Anderson v. State

241 So. 2d 390
CourtSupreme Court of Florida
DecidedNovember 12, 1970
Docket38778
StatusPublished
Cited by33 cases

This text of 241 So. 2d 390 (Anderson v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. State, 241 So. 2d 390 (Fla. 1970).

Opinion

241 So.2d 390 (1970)

Alvin Eugene ANDERSON, Appellant,
v.
STATE of Florida, Appellee.

No. 38778.

Supreme Court of Florida.

November 12, 1970.
Rehearing Denied December 18, 1970.

*392 Robert T. Jameson, Jr., Ocala, for appellant.

Earl Faircloth, Atty. Gen., Rodney Durrance, Jr. and Wallace E. Allbritton, Asst. Attys. Gen., for appellee.

ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of rape and a sentence of death.

On the night of December 24, 1968, the victim was proceeding from Ocala to Gainesville when an automobile behind her began blinking its headlights. Thinking this was a law enforcement officer, the victim pulled off the road and stopped her car.

A male came to the side of her car, shoved a rifle in her face and ordered her to open the door and move over. Another male got in the other side of the car and they drove her to a secluded area. A second car came to the same area. She was raped by three of the males.

Co-defendants Howell and Harvey testified that defendant Anderson was at the scene of the rape and participated. The victim testified that after the rape she gave her unlisted telephone number to one of her rapists at his request. According to her testimony, she did this through fear.

The victim was then released and continued to her place of employment at a hospital in Gainesville. She was then examined by physicians and interrogated by law enforcement officers.

A few days later, one of the rapists telephoned the victim. After several of these calls between December 25, 1968 and January 3, 1969, she agreed to a meeting place in order to enable the police to capture the caller. As a result, co-defendants Tuggerson and Howell were apprehended. They admitted the rape and named defendant Anderson as one of the others who participated in the rape.

On March 8, 1969, defendant Anderson was arrested on a charge which is not the subject of this appeal and has never been released from custody. On March 24, 1969, he was granted a preliminary hearing before the County Judge on that charge and was represented by an attorney. One day later defendant was arrested, while still in custody, on the charge of rape which is the subject matter of this appeal. On March 26, 1969, the County Judge arraigned him on the charge of rape and asked him if he was still represented by the same attorney. Defendant responded that he was and the County Judge inquired if he would like to sign a waiver of preliminary hearing. Defendant signed the waiver.

On March 31, 1969, defendant's attorney filed a motion for preliminary hearing along with an affidavit wherein he challenged the validity of the waiver. On the same day the County Judge entered an order denying the motion on the ground that a preliminary hearing had been waived and the defendant had been bound over to the Grand Jury. An indictment charging defendant with the crime of rape was returned by the Grand Jury on April 2, 1969.

Defendant contends that the County Judge should have granted the preliminary hearing under the circumstances of this case and by denying the preliminary hearing defendant "lost a valuable right at a critical stage of the prosecution." This contention is without merit.

A preliminary hearing is for the purpose of determining if probable cause *393 exists to hold one accused of a crime for trial. Such a hearing is not a critical stage in the proceedings, Harris v. State, 208 So.2d 108 (Fla.App. 1, 1968), unless prejudice results to the defendant in some subsequent proceedings, or under the circumstances of the case the preliminary hearing was a critical stage in the proceeding. Abbott v. State, 164 So.2d 243 (Fla.App.2d, 1964). It is not a prerequisite to a criminal prosecution or the filing of an indictment or information. Sangaree v. Hamlin, Fla., 235 So.2d 729 (opinion filed May 13, 1970).

Defendant in his affidavit attached to a subsequent motion for preliminary hearing admitted that he signed the waiver, but said that he did not read it and signed it only "because he thought it had something to do with his attorney representing him." Rule 1.122(b), Cr.P.R., 33 F.S.A., provides for the waiver of a preliminary hearing by the defendant. Contrary to the contention of defendant, waiving the preliminary examination does not admit that either the circumstances or the character of defendant's offenses are different from what they really are, or that his offense is more grievous or of higher grade of criminality than the evidence makes it in the eyes of the law. By such waiver the defendant does not abandon any subsequent remedy given him by the law. Benjamin v. State, 25 Fla. 675, 6 So. 433 (1889).

Neither defendant's motion nor the record suggest the existence of factors which would make the preliminary hearing a critical or essential stage of the criminal proceeding, nor does it appear that prejudicial harm resulted to the defendant because of the denial of the subsequent motion for a preliminary hearing. A legal waiver of preliminary hearing was effected and the defendant has failed to allege sufficient grounds to withdraw the waiver. There could be no prejudice to the defendant in view of the fact that the Grand Jury by indictment found probable cause only two days after the County Judge denied the motion for preliminary hearing.

The palm print of defendant was taken on March 25, 1969. The deputy sheriff could not recall the exact dates defendant's fingerprints were taken or whether they were taken at the same time as the palm print. Defendant contends that upon arrest the State is entitled to take defendant's fingerprints or such other prints they desire at such time. However, defendant says, any further requests for prints should be with all of the safeguards provided by law against self-incrimination. He contends that the State should have taken all of the prints considered necessary at the time of arrest.

Palm prints are frequently left at scenes of crimes and are just as reliable and accurate as fingerprints. Modern Scientific Evidence by Richardson, § 18.12, p. 459 (1961).

Fingerprints and palm prints are not evidence of a testimonial or communicative nature and are, therefore, not protected by the Fifth Amendment strictures against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Under the latter decision, Gilbert v. California, supra, the taking of a palm print is not a critical stage of the criminal proceeding entitling appellant to advice of counsel. See also Gentille v. State, 190 So.2d 200 (Fla.App.3d, 1966), where the fingerprints of the accused, taken after a lawful arrest and appointment of counsel without said counsel being present, were admitted into evidence.

Fingerprints taken by the police before a defendant is arrested and without probable cause would violate his Fourth Amendment protection against unreasonable search and seizure. Under these circumstances, the fingerprints have been held inadmissible. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In the case sub judice defendant's palm print was obtained after a lawful *394 arrest based upon probable cause. This is in accord with the decision in Smith v. United States, 117 U.S.App.D.C.

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Bluebook (online)
241 So. 2d 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-state-fla-1970.