Tibbs v. State

• Decision Date: 28 July 1976
• Docket Number: No. 47258,47258
• Citation: 337 So.2d 788
• Parties: Delbert TIBBS, a/k/a Delbert Johnson, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 788

337 So.2d 788

Delbert TIBBS, a/k/a Delbert Johnson, Appellant, v. STATE of Florida, Appellee.

No. 47258.

Supreme Court of Florida.

July 28, 1976.

Rehearing Denied Sept. 28, 1976.

George C. Howard, of Howard & Mann, Chicago, Ill., for appellant.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

ENGLAND, Justice.

This cause is before us on direct appeal to review the convictions of Delbert Tibbs for rape and murder in the first degree. Tibbs was sentenced to life imprisonment and to death, respectively. We have jurisdiction under Article V, Section 3(b)(1) of the Florida Constitution, and Section 921.141, Florida Statutes (1975).

Tibbs was charged in a three count indictment with the rape of Cynthia Nadeau, the premeditated murder of Terry R. Milroy, and the crime of felony murder for killing Milroy while raping Nadeau. A jury trial was held which resulted in conviction for rape and first degree murder. A death sentence was recommended by the jury for murder, and the trial judge imposed the death penalty for that crime.

The relevant facts of the alleged crime, as brought out on trial, were these. Nadeau and Milroy were hitchhiking to Marathon from St. Petersburg, when they were picked up in Fort Myers by a man alleged to be driving a green truck with a rounded hood, black vinyl seats, no door handle, and an oil light that blinked on and off. This man drove into a field, stopped the truck, got out of the truck with Milroy and requested that Milroy give him a hand. After a minute or so passed, Nadeau got out of the truck and went around to the back of the truck where the driver was holding a gun on Milroy. As he held the gun on Milroy, he commanded Nadeau to undress. He then shot Milroy and walked over to where Milroy lay. Milroy pleaded with the driver not to kill him, but the man shot him again, inflicting the fatal wound. The driver then proceeded to rape Nadeau. Thereafter, she was ordered to dress and get back in the truck. Upon reaching the highway, she was ordered to get out and walk in front of the truck. She left the truck, but was able to run and successfully escape.

Tibbs' principal contention to this Court is that the totality of evidence at trial was insufficient to place him at or near the scene of the murder and rape at the time they occurred, or to establish his identity as the perpetrator beyond all reasonable doubt. Specifically he states that there is no evidence to corroborate the testimony of Cynthia Nadeau, the 17-year old rape victim, and that her testimony is so riddled with conflicts and is so inherently unreliable that his conviction and attendant death sentence should be reversed. Tibbs also contends, and we agree after reading the transcript, that no credence can be given to the testimony of Tibbs' Lee County jailmate, serving a life sentence for rape, to the effect that Tibbs confessed to the crime. This testimony appears to be the product of purely selfish considerations.

Under Section 921.141(4), Florida Statutes (1975), and Fla.App. Rule 6.16(b), it is our obligation to review a conviction for which the death sentence has been imposed to determine if the interests of justice require a new trial. Our review of the record of this proceeding leaves us with considerable doubt that Delbert Tibbs is the man who committed the crimes for which he has been convicted. Since the principal testimonial evidence against Tibbs came from Nadeau, we begin with the legal rules governing its reliability.

The law in Florida appears well established to the effect that no corroborative evidence is required in a rape case when the victim can testify directly to the crime and identify her assailant. Thomas v. State, 167 So.2d 309 (Fla.1964). Obviously this rule also applies to the rape-murder crimes with which Tibbs was charged. The policy reasons for this rule are sufficiently apparent that they need not be reiterated or re-examined here. The limitation to its application, however, is 'that where the sole witness is the prosecutrix, her testimony must be carefully scrutinized so as to avoid an unmerited conviction.' Thomas, above, at 310.

