Thompson v. State

• Decision Date: 07 April 1971
• Docket Number: No. 39525,39525
• Citation: 246 So.2d 760
• Parties: Albert Bone THOMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 760

246 So.2d 760

Albert Bone THOMPSON, Appellant, v. STATE of Florida, Appellee.

No. 39525.

Supreme Court of Florida.

April 7, 1971.

Rehearing Denied June 1, 1971.

Raymond A. Goodwill, Jr., Winter Haven, and Robert E. Pyle, Lake Alfred, for appellant.

Robert L. Shevin, Atty. Gen., and Thomas B. Calhoun, Asst. Atty. Gen., for appellee.

CARLTON, Justice:

This is a direct appeal from a verdict and judgment convicting appellant, Albert Bone Thompson, of rape without recommendation of mercy. See Fla.Stat. § 794.01, F.S.A. Jurisdiction for the appeal attached under Section 4(2), Article V, Florida Constitution, F.S.A.

The victim of the rape and a male companion were in her Volkswagen, preparing to leave a secluded section of woods and heavy underbrush near Winter Haven, when they found their narrow dirt road exit blocked by an automobile containing Thompson and two accomplices. One of the accomplices got out and approached menacingly with an axe. The victim's companion, who was driving, turned the car around and drove a short distance to where the road ended in a small clearing. The couple got out and unsuccessfully tried to flee through the underbrush. She fell, and he was soon caught by the man with the axe, who by that time had been joined by Thompson and the other accomplice.

First, the couple were asked for money, and five dollars were taken from the companion. Then, while his accomplices held the companion at a distance, Thompson forced the victim to submit to intercourse. The other two raped her in turn, the assailants exchanging places so that the companion was always held by two men. After this, the couple were brought over to the parked cars. A sleeping bag was taken from the Volkswagen, and while the companion was again held at a distance, Thompson raped the victim a second time. She was then placed on the back seat of her car and raped again by one of the others. In all, she suffered intercouse five times before her assailants pulled the sparkplug wires from the Volkswagen and departed. The couple were warned that their lives would be imperiled if they reported the incident.

The police were notified of the incident when the couple sought medical attention for the victim. A car matching a description of the assailants' car was subsequently seen in the area where the incident occurred. With the police in pursuit, the car was abandoned and the driver was later apprehended. This ultimately led to identification of Thompson and one other man. All three, Thompson, Charles Larry and Johnnie Lee Lewis, were jointly indicted for rape by the Polk County Grand Jury. In the course of their prosecutions, the following events occurred. The trial court originally appointed one attorney to represent all three, but subsequently separate attorneys were appointed for each defendant. As a result of a Motion for Severance by one defendant and a Motion for Continuance by Thompson, the three were separately tried. The defendant first tried (Johnnie Lee Lewis) was found guilty of rape with a recommendation of mercy. After pre-sentence investigation, he was sentenced to serve 30 years in prison. The District Court of Appeal, Second District, affirmed the conviction; see Lewis v. State, 227 So.2d 92 (2nd D.C.A.Fla.1969). The defendant next to be tried (Charles Larry) was found not guilty. Thompson was last in line; he was found guilty without recommendation of mercy and this direct appeal resulted.

Two issues have been raised by appellant. We find that neither has merit. The first issue concerns the following occurences preceding his trial. In March 1968, Thompson, Johnnie Lee Lewis and Charles Larry were jointly indicted. Thompson and Lewis were represented respectively by Raymond A. Goodwill, Jr. (present counsel for appellant) and Wallace L. Storey. They were arraigned in open court in May 1968; at the same time, the trial court approved the joint request of Mr. Goodwill and Mr. Storey that they be allowed to retain a Mr. Jones as their investigator. Lewis was tried first, and in October 1968 he was convicted with recommendation of mercy.

