Zacke v. State

• Decision Date: 11 August 1982
• Docket Number: No. 81-859,81-859
• Citation: 418 So.2d 1118
• Parties: Clarence Albert ZACKE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1118

418 So.2d 1118

Clarence Albert ZACKE, Appellant, v. STATE of Florida, Appellee.

No. 81-859.

District Court of Appeal of Florida Fifth District.

Aug. 11, 1982.

Rehearing Denied Sept. 3, 1982.

Joe M. Mitchell, Jr., and H.S. Henderson, III, Melbourne, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

The defendant/appellant, Clarence Albert Zacke, was charged with and convicted of solicitation to commit first-degree murder and conspiracy to commit murder. Zacke raises twelve points on appeal. We find no merit in, nor necessity to discuss, any of these points other than Points X and XI.

The underlying facts, as indicated by the state's evidence, show that Zacke attempted to procure the murder of one Kenneth Merrithew, a key witness in a pending drug case against Zacke. At trial one Gregg Bacon testified that he was approached by Richard Lee Hunt, the alleged co-conspirator and solicitee, in September, 1980, and offered the contract for a hit to be carried out. Bacon then went to law enforcement officials with the plan, and they subsequently contacted Hunt to obtain his cooperation in making a case against Zacke.

Detective Rheuben McGee, of the Melbourne Police Department, testified that he met with Hunt after he had been informed of the offer made by Hunt to Bacon. McGee offered Hunt a chance to avoid criminal charges by cooperating with the police. McGee testified that he instructed Hunt to set up a meeting with Zacke and obtained Hunt's written consent for the placing of an electronic listening device on his person. Following McGee's instructions, Hunt met with Zacke at the home of one Roger Williams on September 19, 1980, and again on September 22, 1980, the latter time in Zacke's truck in a parking lot. Both these meetings were taped. McGee testified he gave instructions to Hunt as to when the meetings were to occur and that his prime function was to get any statements incriminating Zacke for the solicitation and conspiracy charge, but that he did not preclude Hunt getting information on Zacke's drug charges.

Roger Williams testified that he initially talked to Zacke in May or June of 1980, at which time Zacke was looking for someone who could "break fingers." Williams attempted to get in touch with a known enforcer, but that attempt failed. On September 14, Williams testified that Zacke called him, telling him that he had witness problems once again. Hunt happened to be present at Williams' house at the time of the phone call and Williams told Zacke that Hunt had similar problems, and knew people who could take care of them. He then testified he informed Hunt that Zacke wanted to talk to Hunt about what people he knew. Later that day, Zacke and Hunt met at Williams' home. Williams testified that they discussed different methods of enforcement, with Zacke saying, "I don't want bones broken, I want to make an example of this guy." Hunt replied, "Okay," and Zacke then said he wanted the witness dead. Hunt's reply to this was, "No problem, I can handle it." Williams further testified that Zacke identified the victim as a pilot who was supposed to fly some pot for him and who was going to testify. The meeting ended with mutual promises to stay in touch between Zacke and Hunt.

A subsequent meeting was set up for September 19, 1980, at which meeting Hunt was wearing a "body bug." The jurors, listening to the tape at trial, heard Hunt and Zacke agree on a $5,000 price tag for the murder, and heard Zacke give a complete description of where Merrithew could be found and the kind of car he drove, as well as his name, which Zacke clearly spelled out for Hunt. Zacke said he wanted to read about the murder in the headlines, and that he did not have much concern if Merrithew's children were killed as well. A tape of the September 22 meeting was also played for the jury. At that meeting, Hunt told Zacke the job was done, and he wished to collect.

Hunt, who was scheduled to testify against Zacke at his trial in April, 1981, is missing and presumed dead. Evidence proffered outside the jury's presence indicated Hunt's unavailability as a witness was procured by the defendant. The evidence that Hunt's disappearance was due to Zacke having had him killed was:

(A) One David Russell Burton testified that on February 2, 1981, he met with Zacke in a car outside a Melbourne restaurant, at which time the latter was nervous and tense. Zacke said he had taken care of some business the preceding Thursday (January 29). In response to a question by the prosecutor as to Zacke's specific statement, Burton's response was: "Something entailed that he had taken care of a witness against him ... and then he had to drop a car off at Roger's place." Roger was identified as Roger McLaughlin, the operator of an automobile junk business in Kissimmee, Florida. Zacke said he had paid a "key of cocaine" for the job.

(B) Roger McLaughlin confirmed that Zacke had left a 1975 Toyota Celica with him with instructions to demolish it completely. McLaughlin's girlfriend corroborated Zacke's delivery of the Toyota to the junkyard.

(C) The state adduced credible evidence that the Toyota Celica belonged to Hunt and that Hunt had not been seen by any friends or associates since January 28, 1981, and that the state had been unable to find him for trial.

(D) One Stephen Bailey testified that he had been an inmate in the Brevard County Jail on February 2, 1981, at which time he first met Zacke as a cellmate. Zacke told Bailey that he had hired Hunt to get rid of an airplane pilot, but then Hunt had gone to the police. This resulted in Zacke going to a man named Clark. Bailey testified: "So, the conversation with William Chansey Clark was about getting rid of Dicky Hunt. Mr. Zacke said that he, at the meeting, that he had, told Mr. Clark that it wouldn't hurt his feelings any at all if Dicky Hunt was gotten out of the picture; that Mr. Clark said that he would take care of it if Zacke could supply an automatic pistol with a silencer." After several more meetings, Zacke told Clark not to go ahead with it.

Bailey further testified from his jail cell conversations with Zacke that "the man he had eventually hired to get rid of Dicky Hunt had insisted that he drive the car from Tampa to the junkyard." Zacke expressed concern that the police would trace the Toyota and find that he had driven it to McLaughlin's junkyard. He had instructed McLaughlin to burn the Toyota and pour battery acid over it, paying particular attention to identifying marks and numbers, and then to crush the car. Zacke said he wasn't concerned about Hunt's body being found, and that he had been able to hire Hunt's killer at a cheaper price than he usually received because of Zacke's long association with him.

The appellant's first point on appeal which we consider is the assertion that the trial court erred in refusing to suppress the taped conversation between the defendant Clarence Albert Zacke and then government agent Richard Lee Hunt which were obtained in violation of the defendant appellant's Article I, Section 12, rights under the Florida Constitution. ¹ In this regard, appellant argues that this provision affords greater protection to individual defendants against electronic interception of communications for evidentiary purposes than any such protection afforded by federal guidelines, constitutional or statutory. He cites the landmark case of State v. Sarmiento, 397 So.2d 643 (Fla. 1981), holding section 934.03(2)(c), Florida Statutes (1977) ² unconstitutional "insofar as that statute authorizes the warrantless interception of a private conversation conducted in the home...."

Appellant acknowledges that Sarmiento dealt expressly with a warrantless interception in a defendant's home, but argues that its application should be extended to the home of a defendant's friend (i.e., Williams) and the defendant's truck. The argument is that in such places there is a reasonable expectation of privacy in the intercepted communication, and that this approach is supported by the rationale of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Katz analysis was specifically adopted by the Florida Supreme Court. Sarmiento, 397 So.2d at 645.

Subsequently, a series of district court of appeal opinions have limited...