In this case, we find the following infirmities in the evidence establishing Tibbs as the perpetrator of these crimes:

(1) Except for the testimony of Nadeau, not one shred of evidence was developed to place Tibbs in the Ft. Myers area at any time, let alone on or near February 3, 1974, the date of the crimes. Admittedly Tibbs was not a public or social figure who would have made acquaintances or attracted attention, but with the publicity attending the crimes and the discovery methods available to the state, surely someone might have been found who could (at least tentatively) have identified Tibbs as having come to Ft. Myers, eaten in Ft. Myers, passed through Ft. Myers, or at least been seen walking or riding in Ft. Myers. No such person was brought forward, and only Cynthia Nadeau's testimony puts this man in that area of Florida. In contrast, undisputed evidence established Tibbs' presence in Daytona Beach on the night of February 1 and the morning of February 2, in Leesburg on February 6, and in Ocala on February 7. Except Nadeau's testimony, there is no evidence to place Tibbs in the southwest corner of the state during this five day interval. ¹

(2) No trace was ever found of the truck which Nadeau stated was driven by Tibbs when she and Milroy were picked up in Ft. Myers and taken to the scene of the crimes. Despite her specific testimony as to the color of the truck, its type and its special characteristics (no right door handle, rounded hood, blinking oil light), and the additional fact that her description was given to the police within an hour of Milroy's death and her alleged rape, the police were unable to locate any vehicle like the one she described despite an exhaustive car and helicopter search of the area. This fact can be evaluated against the uncontroverted evidence that Tibbs was on the other side of Florida, in Daytona Beach, the morning of the day before the crimes and at that time possessed no vehicle for his use.

(3) No gun or car keys were ever found in Tibbs' possession, at the scene of the crime, or elsewhere. When Tibbs was stopped by police officers in Florida and Mississippi (February 6 in Leesburg, February 7 in Ocala, and March 13 in Clarksdale, Mississippi) he was afoot, and there was no evidence that he had either owned or operated a motor vehicle.

(4) On the three occasions when Tibbs was stopped by police on the basis of the description issued by Nadeau, he cooperated fully with the officers by providing all information and identification they requested, by allowing himself to be photographed, and on the last occasion by waiving extradition in Mississippi to voluntarily return to Florida to face rape and murder charges in Ft. Myers.

(5) No evidence was introduced which casts doubt on Tibbs' veracity. He did not have a previous criminal record and he had never been arrested, except possibly for a traffic violation. Evidence was introduced from people in his home town, including a minister and elected state officials, that he was a law-abiding citizen.

(6) Several features of Nadeau's testimony, when considered with other evidence in the record independently established and uncontroverted, cast doubt on her believability. For one, despite her assertions that adequate daylight was present at the time of the alleged crimes to impress Tibbs' features and characteristics into her mind, all independent evidence of the events indicates that the crimes occurred after nightfall. For another, her admitted use of marijuana throughout the day and immediately prior to the crimes casts doubt on her identification of Tibbs. Thirdly, the manner in which Tibbs was first identified ten days after the crimes, by bringing Nadeau to Ft. Myers from St. Petersburg after she had reestablished herself in that community, in order to see three photographs of Tibbs, suggests a less reliable identification than would have been possible with multiple photographs of more than one person.

We recognize that the resolution of factual issues in a criminal trial is peculiarly within the province of a jury, but in this case a man's life has been placed in jeopardy and the Florida Legislature has directed that we review the 'entire record'. Our obligation now is no less than it was when Odie McNeil was sentenced to life imprisonment in 1932 and this Court said:

'Human liberty should not be forfeited by a conviction under evidence which is not sufficient to convince a fair and impartial mind of the guilt of the accused beyond a reasonable doubt. This is especially true in a case where life imprisonment is the penalty imposed. Heath v. State, (97 Fla. 330, 120 So. 846) supra. And where the evidence of identity of the accused as being the guilty party is not satisfactory to the appellate court, a new trial will be granted. Nims v. State, (70 Fla. 530, 70 So. 565) supra.

In this case the sole testimony identifying the defendant McNeil as a participant in the robbery was given by the witness Rahming . . ..

While the weight of the evidence and the credibility of the witnesses is ordinarily a matter which is exclusively within the province of the jury to decide, and this court will as a rule not reverse a judgment based upon a verdict returned by the jury and approved by the trial judge, when there is substantial evidence to support the verdict rendered, it is also the rule that the evidence relied on to have this effect must be substantial in character.

When such evidence is not substantial in character, this court is committed to the rule that a conviction will be reversed and a new trial ordered, where the evidence relied on is not satisfactory to establish the identity of an accused as a participant in a crime of which he has been found guilty.' McNeil v. State, 104 Fla. 360, 139 So. 791, 792 (1932).

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