Loehrke v. State

722 So. 2d 867, 1998 WL 821765
CourtDistrict Court of Appeal of Florida
DecidedNovember 20, 1998
Docket97-1557
StatusPublished
Cited by5 cases

This text of 722 So. 2d 867 (Loehrke 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
Loehrke v. State, 722 So. 2d 867, 1998 WL 821765 (Fla. Ct. App. 1998).

Opinion

722 So.2d 867 (1998)

Leonard Dale LOEHRKE, Appellant/Cross Appellee,
v.
STATE of Florida, Appellee/Cross Appellant.

No. 97-1557.

District Court of Appeal of Florida, Fifth District.

November 20, 1998.

*868 James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Daytona Beach, for appellant/cross appellee.

Robert A. Butterworth, Attorney General, Tallahassee, and Steven J. Guardino, Senior Assistant Attorney General, Daytona Beach, for appellee/cross appellant.

PER CURIAM.

Leonard Loehrke (the defendant) appeals his judgment and sentence which were imposed by the trial court after a jury found him guilty of committing first-degree murder.[1]*869 He argues that the trial court erred in 1) denying his motion to suppress evidence seized pursuant to the execution of a search warrant; 2) denying his motion for mistrial; 3) excluding evidence of the victim's reputation for violence; and 4) denying his motion for a judgment of acquittal. Concluding that none of these claims of error possess merit, we affirm.

Motion to Suppress

On Saturday, March 2, 1996, the Brevard County Sheriff's Department initiated a homicide investigation after the body of Telly Martin was discovered face down in a ditch in Canaveral Groves. The investigation immediately focused on the defendant, who, the day before, had purchased cocaine from Mr. Martin.

Agent Roberts drove to the defendant's residence and saw the defendant exiting his Jeep Cherokee. Agent Roberts called to the defendant, explaining that he was investigating Mr. Martin's murder and asked to speak with the defendant. The defendant agreed. During the conversation, the defendant acknowledged that he knew Mr. Martin and had been with him the previous day. Agent Roberts then requested that the defendant come to the sheriff's office for questioning. The defendant complied with this request and drove his Jeep Cherokee to the sheriff's office.

While at the sheriff's office, the defendant executed a document thereby consenting to the search of his Jeep Cherokee and his other vehicle, a Dodge Colt, which was parked in the driveway of his residence. After the Jeep Cherokee was searched at the sheriff's office, sheriff's agents told the defendant that they intended to return to his house to search the Dodge Colt. At this point, the defendant, who was not in custody, became agitated. He promptly got into his Jeep Cherokee and sped home.

Agent Roberts followed the defendant and they arrived at the defendant's home at about the same time. The defendant parked on his front yard as Agent Roberts pulled his vehicle up in front of the house. The defendant walked very quickly to the Dodge Colt, which was parked in a grassy area on the north side of the driveway, telling Agent Roberts that he had to get his tools out of the car. When the defendant went to the trunk of the car and grabbed a piece of carpet, Agent Roberts told him, "You can't take anything out of your car until it is searched," and instructed him to shut the trunk. The defendant complied and walked into the house, stating he was going to get the keys. When he came back outside, he told Agent Roberts that the Dodge Colt was his wife's car and that she did not want the police to search it. Agent Roberts responded by telling him that in that case he would apply for a warrant to search the vehicle.

Agent Roberts stood outside in the driveway in order to secure the Dodge Colt while a warrant to search the automobile was being requested. The defendant went back inside the house but then came out again, telling Agent Roberts that he could search the car. Agent Roberts testified that by this time he had observed spots on the street and driveway leading all the way up to the garage and toward the front door. After other agents arrived, a preemptive test was conducted. The results indicated that the spots were blood. At that point, Agent Roberts decided to apply for a warrant to search the defendant's house.

Agent Roberts informed the defendant that he was going to request a search warrant for the house. He explained that the defendant could either take his family and leave the residence or he could keep everybody in the living room until the search was completed. The defendant decided to take his family to a friend's house where they stayed overnight. The search warrant was issued and executed during the early morning hours of Sunday, March 3,1996. During the search, police seized physical evidence including blood samples.

Prior to trial, the defendant moved to suppress the evidence seized during the search of his home, arguing that Agent Roberts was not lawfully on the defendant's property when he observed the blood spots on the driveway and therefore his observation *870 of the blood spots should not have been included in the application for a search warrant. The trial court properly rejected this argument. Agent Roberts was lawfully on the defendant's property when he observed the blood spots because the defendant had given the sheriff's department written permission to search his Dodge Colt which he knew was parked in his driveway. See State v. Morsman, 394 So.2d 408 (Fla.), cert. denied, 452 U.S. 930, 101 S.Ct. 3066, 69 L.Ed.2d 431 (1981). The fact that Agent Roberts took the time to seek a warrant authorizing a search of the vehicle as a precautionary measure did not nullify the defendant's earlier consent to the search.

The defendant also argues the trial court should have granted his motion to suppress because the search warrant was improperly executed on a Sunday. In support of this argument, the defendant relies on section 933.101, Florida Statute (1995), which provides:

933.101 Service on Sunday.—A search warrant may be executed by being served on Sunday, if expressly authorized in such warrant by the judge or magistrate issuing the same.

He argues that the search of his house was invalid because the warrant did not expressly authorize the police to execute the search on Sunday. This argument was properly rejected by the trial court because, unless prejudice is shown, substantial compliance with the statutory requirements applicable to search warrants is sufficient. See State v. Russo, 389 So.2d 213 (Fla. 4th DCA), appeal dismissed, 392 So.2d 1378 (Fla.1980). The defendant has not argued or established that any prejudice resulted from the execution of the search warrant on a Sunday, and substantial compliance with the statutory warrant requirements has been established. We recognize further that, at the time the warrant was executed, the house was vacant because the defendant had taken his family to stay overnight with friends.

Motion for Mistrial

The defendant next argues that the trial court erred in denying his motion for mistrial. This argument also lacks merit.

During the state's case-in-chief, the prosecutor questioned the defendant's wife concerning inconsistencies between her trial testimony and her previous statements made to the sheriff's agents during the murder investigation. At one point, during direct examination, the prosecutor specifically asked the defendant's wife to review a copy of her written statement in order to refresh her recollection. After reviewing the document, the defendant's wife stated, "I don't know what this is pertaining to here.

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Cite This Page — Counsel Stack

Bluebook (online)
722 So. 2d 867, 1998 WL 821765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loehrke-v-state-fladistctapp-1998.