Washington v. State

653 So. 2d 362, 19 Fla. L. Weekly Supp. 647, 1994 Fla. LEXIS 1874
Supreme Court of Florida·Decided December 8, 1994·No. No. 80537·Published·Cited by 1 cases

Opinion

PER CURIAM.

Anthony Washington appeals his convictions for first-degree murder, burglary with a battery, and sexual battery and sentences of death and imprisonment. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

On August 17, 1989, Ms. Alice Berdat, a 102-pound, 93-year-old woman, was found murdered in her bedroom, having been badly beaten about her face and head. Her body was badly bruised. There were signs that she had been vaginally and anally raped, and she suffered seventeen rib fractures. Death occurred between the hours of 5:51 a.m. and 10:00 a.m.

Michael Darroch, the detective assigned to the case, learned that Anthony Washington was imprisoned at the Largo Community Correctional Work Release Center, located approximately 2.1 miles from Ms.- Berdat’s home. The Center’s records indicated that on the day of the murder, Washington left the Center at 6:00 a.m., returned at 9:17 a.m., and did not work at his job at Cocoa Masonry. On August 31, 1989, Darroch visited Cocoa Masonry where he spoke with several of Washington’s co-workers. The co-workers informed Darroch that Washington sold a gold-colored watch to fellow co-worker Robert Leacock. Darroch visited Leacock at his home, recovered the watch, and showed Leacock a single photo of Washington. Leacock identified Washington as the person who sold him the watch, which was later identified as belonging to Ms. Berdat.

On September 5, 1989, Darroch and two police officers interviewed Washington at the Zephyrhills Correctional Center. Washington did not know, nor did the detective tell him, that he was suspected of murdering Ms. Berdat. The interview dealt with an unrelated sexual battery that occurred on August [364]*36425, 1989. Darroch read the defendant his rights and obtained hair and blood samples which he said could prove or disprove Washington’s guilt in the sexual battery case. When the state sought to use the samples in the Berdat murder case, Washington moved for suppression. His motion was denied by the trial court and on July 16, 1992, a jury convicted him of first-degree murder, burglary with a battery, and sexual battery. The judge overrode the jury’s life recommendation and imposed the death sentence.1 Washington appeals his convictions and sentences.2

Guilt Phase

Washington asserts that the trial court erred when it allowed the state to peremptorily challenge prospective juror Johnny L. Welch, an African-American, without providing a valid race-neutral explanation. When the state peremptorily challenged Welch based on his strong opposition to the death penalty, the court found the challenge to be race-neutral. We agree and find no error in the trial court’s ruling. In Holton v. State, 573 So.2d 284, 287 (Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991), we stated that “opposition to the death penalty [is] race-neutral and acceptable grounds for excusing a prospective juror.”

We also disagree with Washington’s assertion that the trial court violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution, as well as article I, sections 9 and 12 of the Florida Constitution, when it denied his motion to suppress the blood sample.3 Although a warrantless search is per se unreasonable under the Fourth Amendment, the search will be considered lawful if conducted pursuant to consent which was given voluntarily and freely. Norman v. State, 379 So.2d 643 (Fla.1980). When we addressed this issue in Reynolds v. State, 592 So.2d 1082 (Fla.1992), we held that:

The question of whether a consent is voluntary is a question of fact to be determined from the totality of the circumstances. “[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” ... [T]he voluntariness of the consent must be established by a preponderance of the evidence.

592 So.2d at 1086 (citations omitted) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983)). Our review of the record indicates that after Dar-roeh read Washington his rights, Washington stated he understood his rights, orally waived them, and freely and voluntarily provided Darroch with hair and blood samples. We also find that once the samples were validly obtained, albeit in an unrelated ease, the police were not restrained from using the samples as evidence in the murder case. We also find that the taking of blood was not a violation of the self-incrimination clause of article I, section 9 of the Florida Constitution. See Schmerber n California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) [365]*365(self-inerimination privilege does not extend to the withdrawal of blood); Parkin v. State, 238 So.2d 817 (Fla.1970) (self-inerimination privilege does not extend to evidence of the body even if obtained by compulsion), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971); Wilson v. State, 225 So.2d 321 (Fla.1969) (compulsory taking of blood and use of the results at trial is not violative of the right against self-incrimination), rev’d on other grounds, 403 U.S. 947, 91 S.Ct. 2286, 29 L.Ed.2d 858 (1971).

Washington’s third issue asserts that Leacock’s identification of him was obtained by an unduly suggestive procedure and that the trial court erred when it denied his motion to suppress. We agree that the showing of a single photo was unduly suggestive. However, in Edwards v. State, 538 So.2d 440, 442 (Fla.1989), we held that a pretrial identification obtained from suggestive procedures is not per se inadmissible, but may be introduced into evidence if “found to be reliable and based solely upon the witness’ independent recollection of the offender at the time of the crime, uninfluenced by the intervening illegal confrontation.” The record shows that Leacock and the defendant had previously worked together and that several other co-workers identified Washington as the seller of the watch. Given this familiarity, we find that although the identification method was unduly suggestive, Leacock’s previous work experience with Washington provided an independent basis for the identification, uninfluenced by the suggestive procedure. We find no error in the trial court’s ruling.

In his fourth issue, Washington asserts that the trial court erred in not allowing him to depose Anne Baumstark, the DNA technician, and that the state, by not calling Baumstark as a witness, failed to lay a proper predicate for admission of the DNA test results. Florida Rule of Criminal Procedure 3.220 states that a defendant may not depose a person that the prosecutor does not, in good faith, intend to call at trial and whose involvement with the case and knowledge of the case is fully set out in a police report or other statement furnished to the defense. The record reflects that the state did not intend to call Baumstark as a witness; that Baumstark submitted an affidavit which stated that she had conducted over 1200 DNA tests, had no specific recollection of Washington’s test, and would have to rely on lab notes to discuss the testing procedure.

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Washington v. State, 653 So. 2d 362, 19 Fla. L. Weekly Supp. 647, 1994 Fla. LEXIS 1874 (Fla. 1994).

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Washington v. State
653 So. 2d 362 (Supreme Court of Florida, 1994)