilian clothes and riding in an unmarked automobile, arrived at Mae's Place and observed the defendant, Curtis Lee Thomas, standing in front of the premises wearing clothing fitting the description given. The defendant began to walk south across Clematis Street where he was stopped by the officers. Upon inquiry from Barrett, the defendant stated that his name was "Walter Broom." Barrett told the defendant "we are investigating a case and need you to accompany us to the police station," without advising the defendant of his right to refuse. The defendant was "patted down" by Robertson and thereupon transported to the police station. He was placed in an interview room by Robertson and ordered to empty his pockets. In addition thereto, Robertson physically searched the defendant's person and found nine pre-1965 silver dimes, among other coins and small currency, a bag of marijuana and a marijuana cigarette in his trouser pockets. Robertson then picked up a nylon pouch the defendant was carrying and said, "You really don't want me to look in here, do you?" Upon opening the pouch, Robertson found "numerous nickels and bags of marijuana." It was during this occasion in the interview room that the defendant gave his true name as "Curtis Lee Thomas," a fact already known to Robertson, according to his testimony. Thereafter, the defendant was photographed and fingerprinted in the booking process. It should be noted at this point that the defendant already had a file jacket on record at the West Palm Beach Police Department under the name of "Curtis Lee Thomas" containing his background data, photograph and fingerprint standards, which fact was known to Barrett and Robertson.
Sgt. James E. Wilburn, Jr. of the West Palm Beach Police Department testified that he compared the standard fingerprints that he obtained from the defendant during the May 9, 1983 booking process with the latent fingerprints he had lifted from the point of entry of the crime scene involved herein. However, it should also be noted that Barrett contradicted Wilburn by testifying that Wilburn had used the standards already contained in the defendant's file jacket rather than the standards obtained during the booking process in making the comparison. In any event, the comparison revealed that the standard and latent prints were made by the same person, namely the defendant.
Finally, in conclusion of the salient facts, the defendant was placed in a live lineup on May 24, 1983 at which time he was viewed by the victim of the crimes charged herein, as well as seven other victims in unrelated cases. The defendant apparently was still in custody at that time, unable to make bond. (Emphasis added.)
The appellate record contains nothing in writing from the trial court to confirm what occurred on May 10, 1983; but the parties do not dispute that on said date, a county judge held a preliminary hearing required by Florida Rules of Criminal Procedure 3.130, 3.131 and 3.133, the procedures for which are described in The Florida Judge's Manual, Vol. II, Chapter 1, Initial Proceedings (1985). The judge found probable cause, based on the probable cause affidavit in the record, dated May 9, 1983, which described the offenses for which appellant was arrested but which also said with respect to his arrest:
I requested that he accompany me to HQ. He readily agreed.
The county judge appointed a public defender to represent appellant. On May 17, 1983, the state moved to compel a live lineup of appellant, which a circuit judge granted, leading to the lineup of May 24, 1983, described above. At that time appellant was represented by the public defender. On May 26, 1983, appellant was charged by information with sexual battery, using physical force not likely to cause serious personal injury (Count I); burglary during which an assault was committed (Count II); and robbery without a weapon (Count III).
Appellant entered a plea of not guilty to all the charges. Prior to trial, the state filed a pretrial motion pursuant to Florida Rule of Criminal Procedure 3.220(b), to obtain hair, blood, and fingernail scrapings from appellant. On June 16, 1983, the trial court granted appellee's motion.
Appellant then filed a pretrial written motion to suppress evidence, including any testimony regarding fingerprint standards taken from appellant at the time of his arrest on May 9, 1983, and any comparisons based upon those standards. The motion also sought to suppress the identification made by the victim at the live lineup conducted on May 24, 1983. Appellant filed a subsequent motion to suppress any testimony concerning hair and blood comparisons, and sought suppression of all items on the ground that he had been illegally arrested on May 9, 1983, the above items of evidence being the "fruits" of that illegal arrest.
At an evidentiary hearing on appellant's motion to suppress, the trial court ruled that appellant had been illegally arrested, and granted appellant's motion in part, suppressing all items of evidence seized directly at the time of appellant's unlawful arrest. However, the trial court denied appellant's request to suppress evidence of the lineup identification and the fingerprint standards of appellant other than those taken at the time of his illegal arrest.
The state subsequently filed a motion to obtain fingerprint standards from appellant, pursuant to Florida Rule of Criminal Procedure 3.220(b)(1)(iii), which the trial court granted. The first jury trial resulted in a hung jury, and declaration of a mistrial. During the course of the second jury trial, appellant renewed his pretrial motion to suppress. At trial, the victim testified, over defense objection, that she had identified appellant in the lineup on May 24, 1983. Ms. Collins admitted that she had initially identified another man as her attacker, immediately after the incident, and also acknowledged that in route to the police station she identified a second man as being her attacker.
Special agent Michael Malone, of the Federal Bureau of Investigation, testified that he had received a bed sheet belonging to the victim and a hair sample from appellant. He testified that he believed a head hair found on the sheet belonged to appellant.
The crime scene investigator, Sergeant William Wilbur, testified that he went to Ms. Collins' travel bureau on the night of the incident and discovered the rear door of her building was missing three jalousies. He...
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