Walker v. State

• Decision Date: 12 February 1986
• Docket Number: No. AR-200,AR-200
• Citation: 483 So.2d 791,11 Fla. L. Weekly 390
• Parties: 11 Fla. L. Weekly 390 Clifford WALKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 791

483 So.2d 791

11 Fla. L. Weekly 390

Clifford WALKER, Appellant, v. STATE of Florida, Appellee.

No. AR-200.

District Court of Appeal of Florida,

First District.

Feb. 12, 1986.

Rehearing Denied March 19, 1986.

T. Whitney Strickland, Jr., Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Thomas H. Bateman, III, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Clifford Walker appeals from the judgment and sentences imposed on his conviction on counts of sexual assault and first degree murder. Walker raises four points for review: (1) the denial of his motion to suppress evidence seized in a warrantless search of his home, (2) the allegedly prejudicial presentation of the prosecution case, (3) the trial court's refusal to admit a proffered defense exhibit into evidence, and (4) a jury instruction denoting Walker's attempted suicide as flight. We affirm.

On October 23, 1981, Millicent Wilson, a student at Florida Agricultural and Mechanical University (FAMU) was sexually assaulted and murdered in her dormitory room. During the course of the investigation which followed the discovery of Miss Wilson's body, Walker, also a FAMU student, became a suspect in the case.

On November 22, 1981, at approximately 10:00 p.m., Walker's roommate returned to the trailer which the two men occupied. ¹ Mills, the roommate, found a note on the kitchen table which read:

I'm going to sleep for awhile. I would not like to be disturbed by anyone for any reason. Love, Clifford.

Shortly thereafter Mills went out for the evening and returned to the trailer in the early morning of November 23, 1981. Later on November 23, 1981, Thanksgiving morning, Mills discovered blood on the bathroom sink, wall, and mirror. Walker called to Mills from the bedroom, and told Mills that he had had a nose bleed. Mills returned to the living room where he had been sleeping on the couch. About thirty minutes later Walker walked into the kitchen and dropped a metallic-sounding object into the sink; he then returned to the bedroom. Mills got up to investigate, and discovered that Walker had a cut on his arm. At that point, Mills sought help from friends in the area. One of the friends called the FAMU Police Department, while Mills telephoned for an ambulance.

Mills and the persons he contacted returned to the trailer to assist Walker until the ambulance arrived. Officer McFadden of the FAMU Police Department arrived at the trailer either immediately before or at the same time as the arrival of the emergency medical team. Shortly thereafter the emergency medical team left with Walker. When questioned by Officer McFadden concerning a possible motive for Walker's suicide attempt, Mills stated that Walker had been depressed since he had been questioned in connection with the Wilson case. Mills then directed Officer McFadden's attention to a knife in the kitchen sink, whereupon McFadden ordered Mills and his friends to leave the trailer. At that point, McFadden secured the premises and called the investigators.

Shortly thereafter Leon County Investigator Donna Cormier was dispatched to the trailer. Investigator Cormier processed the trailer as the scene of an attempted suicide. First she photographed the scene, then collected various items that might be associated with the suicide attempt, i.e., two knives, blood-stained clothing, and notes and letters. All of the items seized were in open and plain view. At trial, when Investigator Cormier was asked whether any of the officers attempted to obtain a warrant, she stated there was no need for a warrant because she was investigating an act of violence.

Prior to trial, the items collected at the trailer were the subject of a motion to suppress. The motion was denied. The jury returned a verdict of guilty on both counts charged. On the count one murder conviction, Walker was sentenced to a life term with no possibility for parole for twenty-five years. On the count two sexual assault conviction, Walker was sentenced to serve a seventy-five year term of imprisonment.

Walker's first allegation of error is the denial of the motion to suppress the items collected at the trailer. Walker's argument is addressed to what he characterizes as two warrantless intrusions into his home, one permissible and one impermissible. Under this theory, Walker considers the initial entry permissible due to the exigent circumstances of his suicide attempt and resulting need for medical assistance. Walker contends the exigency ended when the emergency medical team removed him from the premises. Therefore, the subsequent warrantless search of the trailer and the collection of evidence pursuant thereto constituted an unreasonable, hence unlawful, second intrusion which required suppression of the items seized. The State contends there was only one entry, which was permissible because based on Mills' consent in the form of a request for assistance for Walker. The State urges that Mills' consent extended to the subsequent police duty to investigate the circumstances which took them into the home initially.

The starting point for analysis of a Fourth Amendment search and seizure issue is the general principle that a warrantless search is per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh'g denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971); Hornblower v. State, 351 So.2d 716 (Fla.1977). If the initial intrusion which brings an item into plain view of an officer is not supported by a warrant, the item seized may still be admissible if one of the exceptions to the warrant requirement applies. Coolidge v. New Hampshire, supra. See also: C. Whitebread, Criminal Procedure § 11.02, at 213-214 (1980). One such exception to the warrant requirement is consent. Schneckcloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To be valid, consent must be voluntary, and the question of voluntariness must be determined from the totality of the circumstances. Schneckcloth v. Bustamonte, supra; Zeigler v. State, 402 So.2d 365 (Fla.1981); Denehy v. State, 400 So.2d 1216 (Fla.1980); Bailey v. State, 319 So.2d 22 (Fla.1975).

Another exception to the warrant requirement is the existence of exigent circumstances which makes an intrusion into a protected area reasonable. See: Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Hornblower v. State, 351 So.2d 716 (Fla.1977); Cross v. State, 469 So.2d 226 (Fla.2d DCA 1985); Haugland v. State, 357 So.2d 1026 (Fla. 3rd DCA 1979). An example of an exigent circumstance that would justify police entry into a protected area is an emergency situation requiring investigation or the rendering of aid. Zeigler v. State, 402 So.2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); Wooten v. State, 398 So.2d 963 (Fla. 1st DCA 1981); Long v. State, 310 So.2d 35 (Fla. 2d DCA 1975); Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967). Once an officer is legally inside the protected area, by express consent or the implied consent attendant upon an emergency situation, items inadvertently discovered in plain view may be seized as evidence. Ensor v. State, 403 So.2d 349 (Fla.1981); Zeigler v. State, supra.

Wooten v. State, 398 So.2d 963 (Fla. 1st DCA 1981), presents a factual situation somewhat comparable to the situation which pertains here. In Wooten a police officer made a warrantless entry into appellant's apartment in response to an emergency situation, i.e., the possible abuse of a child. The officer determined the child was in grave condition and concluded that appellant was probably responsible. The officer called for rescue personnel and other officers to provide support. This court found that the entry of rescue personnel and the other officers called as backup was reasonable. While in the apartment, the officers observed in plain view what appeared to be blood stains on the floor and on several items of clothing. Shortly after the rescue team left with the child, a detective arrived who confirmed that the stains were blood. The detective then directed and assisted in the taking of photographs, blood samples, and the seizure of the suspected items which were in plain view. Only those items directly related to the suspected child abuse were taken by the officers.

In Wooten, as in the case here under review, appellant urged the exigency had ceased by the time the detective arrived and the subsequent one hour or more search was not the type of cursory warrantless search sanctioned in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). This court disagreed, reasoning that:

the entry of all officers on the scene was part of one continuous episode, initially justified by exigent circumstances. We know of no decision and no logical basis for holding that a lawful entry is limited to a single officer, nor any rule that prohibits one officer, legitimately on the premises, from being joined by a sufficient number of his fellow officers, or his superior...