Tresvant v. State, 78-2002

• Decision Date: 13 March 1981
• Docket Number: No. 78-2002,78-2002
• Citation: 396 So.2d 733
• Parties: Albert W. TRESVANT, Sr., Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 733

396 So.2d 733

Albert W. TRESVANT, Sr., Appellant, v. The STATE of Florida, Appellee.

No. 78-2002.

District Court of Appeal of Florida, Third District.

March 13, 1981.

Rehearing Denied April 28, 1981.

Harold C. Culmer, Miami, for appellant.

Jim Smith, Atty. Gen., and Anthony C. Musto and Steven R. Jacob, Asst. Attys. Gen., for appellee.

Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

We begin with the procedural history of this case.

In 1977, Albert W. Tresvant, Sr., Candido Giardino and Dante Dino, Jr. were charged in a three-count indictment with requesting, soliciting, accepting and agreeing to accept bribes and unlawful compensation; and conspiring with each other and others to commit these substantive crimes. ¹ A jury found Tresvant guilty on all counts. ²

The trial court granted Tresvant a new trial on matters relating to jury conduct. The State appealed; we reversed. See State v. Tresvant, 359 So.2d 524 (Fla. 3d DCA 1978) (Tresvant I). Upon remand, the trial court entered judgment against Tresvant and sentenced him to concurrent indeterminate prison terms of six months to four years. Tresvant appealed.

In the interim preceding the filing of Tresvant's appeal, we affirmed the dismissal of the conspiracy count against the co-defendant Giardino on the ground that this count was insufficiently pleaded. See State v. Giardino, 363 So.2d 201 (Fla. 3d DCA 1978). Tresvant, apparently believing that our holding in Giardino would be totally dispositive of Tresvant's appeal, urged that the invalidity of the conspiracy count, ipso facto, entitled him to a complete reversal. He suggested that out-of-court statements of co-conspirators were, in the absence of a viable count charging conspiracy, wrongfully admitted.

For the reasons discussed in Giardino, we agreed that the conspiracy count against Tresvant could not stand. Concluding, sub silentio, that the dismissal of the conspiracy count did not compel reversal of the substantive counts, we deferred ruling on the admissibility of the co-conspirator hearsay pending the filing of the trial transcript. ³ See Tresvant v. State, 370 So.2d 89 (Fla. 3d DCA 1979) (Tresvant II).

There ensued a considerable delay in the preparation and filing of the trial transcript. In the spring of 1980, the transcript was filed and the case was ready for argument on the issue left open. By then, however, counsel who had tried the case on Tresvant's behalf and originated the appeal was suspended from the practice of law. ⁴ Tresvant ultimately procured new counsel. The case was heard, supplemental briefs were filed, and we now address the undecided question.

The admissibility of hearsay statements of co-conspirators is not dependent upon the existence of a count charging a conspiracy. Damon v. State, 289 So.2d 720 (Fla.1974); Nichols v. State, 390 So.2d 1238 (Fla. 2d DCA 1980); Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980); Farnell v. State, 214 So.2d 753 (Fla. 2d DCA 1968); United States v. Spencer, 415 F.2d 1301 (7th Cir. 1969); United States v. Rinaldi, 393 F.2d 97 (2d Cir. 1968); United States v. Messina, 388 F.2d 393 (2d Cir.), cert. denied, 390 U.S. 1026, 88 S.Ct. 1413, 20 L.Ed.2d 283 (1968); United States v. Jones, 374 F.2d 414 (2d Cir. 1967); United States v. Annunziato, 293 F.2d 373 (2d Cir. 1961). See also Briklod v. State, 365 So.2d 1023 (Fla.1978). The admissibility of these statements depends, instead, on the rule of evidence which excepts such statements from the general rule which makes hearsay inadmissible. ⁵ Honchell v. State, 257 So.2d 889 (Fla.1972); Boyd v. State, supra. Thus, whether or not a conspiracy is charged, the threshold condition of admissibility of a co-conspirator's hearsay statement proof independent of the statement that the defendant against whom the statement is sought to be introduced and the declarant participated together in a conspiracy remains the same. Damon v. State, supra; Boyd v. State, supra; Briklod v. State, supra; United States v. Annunziato, supra. Tresvant's participation in a conspiracy with Candido Giardino, Dante Dino, Jr. and others, co-conspirators whose declarations were admitted through the testimony of Ronald Flory, Emmett Garmany and Don Kozich, witnesses for the State was, as will be seen, overwhelmingly established by the required independent proof. ⁶ That made the hearsay, as any other evidence, admissible to prove Tresvant's commission of the substantive crimes.

