# Opposition — Waterhouse v. Florida (No. 83-5567)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1983

## Text

- 5567 .
oe “Tress

AUG 29 1983

ALEXANDER STEVAS,
CLERK

TABLE OF CONTENTS

OPINION BELOW 1
STATEMENT OF THE CASE AND FACTS 1-5
ARGUMENT

REASONS FOR DENYING THE PETITION FOR WRIT OF
CERTIORARI

ISSUE I

THE PRE-TRIAL STATEMENTS OF THE POLICE DID NOT 6-8
VIOLATE PETITIONER'S CONSTITUTIONAL RIGHT TO
COUNSEL

ISSUE II
THE PRE-TRIAL STATEMENT MADE AFTER COUNSEL WAS 8

APPOINTED BUT IN COUNSFL'S ABSENCE DID NOT VIOLATE
PETITIONER'S CONSTITUTIONAL RIGHT TO COUNSEL

ISSUE IIT

PETITIONER WAS NOT DETAINED OR SEIZED WITHIN THE 9-10
MEANING OF THE FOURTH AMENDMENT THUS THE JANUARY

7th STATEMENT WAS NOT OBTAINED IN VIOLATION OF
PETITIONER'S CONSTITUTIONAL RIGHTS

ISSUF_IV

THE SEIZURE OF PETITIONER'S VEHICLE WAS BASED ON 10-11
PROBABLE CAUSE THUS THE PHYSICAL EVIDENCE OBTAINED
FROM THE VEHICLE WAS PROPERLY ADMITTED

CONCLUSION 17

CERTIFICATE OF SERVICE 1]

TABLE OF CITATIONS

PAGE

Blasingame v. Estelle, 604 F.2d 893 (5th Cir. 1979) 7

Chambers v. Maroney, 399 U.s. 42, 90 S.Ct. 1975, 26 10, 11
L.Ed.2d 419 (1970)

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 6G, 7, 8
L.Ed.2d 378 (1981)

Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 8
L.Ed.2d 977 (1964)

Gorel v. United States, 531 F.Supp. 368 (U.S.D.C., 7
S.D. Tex. 1981)

~

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 8
82 L.Ed. 1416 (1938)

Jurek v. Estelle, 623 F.2d 929 (56h Cir. 1980)

~

McCree v. Housewright, 689 F.2d 797 (8th Cir. 1982) 7

Michigan v. Moseley, 423 U.S. 96, 96 S.Ct. 321, 6
46 L.Ed.2d 313 (1975)

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, G
16 L.Ed.2d 694 (1966)

Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979) ee
Oregon v. Bradshaw, 33 Cr.L. 3211 (1983) , a; ae
Schn=ckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 9

2044, 36 L.Ed.2d 854 (1973)
Silva v. Estelle, 672 F.2d 457 (5th Cir. 1982) 7
State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981) g

Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979) Pee ee
United States v. Johnson, 563 F.2d 936 (8th Cir. i977) 9

United States v. Kiein, 626 F.2d 22 (7th Cir. 1980) 11

United States v. Massey, 437 F.Supp. 843 (U.S.D.C., 8
M.D. Fla. 1979)

United States v. Van Leewen, 397 U.S, 249, 90 S.Ct. 11
1029, 25 L.Ed.2d 282 (1970)

United States v. Williams, 694 F.2d 1192 (8th Cir. a)
1979)

Waterhouse v. State, 429 So.2d 301 (Filia. 1983) A...

White v. Finkbeiner, 687 F.2d 885 (7th Cir. 1982) 7

OPINION BELOW

The opinion of the Florida Supreme Court sought to be

reviewed is reported as Waterhouse v. State, 429 So.2d 301

(Fila. 1983).

STATEMENT OF THE CASE AND FACTS

The Petitioner, Robert Brian Waterhouse, was indicted for
the first degree murder of Deborah Kammerer. He was found guilty
by a jury, and a separate sentencing hearing was held. The
jury recommended death, and the trial court entered and Order
sentencing Petitioner to death. Appeal was taken to the Florida
Supreme Court raising the following issues:

POINT ONE

THE STATEMENTS OF THE DEFENDANT AND THE
TANGIBLE EVIDENCE TAKEN FROM HIS CAR
SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE

ON THE GROUND THAT THEY WERE OBTAINED AS

A RESULT OF AN ILLEGAL ARREST OR DETENTION.
POINT TWO

THE TANGIBLE OBJECTS TAKEN FROM THE DEFEN-
DANT'S CAR SHOULD HAVE BEEN EXCLUDED FROM
EVIDENCE ON THE GROUND THAT THE POLICE
OFFICERS LACKED PROBABLE CAUSE TO SEIZE
THE VEHICLE PRIOR TO THE TIME THEY OBTAINED
A WARRANT TO SEARCH ITS OONTENTS.

POINT THREE

THE DEFENDANT'S STATEMENTS SHOULD HAVE BEEN

THE DEFENDANT'S FINAL STATP{FNT SHOULD HAVE
BEEN EXCLUDED ON THE GROUND THAT THE OFFICERS
FAILED TO ADVISE THE DEFENDANT'S COURT APPOINTED
ATTORNEY THAT THEY WERE CONDUCTING AN INTERVIEW.

POINT FIVE

THE DEFENDANT'S STATEMENTS SHOULD HAVE BEEN

POINT SEVEN

THE EVIDENCE OF AN ALLEGED HOMOSEXUAL RAPE
ATTEMPT WAS IMPROPERLY ADMITTED BECAUSE IT
DID NOT MEET THE RELEVANCY TEST REQUIRED BY
THE FLORIDA EVIDENCE CODE AND THE WILLIAMS
RULE.

POINT EIGHT
THE EVIDENCE DOES NOT SUPPORT A FINDING THAT
THE CAPITAL FELONY WAS COMMITTED BY THE DEFEN-

DANT FOR THE PURPOSE OF AVOIDING OR PREVENTING
A LAWFUL ARREST.

POINT NINE

THE EVIDENCE DOES NOT SUPPORT A FINDING THAT
THE CAPITAL FELONY WAS PARTICULARLY HENIOUS,
ATROCIOUS AND CRUEL.

POINT TEN

THE TRIAL JUDGE FRRED IN BASING TWO AGGRA-
VATING CIRCUMSTANCES ON ONE PRIOR ACT OF
THE DEFENDANT.

POINT ELEVEN

THE INVOLUNTARY SEXUAL BATTERY WAS AN ESSEN-
TIAL ELEMENT OF THE HOMICIDE AND AS SUCH, IT
COULD NOT OONSTITUTIONALLY BE USED AS AN AGGRA-
VATING CIRCUMSTANCE.
Attached hereto as Appendix I are copies of the appellate briefs

filed in this cause. The Supreme Court of Florida affirmed both

the judgment and sentence. Waterhouse v. State, supra. This

etition for Writ of Certiorari followed.

On the morning of January 3, 1980, St. Petersburg police
received a call from a citizen indicating the nude dead body of
a white female had been discovered face down in the mud flats on
the shore of Tampa Bay. Examination of the body revealed numer-
ous bruises around the throat, severe lacerations over the scalp
area, the right eye was swollen and black, and there were numer-
ous other body bruises. A blood-soaked tampon was stuffed in the
victim's mouth. There were also lacerations to the rectum.
The wounds were such that they were probably made with a

hard instrument such as a tire changing tool. Drag marks in a

grassy area and marks on the victim's shoulder indicated the body

had been dragged. Close scrutiny of the scene revealed the girl
had been dragged to the shore at high tide. The cause of death
was determined to be drowning.

There were 30 lacerations and 36 bruises over the body which

had been inflicted prior to her death. The rectum displayed

s

evidence of mutilation by multiple tearing wounds. Scientific
evidence indicated the victim had been anally assaulted with a
penis and a foreign object. Based on the amount of hemorrhaging
in the rectal area, the mutilation occurred prior to death. A
front tooth was missing and there was evidence indicating thi
had recently happened. The medica] evidence also revealed the

victim had been chocked to such an extent as to cause hemorrhages

in the eyes, lining of the voice box and muscles of the neck.
The victim had been on her menstrual period at the time of the

murder.

On January Sth the police received an anonymous phone call
giving a license number in reference to the sy murder. The
number given was GMU 603. The caller did not identify himself,
but his voice was that of an older man, with a New England or
New York accent. It was determined that the car was a Plymouth
registered to Petitioner. A check of Petitioner revealed he
had served eight years for the murder of a white female in New
York, and he was on a life parole. The previous victim had been
choked and battered and left nude. The police began a surveil-
iance of Petitioner.

On January 7th the police received information that Deborah
Kammerer was possibly the murder victim. Two of Ms. Kammerer's
acquaintances, Yohan Wenz and Carol Byers testified they last
Saw the victim on January 2nd when the three went to the ABC
Lounge. Shortly before midnight Wenz and Byers left, but Debbie
remained. Kyoe Ginn, a barmaid at the ABC, stated Debbie left
around 1:00 a.m. with a white male. Ginn was shown a group of
pictures; she identified Petitioner as the person Debbie left with.

On the evening of January 7th, police officers asked Petitioner
to voluntarily go with them to police headquarters for an interview.

At this time he said that he did not know any girl named Debbie

and that he went to the ABC Lounge on January 2nd but did not leave

With a WUUIai. AL6éit_Lvs CHAS AULT LV ATW FURL AVENTWL AO BA AN CU
leave but his car was impounded for searching pursuant to
warrant. The automobile was searched of January 8, and Peti-
tioner was arrested on January 9.

Detectives Murry and Hitchcox arrested Petitioner. In the
car on the way to the police station, after advising Petitioner
of his rights, Hitchcox asked him, "We were right the other
night, weren't we, when we talked to you about being involved
in this case?" Petitioner responded simply, "Might." Shown
a picture of Deborah Kammerer, Petitioner this time admitted that
he did in fact know her.

On the afternoon of January 9, the detectives again inter-
viewed Petitioner. Detective Murry testified concerning this

interview. She said that Petitioner became emotionally upset

and said repeatedly that his life was over, that he was going to
the electric chair. He said that he wanted to talk to his inter-
viewers as people and not as police officers. He then said that
he had some personal problems with alcohol, sex and violence.
The two detectives interrogated Petitioner again on
January 10. Again Petitioner said he wanted to talk to them as
people rather than as police officers. Detective Murray testi-
fied that Petitioner again indicated that he experienced a
problem involving sexual, activity. He said that when he drinks
a fot, it is like entiet bine Snaps and he then finds himself
doing things that N@ knows are terrible and bad, and that he
caunot control his hehavior on such occasions. Petitionér also
told the officerswthat when he wanted to engage in sexual
activity with a woman but learned that she was having her men-
strual period, he would become frustrated and angry that this
is what had happened the previous Wednesday night. He also
said that he had a lot to drink on Wednesday night.
Inspection of the interior of Petitioner's car reveaied

the presence of visible blood stains, and a luminol test re-

vealed that a large quantity of blood had been in the car but

had been wiped up. Analysis of the blood in the car and com-
parison with known blood samples of Petitioner and the victim
revealed that the blood in Petitioner's car could have come
from the victim but was not Petitioner's blood.

, forensic blood. analyst testified that it is possible
through analysis of blood stains on certain surfaces to make
estimates concerning the direction and velocity of motion of
the blood making the stains. This witness concluded from her
analysis that the blood in Petitioner's car was deposited in
the course of a violent attack.

A forensic hair analyst testified that hairs found in
Petitioner's car were consistent in their characteristics with
known hair samples from the a ms y

A forensic fiber analyst testified that fibers found in
the debris adhering to the victim's coat were similar to fibers
from the fabric of the seat cover in Petitioner's car. Also
fibers were found in the car that had the same characteristics ”
as fibers from the victim's coat and pants. ‘ ‘

Petitioner was employed as a plaster and drywall worker,

His forman testified at trial that on the morning of January 3,
Petitioner arrived at work asking for the day off. He dppeared
to have a hangover and said he was feeling rough. The witness '
said that at this time Petitioner has scratches on his me

The witness also said that Petitioner had told him that he

liked anal intercourse and liked being with woman who «lowed x

‘ themselves to be big ahd, sapped.

ARGUMENT
REASONS FOR DENYING THE PETITION
FOR WRIT OF CERTIORARI
ISSUE I
THE PRE-TRIAL STATEMENTS TO THE
POLICE DID NOT VIOLATE PETITIONER'S
CONSTITUTIONAL RIGHT TO COUNSEL
The Petition for Writ of Certiorari should be denied because
the state courts, applying relevant federal law, found Petitioner's
right to counsel had not been violated.

This Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966) held a criminal defendant must be
advised by police he has the right to consult with an attorney
before submitting to custodial questioning. If the defendant
invokes his right to counsel, interrogation must cease until

the defendant has an opportunity to consult with counsel. “ore
recent cases from this Court have interpreted Miranda as indi-
cating once the right to counsel has been invoked, a defendant @an
still waive the right. However, it must be shown that the de-

fendant initiated further contact with the police. Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and

Oregon v. Bradshaw, 33 Cr.L. 3211 (1983). Petitioner argues\he.

did not initiate further contact with police, and his statement
on January 9th after booking should be suppressed pursuant to
Edwards. a | .

, Respondent respectfully submits the case sub judice is

both factually and legally distinguishable from Edwards v. Arizona,

Supra. Furthermore, this case presents no new issue which cannot
be resolved by applying existing federal law to the facts and ‘
circumstances of this case.

Prior to this Court's decision in Edwards the Fifth Circuit
Court of Appeals and this Court had recognized invocation of “=
the right to counsel was not a blanket prohibition against ;
interrogation. See Michigan v. Moseley, 423 U.S. 96, 96 S.Ct.

321, 46 L.Ed.2d 313 (1975); Nash v. Estelle, 597 F.2d 513 (5th

Cir. 1979) and Thompson v. Wainwright, G01 F.2d 768 (Sth Cir. 1979).

ca

The Nash Court addressed itself to the situation, which we have
here. of a defendant who makes an equivocal request for counsel.
Sub judice, Petitioner was arrested and read his “Miranda
rights. He acknowledged his understanding of those rights
and responded to police questioning. After answering a few
questions he stated, “I think I want to talk to an attorney.”
Questioning ceased, and the officers proceded to the police
station where Petitioner was booked. Once booking was completed
Officers Murry and Hitchcox told Petitioner they would come up
to answer any questions he might have or talk with him, if he

wanted them to. Petitioner indicated he would be interested.

This is the kind of situation contemplated in Nash v. Estelle,

supra., and Thompson v. Wainwright, supra. The defendant made

an equivocal request for counsel, and the police further inquired

to clarify the equivocation. Blasingame v. Estelle, 604 F.2d

893 (Sth Cir. 1979) and Jurek v. Estelle, 623 F.2d 929 (Sth Gir

1980) .
This Court cited with apparent approval the Nash and
Thompson holdings in footnote 9 of the Edwards opinion. The

right of the police to clarify a defendant's wishes has retained ‘

4 .
viability in post-Edwards cases. See McCree v. Housewright,

689 F.2d 797 (8th Cir. 1982); White v. Finkbeiner, 687 *.2i

2 sD

885 (7th Cir. 1982); Silva v. Estelle, 672 ©.2d 457 (5th Cir.

