Drake v. State

476 So. 2d 210, 10 Fla. L. Weekly 1811
CourtDistrict Court of Appeal of Florida
DecidedJuly 26, 1985
Docket84-1171
StatusPublished
Cited by4 cases

This text of 476 So. 2d 210 (Drake 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
Drake v. State, 476 So. 2d 210, 10 Fla. L. Weekly 1811 (Fla. Ct. App. 1985).

Opinion

476 So.2d 210 (1985)

Thomas Eugene DRAKE, Appellant,
v.
STATE of Florida, Appellee.

No. 84-1171.

District Court of Appeal of Florida, Second District.

July 26, 1985.
Rehearing Denied October 10, 1985.

J. Marion Moorman, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Acting Chief Judge.

Appellant was charged with attempted second degree murder, aggravated battery and armed robbery with a deadly weapon, all the crimes being directed toward his wife, Nancy Drake. Following a jury trial, he was convicted of attempted second degree murder with a weapon and armed robbery with a deadly weapon. He was sentenced to consecutive terms of thirty years and life imprisonment. He now appeals his convictions.

The incident leading to appellant's conviction occurred on July 8, 1983, at the *211 First Nazarene Church of Winter Haven and involved the hitting of Nancy Drake over the head with a hammer. At the trial the following pertinent testimony was given.

Joseph Poston, Jr., the associate pastor, testified that Nancy, who worked at the church as a secretary, had collected about $600 in selling tickets for a church concert. She kept the money in a box that was in her desk drawer. Shortly before noon, he heard Nancy on the telephone requesting her husband to bring her some lunch. Poston left the church about 12:10 p.m. and returned at 12:47 p.m. A minute or two after he returned, Poston was told by some Toyota employees that someone was hurt in the church. He went inside and found Nancy lying unconscious in a pool of blood. He observed that Nancy's desk drawer had been opened and checks were lying around. After the ambulance left, Poston telephoned appellant about the incident. Poston said appellant sounded as if he had run to the telephone.

Pat Morgan, a radio disc jockey, testified that he called the church between 12:15 and 12:30 to discuss an advertisement. He talked with both appellant and Nancy, with whom he was acquainted. Pursuant to his practice, he taped the conversation and determined that it lasted almost nine minutes.

Althea Toth testified that she arrived at the church at approximately 12:25 p.m. to deliver a check to appellant, who was a part-time church employee. As she drove in, she noticed a cream-colored station wagon in the parking lot. She described the driver as "an older man with a slender face and white hair, close-cropped hair." Just before Toth left, Nancy came to the church door and spoke with her. Toth left the church at approximately 12:30 p.m. Appellant later told Toth that he had driven in just as she left. Appellant also volunteered to Toth the statement that his fingerprints would be on the hammer because he had used it to hang pictures for Nancy that morning.

Shirley Whitehead testified that she arrived at the church parking lot at 12:40 p.m. She heard someone moaning and subsequently found Nancy Drake lying on the floor by the safe in a room across from the sanctuary. She drove to a nearby Toyota dealer for help. A paramedic responded to the emergency call at 12:58 p.m. The ambulance left the scene with Nancy at 1:09 p.m.

Nancy Hutzell, a crime scene technician, testified that she found the church safe open and a hammer lying near Nancy's head. No fingerprints could be obtained from the hammer. A fingerprint found on a door window matched that of Ray Starr, a former mental patient. However, Starr was a church member and was known to be in the building at times. In the course of her investigation, Hutzell found evidence that the church had been burglarized by a forced entry through a window. In addition, Hutzell testified to the following events which occurred while she was sitting with Nancy at the hospital on July 29, 1983:

Q. On that date, July 29, 1983, do you recall what, if anything, was said when the Defendant was there in Nancy Drake's hospital room?
... .
A. On that evening, Nancy appeared rather agitated and from time to time made the statement that, "You don't care for me."
Q. Who was she saying that to?
A. To Mr. Drake. She said this, as I said, repeatedly from time to time. And Mr. Drake appeared in my opinion flustered and at one point asked her why she was saying these things? He had mentioned to me when she was saying these things also that she didn't usually talk like that.
He responded at one point to her, saying, "I do care for you."
When he asked why she was saying things like that, that's when I would like to refer to my report to get her statement exact. At the last point where she said, "You don't care for me at all," he replied with the statement that he did care, asking her why she was saying *212 things like that. She said, "Well, you certainly don't act like it." When he said, "Why are you saying things like that?" she replied, "How would you like me to hit you on your habit?"

Appellant made no response and left the hospital room shortly thereafter. When Hutzell followed him into the hall, he looked back at her twice as he departed but said nothing.

Pastor Charles Kirby testified that about $1,000 in cash and $2,800 in checks had been stolen. He said that Nancy would have had to obtain his permission to hang pictures in her office and that she had said nothing to him about this. He said that the church burglary had occurred some weeks before Nancy was attacked. He observed that the relationship between appellant and Nancy appeared to be good although Nancy seemed overpossessive.

Gene Miley testified that in May of 1983 he sold Nancy a $10,000 life insurance policy in which she named appellant as the beneficiary. Joel Schwartzberg testified that on one occasion appellant denied knowing anything about whether his wife had life insurance. Subsequently, appellant admitted that he was present when she took out the policy. Schwartzberg also testified that appellant told him that he figured there was only about $700 in the church when Nancy was attacked. Schwartzberg said that the Drakes' financial situation was such that they "lived from week to week."

Dr. David Taxdal, a neurosurgeon who treated Nancy, gave the opinion that it would be very unlikely that Nancy would regain her memory about how she received her injuries. He testified that on January 18, 1984, she told him that she remembered an unidentified person asking her for change for a $100 bill and that when she went to the safe to get it, she was struck on her head. Although in opening argument appellant's counsel stated that Nancy would testify in appellant's behalf, she did not take the stand.

Carol Lopata testified that she had been having an affair with appellant since 1982. He saw her every Monday night when his duties as a truck driver took him to Fort Lauderdale. He had told her he had divorced his wife in May of 1983. She said that she was supposed to come to Winter Haven and move in with appellant in July of 1983. Appellant called her the night that his wife was attacked. She came to Winter Haven four days later and appellant paid for her motel room. She said that after visiting his wife in the hospital during the daytime, he spent the night with her and had sex. She testified that appellant told her that he left the church at 11:30 a.m. on the day Nancy was attacked. After spending two days in Winter Haven, Lopata took an airplane to Pittsburgh for a class reunion.

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Bluebook (online)
476 So. 2d 210, 10 Fla. L. Weekly 1811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-state-fladistctapp-1985.