The record reflects that the City of Opa-Locka awarded a contract for the construction of a public works building to Kozich and Kozich, a construction firm. Tresvant was the mayor of the city and cast his vote in favor of Kozich and Kozich. Dante Dino, Jr. was a principal in D & K Electric Corporation, the electrical subcontractor under Kozich and Kozich on this job. Candido "Candy" Giardino was a commissioner of the City of Opa-Locka. He also voted to award Kozich and Kozich the job. Ronald Flory, Emmett Garmany and Don Kozich were all employees of Kozich and Kozich.

According to Flory, ⁷ Dino contacted him with a proposition: if Kozich and Kozich would hire Dino's company as the electrical subcontractor, Dino would guarantee that Kozich and Kozich would be awarded the construction job by the city. In return for this guarantee, Dino requested that he be paid more than the $21,000 which Kozich and Kozich had allotted for the electrical work. Dino suggested to Flory that the excess, which would have to be "spread around," could be generated by inflated change orders which Kozich and Kozich would submit and which, Dino made clear, would be approved by the City Commission. Kozich and Kozich agreed to hire Dino's firm for $28,000. Kozich and Kozich was awarded the contract.

We turn now to the evidence, independent of hearsay, which showed Tresvant's participation in a conspiracy with Dino and Giardino (nontestifying declarants) and Flory, Garmany and Kozich (testifying declarants). As will be seen, this evidence consists of testimony about the acts and declarations of Tresvant, as well as testimony about statements incriminating Tresvant made by others in Tresvant's presence. The admissibility of this latter type of evidence is based on the rule that a person's silence can constitute an admission where the circumstances and nature of the statement are such that it would be expected that the person would protest the statement if untrue. ⁸ See Sullivan v. McMillan, 26 Fla. 243, 8 So. 450 (1890); McCormick, Evidence §§ 269-70 (2d Ed. 1972). Either type of this unquestionably admissible evidence can be used to independently show Tresvant's participation in a conspiracy upon which the admission of the co-conspirator hearsay statements can be predicated ⁹ and, at the same time, to show Tresvant's commission of the substantive crimes.

Flory's Testimony

Flory testified that he and Don Kozich met with Tresvant and Giardino. Tresvant was present throughout the meeting. There was a general discussion about money and draws. Giardino asked if Dino had been paid his first draw.

"Q What was said then?

"A Mr. Giardino asked if money could be paid directly to them because they had not received any money from Mr. Dante Dino."

"Q Did he indicate he was by himself in that request?

"A He said is there any way you can pay us direct."

"Q What was Mr. Kozich's response to that?

"A He said there was no way he could pay direct because he had a contract with D & K Electric for $28,000 and if he paid them direct, he'd also have to pay D & K $28,000 and in effect he would be compounding what he had already done."

Giardino complained about the difficulties he was encountering in "getting ahold" of Dino. There ensued a discussion as to the amount of money intended for the commissioners. Flory told Tresvant and Giardino "that there was $7,000 that was supposed to have been spread around." According to Flory, Tresvant and Giardino were "very surprised that it was a $7,000 figure" and were "both unhappy."

Flory related that he met again with Tresvant at Tresvant's home in Opa-Locka. At that time, Tresvant brought up the question whether there was "any way to get more money out of the padded change orders."

"Q (By the prosecutor) Did Mr. Tresvant ever indicate to you what would happen to the padded change orders should they reach the city commission?

"A They would be passed."

Tresvant asked Flory, "if we get you the change orders, is there more money in it for us?"

Garmany's Testimony

Emmett Garmany also testified to meeting with Tresvant, Flory and Kozich. He heard Don Kozich tell Tresvant:

"... that, you know, we needed to get out monies back through change orders and they discussed that and then Don pressed the issue and told him that, you know, we would in fact, you know, be willing to help you but the thing about it is we have to get before Kennie Wells and Mr. Giardino and we can get it processed through there and we can get it taken care of."

Garmany testified that he told Tresvant:

"... you guys have received your money and everything and we need to get ours."

and Tresvant responded:

"... he would have to meet before the commissioners and everything and then they would put it through once it got to him, Benfield, Tom Benfield would get to it, Mr. Griffiths, and then it would get approved."

Kozich's Testimony

Don Kozich testified to a meeting and conversation with Tresvant, Giardino and Flory.

"Q Who said what? Avoid using 'they,' and 'we,' and try to name names as to who said what.

"A Well, Mr. Tresvant was doing most of the talking. He said that he was concerned about getting their money.

"Mr. Dino was unavailable and they could not get ahold of him and he was being very uncooperative and he asked me if we could pay them direct."

"A I told him I couldn't do that without a change order.... and explained that under contract law, I would still be responsible for paying Dino the full amount of his contract."

Kozich then...