Wilkerson v. State, 69--134

• Decision Date: 27 February 1970
• Docket Number: No. 69--134,69--134
• Citation: 232 So.2d 217
• Parties: Johnny A. WILKERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 217

232 So.2d 217

Johnny A. WILKERSON, Appellant, v. STATE of Florida, Appellee.

No. 69--134.

District Court of Appeal of Florida, Second District.

Feb. 27, 1970.

R. Grable Stoutamire, of Ware & Stoutamire, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Edward F. Boardman, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

Appellant Johnny A. Wilkerson appeals to this Court from a judgment of conviction entered by the Pinellas County Circuit Court pursuant to an adverse verdict upon trial of Wilkerson for the crime of breaking and entering a building other than a dwelling house with intent to commit a felony.

The sole contention urged here is that the evidence at the trial, which was circumstantial in nature, was legally insufficient to support the verdict and judgment. We agree with this contention and reverse.

During the early morning of February 2, 1968, the business building of Moorefield's Clothing Shop on 9th Street North, St. Petersburg, was broken into and a large quantity of men's clothing in said store was taken and carried away. The owner of the store, one Howard Moorefield, had locked up his store about 8:30 P.M. the preceding night, but a St. Petersburg police officer, at about 1:45 A.M. the following morning, found 'the front glass door * * * had been busted out' and broken glass shattered out of the door both on the inside and on the front sidewalk.

There was testimony by a Tampa police officer that around midnight of February 2, 1968, he observed a white Chevrolet automobile parked on 21st Street in Tampa where another police officer was talking with a white man and four colored men and that about two hours later in the same neighborhood he followed the Chevrolet, which was then being driven by a white man with four colored men in the car; that he lost sight of the Chevrolet briefly but soon thereafter found it empty on the side of the road; that he observed a number of shirts and other articles of clothing in plastic bags in the back seat of the car; and that he then ordered the car impounded, removed the articles to his police car, and took them to the Tampa Police Station where he turned them over to an officer from the St. Petersburg Police Department. This witness stated he recognized one of the colored men as co-defendant Bogan and that he recognized another of the colored men as being in the Courtroom that day but did not specify him as being Wilkerson.

There was testimony by another Tampa police officer that at approximately 2 A.M. that same night he observed a colored man on 13th Avenue in Tampa, whom he apprehended and took to the first officer's police cruiser about a half mile away. This Negro was identified as co-defendant Bogan.

Another Tampa police officer testified that at about 5 A.M. the same night he went to co-defendant Wynn's home and arrested him upon 'information that there was possibly an individual wanted for a felony' at that address; that he then went to a home on West Buffalo in Tampa and arrested defendant Wilkerson, giving no reason why he was so arrested. There had been no warrants issued for the arrest of either Wynn or Wilkerson.

Another Tampa police officer testified that later on that same night he took a statement from co-defendant Wynn as to his activities earlier that night, which statement was made in the absence of defendant Wilkerson. Only three police officers were present other than Wynn, who was a 16 year old Negro.

Another Tampa police officer testified that about 4:15 A.M. that same night he talked with co-defendant Bogan, in the absence of defendant Wilkerson, as to Bogan's previous activities that night. Bogan was also a 16 year old Negro and his statement was procured only in the presence of three police officers on the 2nd floor of the police station.

The final piece of 'evid...