In January 1969, Mr. Storey was employed by the State Attorney as a regular Assistant; this was two months before appellant's trial commenced. In March 1969, appellant's counsel filed a 'Motion to Disqualify State Attorney,' asking that the State Attorney and his assistants be disqualified from prosecuting appellant because of the fact of Mr. Storey's employment. In the Motion it was recognized that the State Attorney himself, not Mr. Storey, would be trying the case, but it was suggested that he and any assistant, 'may have the benefit of confidential information related to Mr. Storey by Defendant, Johnnie Lee Lewis, pertaining to the facts and circumstances surrounding this case.' ¹

At the hearing on the motion held in March 1969, appellant's counsel explained that he was not alleging any actual wrong-doing within the State Attorney's office, but rather, he was concerned that the situation was Per se violative of due process. As precedent, reliance was placed upon Young v. State, 177 So.2d 345 (2nd D.C.A.Fla.1965), and State v. Bryan, 227 So.2d 221 (Fla.App.1969). The State Attorney stated at the hearing that there had been no communication between Mr. Storey and the State Attorney or his Assistant regarding the prosecutions of appellant and Charles Larry. To this, Mr. Storey added the following oral statement:

'With reference to the State of Florida v. Johnnie Lee Lewis which was tried on October 14th, 1968 before Judge Lane, I was appointed by the Court to represent Johnnie Lee Lewis and I undertook the representation to and including trial at which time he was convicted of the charge with a recommendation of mercy by the jury, all of which occurred prior to January 7th, 1969 when I undertook the position of Assistant State Attorney in the Tenth Judicial Circuit of Florida. Following this there was a further trial of one Charles Larry who was represented by Mr. Philip R. Haddock, attorney of the Tenth Judicial Circuit of Florida, at which time I was counsel for Johnnie Lee Lewis and I so informed the State Attorney prior to my appointment that the other two cases of Albert Bone Thompson and Charles Larry had yet to be tried and that I could not be involved in any way whatsoever in any discussion of the case for the reason that I had represented Johnnie Lee Lewis and had knowledge of matters relating to the remaining two defendants and, as a consequence of this, the State Attorney and myself have made certain that no communications were had with respect to the remaining cases. No files of mine relating to Johnnie Lee Lewis or any connection therewith has been provided to the State Attorney and no substance of the case has been disclosed to Mr. Darty and what I am saying about Mr. Darty would relate also to the Assistant State Attorney, Mr. Joseph MacBeth because no communication has been had with him either. At the time of my appointment, this situation existed and it has been, as a matter of fact, we have probably had less communication than is usual. About the only communication we have had about the matter was that a particular case was about to be tried and I absented myself and did not appear in the Courtroom when Charles Larry was tried and whom I understand was acquitted and it would be my professional opinion that there was nothing connected with my assuming the position of Assistant State Attorney that would relate to the Charles Larry or Albert Bone Thompson prosecution and to my personal knowledge, Mr. Darty has been handling the matters without my consulation or furnishing any files, documents, or evidence or anything connected with the prosecution of these two cases. There is nothing else except that I might add, as a wrapup statement, that I had prior to that time represented one of the defendants in this cause and have taken a posture professionally to be sure that there would be no involvements concerning any of these three cases. I might further add that the appointment of Assistant State Attorney was known to Mr. Haddock who represented Charles Larry and to Mr. Raymond Goodwill who represented the defendant, Albert Bone Thompson.'

Since no wrongdoing is alleged by appellant, we have here an abstract proposition: We are to decide whether employment of a co-defendant's counsel by the prosecution Per se creates a situation inherently violative of due process. In deciding this question, we recognize that Mr. Storey was privy to information provided to appellant's counsel by the investigator, Mr. Jones.

Young v. State Supra, cited by appellant, has no pertinence here because Young involved an allegation that the Assistant State Attorney had actively participated in the defendant's defense prior to becoming his prosecutor. State v. Bryan, Supra, also cited by appellant, is of consequence, but it is not a decision which operates in appellant's favor.

The question presented in Bryan was whether a defendant was denied due process because he was prosecuted by a State Attorney who had defended him four years earlier in an unrelated matter. The District Court of Appeal, Second District, rightly decided that the mere fact of previous representation four years earlier did not violate due process. In announcing its decision, the District Court also said (omitting citations):

'We hasten to add, however, that a public defender owes his clients the same high standard of fidelity imposed by the Canons of Ethics on other members of The Bar. His duties in this respect are twofold. First, he may not act against his client in any case or matter in which he formerly represented him. Second, he may at no time use against a former client any confidential information acquired by virtue of the previous attorney-client relationship.

'Applying these principles here, the State Attorney can only be disqualified if it were shown that as Public Defender he had actually gained...