1982) and Gorel v. United States, 531vP.Supp. 368 (U.S.D.C., S.D.
Sd? ¥ : ¥
Tex.» 1981). P
“ " aR F
In Edwards there is no equivocation Soacerning the Tequest

for counsel. On the morning after he made it clear he only

wanted to deal.with the police through counsel, two detectives
came to see him. Edwards said he did not want to talk, and
they said he had to. Thereafter, an incriminating statement
was made. Edwards request for counse! was clear; the police in 7
essence made him talk. There was no point to be clarified: thus, a
the police in Edwards should have honored his request for counsel.

The Nash and Thompson principles were clearly not applicable to
Edwards. ’

by law enforcement officers to forego his cleariy invoked right
to counsel. Petitioner equivocally requested counsel, then
voluntarily decided to deal with the police without counsel.
The State Supreme Court found the police did not act improperly
in further questioning Petitioner; this was also the implicit
finding of the trial court. This finding is supported by the

record and should be affirmed. Oregon v. Bradshaw, 33 Cr.L.

at 3213 and 3214. Certiorari should be denied.

ISSUE II
THE PRE-TRIAL STATEMENT MADE AFTER
COUNSEL WAS APPOINTED BUT IN COUNSEL'S
ABSENCE DID NOT VIOLATE PETITIONER'S
CONSTITUTIONAL RIGHT TO COUNSEL
Certiorari should likewise be denied on this issue since

no new constitutional issue is involved here, and the state
court opinion comports with existing federal law on the issue.
Even Petitioner recognizes there is no per se rule requiring
agents of the State to notify defense counséf before they talk
with a defendant. A defendant can, after both requesting

counsel and consulting with counsel, waive the presence of ™

counsel and submit to police questioning. Escobedo v. Illinois,

378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)

The question of a Sixth Amendment waiver is to be determined.

from ‘the facts and circumstances surrounding the interrogatién.

United States v. Massey, 437 FiSupp.-843 (U.S.D.C., M.D.\ Fla. 1977
RAY :

’ . ~ 8 .
and Johnson v. Zerbst, 304 U.S 458,*58 S.Ct. 1019. 82 L.Ed.

t *
1461 (1938) Fe a ;

%

On the previous sveihnds Petitioner had talked: with
Officers Murry and Hitchcox. He exercised his right to terminate
the interview, but invited the officers to return the next day..
In the interim, Petitioner was taken to a first appearance, and
counsel was appointed. He consulted with counsel for a couple
of hours. The officers returned and Petitioner evidenced a “

willingness to talk. He indicated he understood his rights,

indeed Petitioner was a convicted felon who had been through

the process before, including the right to have counse! present.
The state court's findings do not violate any of Petitioner's

caneepinesanet rights. *ie an

Ps

>
ae ata a

ISSUE III

PETITIONER WAS NOT DETAINED OR
SEIZED WITHIN THE MEANING OF THE
FOURTH AMENDMENT THUS THE JANUARY 7th
STATEMENT WAS NOT OBTAINED IN VIOLATION
OF PETITIONER'S CONSTITUTiONAL RIGHTS
The Petition for Writ of Certiorari should be dismissed since
Petitioner was never seized or detained within the meaning of the
Fourth Amendment. Petitioner argues he was detained without
probable cause and his statement and physical evidence should
have been suppressed. However, the trial court specifically

found Petitioner voluntarily accompanied the officers to the

police station. See United States v. Wiltiams, 604 F.2d 1102

(8th Cir. 1979). This ruling is supported by the record and is
not clearly erroneous; therefore, it should be accepted. United

States v. Johnson, 563 F.2d 936 (8th Cir. 1977)

This Court said in Schneckloth v. Bustamonte, 412 U.S. 218,

93 S.Ct. 2044, 36 L.Ed.2d 854 (1973) the surrounding circum-
stances must be concerned in determining if a Fourth Amendment

seizure or detention has occured. Accord State v. Grant, 392

So. 2d 1362, 1364 (Fla. 4th DCA 1981). Factorg to_be considered
ie include the threatening presence of several officers, display
of weapons, some physical touching of the citizen and use of "
language.or tone compelling compliance with the request.
Sub judice, the evidence revealed two officers - Leake and
Stelljes - actually approached Petitioner at his vehicle, al-
though an officer in a marked car effectuated the SGP. However,»

Petitioner voluntarily exited the car; he was not g¥dered’ but vy
by

ficers. No guns were drawn, nor was Petitioner hand-
cuffed. Petktioner was asked, not ordered, to come to the /

,

Le

police Station,\and the officers nade’ no oe eR And there

is no evidence of y physical touching by the officers. The

4 ' “officer specifically told Petitioner he did not have to come to
the station. And once there, it was made clear to Petitioner he 4
could leave at any time. And in fact Petitioner was allowed to

leave when he indicated he wanted to.

Although there was some contradictory testimony concerning
the retention of Petitioner's driver's license and the number
of officers, the trial court was faced with credibility deter-
minations. The judge actually heard the evidence and assessed
the weight and believability of witnesses. The judgment of the
trial court should not be disturbed since it is supported by

competent evidence. Oregon v. Bradshaw, supra.

ISSUE IV

THE SEIZURE OF PETITIONER'S VEHICLE
WAS BASED ON PROBABLE CAUSE THUS
THE PHYSICAL EVIDENCE OBTAINED FROM
THE VEHICLE WAS PROPERLY ADMITTED

a

At the time Petitioner's vehicle was seized law enforcement
officers has probable cause to believe a search of the vehicle
would yield evidence of a crime. The police had received an
anonymous caller saying the car involved had license number
j.GMU 603. A check of the number indicated Petitioner owned that
vehicle. Petitioner's background had been checked revealing a
prior murder of a femmle who had been oinilaia and battered and
left nude. The police believed from crime scene evidence that
the -wActins had been beaten eisewhere, and the body brought to
the ‘beach. A barmaid at the ABC Lounge stated Petitioner Mert °
the bar with the viet ie the night before the body was found.
Additionally, Officer Long observed sand on the car floor and
,, dark stains on the seat. : .

Based on these factors Lomg had probable cause to seize ‘the
vehicle. Chambers .. Semenen. 399 U.S.42, 90 S.Ct. 1975, 26 “
Ed.2d 419 (1970) In Chambers the Supreme Court held given prob-

able cause the officers could either seize the car until there

has been judicial determination of probable cause (search ae

or carry out an immediate search without a warrant. Accord

=

ia oe Se” =

-

United States v. Fultz, 622 F.2d 204 (6th Cir. 1980) and United

States v. Brown, 635 F.2d 1207 (6th Cir. 1980).

“
Since Chambers v. Maroney decision our Courts have recognized
a less stringent standard than probable cause for seizure - de-
tention - of personal property. The Seventh Circuit in United
States v. Klein, 626 F.2d 22 (7th cir. 1980) held the detention
of personal property analogous to a Terry detention of an indi-
vidual; therefore, the applicable standard for such detention
is reasonable suspicion. The Court based its ruling on the
Supreme Court case of United States v. Van Leeuwen, 397 U.S. 249,
90 S.Ct. 1029, 25 L.Ed.2d 282 (1970).
In this instance there was not only reasonable suspicion
but also probable cause to seize Petitioner's personal property,
the vehicle. Since Petitioner's constitutional rights were not
violated, the evidence obtained as a result of the search was
properly admitted.
CONCLUSION
The Petition for Writ wi Certiorari should be’ denied since
his constitutional rights were not violated.
Respectfully submitted,
. JIM SMITH
ATTORNEY GENERAL
Assistant Attorney General
1313 Tampa Stree, Suite 804
Park Trammel Building
Tampa, Florida 33602
ri (813) 272-2670
Counsel for Respondent ‘
CERTIFICATE OF SERVICE
i HEREBY CERTIFY that a true and correct copy of the 4

foregoing has been furnished by U.S. “ail to James C. McKay,
Esq., 1201 Pennsylvania Ave., N.W., Post Office Box 7566,
Washington, D.C. 20044 on this 25th day of August, 1983.

SS ee —— ge - SS

IN THE SUPREME COURT OF FLORIDA

ROBERT BRIAN WATERHOUSE,

Appel lant,

Case No. 59,765

STATE OF FLORIDA ,

Appellee.

APPEAL FROM THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
FOR PINELLAS COUNTY, FLORIDA

BRIEF OF APPELLIiLE

JIM SMITH
ATTORNEY GENERAL

PEGGY A. QUINCE
Assistant Attorney Genera!
1313 Tampa Street, Surte 804
Park Trammell Building
Tampa, Florida 33602
(813) 272-2670

Counsel for Appellee

PAQ/ wmf

Appendix I

=~ ; TABLE O' CONTENTS
PAGE
ARGUMENT
ISSUE I 1-4
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S
NOTION TO SUPPRESS EVIDENCE FOUND IN THE CAR AND
STATEMENTS MADE BY APPELLANT SINCE HE WAS NOT
ILLEGALLY DETAINED ON JANUARY 7, 1980
ISSUE II 5-8
THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION
TO SUPPRESS EVIDENCE FOUND IN THE VEHICLE AS THE
POLICE HAD PROBABLE CAUSE TO DETAIN THE VEHICLE
ISSUE III 9-16
THE TRIAL COURT DID NOT ERR IN DENYING THE MOTION
- TO SUPPRESS TIIE STATEMENTS MADE BY APPELLANT AFTER
HE WAS ARRESTED AND BOOKED
ISSUE IV 17-1
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S
MOTION TO SUPPRESS STATEMENTS MADE ON JANUARY 10th
ISSUE V 20-22 "
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S
MOTION TO SUPPRESS STATEMENTS AS THE STATEMENTS_WERE
MADE -VOLUNTARILY ‘
" 2
ISSUE VI . 23
| THE TRIAL. COURT'S ADMISSION OF EVIDENCE OF MARIJUANA
| IN APPELLANT'S CAR IS NOT REVERSIBLE ERROR
ISSUE Vil - ' " @ 425

THE TRIAL COURT DID NOT ERR IN; ADMITTING EVIDENCE
OF AN ATTEMPTED HOMOSEXUAL ASSAULT BY APPELLANT
WHILE HE WAS IN JAIL AWAITING TRIAL ,

TABLE OF CONTENTS
continued

PAGE

4
bo
ce)
|
1S)
~~)

ISSUE VII

|

NO REVERSIBLE ERROR HAS BEEN SHOWN BY THE TRIAL COURTS
FINDING THAT THE MURDER WAS COMMITTED TO AVOID OR PRE-
VENT A LAWFUL ARREST

THE EVIDENCE SUPPORTED A FINDING THAT THE MURDER WAS
HENIOUS, ATROCIOUS OR CRUEL

THE TRIAL .COURT DID NOT ERR IN FINDING TWO AGGRAVATING
FACTORS BASED ON APPELLANT'S PRIOR MURDER CONVICTION

recur vt 29
s0HO0OUE Al VS

THE FACT. THAT THE MURDER WAS COMMITTED DURING THE
PERPETRATION OF A SEXUAL BATTERY WAS PROPERLY FOUND
TO BE AN AGGRAVATING CIRCUMSTANCE

CONCLUSION 32

CERTIFICATE OF SERVICE 33

ae TABLE OF CITATIONS

Adams v. State, 341 So.2d 765 (Fla. 1976) 31
Antone v. 382 So.2d 1205 (Fla. 1980) 27
Ashley v. State, 386 So.2d 587 (Fla. 3d DCA 1979) 13

Blasingame v. Estelle, 604 F.2d 893 (Sth Cir. 1979)

Brewer v. State, 386 So.2d 232 (Fla. 1980) 20
Brewer v. Williams, 430 U.S.387 U.S. 97 5 232

51 L.Ed.2d 424 (1977)
Chapman v. Californi: 386 U.S is, 87 S.Ct 324 2 lS

- -

l\7 L.Ed.2d 705 (1967)

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, >, 4
26 L.Fd.2d 419 (1970)

Darty v. State, 161 So.2d.864 (Fla. 19/9) 24

Dobbert v..State, 375 So.Z2d 1069 (Fla. i979 2! 0
Dunaway v. New York, 2U.5 200 9 S.( 22486

—

Sdwards v. Arizona, 29 Cr.L. 3037 (Decided May 18, 198] o... Be

' . ae —_ Q . QAL ‘*) ¢ } n0O a 7 eae 7
Eileaqge v. otate, 340 So.2d 998 (Fla. Iyviié j Zé
j _ T ] sf .

Ensor v. State, sO. ZC (Ofa,o. Fail 4 ast : 6

57,817 Opinion filed June 4, 198]

Escobedo v. Illinois, 387 U.S. 84 S.Ct. 1758, 12 L.Ed.2d 17

Ford v: State, 374 So.2d 496 (Fla. 1979) 32
Halliwell v. State, 323 So.2d 557:-(Fla. 1975) J0

Hampton v. State, 386 So.2d 587 (Fla. 3d DCA 1980) i3

iarrington v. California, 3905 U.S. 250, 89 S.Ct. 1426 13

23 L.Kd.2d 284 (1969)

con

inued

I (1968)

gs

8}

”

United
United
United

United

United
United

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States

States

States

States

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States

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States

States

States

States

States

States

Wainwright v.

» .

Wash ington v.

~~

Brown,
Vv. Fultz,
v. Goldstein,

v. Grullon,
Penn.

v. Johnson,

continued

635

622

626

963

F.2d

TABLE OF CITATIONS

F.2d 1207
F.2d 204
F.2d

496 F.Supp.
1979)

93

(6th
(6th Cir.
356 (5th

991

36 (8th Ci

Gar.

1980)

1980)

CAar«

1981)

(U.8.D.¢C.; B.P.

r. 1977)

Klein, 626 F.2d 22 (7th Cir. 1980)
v. Massey, 437 F.Supp. 843 (U.S.D.C., M.D.
Fla. 1977)
v. Mendenhall, 446 U.S. 554, 100 S.Ct. 1870
64 L.Ed.2d 854 (1973)
v. Springer, 460 F.wd 1344 (th Cir. 1972

. Van Leeuwen, 397 U.S. 249, 90 S.Ct 1029,
25 L.Ed. 2d 282 (1970)

v. Viegas, 639 F.2d°42 (lst Cir. 1981)

. Wertz, 492 F.Supp. 1027 (U.S.D.C.,
b.S.C.. 1979) :
v. Williams, 604 F.2d 1102 (8th Cir. 1979)
Sykes, 433 U.S4.72, 97 S.Ct. 2497, 53 L.

