Walker v. State

• Decision Date: 06 May 1969
• Docket Number: No. 68--516,68--516
• Citation: Walker v. State, 222 So.2d 760 (Fla. App. 1969)
• Parties: Robert Earl WALKER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 760

222 So.2d 760

Robert Earl WALKER, Appellant, v. The STATE of Florida, Appellee.

No. 68--516.

District Court of Appeal of Florida, Third District.

May 6, 1969.

Rehearing Denied June 11, 1969.

Robert L. Koeppel, Public Defender, and Gregory B. Hoppenstand, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and Harold Mendelow, Asst. Atty. Gen., for appellee.

Before PEARSON, HENDRY and SWANN, JJ.

HENDRY, Judge.

The appellant, Robert Earl Walker, was informed against for the crimes of robbery and assault with intent to commit murder in the first degree with a firearm. He pleaded not guilty to these charges, and as to the charge of robbery, he raised the affirmative defense of entrapment. Upon trial, he was found guilty by the jury of robbery and not guilty of the other charge. He was adjudicated guilty pursuant to the verdict of the jury and sentenced to twenty years confinement in the state penitentiary. The court denied a motion for new trial and the defendant has taken this appeal.

The evidence tends to show that the defendant was a uniformed police officer working part time at a Jai Alai fronton; that he suggested to one Matthews, an employee of Wells Fargo Armored Service, that he allow the defendant and 'pros' to 'hold him (Matthews) up' with the understanding that no one would be hurt and that Matthews would get his cut of the money. Matthews reported the proposition to his employer and the F.B.I. who persuaded him to pretend to acquiesce to appellant's plan and help set up the robbery. Thereafter, Matthews went out to the fronton and told the defendant that he would go along with the robbery plan. Matthews arranged a meeting with the defendant, the 'pro', and himself to take place at the Orange Bowl Stadium. The police and the F.B.I. put a microphone and transmitter on the person of Matthews and sent him to the meeting equipped to record the conversations of the parties. Thereafter, there were numerous telephone conversations between the defendant and Matthews in which the proposed robbery was discussed. These conversations were recorded by the police with the knowledge and consent of Matthews.

On the night of April 28, 1967, Matthews and his helper arrived at the Turnpike Drive-In Theater in an armored truck containing quite a large sum of money. The armored truck and its contents were taken from them at the point of guns and under threats of bodily harm. The evidence tends to show that next, the robbers drove the armored truck a short distance, whereupon they transferred themselves and the bags of money to a Volkswagen sedan. At that point, the numerous police officers who had staked-out the drive-in theater began an exchange of gunfire with the fleeing robbers wherein one of the car's occupants was killed. Gunfire was returned by the robbers during this period, and that return formed the basis for Count II of the information.

Appellant was somehow able to escape from the Volkswagen and sought to hide in an adjacent marshy area. He was apprehended soon thereafter.

The first point on appeal is whether the trial court erred by admitting into evidence and permitting the jury to listen to tape recorded conversations taken by the police using a wire tap and microphone hidden on the person of witness Matthews.

There are numerous tape recordings involved herein. They may be broadly classified as follows: (1) a tape recording which was made at the Orange Bowl Stadium when Matthews carried with him a hidden microphone which transmitted the conversations to police officers. There are over 150 parts of that tape recording wherein the conversation is unintelligible; (2) tape recordings which were made of the numerous telephone conversations between Matthews and the defendant, such calls having been made by Matthews from his own home, between April 17 and April 22, 1967. The state's introduction of these tapes into evidence was designed to destroy the appellant's affirmative defense of entrapment. The tapes contain numerous references by Matthews, who was at the time of the conversation aware that the recordings were being made, to the fact that the appellant was the originator of the robbery plan. Moreover, the record reveals a crucial conflict between the testimonies of Matthews and the appellant as to which of these two parties was, in fact, the instigator of the robbery plan. Thus, if the tape recordings were improperly admitted into evidence and played to the jury, prejudicial and reversible error has occurred.

First, we shall treat appellant's contentions that the tape recording which was obtained when Matthews met with the appellant and another 'robbery pro' at the Orange Bowl was improperly admitted. One of the earliest determinations in the State of Florida as to the admissibility of such a tape recording was made by this court in the case of Gomien v. State, Fla.App.1965, 172 So.2d 511. There, the state's witness was wired with a microphone and transmitter for the purpose of sending conversations he was having with the defendant to a nearby police officer controlling a tape...