Whitfield v. State, 84-2044

• Citation: 10 Fla. L. Weekly 2651,479 So.2d 208
• Decision Date: 27 November 1985
• Docket Number: No. 84-2044,84-2044
• Parties: 10 Fla. L. Weekly 2651 Darrell WHITFIELD, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 208

479 So.2d 208

10 Fla. L. Weekly 2651

Darrell WHITFIELD, Appellant, v. STATE of Florida, Appellee.

No. 84-2044.

District Court of Appeal of Florida Fourth District.

Nov. 27, 1985.

Rehearing Denied Dec. 26, 1985.

Michael D. Gelety, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

The defendant timely appeals his judgment and sentence. We affirm the former, but reverse the latter and remand for (a) preparation and execution of the sentencing guidelines scoresheet and (b) providing of written reasons, should the trial court decide to depart from the guidelines. State v. Jackson, 478 So.2d 1054 (Fla.1985); Boynton v. State, 473 So.2d 703 (Fla. 4th DCA 1985), affirmed, 478 So.2d 351 (Fla.1985).

Appellant, Darrell Whitfield, was arrested by the Fort Lauderdale police and charged by information with one count of armed robbery with a firearm, two counts of attempted robbery with a firearm, and three counts of aggravated assault with a firearm. His motions to suppress evidence based upon an improper arrest, to suppress statements, and to sever appellant's trial from his codefendant's were denied.

Whitfield was tried before a jury, put on no defense, and was found guilty of all six charges found in the information. At sentencing, the trial court granted the state's motion to aggravate the sentence outside the guidelines, and sentenced appellant to life imprisonment, with a minimum mandatory term of three years, on count I; thirty years, concurrently, on counts II and III, and five years, concurrently, on each of the three remaining counts.

The evening of March 23, 1984, at about 7:30 p.m., John McHugh and his wife, Debra McHugh, drove to downtown Fort Lauderdale to go to Sterling's Men's Store. After parking the car they walked to the store. On the way they were approached by two black men one of whom held a gun. The man with the gun told them it was a holdup and said he wanted McHugh's wallet. McHugh reached for his wallet and had trouble getting it because it was buttoned in McHugh's pants pocket. The gun was shaking close to McHugh, and he was afraid of being shot, because the wallet was empty. McHugh reached for the gun, and his thumb lodged between the hammer and the gun. There was a struggle and the two men fell to the ground. McHugh's adversary hit McHugh on the back of the head. The man with the gun was identified in court by McHugh as appellant.

During the scuffle, McHugh could hear his wife screaming, but could not see what Brownlee was doing. After being hit on the head, McHugh lay on the ground for a few seconds until he heard some gunshots. McHugh heard his wife screaming and saw his wife lying on the concrete four or five feet away.

Lawrence Hamilton was a security guard for Sterling's Men's Store. He observed the gunman knock Debra McHugh to the ground. When Hamilton approached and asked what was going on, Whitfield pointed the gun at Hamilton, yelled obscenities at him, and threatened to blow him away. Hamilton both saw and heard appellant fire the shots. Hamilton identified appellant at a show-up.

Samuel DeNoms was driving past the crime scene when he heard a woman's loud scream. He looked around and saw some people near the entrance to Sterling's, some with their hands up, and an individual "holding them at bay." DeNoms stopped and saw a black individual who was holding something, wearing a fatigue jacket and light-colored pants, running from the crowd. The man ran across the street right in front of DeNoms, and between the buildings. DeNoms decided to try to follow but lost him. He parked and looked around, and saw the person across the railroad tracks with a bicycle and still carrying something. DeNoms began to follow. He saw a brief conversation between the first man and a second one. The first man passed less than 25 yards from DeNoms. DeNoms walked slowly behind the first man when something came from behind and knocked DeNoms to the ground. DeNoms was kicked in the back of the head. His assailant yelled threatening obscenities at DeNoms and pulled a gun on him. DeNoms, lying on the ground, covered his face with his arms. The gun went off. The man was trying to get DeNoms' wallet out of his pocket. DeNoms figured the gun was a cap gun, so he kicked his assailant--Whitfield--and knocked him off balance. DeNoms ran for his car. Whitfield yelled for him to stop and fired again. The bullet hit a puddle about a foot from DeNoms. DeNoms was about to drive away when a police car arrived. DeNoms told the police where Whitfield was. DeNoms forced Whitfield out of some bushes half a block away, and the police arrested him. DeNoms picked Whitfield out of a six or seven man show-up.