‘

Ed: 2g 594 (19779

7

i +e. a

*

7

.

s "50.2 abe Cee. To%
State, "362+ So. 2d 5S@ (rixt. t979f
(Oo. 4 ' “9 2» . > =

Page

ba |

i
—

20

-. —

‘ , basset s
wae! ?
4UWUIUL i
vane eee ee ‘ , ioves ne ——— ia wie 7
yi eee wae UNL Div wUl | IN ] vy divs
. eT ARI@II”® 88 TKmAr ~~ ie : ‘ rniEeNne
tiv sJ a ; i WUs nN Vis he |
. ‘ff arrrtac* «4 |
4 i Vie ‘Lt
ei le atv ahs « + —— i. * 1+...
9fficer Murry, testifying at the suppression nearing, ind
. - SS eee ‘ . - L " 4% 4 Aa,
cated sne Hada Lhe! sp! cers no wer é KE ep ilne i} pe Liane u 1ei
wae 7 } - er ’ + n + ’ 4 4
a Y - - > , a. ae
on SurveiiianNcCe Sti } nim ana asa iil LU ¢ € t¢ L Tit pO4 1ce Sta
’
x
. ; — ‘DASA =, } ‘
tion for questioning. (R404 she s Clee | Stated ik
r c . : - - oc c 7 ( cA +
lirective was given to arrest a pellant ist t ) bOUN
gee. -c ¢ \ ire = - + , " ' at , y+ 2 1 ? 5
Jiuazicer S reques Grant, at 1364-1365.

eub judice, the evidence revealed two officers - Leake

wet = 7 Ke 4 Ee Oe Pee ee OE Bane ee Noe See
ana oteilijes - Act Aadily approacned appeiiante at nis VeEQni.Ccie,

-~ aitnougn an R2iCer in 8&8 Markea car | fectuated the 3 tTOp
uO0Wwever, appeilant voluntari Ly exited the car; he was not
eee . & wr - egaiere AY » _ ° Dae os cas —
yraered out Dj tne oOitficers. nO £EUNS were drawn, nor was

appellant handcuffed. (R544) Appellant was asked, not ordered,

to come to the police station, and the officers made no threats.
POAS 4 } } ; +n ¢ Po ou6laNnY lwracins 10ch croOnWY
(049) And there 1S no evidence of any physical touching by

the officers. fhe officer specifically told appellant he did
not have to come to the station. And once there, it was made
clear to appellant he could leave at any time. And in fact

appellant was allowed to leave when he indicated he wanted to.

£

R554, 556-557)
Since appellant and the officers save contradi ctory testi-

mony concerning the retention of the driver's license, the

| purpose for the request and the number of officers involved,

4

. } . +nHth ~ + - . ‘ ‘ -_ .
AS the WLOUN zil eae ‘ A Li Uri A OLALE vs
i - } 5 Q+ 7S a 9 ' 4 .
Ie } ) y la
Le GU Lb WG c ai a A ‘ ’ i A Aah ait
lan se S Sites 4 ‘ ‘ ‘ a _—
UCUulLad O41 Lfleé aii y Abilis a > Usd aly s A dA Gd Ad
Li } 1 ‘ ’ Tt r/ > 7 ‘ =)
sat, -@ ee cA}/}? Lictliit VUA ALLL > > a A A i 4 > a .
* , .
ni hor +} ’ > ¢ ray, ++ r role 2 c . y -
ANG Ios Vial Acai aa & AU ch Je i Ai il, L vULZUzTI 4. J
nece ( oF : f . tnacw 4 a4
i oo. 2 iil AJ iULiig \ i a | rf A i A
rv t r ror . ; ri ~ , ; . ‘ ,,y ry ,
Wy sit a =. A bua ii 2 A s , 4 i Py i A
> ; = y*} ; , ) 4
Ut l CLuULbDedad On peal. Jn1 pt il > ££. GU
aQr nr - wo

THE TRIAL COURT PROPERLY |
APPELLANT'S MOTION TO SUPPRESS

A ? . ‘ ? , n+ + = ‘ . ‘
ippellee respectfully ibmits nat the informa
acta 4 1 ade? ‘ ef ‘ {- } "
aValiavdble O ne poiice oliicers and the Open vier
t f ‘ thie ; 7} } y the >?) oY +
LciQYViil di i ct ii aiiGa 5A AG iti zil VONICILE «ft f Lil
r 4 ] ’
IbDable cause je 12: ippellant's car. Prior to a
y ry } 4 4 ‘ , ‘ } P ‘ - ‘ 4
i iA 4 ii 4 Gs r -sAUll, UL iit LO id mwWwid ia Ls
Ue vu ive i i
J Jere a? é O gf Knev t lé HOT veers
i f ti i il Line om L(ie | i LIN)
Le i | iound at the beach on the eat

(2) li lad neard the tape herein na n
. . ° . .
aller idicated the license in-
veaq in the nomicide was GM 60
{ oO) Long as aware tnat a NecCK Ot Lh
‘ a Cie re l “4 ag Qs 1on re en Led } Berl |=
int was the owner olf id vehicle
} \ iice check of appellant indicated
ppellant was on life parole for the
he ride olf a female in New York
J) VWelLective LOng also knew the prior
irder wasS Similar ina number of
respects to the homicide under
investigation, 1.@. Sexual over-
mes, both victims choked and
battered and left nude
(6) anvestipvation at tne crime SCO ¢ La

dicated the victim had been murdered
elsewhere and the body dragged to the
water.

(7) SS ae? — rr... -_ Es - 2 . Jim nS eae oe a ae > ee ae

Sub judice, when appellant was arrested he was informed
of his Miranda rights, and he stated he understood his rights.
(R470) Detective Hitchcox handed Officer Murry a picture
of decedent which was shown to appellant. (R470, 496) Appel-
lant said the picture was Debbie and acknowledged he knew her.

(R470-471, 496) At this point appellant said, "I think I want

to talk to an attorney...." (R471) No further questions were

asked, and appellant was taken to the police station for book-
ing. (R471) |

At booking Officers Murry and Hitchcox told appellant they
would come up to the fourth floor after he was processed to
give appellant the opportunity to talk to them and answer any
questions he may have had. The officers indicated they would
come if appellant wanted them to and he said he would be inter-
ested. (R472-473) Thus, we are faced with the situation con-

templated by the court in Nash v. Estelle, supra. - A defemdant

expressing an equivocal desire for counsel, then exercising

his prerogative to answer questions.” As the court said in

Nash, "Some persons are moved by the desire to unburden them-
selves to confessing their crimes to police, while others want

to make their own assessment of what to say to their custodians."
597 F.2d. 513 at 517.

In Brewer v. Williams, 430 U.S. 337, 97 S.Ct. 1232, 51 L.

Ed.2d 424 (1977) the Supreme Court indicated the question of

4/ It appears from the record, however, that the statements
made by appellant after booking was not in response to questions
proffered by the officers. During the attempt to re-read appel-
lant's rights he responded with statements to the effect that his
life was over and nothing he could do would “bring her back".
(R473, 1847)

tae “xz

f waiver Of counsel was to be determined from the fact of
each case. The standard to be applied in determining waiver
is whether appellant intentionally abandoned or relinguished

a known right or privilege. Johnson v. Zerbst, 304 U.

458, 58 S.ct. 1019, 82 L.Ed. 1461 (1938) There can be no
doubt that appellant knew and understood his right to counsel
and intentionally relinquished same.

On January 7th, two days before appellant was actuaily
arrested appellant voluntarily went to the police station at
the request of the police. Once there he was read and he
executed a waiver of rights form which specifically included
the right to counsel. (R457-459) And on the day of his arres
appellant was again informed of his rights and said he uncer-

a stood them. (R469-470, 1845) Appellant emphatically stated
he didn't want his rights read again. (R473) Appellant uncer
stood anything he said could be brought up in court, but
he insisted he wanted to talk to the officers. (
when appellant had said all he wanted to say, he told the
officers, "I'm kind of tired and I think I want to talk to my
attorney." (R477) It is obvious appellant understood his
right to counsel and would invoke same whenever he wanted to
terminate a conversation.

Even assuming, arguendo, the introduction of appellant's

Statements of January 9th was error, appellee submits the

error was harmless. Milton v. Wainwright, 407 U.S. 371, 92

S.Ct. 2174, 33 L.Ed.2d 1 (1972). In Chapman v. California,

=. =

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) the Supreme
Court held the harmless error doctrine can be applied in
Situations involving the denial of a federal constitutional
right. Both state and federal courts have applied the harm-
less error doctrine to the introduction of statements where
the evidence adduced in the statement is cumulative of other

and the other evidence of guilt is overwhelming. Harrington

v. Caiifornia, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284

(1969); Ashley v. State, 370 So.2d 1191 (Fla. 3d DCA 1979);

and Hampton v. State, 386 So.2d 587 (Fla. 3d DCA 1980).

Sub judice, appellant's statements on January 9th are
cumulative ofyother valid statements made on January 10th
which were properly admitted.” The following evidence of
appellant's guilt was introduced at trial:

(1) A barmaid at the ABC Lounge testified appellant
left the bar with the murder victim the night
before her body was discovered. (P1120)

(2) The police had received an anonymous call giving a
license number for the vehicle involved in the
bay murder.

(3) i”

iy (5)

(6)
(7)

(3)

a ——

(9)

(11)

(12)

Appellant's employer also testified they

had conversations concerning sex, more par-
ticularly anal sex, and appellant related he
liked to slap or beat the women at these times.
(R1157-1158)

Defendant washed his car on the day following the
murder. (R1251, 1259)

Blood stains were found in appellant's car of

the same type as the victim. (R1475-1476)
Although appellant also has Blood Type A, certain
enzymes in the blood matched that of the victim.
(R1475, 1478-1479)

Judith Bunker, an expert in blood stain patterns,
testified the configuration of the blood stains
in appellant's car indicated the victim was struck
with a hard object while sitting in the passenger
seat. (R1579, 1616, 1620)

A luminal test was used to determine that blood
stains had at some point been on appellant's
jacket and parts of the car but had been cleaned
off. (R1544)

Three of the hair samples taken from the car of

the accused, when microscopically examined, demon-

strated the same hair characteristics as the victim.

(R1683)
Lynn Henson from the Department of Law Enforcement

testified he compared fiber taken from the seat of

-
_— a

eee

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7) ua ™ ro 3 m% J iJ - 9 = W) ‘ e)
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> — @ 7) +J : G =I
c c . ls ° he ce . 4 T Ll +
ana circumnstanc > Ssurroundi in, Vist in err a Lon. LIKeEW1Se,
the Seventh Circuit in United Cen +, wW CrHrinrer AG e Od 7
ne woeven n ome & 11T aii Viisi LDS WLaALOES v « YO) Am Ree a 20U Yr. 6G i
7+h +7 107° hol; he to - - » ¢ ~ } sa + . oon oo -
ment officials must give prior notl¢ to defense counsel Dei
oa + ‘ ; ~o fy» “ > anni j r rf ++ -.+-e
IOTaLINiINg a > fatement irom an accusea ine OuUre Said
springer would iirst nave 3
a , c , -4 > l-¢ ‘ r u¢

in administration, as d il]
-y ¢ ThRat vat | t ; ry?
ruies. nat c CO! Fitutionas

; t
U.S. 458, 58 S.Ct. 1019, 82 L.Ed.

1461 (1938); Escobedo v. Illinois,
378 U.S ive ae Bat: cates, Ad b.
Ed.2d 977 (1964). Thus, in United
States v. Fellabaum, 408 F.2d 220

(7th Cir. 1969), cert. denied, 396
U.S. 858, 90 S.Ct. 25, 24 L.Ed. 2d

109, and United States v. Crisp,
35 F.2d 354 (7th Cir... 1970), cert.

A228.

=.

deni

ed,

402 U.S. 947, 91 S.Ct. 1640,

29 L.Ed.2d 116 (1971), this court

has affirmed convictions resulting
from confessions obtained without the
presence of counsel.

(text at 1350)

And in Monroe vy. State, 369 So.2d 962 (Fla. 3d DCA 1979) the

Third District said:

ment

It

Ss m

does not follow that all state-
ade in the absence of counsel are

inadmissible; but each case must turn on

the

fac

ts and circumstances surrounding

the particular interrogation. United

Stat
(5th

es

Ci

v. Brown, 551 F.2d 639, 643-4
r. 1977).
»)
la
‘“

CS
'
'
.
‘

noaorn

from

men diGl

Ss back
Court
Vaterhouse

+

*

cons
n
this

——

v

rirmativ

c
4

a

ices

r
4

se circumsta

S

.

Submits th

e

ppelle

~
aA

~~ the murder was committed to avoid arrest.
Even assuming, arguendo, the evidence was insufficient to
Support this aggravating factor, there were no mitigating cir-
cumstances found. And there are several well-founded aggravating

neces. This Court has on numerous occasions held when

there are no mitigating circumstances and good aggravating circum-

Stances, imposition of the death penalty 1S appropriate. Elledge
e = - ew - - 5 A enue rm’ 7 ~ - Ar = . — 2 ct - 2 ~~ .
. State, 346 So. 2d 998 (Fla. 1977); Washington v. State, sSupra.;
etter ase hat
ane As — ur + Ho IRF Se - 205 (PF ] P on,
tha o 4 o
‘ y + 4
y veit —.,
she vas dea
— . 7. ar
> a ‘ > 10 rn Q?r ] icrn ; +
su Yas | i if li eans qges igned O
» 4 ot ; +} 4 r -y rc , | } T }
L 4 ifi Uerpresc ri Ppaln. Vid Vevdodbie
er ae o£ “ ‘ . so QO} . '4 }
' ~ c r r r > | ) ? | i al
i J ij i | Nig ilé ' a | Gead
fe nw aha + S cem oper i tntem 4 wnt .
| i I TNs a > @&ZAaeeegd szntct € wWweavevGel.
= — far? eal Aon — : +} . -
r j I 1e defense wounds lemselves
‘ ra + + c a oe | . ad i
S i ring tre r
A eu ica ne Wand puss Ges rife Ciilf sO LY e
T ‘ 1 '
+ ‘ neo ++¢ > thine + } O° . 1 ¢hamge } r}
4 ) iif na L dt billie nere na Lnen She A
, ; a j °T > moar } Wa + hye "2a { 4 - -
‘ i . 4 iif icali ni 4 LO llel\ € i i | A
+ =u + } - —_ 7; 4 + ar > °T* }. , +t xe ‘?
v A ‘ UCcu Joli di A i Lilie, Lilé perl iCal Sv 4
‘ , nd the tes ! nv of the medica exan er
i ik i . 4 iy } ‘ i i | i “we in ,
> > ; + is a+ ¢ +har } . 3 = P } -
i : " A iil ri at’ -llal Ue, na any 2\asSonadil ¢
_ ‘ ++ > y j ff , y " ‘ y 5 ry) *
i Ro 4 Ss Aiittidda Cclzces { i ao © | ’ t i
‘ c —— ° ‘ +hnarce + T Tt) "+
i as Ga | ‘ { ers }/4 11e€s io i } 4
¢ ‘ rn 7
Wing or — + os a, } ‘ . ry + ;
’ b/ 4 4icCo AUS LULES y 4 ilu i ict
ow _ rs
> ‘ 4 i ~i
+ + y+ «>
é I _——
hear ‘- } i ¢ ‘
Six fr re ?
\ i iu
> +? ; + +,
i ait Aah
r eT es
i f Liis LGé
c ‘4 i?
> Tok SB S88e
‘ = , ~
Wild : —
, -} “i
i i .
] | Sne S
‘ , ] 1,4
Ls ‘ ‘ as
re S ible i
i Wi A

mypiies,.
v1
T ‘jr 2 ‘ ) w ‘
NR. 22602-2285" ).
4 > ? ’ c A ry 7 nf . . le y t y ? ¥ f
ine acvlvions ) 1p}? 6 an sertainly meet the definition olf
neinous - extremeiy wi Or SNOCKINE evil - atrocious

i outrageously wicked and vile - and cruel - designed t
inflict a high degree of pain - as outlined by this Court in

State v. Dixon, 283 So.2d 1 (Fla. 1973). See also Dobbert

State, supra.

rT’ ; } . ; TI - lww ] r Ct > so he? de S ¢ ; &° LT -
The evidence in Halliwell v. State, 423 50.2d oo Fla.

