Bova v. State

392 So. 2d 950
CourtDistrict Court of Appeal of Florida
DecidedDecember 31, 1980
Docket78-1271
StatusPublished
Cited by14 cases

This text of 392 So. 2d 950 (Bova v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bova v. State, 392 So. 2d 950 (Fla. Ct. App. 1980).

Opinion

392 So.2d 950 (1980)

Frank Vincent BOVA, Appellant,
v.
STATE of Florida, Appellee.

No. 78-1271.

District Court of Appeal of Florida, Fourth District.

December 31, 1980.
Rehearing Denied February 11, 1981.

*951 Alan H. Schreiber, Public Defender, and Peter F. LaPorte, Asst. Public Defender, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.

HURLEY, Judge.

Frank Vincent Bova appeals his conviction and sentence for first degree murder. We affirm.

I

Of the several points urged on appeal, only two merit extended discussion. The first centers on defendant's contention that the police induced pre-trial statements from him by impermissible promises. Thus, he claims, the statements were involuntary and should not have been admitted into evidence. To fully understand this contention, a bit of background is helpful.

Frank Bova associated with a group known as the Cravero gang. Reputedly, it was engaged in large-scale narcotics and other illicit activity along the eastern seaboard which brought it to the attention of the federal authorities. During the ensuing federal investigation, Bova agreed to become a police informant and supply information on the gang. He met regularly with federal agents and also developed an acquaintanceship with local police officers involved in the Cravero investigation.

On June 6, 1977, Bova attended a prescheduled meeting at the U.S. Marshal's office in Miami. In addition to Inspector Noe of the Marshal's Service, several officers from the Dade County Public Safety Department were present. Upon arrival, Bova was told that the Dade officers had a warrant for his arrest. They read the warrant and then informed Bova of his Miranda rights. All of this is undisputed. The difficulty originates with the following statement made to Bova by Lieutenant Havens of the Dade County Public Safety Department:

I told Mr. Bova that I had known him for a long period of time; that I had never lied to him in the past, that I have always been above board, honest with him, and to the best of my knowledge he had been that way with me as it concerned the Cravero investigation.
I advised him that the charge was murder in the first degree, not as he had assumed a charge involving a firearm in Louisville, Kentucky; and that I could not promise him anything other than the fact that I knew him personally; that I would apprise any court of competent jurisdiction at a subsequent date of his prior cooperation with the government and with the Public Safety Department; and that, in fact, that most of the people that he testified against in the federal court, Cravero, all were incarcerated at Raiford — that I would apprise the Court that based on Bova's prior cooperation with the government that his life would be in jeopardy if he were convicted of a crime and subsequently sentenced to Raiford Prison.
At that point Mr. Noe reiterated also the same information; also advised Mr. Bova that he couldn't promise him anything if convicted of this crime where he would *952 go to prison, but still he would promise Mr. Bova that regardless of the outcome of the case that he would apprise the court of his past cooperation.

Dissecting the above statement, we find two representations: (1) that the police would advise the court of the defendant's present cooperation, and (2) that the police would inform the court of the defendant's past role as a police informant and of their belief that the defendant's life would be in jeopardy if he was sent to Raiford prison. Defendant now argues that these representations, made after he had been warned of his Miranda rights and after he had agreed to give a statement, constitute implied or direct promises of benefit which were calculated to play upon his hopes and fears and which rendered his subsequent statement involuntary.

The legal effect of implied promises upon a defendant's confession was fully discussed by the court in Fillinger v. State, 349 So.2d 714, 715-16 (Fla. 2d DCA 1977), cert. denied, 374 So.2d 101 (Fla. 1979):

In order for a confession to be admissible, the state has the burden of showing that it was freely and voluntarily given. State v. Chorpenning, 294 So.2d 54 (Fla. 2d DCA 1974). It cannot have been obtained by any direct or implied promise, however slight. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963). An accused from whom a confession is sought should be free from the influence of either hope or fear, and a confession must be excluded if the totality of the surrounding circumstances were calculated to delude the accused or to exert undue influence over him. M.D.B. v. State, 311 So.2d 399 (Fla. 4th DCA 1975); Jarriel v. State, 317 So.2d 141 (Fla. 4th DCA 1975). If the interrogator induces the accused to confess by using language which amounts to a threat or promise of benefit, then the confession may be untrustworthy and should be excluded. Frazier v. State, 107 So.2d 16 (Fla. 1958); State v. Chorpenning, supra.

Also, it has been held that "[d]etermining whether a confession is voluntary requires an assessment of human motivation and behavior. One factor, by itself, is seldom determinative." United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir.1978). In the case at bar the trial judge had ample opportunity to view the witnesses, gauge their motivation, and assess the impact of the two representations. His determination, arrived at after evaluating the totality of the circumstances, Reddish v. State, 167 So.2d 858 (Fla. 1964), comes to this court clothed with a presumption of correctness, Churney v. State, 348 So.2d 395 (Fla. 3d DCA 1977). It is our duty to interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court's ruling. McNamara v. State, 357 So.2d 410 (Fla. 1978).

The trial court determined that the officer's representations were neither an implied promise of leniency nor an otherwise impermissible inducement. The court found defendant's statements to be voluntary and therefore permitted their admission into evidence. This decision is well supported in the record. Considering first the question of where the defendant might be incarcerated, the record clearly demonstrates this matter originated with the defendant, not the police. Bova testified he had this concern long before he talked to Lieutenant Havens. He had personally witnessed Cravero's efforts to seek retribution against those who had betrayed him. Thus, Bova's concern for his safety in prison was genuine and justified, but the police did not play upon this concern to manipulate Bova and induce a statement. Unlike the neophyte defendant in Fillinger, supra, who succumbed to police-induced fears, Frank Bova knew exactly what was taking place. He was a veteran of the criminal justice system who knew the officers with whom he was dealing and who had a realistic appreciation of what lay ahead. His decision to give a statement was motivated by self-interest; he felt it would exonerate him. This is obvious from the tone and content of the statement. From the outset, *953 Bova claimed to have shot Pucci in self-defense.

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392 So. 2d 950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bova-v-state-fladistctapp-1980.