Wingard v. State

• Citation: 208 So.2d 263
• Decision Date: 20 March 1968
• Docket Number: No. 67--276,67--276
• Parties: Horace WINGARD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 263

208 So.2d 263

Horace WINGARD, Appellant, v. STATE of Florida, Appellee.

No. 67--276.

District Court of Appeal of Florida, Second District.

March 20, 1968.

Walter R. Talley, Public Defender, and William H. Namack, III, Asst. Public Defender, Bradenton, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

HOBSON, Judge.

The appellant, Horace Wingard, was indicted for murder in the first degree. After the jury entered its verdict of guilty, with a recommendation of mercy, the appellant was adjudged guilty and sentenced to imprisonment for life. It is from this judgment and sentence that the appellant appeals.

The appellant contends that the trial court committed reversible error in allowing into evidence certain statements made by him, thereby violating the now famous Miranda decision.

The statements in question were made to an F.B.I. Agent named Lusky who testified as to the circumstances surrounding and prior to the giving of the statements by the appellant. Mr. Lusky's testimony, as well as that of the appellant, as to his version of the circumsances surrounding the giving of the statements, was heard by the judge prior to admitting ther statements into evidence. The testimony of the appellant and that of Mr. Lusky was conflicting.

Mr. Lusky testified that he received information to the effect that a person fitting appellant's description was staying at a hotel. He learned by showing a photograph of appellant that a person resembling the photograph was staying at the hotel under the name of Dennis Moore. Lusky and three other law enforcement officers remained in the vicinity of the hotel until they observed a person resembling the description and photograph of the appellant, at which time they approached the appellant and asked if he could help resolve the question of the identity of himself. The appellant at that time identified himself as Dennis Moore, and showed papers, driver's license and draft card, in that name. Mr. Lusky testified that this was not a positive identification, although the man who asserted himself to be Dennis Moore appeared to fit the general description of the appellant and resemble the photograph. At this point, Mr. Lusky asked the appellant if he would accompany them to the Police Department so that they could determine definitely by fingerprints whether or not he was Horace Wingard. The appellant inquired as to whether he was compelled to go with them, at which time Lusky told him that he was not, and appellant promptly refused to accompany them to the Police Department to be fingerprinted.

Mr. Lusky testified that:

'At this point I noticed that he had a tattoo, the tattoo with the name Rita which was listed on the identification order for Wingard. At this point I was convinced that this was Wingard and I arrested him as Horace Asbury Wingard, III.

'Q Mr. Lusky, prior to this arrest, prior to telling him that he was under arrest, was he in any custody of any kind?

'A No, sir.

'Q Was he held by any of these men with you?

'A No, sir.

'Q He was not handcuffed?

'A No, sir.

'Q And this was on the street?

'A Yes, sir.

'Q All right, sir. Now, what if anything did you tell him at the point you told him he was under arrest?

'A Well, immediately upon arrest, they advised him of the crime for which he was being arrested, the fact that it was the federal charge of unlawful flight from the State of Florida to avoid prosecution for the crimes of murder and escape. I told him at the time that he was...