Tuff v. State

• Citation: 408 So.2d 724
• Decision Date: 12 January 1982
• Docket Number: No. ZZ-371,ZZ-371
• Parties: Woodrow TUFF, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 724

408 So.2d 724

Woodrow TUFF, Jr., Appellant, v. STATE of Florida, Appellee.

No. ZZ-371.

District Court of Appeal of Florida, First District.

Jan. 12, 1982.

Michael Allen, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., for appellee.

WILLIS, BEN C., Associate Judge.

The appellant was defendant in the trial court on a charge of armed robbery of a convenience store on July 14, 1980 in Duval County. He was found guilty as charged, and thereupon was adjudged guilty and sentenced to seventy-five years imprisonment, with the Court retaining jurisdiction over one-third of the sentence. Appellant will hereafter be referred to as "defendant."

Prior to trial, defendant filed several pleadings involving attempts to suppress certain evidence, including evidence of statements made by him following his arrest. A hearing on the motions was held on November 14, 1980, when testimony was received from Detective Kearney and Officer Wilson of statements made by defendant, and the voluntariness of those statements. No ruling on the motion to suppress was made on the record immediately following this hearing, and the case was passed to a later date. On November 21, 1981 the Court made a written notation of the word "denied" on the motion. A trial jury was selected on December 15, 1980, but was not sworn until December 17, 1980, when it was convened to hear testimony. Evidence was received including testimony of Officer Kearney, regarding the voluntariness of defendant's statement. The Court then denied the motion to suppress the statement, and in overruling defendant's objection stated that it had "already ruled it's an admissible statement."

The evidence at the trial shows that an armed robbery occurred just prior to 11:00 o'clock in the evening of July 14, 1980 at a Lil Champ convenience store. At that time, a Ms. Laura Denise Mette, the only employee of the store in attendance, was preparing to close up when a black man walked in, pointed a gun at her and directed her to "put the money in the bag." The robber was wearing a brown knit turtle-neck sweater or shirt, and there was a blue towel around his neck and shoulders as a partial mask. Ms. Mette was in the process of gathering the store receipts to comply with the robber's directions when a car pulled up to the store and a customer came in. The robber then hid behind a door to the bathroom while Ms. Mette waited on the customer. The customer remarked that Ms. Mette was "as white as a sheet," and he asked her what was the matter. No reply was given, and the customer left after he was served. The robber then came out, gathered up the money, estimated by Ms. Mette to be something over $150, and also taking Ms. Mette's change purse with all of her identification, left the store, stating to Ms. Mette "If you identify me I'm going to come back and get you."

The customer, a Mr. Fee, lived next door to the store. He was driving past the store at about 10:50 P.M. on the date of the robbery when he noticed a Cadillac pull in front of the complex in which he resided, and observed two black males exit the car and walk to the side of the store. He became suspicious and made a U-turn to drive up to the store. He knew Ms. Mette as an employee there, and recognized her as she was working behind the counter. He noticed that a young man was using a telephone outside the store. He observed Ms. Mette as being "white as a sheet" and not responsive, but kept glancing toward a storeroom or closet door. When he left the store, he made note of the first three letters of the Cadillac's license tag, namely, "SBS." He then went to his apartment and called the police. Ms. Mette locked the front door, and also called the police. Mr. Fee returned to the store, saw Ms. Mette in tears behind the counter. She refused to open the door until Deputy Sheriff Toohey arrived a few minutes later. The deputy received a description of the robber from Ms. Mette, and from Mr. Fee obtained the first three letters of the tag number on the Cadillac he had observed. The deputy relayed the information to the radio dispatcher. Responding officers soon stopped a Cadillac which fit the description which had been broadcast. In it were the defendant driving, and a juvenile black male as a passenger. The first officer to spot the vehicle was a Sergeant Johnson, of the Sheriff's Office, who noticed it when it was about two miles from the store which had been robbed. Sergeant Johnson was then winding up his evening shift, which terminated at 11:00 P.M. He did not participate in the arrest of the occupants of the Cadillac. As he was going off duty, the further handling of the matter was done by Deputy William Wilson and other officers who came into the investigation. When he arrived, Wilson directed everyone to stand clear of the vehicle until an evidence technician arrived. Though he was one of the arresting officers, Wilson did not advise defendant of his rights, but transported the juvenile, who had been a passenger in the car, away from the scene.

There were found in the car, a paper bag which contained $167 and a small pop-open purse with a few cents; three towels, one of which was blue; two sweaters, one of which was brown; and a lady's purse.

Both of the suspects were taken to the store of the robbery, where defendant was identified by Ms. Mette as the person who had robbed her. This occurred approximately ten or fifteen minutes after the robbery. Mr. Fee was only able to identify the juvenile as the person he saw using the telephone outside the store.

Officer Wilson did not interrogate the defendant. After the arrest was made, Wilson prepared and completed a vehicle impoundment storage report on the Cadillac, with the hold on it for robbery. He explained to defendant the purpose of the report, told him he would give him a copy, that the car was going to be stored with a hold on it for robbery, and that he needed defendant's signature on the impounding sheet. He further explained that the signature was not saying he was guilty or anything like that, but was information as to who was storing the car, the wrecker service, and where it was being taken. Defendant replied that he didn't want to sign anything and that he wanted a lawyer. Officer Wilson replied that that was "fine" and noted on the report "refused his signature" at the spot where there was a place for a signature.

Detective P. H. Kearney was one of the officers called to the arrest scene, and later he interviewed defendant in the robbery office at the police station. The officer advised defendant of his rights, including the right to have an attorney at any time that he wished. No request was made by defendant for an attorney. Defendant stated that he had been riding around, and as he needed money he decided to rob the Lil Champ, and that his stepson, who was in the car with him, had nothing to do with the robbery and didn't know there was or had been a robbery. He gave some details of the robbery, which were consistent with the accounts of Ms. Mette and Mr. Fee. This interview was not recorded, but the officer was allowed to testify as to what was said. The defendant stated that the officer told him he was in serious trouble, that the officer knew he had committed the robbery, and that he was going to get the stepson sixty years. The officer denied making these threats.

Defense witnesses included defendant's wife and his girl friend. The latter testified she had been with defendant from 10:15 to 10:40 P.M. at a restaurant. The wife testified the defendant and her son left the house where they were living on the evening of July 14. Defendant testified that he made arrangements to meet his girl friend for the purpose of breaking off their relationship, and after leaving her he drove away and was soon afterward stopped by police. Defendant denied ever having worn a shirt or sweater, or having owned a gun like those introduced in evidence and which had been identified by Ms. Mette as having been on and with the defendant at the robbery.

Over strenuous objections of the defense, the State was allowed to present two rebuttal witnesses, each of whom testified that defendant had committed a robbery on them at Shoe City on July 2, 1980, and that he was wearing the brown shirt or sweater which was in evidence, and used the blue towel, also in evidence, to partially cover the gun used in the robbery. Both identified the handgun in evidence as having been the weapon used in the robbery of them.

The defendant contends the trial Court erred in allowing the State to present testimony of his alleged confession, because there was no express finding by the trial judge that the confession was voluntary, and also because he did not waive the right to have counsel present during the interrogation. He also claims error in permitting the State to use the rebuttal evidence which was presented, because of failure to give notice of intent to rely on the Williams (v. State, Fla., 110 So.2d 654) case type of evidence, and also because it involved evidence of another crime which was irrelevant to the case...