Von Horn v. State, 74--1384

• Decision Date: 06 April 1976
• Docket Number: No. 74--1384,74--1384
• Citation: 334 So.2d 43
• Parties: Curtis Charles VON HORN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 43

334 So.2d 43

Curtis Charles VON HORN, Appellant, v. The STATE of Florida, Appellee.

No. 74--1384.

District Court of Appeal of Florida, Third District.

April 6, 1976.

Rehearing Denied July 6, 1976.

Phillip A. Hubbart, Public Defender and Elliott H. Scherker, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., Ira N. Loewy, Asst. Atty. Gen. and Steven Ginsburg, Legal Intern, for appellee.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

PER CURIAM.

The defendant, Curtis Charles Von Horn, was indicted for the first degree murder of one Lois Long, by strangulation with his hands. He was tried by jury, found guilty of first degree murder and sentenced to life imprisonment in the state penitentiary.

The record reflects that at or around midnight on July 9, 1973, officers of the Dade County Public Safety Department were summoned to the scene of a murder at the request of Curtis Charles Von Horn. Von Horn gave his account of the crime to the police officers at the scene, and at 8:10 A.M., on the morning of July 9, 1973, he gave a formal statement at the Public Safety Department. The statement is paraphrased herein as follows:

While working as a security guard for a shoe store on the night of July 8, 1973, Von Horn had been to the Top Banana Store on South Dixie Highway at 121st Street at approximately 10:00 P.M. to buy cigarettes and beer. Lois Long, an employee of Top Banana, was in the store at that time. After making his purchases, Von Horn went back to his place of employment. He observed a Volkswagen drive around the parking lot by the store at about 10:30 P.M. At about 11:05 P.M., he heard a woman scream. He armed himself with a small knife and proceeded toward the store. Approximately 10 feet away, he observed a white male and a black male 'bringing Lois out of the store, bodily.' Both men were carrying lead pipes, and when Von Horn approached them, he became engaged in a fight with the white male. (Von Horn stated that he could positively identify the the black male.) He was possibly rendered unconscious for a brief time, and upon recovering, found his glasses on the ground, with one lens missing. He then went into the Top Banana Store, picked up a flashlight and some batteries, and attempted to flag down a car.

When the first police officer arrived at the scene, Von Horn gave him this account of the crime. Von Horn's formal statement, which he agreed was given of his own free will, included a detailed description of the two assailants. Von Horn consented to be photographed, fingerprinted and was given photographs to look at. He was able to select one photograph as the black male he said he could identify. Later that same morning, while Von Horn was still at the Public Safety Department, it was determined that he was a suspect rather than a witness-victim, and at about 10:45 Von Horn was advised of his constitutional rights. He executed a waiver of those rights and following more questioning, gave a full confession to the crime.

Prior to trial, Von Horn filed a motion to suppress in the trial court, in which he alleged that the confession was made involuntarily and in violation of his constitutional rights. At the hearing on the motion to suppress, Von Horn testified that the first patrolman arrived on the scene at approximately 12:00 midnight. He gave the patrolman the exculpatory statement about the two supposed assailants who dragged Lois out of the store and then attacked him. Later, when Detective McGowan arrived on the scene, he gave McGowan the same verbal statement. Von Horn was subsequently taken to the Public Safety Department 'for further questioning,' and was questioned by 'approximately about seven of them or eight.' He testified that he gave permission for the police to search his car, take his clothes, a blood sample and photographs. He was then asked to look at photographs in a mug file. When asked if he was under arrest at that time, Von Horn stated that he was to be questioned as a witness. He stated that between 12 midnight and 10:45 the next morning when he was advised of his rights, he was required to give about ten statements; he was not asked if he wanted to go home; he was not informed that he could leave and come back to give a statement; he was not allowed to make a phone call; he was not offered anything to eat or drink, and he further stated that he had not slept or eaten since around 6:00 P.M., the evening before. When asked why he confessed, Von Horn stated, 'I figured they were keeping me there forever, the way they were treating me.' He also stated, 'they said they had, I believe . . . three witnesses. They were telling me all kinds of things, messing my head up. At the time, I was afraid.' When asked if the police knew of his past (a prior arrest for rape), he replied affirmatively that before he confessed, Detective McGowan 'was sitting in front of me with the folder.' The confession given at approximately 10:45 A.M., was the first time Von Horn admitted perpetrating the crime. All other statements were exculpatory and given as a witness. Inquiry was made as to signing a waiver of (Miranda) rights. Von Horn said he signed 'In order to get out of there, I was scared.'

At the conclusion of Von Horn's testimony, the State called Detective McGowan, who testified that he arrived at the scene at around 1:30 A.M., at which time he initially interviewed Von Horn. Von Horn gave a brief oral statement that he was a witness to and victim of the crime. McGowan asked Von Horn to go to the station to give a formal statement and to look at photographs. McGowan testified that at around 4:00 or 4:30 A.M., Von Horn was taken in a police car to the Public Safety Department. McGowan arrived at the Public Safety Department at 6:30 A.M., and upon questioning, Von Horn gave the same statement as before but with more details. At 8:10 A.M., a formal statement was taken from Von Horn. It was basically the same as that given at the scene. McGowan stated he had no reason not to believe it. He testified that Von Horn was fingerprinted and photographed 'for the purpose of elimination.' At approximately 10:45 A.M., Vom Horn was advised that he was a suspect. He was advised of his rights and signed a constitutional waiver form. He was questioned again. Detective McGowan stated that Von Horn stuck to his original story at first, but then he started to break down crying and confessed. McGowan testified that Von Horn was not beaten, subjected to physical violence, coerced, threatened or promised reward, and that at some time (although he could not give the exact time or even whether it was before or after the 10:45 confession) he personally brought Von Horn a sandwich and a coke. McGowan later testified that he did not know the last time Von Horn ate or slept before making his confession at 10:45. McGowan stated that before 10:45 Von Horn was not a suspect but he did not advise him that he could leave the building, make a phone call or go home.

The State then called Lt. Fowler who testified that he talked to Von Horn at around 5:00 A.M., to request permission to take his clothing. Permission was given without coercion, physical violence or hope of reward. At that time, Fowler was not aware of Von Horn's background. When he later did become aware of it, Fowler discussed it with McGowan and 'I suggested he reinterview him and advise him of his rights.' A third detective was called to testify, after which the court determined that argument was not necessary and ruled, 'The motion is denied.'

During the course of Von Horn's jury trial, following testimony that Von Horn signed the statement taken after the warnings were given, the waiver form was admitted into evidence, and the confession, which he gave at 12:05 P.M.,...