1975) was that the victim was murdered then the body was
mutilated. That situation is not applicable here. The medicas
examiner stated the wounds to Ms Kemmerer's body were inflicted
prior to her death by drowning, and the defense wounds indi

the victim waS conscious ana aware f what waS Nnappening.

- 30-

ISSUE X

TRIAL COURT
TWO

HE
NDING
BASED ON
CONVICTION

DID
AGGRAVATING
APPELLANT'S PRIOR

NOT ERR IN
FACTORS

MURDER

Sub judice, the trial judge found as two aggravating
factors that the murder was committed while Appellant was
under a sentence of imprisonment, i.e. lifetime parole for
second degree murder in New York and Appellant had previously
veen convicted of a felony involving force. This is the iden-
tical situation presented in Adams v. State, 341 So.2d 765
Fla 1976), and this Court gave no indication that this was
improper.

Appellee submits Appellant has misapplied the concept f
improper doubling. The decision in Provence v. State, 337 S
2d 783 (Fla. 1976) more correctly indicates there is doubiing
hen two aggravating circumstances necessarily flow from the
same aspect of a defendant's conduct. Thus with a murder

ommitted during a robbery there would always be two aggravat-
ing circumstances

In this instance, the two aggravating factors would not
necessarily be present simply because a person had been

previous forceful

W

felony.

A

defendant

felony and completed

have been convicted of a forceful
sentence prior to the felony presently

being

adjudicat

could
his

re |
ea.

ISSUE XI

THE FACT THAT THE MURDER WAS COMMITTED
DURING THE PERPETRATION OF A SEXUAL
BATTERY WAS PROPERLY FOUND TO BE AN
AGGRAVATING CIRCUMSTANCE.

Appellant has again misapplied the law as pronounced by this

Court ina number of cases. The holding in State v. Pinder, 375

So. 2d 836 (Fla. 1979) was that in a felony murder situation a

defendant could not receive a separate judgment and sentence for

the murder and the underlying felony. Appellant herein seeks to

~
e)
=)
ban 2
1
=|
Cc
a
Q
@
hy
n
QO
@
~
fy
ty
~
1@)
ct
C

extent that ruling to say that in any fe
underlying felony cannot be used as an aggravating

This is simple not the law in this state.

This Court has on numerous occasions held the felony-murder

Fotd v. State, 374 So. 2d

context a proper aggravating factor.

496 (Fla. 1979); Smith v. State, supra.

NO error nas Deen demonstrated.

CONCLUSION

Based on the foregoing arguments and authorities the
Judgment and sentence of the trial court should be affirmed.
Respectfully submitted,

JIM SMITH
ATTONREY GENERAL

ae ois

+s | oat . és oe = er
PEGGY A. QUINCE
Assistant Attorney General
1313 Tampa Street, Suite 804
Park Trammell Building
Tampa, Florida 33602
(813) 272-2670

r

Counsel for Appellee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the
loregoing has been furnished by U.S. Mail to Philip J. Padovano,

Esquire, Post Office Box 873, Tallahassee, Florida 32302 on

this 19th day of June, 1981.

Of Counsel for Appellee

.

mah

IN THE SUPREME COURT OF FLORIDA

ROBERT BRIAN WATERHOUSE, MAY

i
Appellant, et ee

vs. CASE NO. 59,765

STATE OF FLORIDA,

ae IIe
Apoeilee.

APPELLANT'S BRIEF

PHILIP J. PADOVANO
Post Office Box 8&7
Tallahassee, Florida 322
(904) 224-3636

ATTORNEY FOR APPELLANT

INDEX

ae

PRE TTREL DEP UUMEEUE 6's 65 BO CR b6 as pw Sdedecdeerednssceserecraseee 1
SP me ee | PPT Ter Perey re TEPER rTTee 1
STATEMENT OF THE FACTS

A

Ce PES COP IT See ere neenhvceeene reat Koeewenceewens 3

B

PO: RCORhs ows 600 5.s $4 65-00 bo hp dente wdc e nan caboceehenceasbdsudema 9

C

Pat Pe Y PONS on 6n. 6kbbnd Cree EKKO SOSH O DEEN PEC OES KOOROS 15

ARGUMENT

A

THE MOTION TO SUPPRESS

POINT ONE

THE STATEMENTS OF THE DEFENDANT

AND THE TANGIBLE EVIDENCE TAKEN

FROM HIS CAR SHOULD HAVE BEEN

EXCLUDED FROM EVIDENCE ON THE

GROUND THAT THEY WERE OBTAINED

AS A RESULT OF AN ILLEGAL ARREST

OR SPE Bees be cicelecadcadecdadevvscensecersesoas te 16

POINT TWO

THE TANGIBLE OBJECTS TAKEN FROM THE
DEFENDANT'S CAR SHOULD HAVE BEEN EXx-

CLUDED FROM EVIDENCE ON THE GROUND

THAT THE POLICE OFFICERS LACKED PRO

BABLE CAUSE TO SEIZE THE VEHICLE

PRIOR TO THE TIME THEY OBTAINED A

WARRANT TO SEARCH ITS CONTENTS..........--20000-

ho
— ]

POINT THREE

THE DEFENDANT'S STATEMENTS SHOULD HAVE

BEEN EXCLUDED ON THE GROUND THAT THE

OFFICERS FAILED TO TERMINATE THEIR QUES-

TIONING AFTER THE DEFENDANT EXPRESSED

Mie INTENT IOnm TO REMAIN SILENT. .cccccopscscccpoden ov

POINT FOUR

THE DEFENDANT'S FINAL STATEMENT

SHOULD HAVE BEEN EXCLUDED ON THE

GROUND THAT THE OFFICERS FAILED

TO ADVISE THE DEFENDANT'S COURT

APPOINTED ATTORNEY THAT THEY WERE

CPIeUP ares S SeeGs PAIS SIO V UW cece rceescnscdeccsecoscccese

POINT FIVE

THE DEFENDANT'S STATEMENTS SHOULD HAVE
BEEN EXCLUDED ON THE GROUND THAT THEY
WERE NOT SHOWN TO HAVE BEEN MADE VOLUN-

ee OE I OEE CARS Ny “POET O EEE Pee
3
THE TRIAL
POINT SIX
THE EVIDENCE OF THE DEFENDANT'S ALLEGED
POSSESSION OF MARIJUANA WAS IMPROPERLY
ADMITTED BECAUSE IT DID NOT MEET THE
RELEVANCY TEST REQUIRED BY THE FLORIDA
EVIDENCE CODE AND THE WILLIAMS RULE................
POINT SEVEN
THE EVIDENCE OF AN ALLEGED HOMOSEXUAL
RAPE ATTEMPT WAS IMPROPERLY ADMITTED
BECAUSE IT DID NOT MEET THE RELEVANCY
TEST REQUIRED BY THE FLORIDA EVIDENCE
CODE AND THE WILLIAMS RULE............-.00seeee evens
*

THE PENALTY PHASE

POINT EIGHT

THE EVIDENCE DOES NOT SUPPORT A FINDING THAT
THE CAPITAL FELONY WAS COMMITTED BY THE DEF-
ENDANT FOR THE PURPOSE OF AVOIDING OR PRE-
VENTING A LAWFUL ARREST 2... ccsccccccvcecctascccvecces

*

POINT NINE

THE EVIDENCE DOES NOT SUPPORT A FINDING
THAT THE CAPITAL FELONY WAS PARTICULARLY

HEINOUS, ATROCIOUS AND CRUEL

POINT TEN

THE TRIAL JUDGE ERRED IN BASING TWO

AGGRAVATING

PRIOR ACT OF THE DEFENDANT

POINT ELEVEN

CIRCUMSTANCES ON ONE

THE INVOLUNTARY SEXUAL BATTERY WAS AN
ESSENTIAL ELEMENT OF THE HOMICIDE AND AS
SUCH, !T COULD NOT CONSTITUTIONALLY BE

USED AS AN AGGRAVATING CIRCUMSTANCE

CPU AOTTE Sab be ekns conebebovcndabetenseesdee bude ces bcteav ene Sones

CERTIFICATE OF SERVICE

eeevevereeveev eevee eeeeeeeeeeereeeeeereeeeeeer eevee

“eee eevrerereereer eee eneeenne

reseed & & 606 & CH 2648 O84 ES

“eee eee eeeee

|

Ww

38

Qc
Nm

»
ce

TABLE OF AUTHORITIES

CASES

ok Bee We eB SS Pee ee rrerey rere rr rrr rer 34
Blackburn v. Alabama, 361 U.S. 199, 4 L.Ed.2d 242, 80 S.Ct.

eS a ee So ee Aa db pih caus be wece wees. uae 28
Boulden v. Holman, 394 U.S. 478, 22 L.Ed.2d 433, 89 S.Ct.

ahve sn ace GAS Oke TO EE NONE OS ease ons See ee owe 28
Bras VV. Siete, 302 Sa. 20 S85 Fin. 2 BGA TS78) occ ccc ccccccscecncwes 35
Breedlove v. State, 364 So.2d 495 (Fla. 4th DCA 1978)............... 235, 30
Cady v. Dombrowski, 413 U.S. 433, 37 L.Ed.2d 706,

eS > 1 Ee a ee ee ere Tine eT reer a
Cardwell v. Lewis, 417 U.S. 583, 41 L.Ed.2d 325, 94 S.Ct.

ee hb hbo Ob NOS OREN EMSRS COCO DMO RRR O on em ned owes 21,23
Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419,

90 S.Ct. 1975 bo FS errr Seer Ter eT TT ETE TO Tere eC 21,22
Clewis v. Texas, 386 U.S. 707, 18 L.Ed.2d 423, 87 S.Ct.

eh ee SE ee eee Le ee ee err Cee TO ER Tee 20
Ciftien vy. United States. 3371 F.2d GSS (Sth Cir. 1965) .2. cceccccccswess 27
Commonwealth v. Brooks, 364 A.2d 652 (Pa. 1976).......... eee ee ewes 19
Cooper v. California, 386 U.S. 58, 17 L.Ed. 2d 730,

BB+ Be, 2... RR AeA Oe Rene er eer Perey ee 23
Davis v. Mississippi, 394 U.S. 721, 22 L.Ed. 2d 676, 89

= Sp Bil Ser err rr Srr tr Se ere ae ee eT 17
af Se el ee OU RG sk ee erwerrerrr Te rer err ee te 38, 40
Dunaway v. New York, 442 U.S. 200, 60 L.Ed.2d 824,

Ot ches ee. CE OE eR ciccke ewes nkGoenhenn See bheckeebed kine de eeas 17,18
Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977,

Se Ce, CP ERE 6 Koide os be ceaheekes dios 6) 4030 6c hapacenecus 26,27, 28
ee fl a ee Oe A | eer eer eer re rs ee 40
Helwen wv. State, 323 SO. 30 SSF (FM. PETERS cv cdcccdens ce cessseccceeses 37, 38

-iv-

im ve: Barta, Fes Fer ee eee hs hob bbe Ws cde weseceess 19
Interest of G.A.R., 387 So.2d 404 (Fla. 4th DCA 1980).............. 19
Jackson. wv. Stain, FSO Bice See Cee Se eb Se eee occ vecccessicves 40
Maloy v. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84

Gk. FRCS CEG ib tees bade REE CESRL AG 656 0 b0b 60.0 ese esbece 29, 30
Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246,

SS: S.CE, TESS COME can sceenavewe sees bes edwwss covecsecseses 26,27
Meeks v. State, 339 So.2d 186 (Fla 1976)......c.c cece cece eee eeeceees 40
Menendez v. State, 368 So.2d 1278 (Fla. 1979).......ceeeeeeveeeeees 37
Michigan v. Mosley, 423 U.S. 96, 46 L.Ed.2d 313,

eR SP OPT OTT PETE EEE 24, 25,26
Mikenes vw. Stee. SEF Bie ee eee ees wee oo he ba vc cdecccceces 40
Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86

| Pe Or eee Pere Tee eee Tere 24
Proffitt v. Florida, 428 U.S. 242, 49 L.Ed.2d 913,

SRM Ba Pere Ey COTE TUTTLE CTE 40
Provence v. State, 337 So.2d 783 (Fla Disks Gwe Wess et 6630 kOe 39,40
Riley v. State, 263 So.2d 200 (Fla. 1972). ....ccceeceeecnscsceseeees 22
Riley v. State, 366 So.2d 19 (Fla. 1979)... cc ceecceecvescncvcvenes 37,40
Robinson v. State, 351 So.2d 1100 (Fla. 3d DCA 1977)..........0.4.-. 27
Sanders v. State, 378 So. 20 S80 (ist DCA 1988)... oc cvcccccccccccss 27
state v. Craig, 237 SGiSe Fhe Gree Sere ee tehcceciccvccveccscoseues 27
State v. Frost, 379 Se. 2b SOS Chis Bete FSTS ccc cece sc ce cccccvces 18
State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979)............0.0-. 19
State v. Pinder, 375 So.2d 836 (Fla. 1979) ....ccccccccccccccccccvens 40
Sears V. Slate, Fie Be ee ra bs as 6 0 kes oh ec ccewccenss 27
Swan v. State, 322 SO.20 SES This FETE nas occesieves clescacvccvcces 38
Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88
wees A REMC. Sag a ee 17

Texas -v. White, 423 U.S. 67, 46 L.Ed.2d 209,

FM: ee Ral Pee eP Pe eT TTC Pe TTT EET LETTTL Terre 23
Townsend v. Sain, 372 U.S. 293, 9 L.Ed.2d 770,

Be Meeks Pe RD 6 WN bb.00.4e bee bc bb Ue cb cb cesescevheceseesane 28
United States v. Brignoni-Ponce, 422 U.S. 873, 45 L.Ed.2d 607,

Sr Wcaaea BOS CEPT 6 ode os beach 00 6600 ths crceeeees coeeedesewa 17
United States v. Clayton, 407 F.Supp. 204 (E.D. Wis. 1976)...... 24
United States v. Jakakas, 423 F.Sunop. 564 (E.D.N.Y. 1976)...... 24,25
wee UV. State; 190 SOc 20 SSS CFM. T9SG) ove wees eens ce ctccaees 31,33, 34
Williams v. State, 188 So.2d 320 (Fla. 2d DCA 1966)...........0008. 27
eee ee Oe 7) ne 27
Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441,

= eo A et TTT CTTorT TIT Ter Tiere rer Le 16,20

STATUTES AND OTHER AUTHORITIES
Fen PUR P GR) Fie. Slee. (IDM ccc ccccacccvcsccaseeecatecctvccntevesus's Oe
Sec SRAET) Fi. Steaks. CISTS) cc ccc cccccveseccccesenseeedesecencsctocsess 34
Pee DRN art) Fim. SiSt.. CVOTE) . cccccsocavecsecsvvccccssesseccnecs 31, 34,35
SO GOST TE) Pid. StSt. CVSTE) occ cvccccvcssvccdsccesccssccvcscessesscsece 33
520. U81C5) (a) Pid. Stat. CUSTT) cn nccvcvcccccesccessccccesssccsecvscess 33
921.1791(5) (BD) Fla. Stat. (1979). ccccccecccccccccsccccossvecssccccess 39
St. FUTESN CS) Fin. Sees. CEST bcc cvcnccvecvccdvccdccstsccccwncencess 39
929. PAVE SHES) Pid, SIRE: CUBITT Pvc ce vicdvccdecsccdessecovencsecegseens. 36
S21. TSTC SPC) Fin. StOt. CUSTZ) oo cjiccodecsocvesaysedeccocsessstaccceses 37
14 Filia. Jur. 2d CRIMINAL LAW $181 (1980) .......ccccccccccccnccces 29

-Vi-

' PREI IMINARY 5 FATEMI! on

The Record on Apneal consists of twelve bound volumes and wall be
cited throughout this Brief by the letter "R" and the appropriate pace
4
number,

The Appellant, Robert Brian Waterhouse, will be referred to as the

Defendant and the Appellee, State of Florida will be referred to as the

STATEMENT OF THE CASE

This is an Appeal from a Final Judgment of the Circuit Court for
Pinellas County, Florida, adjudicating the Defendant quilty of the crime of
First Degree Murder and sentencing him to die in the electric chair. (R-394).

