Flowers v. State , 152 Fla. 649 ( 1943 )

Mr. Chief Justice BUFORD and this writer are of the opinion that the court below erred in admitting a certain shoe in evidence and the testimony with reference thereto. This shoe was found under a chair in the living room of a dwelling at 608 South Newport Street, in Tampa, on March 31, 1942. The crime involved in this case was committed on November 11, 1941 at 111 South Newport Street. The trial of this case was held early in June, 1942. The witness who testified at the trial that he sold a pair of shoes "just like this shoe," to the defendant, stated that he sold them to him "about four months ago;" that he could not be positive about the time of the sale but that to his best recollection it was after Christmas. So, according to the State's own witness, the defendant could not have owned these shoes at the time the crime was committed, but indicated that he might have owned them on the night of March 31, 1942, when the shoe in question was found at 608 South Newport Street. The lady living at that address stated that on that night she was awakened about 2 A. M. by her daughter speaking to her in a mumbling voice," and that it was then that she found the shoe under the chair. The offer to introduce this shoe in evidence and all the testimony connected with it was promptly objected to by defendant's counsel. I think this evidence was clearly inadmissible, in spite of the fact that there was some evidence tending to show that this defendant had possessed a shoe of this kind, and in all probability this very shoe. The State Attorney stated that this evidence was introduced for the purpose of establishing the identity of the defendant, which we admit was a question in the case. It is quite possible that it tended to establish the identity of the defendant as the man who purchased the shoe some two months after the crime here in question was committed, but we fail to see how this testimony was relevant to the identity of the person who committed the crime charged against this defendant back in November 1941. The general rule is that it is harmful error to admit evidence of other or collateral crime independent of and unconnected with the crime for which the defendant is on trial. There are certain exceptions to this rule, but the admission of this evidence does not fall within any of those exceptions. Nickels v. State, 90 Fla. 659,106 So. 479.

The question that has given me most concern in this case is whether or not the trial court erred in admitting the defendant's confession in evidence. On this record, this is a close question. Section 12 of our Declaration of Rights provides that no person shall in any criminal case be compelled to be a witness against himself. And as far back as the case of Simon, a slave v. State, 5 Fla. 285, this Court held that to render a confession admissible, it must have been freely and voluntarily made, uninfluenced by fear or hope. The opinion of Mr. Justice EEMMES in that case shows that such was the generally accepted rule in other jurisdictions at that time. And in another of our early cases Coffee v. State, 25 Fla. 501,6 So. 493, this Court held that confessions of persons charged with crime should be acted upon by courts and juries with great caution: that before being admitted it must first be clearly shown that such confessions were free and voluntary, and that when a confession has in the first place been made under illegal influences, such influences will be presumed to continue and color subsequent confessions unless the contrary is clearly shown. This rule against compulsory self-incrimination is extremely important and should be jealously preserved and fearlessly applied.

In a long line of cases, as shown by the opinion of Mr. Justice CHAPMAN, this Court has held that a confession should not be admitted in evidence unless it is made to appear to the trial court that it was freely and voluntarily made, uninfluenced by fear or the use of force, threats or intimidation of any kind, or induced by any promises, hope of reward, or other illegal inducements. The true test is whether or not the confession was in fact freely and voluntarily made. We have also held that a confession may be free and voluntary even when made by the defendant to an officer while under arrest and in custody, and even where the defendant had not been informed of his constitutional right not to testify against himself and that, if he does, anything that he might say might be used against him, though in such cases the question as to whether or not the confession was in fact free and voluntary should be more stringently examined into by by the courts and the slightest evidence of threats or inducements may under such circumstances suffice to exclude the confession. See Louette, et al., v. State, decided at the present term and not yet reported.

