Middleton v. State

426 So. 2d 548
CourtSupreme Court of Florida
DecidedDecember 22, 1982
Docket60021
StatusPublished
Cited by32 cases

This text of 426 So. 2d 548 (Middleton 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
Middleton v. State, 426 So. 2d 548 (Fla. 1982).

Opinion

426 So.2d 548 (1982)

William MIDDLETON, Appellant,
v.
STATE of Florida, Appellee.

No. 60021.

Supreme Court of Florida.

December 22, 1982.
Rehearing Denied March 2, 1983.

*549 John H. Lipinski, Miami, for appellant.

Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., Miami, for appellee.

PER CURIAM.

This case is on appeal from a circuit court judgment. Appellant was convicted of first-degree murder, grand theft, and unlawful use of a firearm in the commission of a felony. The circuit court sentenced appellant to death for the crime of first-degree murder. We have jurisdiction of the appeal. Art. V, § 3(b)(1), Fla. Const.

On February 16, 1980, a citizen called the police and reported that her friend Gladys Johnson had not been seen for two days, that her car was missing and her house was completely closed and locked. Police officers broke into the house and found the body of Gladys Johnson. She had been shot in the back of the head with a shotgun. The murder weapon was found in the house.

On February 17, appellant William Middleton was arrested in New York City on suspicion of "jostling," that is, being a pickpocket. The main evidence of appellant's guilt was a confession he made in New York to an assistant district attorney of that state. The attorney who conducted the interview and the stenographer who wrote down appellant's statement testified at the trial.

Gladys Johnson was the mother of a man whom appellant had met in prison. When *550 appellant was released on parole on December 28, 1979, he went to live with Gladys Johnson in the Miami area. Mrs. Johnson offered appellant a home because he had nowhere else to go. On February 14, 1980, they had an argument because Mrs. Johnson would not allow appellant to use her car. That evening, when she went to sleep on the living room sofa, he took her shotgun and sat with it across his lap for about an hour, contemplating killing her. When she awoke, he shot her in the back of the head. He locked the house and left in her car. That night, he drove to Tampa. The next day he returned to Miami, left the car at a bus station, and boarded a bus for New York City, taking Mrs. Johnson's two pistols with him. He sold the guns in New York.

The manager of the Greyhound Bus station in North Miami Beach testified that he reported the presence of a car that apparently had been abandoned on his lot. This car was identified as belonging to Gladys Johnson. The keys to the locks on the front door of her house were found in the car.

Appellant contends that there was insufficient proof of premeditation to support the verdict of guilty of first-degree murder. This argument is based on part of appellant's confession in which he said that the shooting was a "snap decision." The confession also said, however, that appellant sat for an hour thinking about killing Mrs. Johnson. In either event, that the decision was made at all is sufficient to prove premeditation. Proof of the element of premeditation does not require that thought or reflection of any specific minimum duration be shown. Songer v. State, 322 So.2d 481 (Fla. 1975), vacated on other grounds, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).

Appellant contends that there was insufficient evidence to support the verdict on the grand theft charge. The charge was based on appellant's taking of the victim's car and two pistols. It was proven by competent, substantial evidence.

Appellant's main point on appeal concerns his confession and the manner in which it was introduced at trial.[1] Appellant argues that the trial court erred in allowing the stenographer from New York to read the confession into the record. Appellant argues that because he never saw, signed, or acknowledged the transcription of his statement, it was not properly authenticated. He cites Marshall v. State, 339 So.2d 723 (Fla. 1st DCA 1976), cert. dismissed, 354 So.2d 982 (Fla. 1977), and Williams v. State, 185 So.2d 718 (Fla. 3d DCA 1966), for the proposition that a transcription of a defendant's oral statements is not admissible in evidence as a written confession unless it is signed or otherwise acknowledged by the defendant. See Annot., 23 A.L.R.2d 919 (1952). Appellant argues that this rule should apply to the reading of a transcription of a defendant's oral statements since this Court said in Haines v. State, 158 Fla. 9, 27 So.2d 414 (1946), that reading a defendant's statement to the jury is equivalent to introducing the written document into evidence.

The state responds by arguing that the stenographer was allowed to read his notes to refresh his memory. Although we do not agree that the evidentiary doctrine pertaining to refreshing the memory justifies what was done at trial, we find that the doctrine *551 of "past recollection recorded" does. There is a difference:

There is a clear and obvious distinction between the use of a memorandum for the purpose of stimulating the memory and its use as a basis for testimony regarding transactions as to which there is no independent recollection. In the former case it is immaterial what constitutes the spur to memory, as the testimony, when given, rests solely upon the independent recollection of the witness. In the latter case the memorandum furnishes no mental stimulus, and the testimony of a witness by reference thereto derives whatever force it possesses from the fact that the memorandum is the record of a past recollection, reduced to writing while there was an existing independent recollection. It is for that reason that a memorandum, to be available in such cases, must have been made at or about the time of the happening of the transaction, so that it may safely be assumed that the recollection was then sufficiently fresh to correctly express it.

Volusia County Bank v. Bigelow, 45 Fla. 638, 646, 33 So. 704, 706 (1903); See also Great Atlantic & Pacific Tea Co. v. Nobles, 202 So.2d 603 (Fla. 1st DCA 1967), cert. denied, 210 So.2d 225 (Fla. 1968); King v. Califano, 183 So.2d 719 (Fla. 1st DCA 1966). We conclude that the stenographer's testimony was proper not based on the theory of refreshed memory, but rather on the theory that his transcription was a recording of the statement he heard. Section 90.803(5), Florida Statutes (1979), provides:

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
.....
(5) RECORDED RECOLLECTION. — A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

The stenographer testified that he had no independent recollection of appellant's confession, but that he had personally recorded the statement verbatim and had accurately transcribed his notes into the written statement which he then read to the jury. We hold that the stenographer's testimony was admissible as a "past recollection recorded."[2]

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426 So. 2d 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/middleton-v-state-fla-1982.