Wooten v. State

• Decision Date: 13 May 1981
• Docket Number: No. TT-105,TT-105
• Citation: 398 So.2d 963
• Parties: Wesley Calvin WOOTEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 963

398 So.2d 963

Wesley Calvin WOOTEN, Appellant, v. STATE of Florida, Appellee.

No. TT-105.

District Court of Appeal of Florida, First District.

May 13, 1981.

Rehearing Denied June 16, 1981.

Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., and A. S. Johnston, Asst. Attys. Gen., for appellee.

LARRY G. SMITH, Judge.

Appellant seeks reversal of his conviction of second degree murder based upon his contentions that the trial court erred in denying his motion to suppress evidence seized from his apartment, and that at the trial the court erred in admitting testimony over his "Williams Rule" objection, in admitting inflammatory photographs of the victim, and in denying his motion for judgment of acquittal and request for a mistrial. We affirm.

A passer-by happened to see the appellant on the street carrying the victim, a thirteen-month old baby girl, the child of appellant's girlfriend, who was living with him in his apartment at the time. After observing appellant shake, yell at, and appear to strike the baby, the passer-by followed to see where appellant lived, and then flagged down a policeman, whom he led back to appellant's apartment. Upon arrival at appellant's apartment, the police officer, Swisher, asked to see the child, at which point appellant denied having harmed the child, but went and got the child from the kitchen area and brought her to the officer. Officer Swisher then asked appellant to bring the child to a bathroom in the hallway outside the apartment for examination. Upon observing that the child appeared lifeless, and being unable to detect a heartbeat, the officer instructed appellant to return the child to the apartment and place her on the bed, which he did. The officer called for backup and rescue personnel to assist him, then continued his examination of the child. He requested that appellant place the child on the floor, as he was prepared to administer cardiopulmunary resuscitation. Within moments, the rescue personnel, his backup, patrolman Andrews, and an evidence technician, patrolman Meyer, arrived. Rescue immediately removed the child to the outside for further examination and rescue efforts. Officer Swisher took appellant outside, advised him he was under arrest for aggravated child abuse, advised him of his rights, and placed him in the patrol car. Officers Andrews and Meyer remained upstairs at defendant's apartment. Swisher had instructed officer Andrews to "seal off the room." Swisher's supervisor, Sergeant Eason, and detective Richardson then arrived on the scene, and were informed by Swisher of what had taken place. Detective Richardson was advised by Swisher that the victim's mother and another child, the victim's baby sister, also resided in the apartment. Detective Richardson was also informed by uniformed officers present on the scene that there were what appeared to be blood stains in the apartment. Armed with this knowledge, detective Richardson entered the apartment, and he and the other officers began to process the area for evidence. He observed blood stains on the kitchen floor, along with various items of wearing apparel and bed clothing, some of which appeared to have blood stains on them, along with a belt which also had a stain which appeared to be blood. All of these items were in open and plain view, and were seized by the officers, along with a brush and a comb. Officer Meyer took photographs of the scene and of the physical objects prior to their being seized. Examination further revealed blood stains along the north wall of the stairwell leading to the apartment, and these blood samples were removed, as were those from the kitchen floor inside the apartment.

Officer Swisher testified that there was no one at the apartment other than appellant and the apparently lifeless child when he arrived. In view of the small size of the apartment, which consisted of only a living-sleeping room, and a kitchen, it is highly likely that the other officers were also aware that no one else was in the apartment. When asked why he did not obtain a warrant prior to the search and seizure of items in the apartment, detective Richardson stated that he had received information that the victim's sister and mother were also residing in the apartment, and he was also aware that there was blood and possible other physical evidence which would be pertinent to the incident. He had already been informed of the serious, possibly fatal injuries to the child, possibly resulting from actions of the appellant, who had been seen striking the child.

Detective Richardson also testified that he learned during his investigation that the mother and the other child were at University Hospital. However, it is impossible to determine from the testimony at the suppression hearing at exactly what point in the investigation detective Richardson acquired this knowledge. It therefore remains unclear just exactly what bearing, if any, detective Richardson's knowledge that the mother and another child resided in the apartment had on his decision to proceed with the investigation, search and seizure of items from the apartment without a warrant. The State in its brief before this court asserts that it was necessary for detective Richardson to enter the apartment to determine if there were other persons who might need medical attention. We find nothing in the record to support this assumption. Furthermore, although we would ordinarily assume that concern for the safety of the mother and the other child motivated detective Richardson's entry on this occasion, we cannot make such an assumption because officer Swisher knew there was no one else present, and we would have to conclude that the other officers present in the apartment when Richardson arrived were also aware that no other persons were there.

In support of his suppression argument, appellant relies primarily upon Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), in which the court firmly established that there is no "murder scene exception" to the warrant requirement of the Fourth Amendment. The facts in Mincey were briefly that several officers entered Mincey's apartment without a warrant or consent, whereupon a gun battle ensued, leaving one of the officers dead, and Mincey seriously wounded. After the shooting a search for other persons in the apartment was made, but no other search or seizure of any evidence was made until homicide detectives arrived some ten minutes later. The detectives then proceeded to gather evidence in a search that lasted four days, during which time the entire apartment was searched, photographed and diagramed. All drawers, closets, and cupboards were opened and inspected, clothing pockets were emptied, bullets were dug out of the walls and sections of the carpet pulled up and removed for examination. Some 200 to 300 objects were seized.

We think the facts in this case vary substantially from those in Mincey. Initially, we are confident that the entry by officer Swisher was justified by the "exigent circumstances" presented by his prior knowledge of the possible abuse of the child, and upon observing the child itself, the need to protect the child, determine its condition, and to immediately secure whatever medical or other attention might be necessary. Furthermore, Swisher's presence in the apartment would appear to be consensual, at least up to the point where Swisher's concern over the child's serious condition became apparent to appellant. Swisher's presence in the apartment is amply justified by the circumstances which indicated that the child was in need of immediate aid, which he proceeded to obtain. This type of entry is not prohibited by the Mincey decision. The Mincey opinion states (437 U.S. at 392, 98 S.Ct. at 2413):

... We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that the person within is in need of immediate aid .... (footnotes omitted)

Florida is among those jurisdictions so interpreting the Fourth Amendment. Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967); State v. Hetzko, 283 So.2d 49 (Fla. 4th DCA 1973); Gilbert v. State, 289 So.2d 485 (Fla. 1st DCA 1974); Long v. State, 310 So.2d 35 (Fla. 2nd DCA 1975); Hornblower v. State, 351 So.2d 716 (Fla.1977); Evans v. State, 364 So.2d 93 (Fla. 3rd DCA 1978); Johnson v. State, 386 So.2d 302 (Fla. 5th DCA 1980). See also Grant v. State, 374 So.2d 630 (Fla. 3rd DCA ...