Officer Ben Langley of the Fort Lauderdale Police Department was the officer who met DeNoms in his small blue foreign car. DeNoms signaled the police to follow him. They stopped at a certain location and DeNoms said, "there they are." Whitfield and another black man jumped up from behind a hedge. Whitfield ran south, the other man west. Whitfield had a pistol in his right hand. Langley chased him among various buildings, stored boats and old cars. When he lost sight of Whitfield, Langley stopped and took up a position behind a garage. Whitfield appeared and started walking toward Langley. Langley jumped out from behind the garage with the police shotgun and told him to freeze, which he did. Langley then arrested Whitfield. Nearby Langley found, among articles of Whitfield's clothing, the revolver.

The issues are as follows, all of which we answer in the negative, except the last:

I. Whether the trial court erred, invading the province of the trier of fact, when, at the end of voir dire by appellant's counsel on appellant's tape recorded confession, the court stated its finding the statement was freely and voluntarily made.

II. Whether the following acts or omissions of the state prejudiced the appellant:

a. Failure to disclose that a victim/witness made a mistake in his identification at the hearing on the motion to suppress, after the witness so informed the prosecutor;

b. Failure to disclose that another victim/witness told the prosecutor he could not identify the clothing shown him as that worn by appellant;

And whether the court erred in denying motions to dismiss and motions for Richardson hearings in connection with these two purported discovery violations;

c. Appeal to the prejudice or sympathy of the jury in closing argument;

d. Prosecutor's comment that the evidence was uncontradicted, which is tantamount to a comment on the defendant's failure to testify;

e. Cumulative effect of the above prosecutorial errors.

III. Whether the trial court erred in preventing appellant from questioning the officer, who took the codefendant's statement, regarding the codefendant's status as a probationer, and from playing for the jury the edited portions of the codefendant's statement, which concerned his probation and which had been cut out over appellant's objection.

IV. Whether the trial court erred in failing to sever appellant's trial from that of the codefendant (and in admitting into evidence the codefendant's inculpatory statement).

V. Whether the sentence outside the sentencing guidelines and at the maximum statutory levels, without written reasons for departure from the guidelines, and without setting forth clear and convincing reasons for doing so, is error, requiring resentence.

I

A pretrial evidentiary hearing had been held on appellant's motion to suppress confessions and statements. The court ruled appellant's confession had been freely and voluntarily made, and denied the motion.

In laying a foundation for offering Whitfield's tape-recorded statement in evidence, the State offered the testimony of Detective Richard Hayward, Fort Lauderdale Police Department. When the prosecutor asked Detective Hayward whether the statement was freely and voluntarily given, appellant's trial counsel objected, claiming this was an invasion of the jury's province. The court sustained the objection. Later, the state tendered the recorded statement as a state exhibit, subject to voir dire by Whitfield's attorney. At the end of this voir dire questioning, the trial judge said:

THE COURT: Will be received and filed as State's 12 in evidence. Subject to whatever existing objections there are, we will find that it was freely and voluntarily made.

After two more questions and answers in the direct examination of the officer by the state attorney, appellant's attorney approached the bench to ask whether he had correctly heard the court say the statement was found to be freely and voluntarily made. The court said this had been done for the purpose of admissibility only. Whitfield's counsel contended this was improper and said he would move for a mistrial, because he had not had an opportunity to voir dire in the presence of the jury on the freeness and voluntariness of the confession. The court offered counsel the opportunity to do so then, and denied the mistrial motion.

Later in the proceedings, when Whitfield's codefendant's statement was being offered into evidence, the state asked the officer whether the codefendant had answered the questions voluntarily. The court sustained an objection to this question, instructed the jury to disregard the question, and explained to the jury that "ultimately it will be your decision as to whether or not this statement or either or both of them were freely and voluntarily given. That is a jury question. In instructing the jury at the close of all testimony, the court said:

A statement claimed to have been made by the defendant outside of court has been placed before you. Such a statement should always be considered with caution and be weighed with great care to make certain that it was freely and voluntarily made. Therefore, you must determine from the...