The arrest without a warrant in this case was we think a valid arrest under Section 901.15, Florida Statutes of 1941, which provides that when a felony has in fact been committed and an officer has reasonable ground to believe that the person arrested has committed it, an arrest without warrant may be made. However, I think that in this case the arresting officers violated both Section 901.17 and 901.23 Fla. States., 1941. In this case the arresting officers, upon request of the defendant, refused to tell him what he was being arrested for, as it was their duty to do, even without such request, under this statute. (Section 901.17, supra). It is true there are certain exceptions stated in the statute, but in my judgment this case does not fall within any of those exceptions. Nor did the officers comply with said Section 901.23, which provides that when an officer arrests a person without a warrant, he shall without unnecessary delay take the person arersted before the nearest or most accessible magistrate within the county in which the arrest occurs, having jurisdiction, and shall make before the magistrate a complaint, which shall set forth the facts showing the offense for which the person was arrested. However, the failure to comply with the statutes referred to would not necessarily render a free and voluntary confession inadmissible in evidence. But these are some of the circumstances to be considered in determining whether the confession was in fact a voluntary one.

There are also other circumstances in this case which no doubt gave the trial court, as well as this Court, considerable concern. For instance, when this defendant was arrested, he was handcuffed and lead around by a chain attached to the handcuffs. In this handcuffed condition, and during that same afternoon, he was taken to various places, including the apartment at 111 South Newport Street, in Hyde Park where this crime was committed. It appears from the testimony of the officers that when taken there, he not only confessed his guilt, but also volunteered the statement that the bed in the room where the crime was committed had been moved to a different part of the room from that in which it was located on the night of the crime.

It is also shown by the testimony of one of the officers that during at least a part of that same afternoon the defendant appeared to be frightened; that he was not afraid of the officers, who had not mistreated him, but he was afraid "of the public." However, there is no evidence in this record that there has been any threat of mob violence. Defendant was arrested about three o'clock in the afternoon, some five months after the crime was committed, was taken to police headquarters and finger printed. He was questioned by the officers on several occasions during the afternoon and evening, and was taken by the officers over to Clearwater, the county seat of the adjoining county, and placed in jail there for the night. No explanation of this procedure is disclosed by the record, but it may have been resorted to as a safeguard against possible mob violence, and was calculated to so impress the accused, though the testimony does not show that he was so impressed.

From the time of his arrest until his examination by the assistant State attorney, he had not had any contact or consultation with his family or friends, nor any advice of counsel. Nor does it appear that he had made any request for such consultation or advice. It also appears that over defendant's protest, on the afternoon of his arrest, the officers sent out to his home and "picked up" his wife and brought her to the police station for questioning about the shoe, but defendant was given no opportunity to meet or talk with her. So it might be inferred that the accused was held incommunicado.

He was brought back to Tampa from Clearwater the next morning and some time during the day the assistant State Attorney, in the presence of two of the arresting officers, took his confession by asking him questions, the questions and answers being taken down by the court reporter.

Before asking the defendant any questions, the Assistant State Attorney told him the nature of the charge against him and gave him full information as to his constitutional rights; told him that he did not have to answer any questions that would incriminate him unless he wanted to, and warned him that anything he might say could be used against him in court. The court reported testified that the defendant appeared to be perfectly calm and self possessed throughout this examination, and readily answered the questions propounded. Indeed, the evidence is convincing to the effect that at no time was any form of force used, unless the handcuffing of the defendant, which officers testified was usual in making all arrests for serious offenses, might be deemed to be a use of force; nor does the record (except the testimony of the defendant) show that any threats were made at any time, or any form of intimidation or coercion resorted to, or that any promises were made or inducements offered. The only thing which could possibly be considered as an inducement was that one of the officers told defendant that the best thing for him to do was to tell the truth. Nor does it appear that any long-drawn-out, persistent and oft repeated questioning, such as would tend to break down the will or resistance of the defendants, was resorted to. These facts differentiate this case from the case of Chambers v. State, 309 U.S. 227, 84 L.Ed. 116, and several other decisions of the United States Supreme Court, cited in the opinions of Mr. Justice CHAPMAN and Mr. Chief Justice BUFORD.