On January 31, 1980, the Pinellas County Grand Jury met and returned
an Indictment charaina the Defendant with the premeditated killing of one
Deborah Kammerer. (R-16,17). The charge alleaed that on January 3, 1980,
the Defendant beat and choked the victim inflicting wounds upon her, and

that he then dragged her into the water where he left her to drown. (R-16,

17). A plea of Not Guilty was entered (R-16,35), and the case was set for
trial.

Counsel! for the Defendant made a variety of challenges to the constitu-
tionality and constitutional applicability of the Florida capital punishment laws,
(R-24,34) but each of the arguments was rejected by the Trial Court Judge.
(R-80).

Prior to trial, the Attorneys for the Defense moved to suppress certain
items of tangible evidence recovered from the Defendant's automobile on or after
January 7, 1980, as well as a series of statements macile by the Defendant to
officers of the St. Petersbura Police Department on January 7th and 10th. (R

307-314).

The trial judqe conducted a separate evidentiary hearing on the Motion
to Suppress on Auqust 22, 1989 (R-435,581) at the close of which he denied
the Motion in part and granted it in part, ordering the exclusion of only the
final statement made by the Defendant on January 10, 1980. (R-388,579, 580)
The State moved for a rehearing on the portion of the Order requiring the ex
clusion of the last statement (R-339,341) and on Auqust 25, 1980, the Lower
Court reversed its earlier ruling and entered an Order denying that part of
the Motion as well. (R-411,412,432).

The Defense sign filed a Motion in Limine seeking to exclude certain
"Williams Rule" testimony regarding an allegedly similar act committed by the
Defendant while he was incarcerated in the Pinellas County Jail. (R-305).

The Court reserved ruling on this Motion until such time as the State offered
the disputed testimony at trial. (R-872).

Trial commenced in St. Petersburg on Auoust 25, 1980, and the tanaible
evidence and statements challenaed by the Defense were presented to the Jury
over the renewed objection of counsel. (R-991). The trial judge also allowed
the State to present the similar fact evidence previously challenged by the
Motion in Limine. (R-1753).

The presentation of the testimony and evidence relating to the first
phase of the trial was concluded on August 31, 1980, and on September 2,
following the arquments of counsel and instructions by the Court, the Jury
returned a verdict of quiltvy as charged. (R-389). The sentencing phase
of the trial began the next day, and after consideration of the testimony and
argument relating to that proceeding, a majority of the jury recommended the
imposition of the death penalty. (R-390).

A Defense request for a presentence investigation was denied (R-2300)

and the Defendant was sentenced shortly after the advisory penalty proceedinas.

The trial court judge accepted the recommendation of the Jury and sentenced

o2e

the Defendant to death (R-2305). Thereafter, on September 15, 1980,
the Court entered written findings of fact in support of the sentence. (R-
408,409).

This appeal was timely filed on September 30, 1980, to review the Juda-

ment and Sentence of the Circuit Court for Pinellas County, Florida. (R-417).

STATEMENT OF THE FACTS

A

THE MOTIONS TO SUPPRESS

On the morning of January 3, 1980, Seraeant Gail Murry responded to
@ call concerning the discovery of a body near the shoreline in the Lassina
Park area of the city of St. Petersburg. (R-444). When she arrived at the
scene, she found the naked body of a white female lyina face down in the
mud about twenty feet from the high tide mark. (R-445).

Sergeant Murry noticed that the victim had severe lacerations in the
head and Scalp area, and as she turned the body over, she discovered that
the victim had numerous bruises around the throat area, a swollen black right
eye, and what appeared to be a blood soaked tampon in her mouth. (R-445),
An examination of the entire Park area led Murry and other officers called to
the scene, to the conclusion that the assault had occured elsewhere anc that
the body was transported to the scene and draaaed into the water. (R-446).

On January 5, 1980, the St. Petersburg Police Department received
@n anonymous phone call from a person with a New England type accent who
said "In reference to the bay murder, | have a license number for you GMU-
603", and then hung up. (R-447), Serqeant Murry was able to determine
from the information Provided that the vehicle referred to was a brown 1973

Plymouth registered in the name of the Defendant Robert Brian Waterhouse.

-

——

(R-448),

A records check disclosed that the Defendant Waterhouse was on lifetime
Parole for the homicide of a white female victim in New York. (R-449) Ser
geant Murry learned upon further investigation that the victim in that case had
been choked and left nude. (R-449),

The officers were able to determine that the Defendant's local address
was 1675 Pinellas Point South, and immediately commenced a Surveillance of the
residence and of the Defendant. (R-450). On January 7, 1980, while the po-
lice surveillance was apparently still in progress,*a missing persons renort
demonstrated that the victim was one Deborah Kammerer who had lived on
Grove Street in the city of St. Petersburg. (R-450).

Miss Kammerer was last seen by her friends, Yohan Wenz and Carol
Byers, at the ABC Lounge on Fourth Street on the evenina of January 2,

1980 (R-451). The three had gone to the lounae that night toagether, but
Wenz and Byers left Shortly before midnight. (R-451). Miss Kammerer indi-
cated to them that she wanted to stay a little longer. (R-451).

The officers then proceeded to the ABC Lounge where they spoke with
an oriental bartender named Kyoe Ginn. (R-452). They showed the bartender
a photograph of Deborah Kammerer, and she said that she knew her as a pa-
tron of the lounge. (R-452). Ms. Ginn told the officers that Miss Kammerer
was in the bar on the evening of January 2, 1980, and that she left with a
man shortly after midnight. (R-452).

The bartender was then shown @ group of photographs including the
Photograph of the Defendant Waterhouse, and she picked out the photograph
of the Defendant and said that he was the man she saw leaving the lounge on
January 2, 1980 with Miss Kammerer. (R-452). She recognized Waterhouse

aS a customer of the lounge as well. (R-452).

Sergeant Murry then decided to interview the Defendant's Aunt and Uncle,

-§-

‘ |Mr. and Mrs. Foster, and a family friend, Mr. Ken Norwood, each of whom
lived in the same house with the Defendant. (R-453). She asked the three
of them to come to the police station for questioning, and when they arrived,
he noticed that they each had a New England accent similar to the accent of
the voice on the tape of the anonymous phone call. (R-453).

The Fosters were described by Sergeant Murry as uncooperative. (R-
454). They told her that they did not know what the Defendant Waterhouse
was doing on the evening of January 2, 1980, and that he would cenerally
just come and go as he pleased. (R-454). Mr. Norwood, however, told the
officers that the Defendant was an oversexed person with a Jekyll and Hyde
personality and that he felt that he was capable of committing a crime such as
the one which was committed. (R-454).

At this point, the officers decided that they would ask Mr. Waterhouse
to come to the police station for questioning. (R-455). On the evening of
January 7, 1980, Detective William Leake and Detective Richard Stelljes, both
of the St. Petersburg Police Department, observed the Defendant driving his
1973 Plymouth in the vicinity of Twentieth Avenue and Sixteenth Street North.
(R-528). They siqnaled for him to pull over to the side of the road so that
they could speak with him. (R-528).

Detective Leake testified that Detective Stelljes asked the Defendant
Waterhouse for his driver's license, which he produced and that he then told
him they were investigating a homicide and that they would like for him to come
down to the police station. (R-529). As it was related by the officer, the
Defendant was told that it was important that he come down to the station, but
that he did not have to. (R-529,530). According to Detective Leake, the De
fendant Waterhouse followed them down to the police station voluntarily. (R-
530). He reportedly followed Detective Stelljes, driving in his own car alone,

while Detective Leake rode back in another police car which had arrived at the

scene in the meantime. (R-530).

Mr. Waterhouse, who took the witness stand on his own behalf at the
hearing on the Motion to Suppress, testified that the only reason he followed
the officers to the station was that they did not give him his driver's license
back. (R-540). He said that he asked the officer to give him his license
back at the scene of the stop and that the officer said "Well, you will have to
go to the police station to get it back." (R-540).

The Defendant testifed that there were at least four police cars that
accompanied him to the police station and that he was boxed in among the cars.
(R-540). After he arrived at the station, and spoke with the officers there,
they would not give him the license or his car. (R-541,542). He said that
he would not have gone to the police station if it were not for the fact that
the officers had his license. (R-542).

The Defendant's testimony regarding the license is supported in part
by the testimony of both Detective Leake and Detective Stelljes. Detective
Stelijes, called in rebuttal by the State, testified that Vr. Waterhouse never asked
him for his license back. (R-453). However, Stelljes was not asked (nor did
he volunteer) to give testimony that he actually gave the license back. More-
over, Detective Leake testified that he did not observe Detective Stelljes givina
the license back at the scene of the stop. (R-533).

Seroeant Murry told the Court that when the Defendant arrived at the
station she advised him of his rights and he executed a written waiver. (R-
456-459). At that time, he denied commission of the offense and said that he
did not know Deborah Kammerer. (R-1815). The officer said that she told
Waterhouse that he was free to leave at any time. (R-460, 461). Im response
to that he indicated to her that he wanted to leave and was permitted to do so.
(R-461). The officers conceded, however, that they did not allow him to take

his vehicle with him. (R-462).

While the Defendant was talking to Sergeant Murry, Detective John W.
Long was conducting a visual inspection of the 1973 Plymouth from the out-
side. (R-511). He looked into the vehicle with a flashliqht and observed some
sand on the floor in front of the driver's seat and what appeared to be sever-
al dark stains on the floor directly behind the driver's seat. (R-512). Based
upon this information, he applied for and obtained a search warrant to search
the vehicle. (R-513,514). The automobile was detained by the police, against
the Defendant's will, (R-489) continuously from the time he appeared at the
station until the search warrant was actually signed at five a.m. on the morning
of January 8, 1980. (R-513,514).

The search of the automobile disclosed that it contained blood stains of
type A blood, the same type as the blood of Deborah Kammerer. (R-466,467).
Based upon that information, police officers obtained an arrest warrant for the
Defendant on the afternoon of January 8, 1980 and arrested him tne next day.
(R-466, 467).

Sergeant Murry and Detective Hitchcox, who made the arrest, advised the
Defendant of his rights in the police cruiser on the way to the station and when
they asked him if he wished to speak to them he gave no answer. (R-470).
They drove for a few minutes, after which Detective Hitchcox held up a pic-
ture of Deborah Kammerer and asked the Defendant if he knew her. (R-470).
According to Sergeant Murry, he said "Yes that's Debbie", to which she re-
sponded, "Oh well, then you do know her." (R-470,471). Detective Hitchcox
said, referring to the earlier interview, "We were riaht, weren't we, about
what happened Wednesday night?", to which the Defendant simply said, "Might."
(R-471). Following these brief conversations, Mr. Waterhouse was reported to
have said, "| think | want to talk to an attorney before | say anything else."
(R-471).

During the booking, the officers indicated that they wanted to speak with

oe

the Defendant in more detail a little later, and he seemed to them to be coop-
erative and interested. (R-472). The following morning, on January 10, 1980,
at two a.m., Sergeant Murry and Detective Hitchcox went to the fourth floor
of the jail to speak with him. (R-473). They said that he appeared to be
saddened and that when they attempted to read him his richts again, he said
that he didn't want his rights, that it was over, and that he was qoing to the
chair. (R-473).

Sergeant Murry said that the Defendant was getting "very upset" and
saying in response to the rights form, "| don't want to hear them - my life is
over." During the several hours the officers were there, the Defendant would
at times start crying and he told the officers that he wanted to talk to them
as people and not as police officers. (R-473). He finally said, "You know I'm
tired, and | think that | would like to talk with my lawyer, will you all come
back later tomorrow", and the interview was ended. (R-477).

The following morning, the Defendant went to an advisory hearing, after
which he was interviewed for several hours by a representative from the Public
Defender's office. (R-478). The police officers knew the Public Defender's
office had been appointed on the case, and that a representative of the office
had conferred at length with the Defendant around noon of January 10, 1980,
but went to see him later that afternoon', without contacting anyone in the Pub-
lic Defender's office. (R-499,500).

During that interview, the Defendant told the officers that he did not
want to confess, (R-479) and that he did not want to talk about the offense

(R-500,501), and once aqain told them that he just wanted to talk to them as

Sergeant Murry, during direct examination, said that this interview occurred
on January 11, 1980, see e.q. R 479,489), but it is apparent from the cross
examination durina the Motion to Suppress (R-501,502) and the trial testimony
(R-1819) that the interview actually occurred on the 10th.

people. (R-479). He was described as being "very upset", (R 4
"naranoid", (R-481), but he nevertheless spoke with the officers.
The Defendant told the offficer that he really liked sex, and that he
had a problem with violence, explaining that when he drank too much, he
found himself doing things he had no control over. (R 507,1821). He in
dicated to the officers that he had a very large sex drive, and that he liked
sex any way he could get it, anal, oral, or vaginal. (R-1821). He said
that sometimes he would qet excited and if he found out the air! was “cursed

he would get frustrated. (R-1822,1823). When the officers asked when this

problem had shown itself, he said that it had occurred Wednesday nivht,

Ww
Qa
a

(apparently referring to the date of the offense), (R-1823) and later
"Why do you think | have quit drinking since Wednesday night?" (R-1824).
When the officers inquired further, he reportedly said “Well, nobody wants
to cp to jail and you do what you have to do to protect Bobby Waterhouse. '
(R-1825,1826).

