Kirksey v. State

433 So. 2d 1236
CourtDistrict Court of Appeal of Florida
DecidedJune 21, 1983
DocketZZ-322
StatusPublished
Cited by17 cases

This text of 433 So. 2d 1236 (Kirksey 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
Kirksey v. State, 433 So. 2d 1236 (Fla. Ct. App. 1983).

Opinion

433 So.2d 1236 (1983)

Johnny Lee KIRKSEY, Appellant,
v.
STATE of Florida, Appellee.

No. ZZ-322.

District Court of Appeal of Florida, First District.

June 21, 1983.
Rehearing Denied July 26, 1983.

*1237 Melanie Ann Hines, Asst. Public Defender, Tallahassee, and Joseph J. Imperato, Legal Intern, Tallahassee, for appellant.

*1238 Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.

WIGGINTON, Judge.

Appellant raises six points on appeal to challenge a jury verdict and final judgment convicting him of attempted sexual battery, aggravated assault, and burglary with assault. The jury also found appellant guilty of kidnapping, but the trial court subsequently reduced the conviction to false imprisonment; the state cross appeals that reduction. We affirm all points on appeal and the cross appeal; point I, however, merits further discussion, as does the cross appeal.

The facts pertinent to our discussion of point I, and the cross appeal, show that on April 25, 1980, the victim was enjoying a day of sunning with friends at the Florida State University "Seminole Reservation" on Lake Bradford. At approximately 3:30 p.m., she entered the vacant ladies' restroom and dressing area; directly adjacent to a similar men's bath area. She was in a toilet stall for a few moments when the door to the stall burst open. The victim testified that her assailant put a cloth over her head, jammed a rag down her throat, grabbed her around the neck, and dragged her out of the stall. She was wedged up against his body and dragged approximately twenty feet down a hallway to a dressing area at the end of the bathroom, all the while her assailant repeating, "I'll kill you; I'll kill you." While the attacker was dragging her down the hall, he continued to jam the cloth deeper into her mouth and throat causing her to gag and restricting her breathing. Once they reached the area, she was forcibly pushed to the floor of a dressing booth where her assailant fumbled with her bathing suit bottom, which had fallen down around her knees. The victim testified that she experienced great pressure all over her body, which pressure suddenly lifted just before she blacked out. At that moment, she jumped up, threw the cloth off her head and pulled the rag from her throat. In this split second, before she ran out of the booth, she saw a black male standing on the dressing room ledge with his back to her, facing the window. Although she did not see his face, she was later able to identify appellant's clothing, worn on the day in question and introduced in evidence at the trial, as the clothing worn by her assailant.

The young lady who had entered the dressing booth and interrupted the attack, testified that upon hearing "low-toned screams that crescendoed as [she] reached the door," she pushed open the door to the ladies' bathroom and walked quietly inside so as not to be heard. She walked in the direction of the screams to the dressing booth, and pushed the door open; but before she could see inside, the door slammed in her face. Seconds later, the victim rushed past her crying hysterically, with only the top of her two-piece bathing suit on. Instead of following her out, the witness stood in the doorway to see who the "intruder" was. She observed a black male climbing out the window, with his back to her, and was able also to identify the clothing at trial.

In the meantime the victim ran out of the bathroom crying, "The man tried to rape me." When the witness emerged from the bathroom, she saw three or four young men rush toward her; she directed them to go around the building, telling them that a black man was climbing out the window. Two of the men circled the bathhouse and observed a black man squatting in the brush area behind the bathhouse under the window of the dressing booth where the assault occurred, picking up a bag and pulling up his pants. The man spotted them and a chase ensued. At trial one of the young men identified appellant as being the man behind the bathhouse and also identified the clothing as that worn by appellant on the day in question.

Meanwhile, another of the young men signaled two plainclothes policemen, Officers Doyle and Boydston, who were on a stakeout at the Reservation for auto theft, and advised them of a rape. Officer Doyle testified that around 4:00 p.m., while he and *1239 Officer Boydston were in their automobile, they heard screaming. Shortly thereafter a young man came running up to them, asked if they were policemen and stated that a girl had been raped. Doyle's reaction was to state, "We have a signal 32," the code for the crime of rape, and to pull the car around toward the bathhouse. In so doing, Doyle observed appellant running across the parking lot, with several men in hot pursuit screaming, "He's the one." Appellant was carrying a bundle under his arm and his pants were undone, requiring that he hold them up as he ran. Doyle leapt from his car and gave chase; although dressed in old clothes and not carrying a pistol, Doyle testified that he had a badge hooked on his belt.

When he apprehended appellant, Doyle placed him under arrest, but was at the same time accidentally kneed in the groin. Appellant put up no resistance, was allowed to fix his pants, was handcuffed and placed in the back seat of the car. Doyle testified that at that point he sat down to catch his breath and radio in to headquarters to notify them of the incident. Although he then read appellant his Miranda warnings, Doyle testified that he did not inform appellant of the cause of his arrest.

When Doyle subsequently allowed appellant to get out of the car, due to the heat and mosquitoes, he asked appellant whether they knew each other. Appellant agreed, recognizing Doyle as someone he had seen in a local night club where Doyle had worked a spare job. Then, according to Doyle, appellant paused and said, "I didn't mean to hurt her. I'm sorry. I'm having problems." Appellant was transported to the police station where he was booked and subsequently charged by information in count I with burglary of a structure (person assaulted); in count II with kidnapping with intent to facilitate a felony; in count III with attempted sexual battery; and, by amended information, in count IV with attempted murder.

At trial, a motion to determine the admissibility of appellant's statement to Officer Doyle was filed by the state and the defense filed a motion to suppress. Preceding presentation of the state's case and out of the presence of the jury, testimony was proffered and the suppression motion heard and denied. Following the state's case, the defense moved for directed verdicts of acquittal, which motions were denied; the motions were renewed at the close of all the evidence, and again denied. A verdict was rendered by the jury, finding appellant guilty and convicting him of counts I, II and III as charged, and of the lesser included offense of aggravated assault under count IV. At sentencing, the trial court reduced count II from kidnapping to false imprisonment, stating that the reduction was in lieu of his granting a new trial on the conviction for kidnapping, a procedure provided for by Rule 3.620, Florida Rules of Criminal Procedure.

Under point I, appellant argues that the trial court erred in denying his motion to suppress. His contention is based on the fact that Officer Doyle did not inform him at the time of his arrest, the cause of his arrest. Therefore, according to appellant, his arrest was illegal and his subsequent statement made to Doyle, the fruit of the illegal arrest, should be excluded under

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433 So. 2d 1236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirksey-v-state-fladistctapp-1983.