It is true that the defendant in this case was a young negro man barely twenty years of age, who had very little education, but his testimony as shown by the record indicates that he was quite intelligent. It is also true that a ruse was resorted to by the finger print officer, who led him to believe that a finger print which he showed him which had been found in a house in Hyde Park, the section of the City where the crime was committed, tallied with the defendant's finger prints. And then the finger print officer, seeing that the defendant was very much impressed, asked him if he would not like to talk to the Chief of Police and tell him all that he knew, to which suggestion the defendant appeared to consent, whereupon he was taken into the Chief's office, and there, at that time, or later on in the afternoon, in the presence of the Chief of Police and several others, confessed his guilt.

We have held that a confession is not rendered inadmissible because it was induced by some mere artifice, falsehood or deception practiced by the officer if it appears that it was nevertheless freely and voluntarily made. See Harrison v. State, 110 Fla. 420, 148 So. 882, and cases cited. But if a confession is obtained by fraud, collusion, trickery and subordination of perjury on the part of those representing the State, it should not be admitted. Lisenba v. Cal.,314 U.S. 219, 86 L.Ed., 166.

In keeping with the previous decisions of this Court, the trial court, before admitting the confession, sent the jury out and conducted an exhaustive inquiry into all circumstances attending the making of the incriminatory statements and confessions by this defendant. The duty rested upon the trial court to determine, from the evidence introduced both by the State and the defendant, in the absence of the jury, whether or not the confession offered by the State was in fact freely and voluntarily made. After going into the matter fully, the trial judge decided that the confession was freely and voluntarily made and stated that he would admit the same in evidence. Then the jury was brought in, and all the testimony which had been offered by either side in connection with the confession was re-testified to before the jury.

This Court has held that the trial court is necessarily vested with a large discretion in determining this question of the admissibility of a confession; that it is a discretion that should be exercised with great care, to the end that true and proper enforcement of the law be not impeded, on the one hand, and that no injury be done the defendant on the other; and that after a confession has been admitted the defendant is entitled to have the evidence in regard to the manner in which it was obtained given anew to the jury, not that the jury may pass upon its admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and that upon his request the defendant is entitled to an instruction on that point. Bates v. State,78 Fla. 672, 84 So. 373; Nickels v. State, 90 Fla. 659,106 So. 479; Harrison v. State, supra; Brown v. State, 135 Fla. 30,184 So. 518. These cases point out that in the determination of this question of admissibility, the trial court frequently has to act upon conflicting testimony and that the determination of this question of mixed law and fact by the trial judge comes to this Court with a presumption in favor of the correctness of his ruling. This is necessarily a correct rule of appellate review, because the trial judge has an opportunity, not possessed by the appellate court, to observe the demeanor of the witnesses on the stand, the candor or lack of candor of the witnesses and the weight and credibility of their testimony. For these reasons the appellate court should not set aside a ruling by the trial court, either admitting or denying the admission of a confession, unless the evidence as shown by the record clearly manifests that the trial court was in error. Nickels v. State, supra.

In considering this question this writer has given careful consideration, not only to our own former decisions, but also to the decisions of the Supreme Court of the United States, including the Chambers case, 309 U.S. 227, 84 L.Ed. 716; White v. Texas, 310 U.S. 530, 84 L.Ed. 1342; Ward v. State of Texas,316 U.S. 547, 62. S.C. 1139, 86 L.Ed. 1663, Brown v. Miss.,297 U.S. 278, 56 S.C. 461, 80 L.Ed. 682, and Lisenba v. Cal.,314 U.S. 219-243, 86 L.Ed. 166. It appears from the Federal decisions that the principles which the Supreme Court of the United States has laid down, in cases coming up from the State courts where the admissibility of confessions was reviewed under the due process clause of the Federal Constitution, are practically the same principles as those which this Court has enunciated throughout the years, although in one case, the Chambers case, supra, the United States Court held that this Court had not properly applied those principles to the facts of that case.

After carefully reading this record, I am not clearly convinced that the trial court was in error in admitting the confession of the appellant.

But for the reasons herein above pointed out, I do think that a reversible error was committed in admitting the evidence with regard to the shoe. I therefore concur with Mr. Chief Justice BUFORD that the judgment below should, for that reason, be reversed for a new trial.

BUFORD, C. J., concurs.