Thereafter, the Defendant's trial counsel directly advised the officers
that they were not permitted to conduct any further interviews with his client.

(R-481,502).

THE TRIAL

In the early morning hours of January 3, 1980, Glen Shine, a clerk at
the Veteran's Administration, was walking his dog along the waterfront in the
Lassing Park area of St. Petersbura. (R-903-906). As the doc began to
bark, Shine noticed that there was an apparently lifeless body floatina face
down in the water. (R-906).

Mr. Shine summoned the assistance of an older gentleman hitting aolfballs

in a nearby nark, and the two aqreed that they should immediately call the
police. (R-906-907). Mr. Shine took his dog back to the apartment while
the older man made the phone call, and then returned to the scene to wait
for the police to arrive. (R-907).

Officer LeRoy M. Pierce, of the St. Petersburq Police Department, re
sponded to the call at approximately 9:00 a.m., and proceeded to the Lassina
Park area. (R-913). When he determined that the body had no life-signs,
he moved everyone back from the scene and roped off the entire area. (R-915).

Sergeant Gail Murry and Identification Technician, Elmer Krysco, arrived
at the scene shortly thereafter. (R-929,967). Technician Krysco, who took
photographs and processed the crime scene for evidence, (R-931-937) discovered
various items of clothina scattered over a wide area near the scene. (R 929,
949). Sergeant Murry confirmed that the testimony of the other two officers
that there appeared to be drag marks in the sand near the high tide mark.
(R-953).

Dr. Joan Wood, the Deputy Chief Medical Examiner for Pinellas County,
testified that the victim died as a result of drowning some eight to twelve hours
before the first exmination of the body at 11:45 a.m. on the morning of January
3, 1980. {(R-1035). The victim had approximately thirty-six bruises and
lacerations each of which occured prior to the time of death. (R-1036). No
abnormalities were found in the examination of the vaqina, but Dr. Wood found
evidence stronaly suqqestive of the presence of semen in the rectum. (R-1037).
The injuries found in the rectum suggested the insertion of some object other
than a“male penis. (R-1039). In response to a hypothetical question posed
by the prosecutor, Dr. Wood testified that the rectal injury could have been
caused by the insertion of a foreiqn object the size and consistency of a coke
bottle. (R-1039,1040).

Blood tests conducted during the autopsy revealed that the victim had

-10-

: type A blood. (R-1040). The vaqinal swab demonstrated the presence of
only blood type A, but the biomedical examination of the rectal area revealed
substances indicating the presence of both blood tynes A and B. (R-1040).
Dr. Wood explained that the presence of blood type B in the rectum could
have been caused by the semen of a male subject commonly classified as a
"“secreter", or that the substances could have appeared for some other reason.
(R-1042). Finally, Dr. Wood testitified that the injury to the rectum occurred
prior to death, (R-1056) and that the victim could not have been conscious
when she was dragged into the water. (R-1060).

Police officers first learned that the body examined by Dr. Wood was
that of the victim Deborah Kammerer on January 7, 1980, after providing pho
tographs to the news media, and reviewing missina persons reports. (R-975,
976). The Known fingerprints of the victim were then comnared to the latent
finaerprints found in the apartment of Deborah Kammerer on Grove Street, in
St. Petersburg, and were found to match. (R-1375).

Miss Kammerer was last seen by her friends Yohan Wenz and Carol Byers
at the ABC Lounge on Fourth Street on the evening of January 2, 1980.
(R-1078-1084) The three had gone to the lounge that niqht together, at
Deborah's invitation, but Wenz and Byers left shortly before midniaht. (R-
1083,1094). MissKammerer told them that she wanted to stay a little lonaer,
and that she would get a ride home with someone else. (R-1084).

Ms. Kyoe Ginn, the bartender at the ABC Lounge, testified that she
knew both the victim and the Defendant as reqular customers of the lounge.
(R-1114,1116). She said that on the evening of January 2, she noticed that
they were both in the bar alone after Wenz and Byers left, and that Miss
Kammerer moved her chair over to where the Defendant was sitting. (R

1119). After about thirty minutes, she observed them leavina the lounge to-

gether. (R-1120). Ms. Ginn further testified that she saw the Defendant in

-~ll1-

the lounge several days later drinkina a straiaht orange juice and that she
considered that unusual because she had never seen him order a non alcoholic
drink. (R-1121).

Mr. Robert Lewis Van Vuren, the Defendant's supervisor at the R.J.
Logqet Plastering and Drywall Company, testified that the Defendant came to
work on the morning of January 3, 1980, and asked if he could have the cay
off, explaining that he was "feeling rough". (R-1138-1140). At that time,
Van Vuren noticed that the Defendant had red marks or scratches on each side
of his face. (R-1140)

Mr. Van Vuren testified that he saw the Defendant aaqain on January 7,
1980 and at that time, he appeared to have a little makeup on his face. (R-
1143). He also noticed that the Defendant had new seatcovers in his car.
(R-1143). Finally, Van Vanuren was allowed to testify that he had at certain
times had conversations with the Defendant about sex and that the Defendant
told him that he liked anal sex, and that he liked to beat or slap women when
he did that. (R-1157,1158).

The Defendant's Aunt, Lois Foster, testified that the Defendant lived
with her, but that she did not know his whereabouts between 11:00 p.m. on
the evening of January 2, 1980 and 9:30 a.m. on the morning of January 3,
1980. (R-1248). She said that the Defendant stayed home from work on January
3, because he was not feeling well, but she did not notice any bruises on his
face. (R-1249,1254). About 2:30 on the afternoon of January 3rd, she ob
served the Defendant washing his car, but she did not consider that unusual.
(R-151,1251). Mr. Kenneth Norwood, a family friend who lived with the Fosters,
tesified that the Defendant had washed his car on that afternoon. (R-1259).

The State called both the boyfriend of the victim, Gary S. Colvin, and
the girlfriend of the Defendant, Sherry Rivers. (R-1265,1281). Colvin testi

fied that he was familiar with the sexual preferences of Deborah Kammerer and

-12-

that she had a distinct dislike for anal intercourse. (R-1271). Rivers,
who had been dating the Defendant for about three months nrior to the
incident, was allowed to testify that the Defendant had in the wast stated a
preference for anal intercourse, and that she had anal intercourse with him
On more than one occasion. (R-1319).

Wilbur Ehlers, a crime scene technician for the St. Petersburg Police
Denartment was called to the stand to identify various items of evidence taken
from the Defendant's car. (R-1322). This testimony related principally to the
taking of blood, hair and fiber samples, but Ehlers was nermitted to testify
that he also found ten baggies of marijuana in the qlove compartment. (R
1365).

Various expert witnesses were called to give testimony relating to the
analyses of the blood stains. David Baer, a crime laboratory analyst in sero
logy testified that the type A blood found in the Defendant's car was similar to
that of the blood of the victim. (R-1460-1502). Baer maintained that although
the Defendant also had type A blood, the enzymes in the samples were similar
to those of the type A blood of the victim. (R-1475). Theodore Yeshion, of
the forensic serology section of the Tampa Regional Crime Lab, testified that
throuah the use of a "luminol" test he was able to determine that blood once
existed on the Defendant's jacket, and in various parts of his car, but was
cleaned off or wiped off. (R-1544). Finally, Judith Bunker, the assistant
to the Medical Examiner in Orlando, was qualified as an expert in blood stain
patterns and gave her opinion from the confiquration of the stains that the vic
tim was struck with a hard object while seated in the right front passenger
seat of the vehicle. (R-1579,1616,1620).

The State also called several microanalysts. Patricia Lasko of the Florida
Department of Law Enforcement testified that a hair sample found in the Defen
dant's car was similar to that of the known head hair of the victim. (R-1685).

-13-

Lynn Henson, of the same Department, testified that fiber materials obtained
in the vacuum sweepings of theDefendant's car were similar to the fiber
materials found in the victim's coat and the victim's pants. (R-1720,1721).
Kenneth Young, an inmate who shared a cel! with the Defendant while he

was awaiting trial, was allowed to testify as to an incident relating to the
Defendant and another inmate. Accordina to Youna, a very small, slender
individual named Robert Clark came into the cell and the others were teasina
him and telling him how cute he was. (R-1788,1789). The Defendant put a
shank (jailhouse knife carved out of a spoon) up to Clark's neck and said
"how about some of the poop-chute", and thereafter cleared everyone else
out of the area. (R-1791,1792). Young said that he could hear Clark pro

testing, and that when the Defendant walked around to where the other in

mates were, his fly was unzipped and his shirt was untucked. (R-1794). At
this time, according to Young, the Defendant was alleged to have said "I won
der how he would like a coke bottle up his ass like | gave her." (R-1794).

Inmate Young also testified to a prior conversation he had with the Defen-
dant concerning the testimony of Mr. Van Vuren. As Younq related the conver
sation the Defendant said, "They say that my boss is qoing to say that | came
to work all scratched up - | didn't even ao into work that lying son of a
bitch - | got to scratched up." (R-1787).

Sergeant Murry was then recalled to the stand to relate the Defendant's
pretrial statements to the Jury. She recounted the substance of each of the
statements as previously described in the portion of this brief relating to the
Motion to Suppress. (R-1836,1865). Detective Hitchcox cave similar testimony
relating to the statements. (R-1865,1888).

The Defense called, among other witnesses, Leon Vasquez, the bouncer
who was working at the ABC Lounge on the evening of January 2, 1989. (KR

1928). He said that he had a conversation with Miss Kammerer on the night of

s) >

the offense, reaarding a man who was botherina her in the bar. (R-1931).

He also observed the Defendant Waterhouse in the bar that night having a
conversation with one Steve Spitzig about the purchase of some marijuana.
(R-1940). Mr. Vasquez testified that Waterhouse and Spitziq left the bar at
about ten minutes to twelve, and that Sptiziq came back alone at approximately
quarter to one. (R-1943). The victim was still in the bar when Spitziq re
turned. (R-1943). Finally, Vasquez told the jury that he explained these
facts to Detective Hitchcox who said that he did not want to investigate the
matter further because he did not want to help the defense. (R= 1949).

In rebuttal, Robert W. Lona of the St. Petersbure Police Department
said that Mr. Vasquez told the police that the Defendant was sneakincd to the
victim on the night in question. (R-2000). Other police witnesses testified
that there would be no way for an identification checker standing in the hall
way of the ABC Lounge to see the activity inside the bar, (R-2011), and
that the officers had, after investigation, eliminated the unruly bar patron as

a suspect. (R-2003).

THE PENALTY PHASE

The State introduced a certified copy of the Defendant's previous con
viction for murder in New York (R-2254), and called Officer Lawrence L. Hawes,
formerly of the Lona Island Police Denartment, to explain the circumstances of
that case. Mr. Hawes testified that the victim in that case, a seventy seven
year old white female named Ella Mae Carter, was found dead lying naked in
the bed of her residence. (R-2256,2258). The crime scene investigation re
vealed blood leading from the hallway to the bedroom as well as on the bed it

self, and it was apparent to the officer that the victim had tearing wounds near

“03

the vaqginal area and a bitemark on her breast. (R- 2258).
The Defense recalled the Defendant's Aunt, ‘irs. Lois Foster, who had
taken care of the Defendant from the time he was six years old. (R-2269).

She testified that the Defendant had been reachina out for help for the last

fifteen years but the authorities in New York and Fiorida would not listen.

(R-2227). It was “irs. Foster's opinion that if the Defendant did commit the
crime, it was because there was something mentally wrong with him. (R-2270).
ARGUMENT
A

THE “OTION TO SUPPRESS”

POINT ONE

THE STATEMENTS OF THE DEFENDANT
AND THE TANGIBLE EVIDENCE TAKEN
FROM HIS CAR SHOULD HAVE BEEN
EXCLUDED FROM EVIDENCE ON THE
GROUND THAT THEY WERE OBTAINED
AS A RESULT OF AN ILLEGAL ARREST
OR DETENTION.

The first argument relating to the various search and seizure issues pre
sented by this case is that the Defendant's January 7, 1980 trip to the St.
Petersbura Police Department was an involuntary detention made without »robable
cause. It is respectfully submitted that the tangible evidence obtained from

the vehicle and the two statements made on January 10 were the product of

that unlawful detention and that they should therefore, have been excluded

83 S.Ct. 407, 9 L.Ecl.2d 441 (1963).

It is conceded that the Defendant was not actually arrested on January

-16-

7, 1980, but that has no effect unon the arqument which follows. The Fourth
Amendment applies to all seizures of the person, including seizures that in
volve only a brief detention short of traditional arrest. Davis v. Mississippi,
394 U.S. 721, 22 L.Ed.2d 676, 89 S.Ct. 1394 (1969), Terry v. Ohio, 392 U.S.
1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), and United States v. Brianoni Ponce,

422 U.S. 873, 45 L.Ed.2d 607, 95 S.Ct. 2574 (1975). The critical inquiry

relates only to the question of whether the Defendant's apnearance at the Po-
lice Station was voluntary, or whether the Police Officers otherwise had pro
bable cause for the detention.

The Officers characterized the Defendant's annearance at the Police Sta-
tion as "voluntary" but that characterization is not supnorted by the objective
facts presented at the hearing on the Motions to Suppress. The United States
Supreme Court recently held in Dunaway v. New York, 442 U.S. 200, 60 L.Ed. 2d

824, 99 S.Ct. 2248 (1979), that a detention for custodial interrocqation regardless

of its label intrudes so severely on interests protected by the Fourth Amendment

as necessarily triqner the traditional safequards against illenal arrests.
id at 442 U.S. 216.

In the Dunaway case, an informant told the police that a certain person may
have been involved in killing the proprietor of a pizza store. Armed with this
information, the officers brought the suspect into the station for questioning.
Based upon this detention, without formal arrest or probable cause, a statement
was given. The Defendant was given a full set of Miranda warnings, but the
Court held that the warninas could not validate the statements produced as a
result of the illeqal detention. In reversing the conviction obtained by the use
of the statement, the Court distinguished all of the exceptions to the probable
cause requirement and ruled that a trio to the police station for questioning
is an intrusion which requires probable cause.

The only arquable distinction between this case and Dunaway is that in

-17-

this case, the nolice officers said that the Defendant was free to qo. That

is an illusory distinction howver, given the fact that the evidence demonstrates
that they lured him to the police station by retaining his driver's license,
and the fact that they seized his car as soon as he arrived.

