Wilson v. State, 90-845

• Decision Date: 06 April 1992
• Docket Number: No. 90-845,90-845
• Citation: 596 So.2d 775
• Parties: 17 Fla. L. Weekly D936 Alexander Christopher WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 775

596 So.2d 775

17 Fla. L. Weekly D936

Alexander Christopher WILSON, Appellant, v. STATE of Florida, Appellee.

No. 90-845.

District Court of Appeal of Florida,

First District.

April 6, 1992.

John N.C. Ledbetter of Doyle & Ledbetter, P.A., Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Wilson appeals judgments of conviction and sentences imposed pursuant to jury verdicts finding him guilty of one count of violating the RICO statute, eight counts of forgery, and seven counts of uttering a forged instrument. We reverse appellant's RICO conviction, but affirm the others. ¹

The evidence at trial disclosed that four individuals were recruited by appellant in connection with appellant's scheme to obtain money using stolen and forged checks from various business enterprises in the Jacksonville area. Using the stolen checks, which had been made payable to the four individuals, appellant induced them to deposit the checks in their respective bank accounts, and then withdraw funds from those accounts, which funds were then shared by appellant and the four individuals. The evidence also included testimony by Officer William Bolena, of the Jacksonville Sheriff's Office, in which he stated that after being given his Miranda rights, appellant acknowledged that he recruited the four individuals to cash forged checks.

In his initial brief on appeal, appellant raised the following issues: (1) whether it was error to allow evidence of appellant's refusal to submit handwriting exemplars after being ordered by the court to do so; (2) whether the state in closing argument impermissibly commented upon appellant's right to remain silent; (3) whether it was error for the trial court to give an amended "flight" instruction relating to appellant's refusal to give the handwriting exemplars; (4) whether the state failed to establish venue in Duval County as to two of the alleged offenses; and (5) whether the trial court erred in sentencing appellant to a total of 105 years for his several offenses. During oral argument appellant's counsel informed the court that through inadvertence, the initial brief failed to address an issue pertaining to the RICO conviction, and counsel requested leave to file a supplemental brief on that issue. We granted counsel's request, and ordered supplemental briefs from both parties. The primary issue with respect to the RICO conviction is whether the state's evidence established the "enterprise" element under the RICO statute, since under the charge as contained in the information, and the evidence at trial, the "enterprise" was composed solely of appellant. We find that only two of the issues raised require extended discussion, but the others will be addressed briefly.

On motion by the state, the trial court ordered appellant to provide handwriting exemplars. Copy of this order was sent to defense counsel. Appellant appeared at the sheriff's office at the time and on the date ordered by the court, but refused to provide the handwriting samples. At trial, over objection, the state was permitted to introduce evidence of appellant's refusal. Appellant argues on appeal, on authority of Herring v. State, 501 So.2d 19 (Fla. 3d DCA 1986), that admission of this testimony was error because the state failed to prove that appellant knew the giving of handwriting exemplars was compulsory, and the state also failed to prove that appellant was apprised of the consequences of refusing to give the handwriting samples. We disagree.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the supreme court ruled that the Fifth Amendment privilege against self-incrimination protects an "accused's communications" but "offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." 86 S.Ct. at 1832 (emphasis added; footnote omitted). Accordingly, the Schmerber court upheld the taking of a blood sample. Shortly thereafter, on the authority of Schmerber, the Supreme Court ruled in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), that the Fifth Amendment did not protect against the compulsory giving of handwriting exemplars.

As Professor LaFave observes:

If the identification procedure in which the Defendant has refused to participate or cooperate, such as a line-up or taking of exemplars, is not protected by the Fifth Amendment, then of course there is no right to refuse and thus the act of refusal is itself not a compelled communication. Rather, that refusal is considered circumstantial evidence of consciousness of guilt, and like similar evidence as escape from custody, ... false alibi, ..., flight, ... suppression of evidence, and failure to respond to accusatory statements when not in police custody, ... its admission does not violate the privilege.

Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, Sec. 7.2(c)(1982), quoting, People v. Ellis, 65 Cal.2d 529, 421 P.2d 393, 55 Cal.Rptr. 385 (Cal.1966) (ellipses in LaFave).

Subsequently, in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the supreme court held that evidence of a defendant's refusal to submit to a blood test was admissible at trial because refusal is not an act coerced by an officer, and it makes no difference that the state did not warn the defendant of the possible consequences of refusal because "such a failure to warn was not the sort of implicit promise to forego use of evidence that would unfairly trick [the defendant] if the evidence were later offered against him at trial." 103 S.Ct. at 924. See also, LaFave, supra, at Sec. 7.2(c) n. 26.

Notwithstanding the language of Neville that it "makes no difference" that the state did not warn the defendant of the consequences of refusal, the Third District in Herring held that it was error to allow proof of defendant's refusal to submit to a hand-swab test used for detecting gun powder residue, because there was no evidence that the defendant was told that his refusal to submit to the test could be used against him, and because there was no evidence that the defendant was aware of the compulsory nature of the test. The Herring court noted that in Neville the defendant had good reason not to refuse a blood alcohol test inasmuch as his refusal could result in his driver's license being taken away. The Herring court also noted the ruling in U.S. v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), that a defendant's post-Miranda silence could not be used for impeachment because the silence had no probative value and any reference to post-Miranda silence has an intolerably prejudicial impact. Thus, the Herring court concluded: "While Neville stands for the proposition that evidence of a defendant's behavior (refusal to take blood test) is admissible where the defendant had substantial motivation not to behave as he did, Hale stands for the corollary proposition that evidence of a defendant's behavior (remaining silent) is inadmissible, because not probative, where the defendant had no substantial motivation to behave as he did." 501 So.2d at 21 (emphasis supplied). The court reasoned in Herring that because the defendant was not told of the possible adverse consequences, he had no motivation to submit.

The decision in Herring was strongly criticized in Justice Grimes' concurrence, to which Justice Ehrlich concurred, in Occhicone v. State, 570 So.2d 902 (Fla.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2067, 114 L.Ed.2d 471 (1991). Justice Grimes stated that Herring was based upon an erroneous premise, for in Miranda cases, such as Hale, a defendant is told he has a right to refuse to comply with a police request to make a statement or answer questions, whereas, in non-communication cases, i.e., cases where Miranda Fifth Amendment privileges are not at issue, a defendant is not told that he has a right to refuse. Thus, Justice Grimes postulates, there is nothing unfair about admitting into evidence a defendant's refusal to submit to a test because there was no "misleading assurance" in the first place. 570 So.2d at 908.

We are persuaded by Justice Grimes' view of Herring. There being no constitutional privilege against taking a test, such as providing a handwriting sample, it follows that there is significant probative value in a refusal to take such a test. There is no probative value, however, in exercising a constitutional right, such as the right to remain silent, because silence may be indicative of nothing more than a desire to exercise the right.

Even were we to apply the Herring standard, we do not think reversal would be required. At trial, appellant was specifically asked whether he had refused "to submit to Judge Southwood's order requiring you to provide handwriting exemplars," to which appellant responded: "Yes." Moreover, as above noted, appellant appeared at the sheriff's office on the date and at the time specified in the court order, and his counsel had a copy of the order. Thus, appellant's awareness of the court order was sufficiently established, and no reason is given why appellant should not be charged with general knowledge that court orders are to be obeyed. While appellant may not have had an appreciation for the exact nature of the adverse consequences he might suffer, the failure to submit under these circumstances is nevertheless probative even under the reasoning of Herring.

Turning to the second issue, we also find no merit with respect to the contention that the state was permitted to impermissibly comment on appellant's right to remain silent. First, we find that the prosecuting attorney's comment is not fairly susceptible to the interpretation that it was a comment on the appellant's right to remain...