The issue of whether a particular detention is voluntary or involuntary
is not to be made unon the characterization of the police, but rathe*# upon
the manner in which it reasonably appears to the person arrested. State v.
Frost, 374 So.2d 593 (Fla. 3d DCA 1979). In the Frost case, two police
officers working at the Miami International Airport detained the Defendant un
der circumstances which indicated to them that he was a nossible drug courier.
An alleged consensual search of his briefcase and suitcases revealing marijuana
was held to be invalid because the officers had kept the Defendant's airplane
ticket and driver's license during the period of the alleged voluntary ques
tioning. '!n referring to the retention of the nlane ticket and driver's license,
the Court said "It is totally unrealistic, and therefore totally unacceptable..
to suggest that [the Defendant's] consent was an entirely voluntary and coop-
erative one when influenced by a real and effective restraint placed upon him
by the officers." id at 597.

In this case, as in Frost, the police officers effectively restrained the
Defendant by deprivina him of his means of transportation and by refusing
to aqive him back his personal identification. The fact that they told him he
was free to qo at any time is but a meaningless cesture, obviously designed to
lend credence to the thoory that the station house questioning was "voluntary".
Of course, the vehicle itself, from which the objectionable evidence was ob
tained, was seized as a direct result of the Defendan'ts "voluntary" appearance.

An involuntary detention might have been proper upon probable cause,

see Dunaway Vv. New York, supra, but it is clear from the facts of this case,

-18-

that the police officers did not have probable cause at the time of the January
7, 1980 questioning session.

When the police officers received an anonymous call simply statince “In
reference to the bay murder, | have a license number for you GMU 603",
(R-447) and learned that the vehicle referred to was renistered in the name cf
the Defendant, a man with a prior record who had been seen on January 2,
1980 with the victim, they decided to call him in for questioning. The inno
cent circumstances do not lend sufficient support to the anonymous tip to make
it rise to the level of probable cause.

While it is clear that an anonymous tipsmay be sufficient to justify the

commencement of an investigation, Interest of G.A.R., 387 So.2d 404 (Fla. 4th

DCA 1980), In re: Bertrand, 303 A.2d 486 (Pa. 1973) they are aenerally not

sufficient to constitute nmrobable cause for an arrest. State v. Hetland, 366 So. 2d
831 (Fla. 2d DCA 1979).

In Commonwealth v. Brooks, 364 A.2d 652 (Pa. 1976), an anonymous caller

simply told the police that "Brooks from Baltimore was one of the persons re-
sponsible for this shootina." The Court held that the tip was insufficient to con
stitute probable cause because there was no showina that the caller had perso-
nal knowledae of the contents of the call. Likewise, in this case, there is no
indication whatever that the anonymous caller had any firsthand information re-
garding the contents of the call. Nor, was the inforamtion contained in the call
specific enough to bear the indicia of reliability, State v. Hetland, supra.
These decisions demonstrate from a purely leaal standpoint the fact that
police officers did not have probable cause to arrest the Defendant on January

7, 1980. That conclusion however, is supported by the actions of the officers

themselves, as they certainly would not have allowed him to go home on that
day, with or without his car, if they thought they had probable cause to arrest

him.

-19-

The examination of the Detendant's vehicle from the outside, and t ve

‘

subsequent search of the vehicle, were obviously the direct mroduct of the
illenal detention. The record clearly demonstrates that the observations from
the exterior of the vehicle made bya police officer while the Defendant was
ing questioned by Sergeant Murry, were the cause of the subsequent
detention and search of the interior of the vehicle.

The Defendant respectfully submits further, the two statements made
on January 10, 1980 were the direct product of the illegal detention. In this
case, as in Clewis v. Texas, 386 U.S. 707, 18 L.Ed.2d 423, 87 S.Ct. 1338
(1967), there was no "break in the stream of events" between the unlawful de
tention and the makinq of the statements. The Defendant in this case did
not voluntarily return several days after the involuntary detention to make a
statement, as the Defendant Wona Sun did in Wona Sun v. United States supra.
Rather, it appears that information obtained during the detention was used to
support a findina of probable cause for the actual! arrest.

For eacn of these reasons, the Defendant respectfully submits that all of
the evidence obtained from him or from his vehicle subsequent to the Police

questioning on January 7, 1980 should have been suppressed by the trial judae.

POINT TWO

THE TANGIBLE OBJECTS TAKEN FROM THE
DEFENDANT'S CAR SHOULD HAVE BEEN EX
CLUDED FROM EVIDENCE ON THE GROUND
THAT THE POLICE OFFICERS LACKED PRO
BABLE CAUSE TO SEIZE THE VEHICLE
PRIOR TO THE TIME THEY OBTAINED A
WARRANT TO SEARCH ITS CONTENTS.

While the Defendant was talking to Seraeant Murry on January 7, 1980,
Detective John W. Long was examining the 1973 Plymouth automobile by looking

into the vehicle with a flashlight. (R-511). Based upon the observation of

-20-

some sand on the floor in front of the driver's seat and what apnmesred

be several dark stains on the floor directly behind the driver's seat (f
the officers decided to impound the vehicle and apply for a warrant t
its contents. (R 513,514). The Defendant respectfully submits that t
seizure of the vehicle prior to the time the search warrant was obtained

improner.

The invasion of Defendant's privacy occasioned by the warranties:
seizure of the vehicle was no less than that which would have occurred if
the police had searched the entire vehicle without qetting a warrant at all.
That principle of law was clearly established in the landmark decision of the

United States Supreme Oourtin Chambers v. Maroney, 399 U.S. 42, 26 L.Ed. 2d

419, 90 S.Ct. 1975 (1970) wherein the Court stated:

"...for constitutional purposes, we see no difference

between on the one hand seizing and holdina a car

before nresenting the probable cause issue to a

maqistrate and on the other hand carrying out an

immediate search without a warrant." 399 U.S. at 52.
The Court went on to say that either course would be reasonable assumina
the existence of probable cause to conduct the search.

The Chambers decision clearly establishes that the nolice officers in this
case did not improve their position by obtaining a warrant to search the vehi-
cle. The involuntary detention of the vehicle, admittedly against the Defendant's
will (R-489) was in legal effect "a warrantless seizure" which must be tested by
Fourth Amendment standards from the moment it occurred.

The examination of the exterior of the vehicle was not a violation of
the Defendant's reasonabl2 expectation of privacy, Cardwell v. Lewis, 417 U.S.
583, 41 L.6G@.2d 325, 94 S.Ct. 2464 (1974), and therefore did not in and of
itself constitute a violation of the Defendant's constitutional riahts. However,

the examination did not reveal any evidence which could constitute probable

cause to seize the vehicle without a warrant.

a94-

c

The decision of this Court in Riley v. State, 263 So.2d 200 (Fla. 1972)
provides a gocd illustration of the quantum of dence which would be
necessary to support a finding of probable cause in a case such as this.

In that case, two younn boys accidentally came upon a man who was apnarently
shooting at something in the back seat of a blue Clysler winch proved to be
renistered in the name of the Defendant. Several days later, vnolice officers

in Michiqan arrested the Defendant on an unrelated charne and discovered, upon
a brief examination of the exterior of the blue Chrysler, that it had a bullet
hole in the side, a rifle in plain view on the floor, blood-like dark red stains
on the back seat, and flesh particles on the rear seat and rear window.

These facts were held to constitute probable cause to imnound the automobile.

Officer Lona's observation of a little sand on the floorboard in front of
the driver's seat could certinaly not be considered unusual! in a coastai city
such as St. Petersburg. The apparent immateriality of this observation was
later verified by the State's geologist who could not testify that the narticles
of sand were similar to those found near the bayfront crime scene. (R-1665).
Officer Long conceded that he observed an open coke bottle on the floor of the
vehicle at the time he looked into it with a flashlight and that he could not
determine the nature of the stain he observed from outside the vehicle. (R-
521,523). The anparent insianificance of these observations was later demon-
strated by the fact that one of the stains the officer obser.ec was actually a
Coca-cola stain. (R-521).

Perhaps the most telling fact in support of the argument that the police
did not have probable cause to seize the vehicle on January 7, is that they
declined to arrest the Defendant at that time and nlace. Obviously, they them
selves did not believe they had probable cause to seize the automobile, for if

they did, they would have also used it to arrest the Defendant. It is firmly

established in the law that probable cause to conduct a search is the same as

~72-

that which would be rjuired to make an arrest. See Draner v. United States,
358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329 (1959).
The cases upholding the impoundment of warrantless seizure of a vehicle

upon probable cause universally involve factual situations wherein there was also

probable cause to arrest the defendant. See e.qa. Cooner v. California, 386 L
58, 17 L.Ed.2d 730, 87 S.Ct. 788 (1967), Cady v. Dombrowski, 413 U.S.

37 L.Ed.2d 706, 93 S.Ct. 2523 (1973), Chambers v. Maroney, supra, Cardwell
v. Lewis, supra, and Texas v. White, 423 U.S. 67, 46 L.Ed.2d 209, 96 S.Ct
304 (1975). In this case, the police officers allowed the Defendant to go home,

apparently on the assumption that the facts went inarfficient to constitute prc
bable cause to search it.

For each of the foregoing reasons, the Defendant respectfully submits
that the warrantless seizure of the vehicle preceding the warrant authorizina

search of its contents was invalid. The tangible objects obtained from

car should not, therefore, have been admitted into evidence.

POINT THREE

THE DEFENDANT'S STATEMENTS SHOULD HAVE
BEEN EXCLUDED ON THE GROUND THAT THE
OFFICERS FAILED TO TERMINATE THEIR QUES
TIONING AFTER THE DEFENDANT EXPRESSED
HIS INTENTION TO REMAIN SILENT.

In the case before the Court, the police officers resumed questioning
on several occasions after the Defendant indicated that he intended to remain
Silent. It is respectfully submitted that the statements produced by the re
newed police interroqation, under these circumstances, should have been ex
cluded from the eviclence presented at trial.

The continuation of police questioning of an individual who has exnressed

-23-

his intention to remain silent is clearly orohibited by Miranda v. Arizona,

384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). In that case, the

,

Court instructed that:

"Once warnings have been given, the subsequent pro
cedure is clear. If the individual todicates in any
manner at any time prior to or during questioning,
that he wishes to remain silent, the interroqation must
cease. At this point, he has shown that he intends
to exercise his Fifth Amendment privileae; any state
ment taken after the person invokes his privilege
cannot be other than the product of compulsion, sub-
tle or otherwise. Without the right to cut off ques-
tionina, the setting of in-custody interronation oper-
ates on the individual to overcome free choice in pro
ducing the statement after the privilece has been once
invoked..." 384 U.S. at 473,474. (Emphasis supplied)

Some Courts and commentators have incorrectly assumed thai the foreaoing

admonition contained in the Miranda decision was diminished by the subsequent

Ww

decision of the Court in Michiaan v. Mosley, 423 ie. Se. 36:4..66. a 333.
96 S.Ct. 321 (1975). That decision however, permits a resumption of police
interrogation only under the limited circumstances wherein a fresh set of
Miranda warnings are aiven, and the questioning does not relate to the matter
which was the subject of the Defendant's earlier refusal to sneak. The Mosiey
decision would not authorize the resumed questioning in this case, for the po-
lice officers persisted in asking the Defendant questions about the same homi
cide, in the face of several clear indications that he did not wish to speak

to them.

The limitations upon the decision of the Court in Michigan v. Mosley

were illustrated in United States v. Clayton, 407 F.Supp. 204 (E.D. Wis. 1976)

and United States v. Jakakas, 423 F.Supp. 564 (E.D.N.Y. 1976). The Court

in Clayton pointed out that the holding in Michigan v. Mosley is limited to the
facts of that case and noted:

"It has been correctly pointed out that no indication

is aiven [in Miranda] of what circumstances, if any,

permit a resumption of questioning. Michioan v. Mosley,

423 U.S. at 98, 96 S.Ct. at 324, 46 L.Ed.2d at 319.

-i-

However, the loqgical entailment of the Miranda
Court's lanquage mandates that "the interroga-
tion must cease" at least with respect to the —
same crime and the same interrogating officer
for a substantial period of time." (Emphasis.

supplied)

Likewise, the Court in United States v. Jakakas, supra, noted:

“Furthermore, Michigan v. Mosley, supra, also
seems to hold that a substantial period of time
must be lapsed between an invocation of riahts
and a resumption of questioning and also possibly
that the second interroaation be restricted to a
crime that had not been a subject of the earlier
interrogation." 423 F.Supp. at 569 (Emphasis
supplied)

When the police officers in this case were transporting the Defendant
to the jail on January 9, 1980, they had a brief discussion with him in the
car, and he said "I think | want to talk to an attorney before | say anything
else" (R-471). Nevertheless, the officers questioned the Defendant while he
was being booked, and again in detail at 2:00 a.m. on the morning of
January 10, 1980. (R-473). He did not have an opportunity to speak with
an attorney at any time during the day of January 9 or in the early morning
hours of January 10 prior to an interview.

Durina the first interview, which was conducted on January 10, 1980,
the Defendant aaain advised the officers that he wished to speak to an attorney.
On that occasion, he was reported to have said, "I'm kind of tired and | think
| want to talk to my attorney, will you all come back tomorrow" (R-477).
Admittedly, this statement could have been interpreted by the police officers
as permission to come back the next day, but the point is that the interview
wherein the statement was made should not have been conducted in the first
place.

The Defendant's unequivocal statement to the police officers in the after-

noon of January 9 that he wished to see an attorney before he made any further

-2?5-

statement should have caused the complete termination of all questioning.

At the very least, it cannot be said upon this record, that the Defendant's
"right to cut off questioning" was "scrupulously honored", Michiaan v.
Mosley, 423 U.S. at 104.

For these reasons, the Defendant contends that the statements he
made to the police officers on January 10, 1980 should have been excluded

from the evidence presented at his trial.

FOINT FOUR

THE DEFENDANT'S FINAL STATEMENT
SHOULD HAVE BEEN EXCLUDED ON THE
GROUND THAT THE OFFICERS FAILED
TO ADVISE THE DEFENDANT'S COURT
APPOINTED ATTORNEY THAT THEY WERE
CONDUCTING AN INTERVIEW.

The final and most incriminating statement taken from the Defendant
on January 10, 1980 was obtained only after the police deliberately avoided
making any contact with his court-appointed attorney. The trial judae ori
ginally ruled that this statement was inadmissible on the ground that the
officers failed to notify the attorney known to have been appointed to repre-
sent the Defendant prior to the time they began the final questionina session.
(R-388,579,580), but later reversed that ruling. (R-411,412,432). The Defen-
dant respectfully submits that the trial judqe's oriainal rulinca) was correct
and that the statement should have been excluded from evidence.

In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d

246 (1964), the Court held that police officers may not take a statement

from a post-indictment criminal defendant Known to be renresented by counsel,
without informing his attorney. The Court in Escobedo v. Illinois, 378 U.S.
478, 12 L.Ed.2d 977, 84 S.Ct. 1758 (1964) extended the riqht to counse!

to pre-indictment questioning where the questions go beyond a aeneral inquiry

- =

of the Defendant and beqin to focus on him as a suspect. These princinles
combined, form the rule that the officers must notify an attorney representing
a pre-indictment suspect who is the focus of an investiqation, that they are
about to question his client. *

For example, in Clifton v. United States, 341 F.2d 649 (Sth Cir. 1965),

the Court held that a pre-indictment statement made by the defendant to anents
who failed to inform his court-appointed lawyer that they were conducting
questioning was inadmissible. The Court noted that the agents knew, or
should have Known, that the defendant was renresented by counsel, and that
there was no excuse for their failure to call him. Likewise, the Florida Courts
have held that once the police officers know of the renresentation of a criminal
defendant by a particular attorney, they must notify that attorney before they
may beain questioning. See Williams v. State, 188 So.2d 320 (Fla. 2d DCA
1966), and compare State v. Craig, 237 So.2d 737 (Fla. 1970).

This is not such a case as Sanders v. State, 378 So.2d 880 (ist DCA

1980) relied upon by the Court below, where the officers were merely neali-
gent in ascertaining the status of the Defendant's leqal renresentation.
Nor, is this such a case as Witt v. State, 342 So.2d 497 (Fla. 1977) where the

defendant expressly indicated to the police that he intended to confess to the ,

At least one intermediate Appellate Court in this state has incorrectly assumed
that the Massiah decision is cateqorically inapplicable to pre-indictment questionina,
See Robinson v. State, 351 So.2d 1100 (Fla. 3d DCA 1977). That Court failed to
consider the impact the Escobedo decision had upon the prior ruling of the
Court in Massiah. Nor does the decision recognize that a deprivation of the Sixth
Amendment right to counsel can, under certain factual situations, exist at any
staae of the proceedinas.

. The Defendant also contends that the First District Court of Appeals in Sanders
improvidently relied upon the decision of this Court in Stone v. State, 378 So.2d
765 (Fla. 1980). In the Stone case, this Court merely held that a request for

an attorney for an unrelated civil matter does not require the cessation of
questioning under Miranda.

yo

Grime in spite of the fact that he was represented by counse!.

In this case, the nolice officer went to conduct an interview of the
Defendant on the afternoon of January 10, 1980, with full knowledae that the
Public Defender's Office had been appointed earlier that morning at an advisory
hearing (R-478) and that a representative of the Public Defender's Office had
conferred at length with the Defendant around noon on January 10, 1980 just
prior to their interview. The officers conceded that they made no effort
whatsoever to contact anyone in the Public Defender's Office to advise them that
they were conducting an interview with their client. (R-499,500). Certainly
under these facts, it cannot be disnuted that the interromation "focused on
the Defendant" as a suspect in the offense. Escobedo v. illinvis, supra.

The trial judae was correct in orderina the suppression of the
Defendant's final statement to the police, and the reversal! of that decision on

the State's Motion for Rehearina was error.

POINT FIVE

THE DEFENDANT'S STATEMENTS SHOULD HAVE
BEEN EXCLUDED ON THE GROUND THAT THEY
WERE NOT SHOWN TO HAVE BEEN MADE VOLUN-
TARILY.
The question of whether a statement made by the accused was voluntary
can only be answered by reviewing all of the circumstances surrounding the

makina of the statement. Blackburn v. Alabama, 361 U.S. 199, 4 L.Ed.2d 242,

80 S.Ct. 274 (1960), Boulden v. Holman, 394 U.S. 478, 22 L.Ed.2d 433, 89S.

Ct. 1138 (1969).
One circumstance which renders a statement involuntary is psycholoaical
coercion. Townsend v. Sain, 372 U.S. 293, 9 L.Ed.2d 770, 83 S.Ct. 745 (1963),

Blackburn v. Alabama, supra. When the interromators exert improper influence

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—

such as a faise show of sympathy, or an implied promise however slight,
psychological coercion has been found. Malloy v. Hogan, $78 U.S. 1, 12
L.Ed.2d 653, 84 S.Ct. 1489 (1964). The Florida Courts have also recomnized
that emotional considerations as well as physica! considerations have a bearing
on voluntariness. For example in Breedlove v. State, 364 So.2d 495 (Fla. 4th
DCA 1978) the Court ordered the supnression of the defendant's statement
becauseshe was crying and obviously upset at the time it was made, and be
cause that created a doubt as to the question of voluntariness.

Another factor to be considered in determinina the voluntariness of a
statement is the nature of the detention, 14 Fla. Jur. 2d CRIMINAL LAW §141
(1980). The lenath and condition of incarceration, and the decree to which
the defendant is isolated from others all have a bearina on the issue.

The circumstances surrounding the statements made by Robert Waterhouse
were detailed at the Motion to Suppress hearing. (R-468-477). It appears
that Waterhouse was booked on the afternoon of January %, 1980. Sometime
around two or three o'clock in the morning, the officers visited Waterhouse and
again attempted to ellicit statements from him. (R-473). They questioned him
for several hours until finally Waterhouse asked them to leave because he was
tired. (R-477).

Throughout that early morning interrogation Waterhouse demonstrated
symptoms of emotional stress. Officer Murry testified that Waterhouse would
often break down and cry. She said that they would terminate the interro
qation while he cried, and resume it again when he stopped. (R-476). Officer
Murry also testified that Waterhouse pleaded with them several times that he
"just wanted to talk to them as neople" and not as volice officers. (R 476).

Later in the afternoon of January 10, 1980, after Waterhouse had spoken
with his attorney, the same two officers again interrogated him. While Officer

Murry was explaining his riahts she told him that she really didn't know "'f

-29-

=

what you and going to say can be used in court. (R 479). Officer Murry

testified that during this interview, like the one in the early morning hours
/ , "
of that day, Waterhouse was upset and confused. (R-481}. Also like the
. . . . . ’
previous session, this interrogation lasted for several! hours. ’
It is clear from the testimony of Officer Murry that Waterhouse was in
a hiahly confused emotional state when he spoke with her. It is also clear
that the officers intentionally exploited the prisoner's mental instability and ;
took deliberate steps to compound it. First, they waited until the middle of the
’
night to talk to him, Knowing that he would be feeling particularly lonely
and depressed at that time. Then, they pretended to be friendly and sym
pathetic and indicated that they only wanted to talk. For hours they interr
Ooqated him, stopping to let him cry, but starting back up whenever he quit

crying. One who was not there can only imaaine the mental anauish which (
Robert Waterhouse went through that niqht; being in prison, awake all night

with no one to talk to but the police. Surely his emotional confusion was at

least as bad as the defendant's in Breedlove, supra. where the Court said

"Appellant's emotional confusion raises serious doubts as to whether her state

ments were knowinqly and intelligently made", Breedlove 364 So. 2d at 497,

Officer “Murry also testified that Waterhouse was upset and confused at

the session which took place in the afternoon of that same day. (R-481).
At that session, Officer Murry implied that statements made to her would not
be used against him. This implied promise is the type of psycholoaical trick

which is barred by the Supreme Court's decision in Malloy, supra.

By looking at all the circumstances surroundina the statements made by
the Defendant to the police officers, the voluntariness of those statements
becomes dubious. The Defendant was left alone until two or three o'clock in
the morning when he was approached by two apparently sympathetic and
friendly officers. Throughout the niqht he was crying and showing other siqns

-XD-

of mental instability. The next day when his mental state had surely
worsened from lack of sleep he was aqain approached by the officers. On this
occasion, in addition to evincing false sympathy, they implied that the Defendant
was free to talk to them without fear that his statements would be used against
him in Court.

It is submitted that due to the psychological coercion, the implied pro
mise, and the circumstances of the two a.m. interrogation, the statements

made by Waterhouse to Officers Murry and Hitchcox were involuntary. There

fore the Motion to Suppress was improperly denied.

G
THE TRIAL
04
POINT SIX

THE EVIDENCE OF THE DEFENDANT'S ALLEGED
POSSESSION OF MARIJUANA WAS IMPROPERLY
ADMITTED BECAUSE IT DID NOT MEET THE
RELEVANCY TEST REQUIRED BY THE FLORIDA
EVIDENCE CODE AND THE WILLIAMS RULE.

Chapter 90.404(2)(a) of the Florida Evidence Code states that similar

fact evidence of other crimes is admissible to prove a material fact in issue,
such as proof of motive opportunity intent, plan, Knowledae, identity or ab
sence of mistake, but is inadmissible if relevant to prove bad character or pro
pensity. This chapter is essentially a codification of the so called "Williams ,
Rule".

The "Williams Rule" permits the introduction of evidence of “any facts

relevant to a material fact in issue except where the sole relevancy is charac 4

ter or propensity of the accused..." (Emphasis supplied). Williams v. State,

110 So. 2d 654 (Fla. 1959). In Williams, the Court attempted to lay to rest

the question of when evidence of a collateral offense is admissible. Briefly,

+31-

s '
'

the case holds that evidence of a similar act or offense mav be used by the
prosecution when it is relevant to demonstrate motive, intent, absence of mis
take, common scheme, or identity. Id at 663. The matter of relevancy
should be carefully and cautiously considered. by the trial judge. Id at 663.
In the instant case, the trial judge permitted the prosecution to pre

sent evidence to the jury that marijuana had been found in Waterlhouse's

Fal
—
.
«
~
~

automobile almost a week after the crime had been committed. (R 136
araument was made that the evidence was relevant to prove a materia! fact
in issue. The testimony reqarding marijuana was offered and admitted solely
for the purpose of corroboration. (R-1366).

A brief review of the record will demonstrate that the trial judae failed
to cautiously scrutinize the relevancy of the evidence. Obviously, the fact
that marijuana was found in the Defendant's car is not similar fact eviclence.
Equally obvious is the fact that this evidence has absolutely no bearina on
the issue of whether or not the Defendant was connected with a murder that
had taken place several days before. There was no alleqation that the murderer
was a marijuana user. Such an allegation would have been necessary to rencer
the marijuana discovery relevant to show identity. Similarly, there is nothina
in the case which would indicate that marijuana use would demonstrate motive,
intent, absence of mistake or common scheme.

These are the types of issues the Court contemplated when it held that
evidence of similar crimes may be used when relevant to a materia! fact in
issue. Id at 663. The fact that the evidenc@&in this case was admitted solely
for the nurpose of corroboration is proof that it was not used to demonstrate
a material fact in issue. Therefore, the evidence does not fall within the

"Williams Rule" exception to the evidence code. Id at 660, 663.

= 2.

Allowing the jury to hear evidence that marijuana was found in the
Defendant's car was hiqhly prejudicial and inflamatory. The effect of the
testimony was to attack the character of the Defendant even thouqh his

character had not been place in issue; as demonstrated in the oreceding para

graph, the evidence had no bearing on any material fact in issue. It is
clear that the trial judge did not "carefully and cautiously" consider the
relevancy of the evidence as required by Williams. Id at 663. On the con

trary, he perfunctorily ruled that because the testimony had some corrobora
tive value it was admissible.
For these reasons, the trial judge should have aranted Defendant's

Motion for a Mistrial.

POINT SEVEN

THE EVIDENCE OF AN ALLEGED HOMOSEXUAL
RAPE ATTEMPT WAS IMPROPERLY ADMITTED

BECAUSE IT DID NOT MEET THE RELEVANCY
TEST REQUIRED BY THE FLORIDA EVIDENCE

CODE AND THE WILLIAMS RULE.

Over Aimely objection by the defense, the trial judge admitted evidence
of another wrongful act allegedly committed by the defendant. In overruling
counsel's objection, the judge determined that the profferred testimony could
be admitted without approaching it from a Williams Rule standpoint because the
testimony provided backqround for the Defendant's statement against interest.

(R-1753). ’

4 ; ,
The State offered testimony of one witness, a cell mate of the Defendant, that

the Defendant had attempted anal rape on a third cell mate. The witness’ testi
mony was uncorroberated and no charges were ever brought aaainst the Defendant
for the alleged offense.

According to the witness, after the alleged offense took place, Waterhouse said,
"| wonder how he'd like a coke bottle up his ass like | aave her." It is conceded
that this statement is an admission admissible under §90.803(18) Fla. Stat. (1976)
as an exception to the hearsay rule. It is the testimony reqarding the events that
led up to the statement that was improperly heard.

- 33-

Providing background for a statement against interest (or an admission)
is not one of the exceptions to §90.404(1) Fla. Stat. (1976), nor is it the
type of issue contemplated by the Williams Rule. The fact that certain evi
dence might aid the party offering the admission to lay a foundation does
not make such evidence relevant to prove a material fact. Therefore, the
trial judge erred in admitting evidence of another wronq for the purpose
of providing background for the Defendant's admission.

As stated in Point Four of the Brief, §90.404(2)(a) Fla. Stat. (1976)
is basically a codification of the Williams Rule. The Rule and the Code re
quire evidence of other crimes to be relevant to prove a material! fact in

issue, Williams v. State, 100 So.2d 654 (Fla. 1959). Relevancy is the de

cisive factor. Id at 663. Since the evidence of the alleged crime in the in
stant case was totally irrelevant to prove the offense charoed, its admission
was erroneous.

The evidence which was elicited at trial tended to show that the Defen
dant committed or attempted to commit a homosexual rane while he was in
prison. The prosecution arqued that this act was relevant to prove that the
Defendant had tix motive or intent to commit the heterosexual attack with
which he was charged.

In support of his contention, the prosecutor cited Alford v. State, 307 So.
2d 433 (Fla. 1975). In that case, the Court held that a frustrated attempt to
have a homosexual liason just prior to the heterosexual rape was relevant to
show that the d2fendant had a motive (i.e. an unfulfilled sexual urge) to
commit the subsequent attack. Id at 438.

When viewed in this light, Alford has no bearing on the case at bar. In
Alford, the other crime occurred just prior to the crime charqed and in effect

created the motive or state of mind which caused the defendant to commit the

-34-

subsequent crime. Therefore, it was logical for the Court to find that the

previous crime was relevant to show motive even thoudh the nrevious crime
involved homosexuality and the crime charaed did not.

™ the instant case, however, the alleqed other crime took place seven
months after the crime with which the Defendant was charaed. The Defen
dant was in prison at the time of the collateral offense but had been free
at the time of the charged offense. The sole similarity of the two offenses
was the presence of some kind of anal penetration. In Braen v. State, 302
So.2d 485 (Fla. 2d DCA 1974), the Court held that where the sole similarity
in two instances was the copulation per anus the requisite similarity was not
present. In that case, as in this one, the State sought to introduce ev!
dence of a homosexual rape in a prosecution involving a heterosexual rape.

The evidence miqht show that the Defendant enjoyed anal! sex with
young men when he was in prison. However, that is not relevant to shoy
that he had a motive to commit the crime with which he was charged. Gary
Colvin, the victim's boyfriend, testified that he had attempted anal sex with
the victim. That testimony miqht show that he enjoyed anal sex with women,
but it certainly does not show that he had a motive to assault and murder
someone. At least the testimony of Colvin showed that he liked to have anal
sex with women. The evidence of the attempted jail house rape is not even
relevant to show that about the Defendant Waterhouse.

The Williams Rule is not an open invitation to prosecutors to introduce
any collateral offense which contains an element also found in the offense
charged. The other offense must be factually similar, §90.404(2)(a) Fla. Stat.
(1976), and must be relevant to prove a material issue in the case being tried.
The implication

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1692%3A2. Public record. Not legal advice.