author: MELVIN, Judge.

text:
    Raymond Woodrow WATFORD, Appellant, v. STATE of Florida, Appellee.
    No. EE-412.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky and Michael H. Davidson, Asst. At-tys. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant Watford had been lawfully committed to and was in the lawful custody of the Department of Offender Rehabilitation. He left custody of the department, and was charged and found guilty by a jury of unlawful escape.

On the crucial date of May 5, 1976, Wat-ford was being transported from the Cross City Correctional Institution to work at a nearby Division of Forestry nursery. He was in the charge of a correctional officer and in a bus with other inmates. As the bus arrived at the nursery, a radio communication instructed the correctional officer to hold Watford for another officer who was coming for him. Watford, hearing the message, immediately, without permission, fled the bus into some nearby woods. His escape was promptly reported, and he was arrested in a Chiefland shopping center within a short period of time. Watford, at the time of his recapture, was wearing his prison uniform and offered no resistance.

At trial, Watford’s proffered testimony was that he had been confined at the Cross City Correctional Institution in a minimum security group; that while being transported to work, he heard the radio directive from which he understood he was being transferred back to the Florida State Prison; that he wanted the opportunity to talk to the superintendent and find out the reason for the transfer; that he considered he was in line for parole consideration and did not intend to escape. The trial court denied the proffer and held, as a matter of law, that the proffer was insufficient as relating to the issue of intent. Defendant testified before the jury that he jumped from the bus and began running to someplace where he could contact the superintendent. To this the court sustained the state’s objection. The defendant testified further that he had no intention to escape. The court also sustained the state’s objection to this type of defense. Defendant was permitted to testify that he left the bus about 8:45 a. m. after hearing the radio communication; that he was later arrested in Chiefland before he talked with anyone concerning his intentions; and that he had been in the woods until he reach Chiefland where he was arrested about five minutes after his arrival.

Based upon the jury verdict, the trial court adjudged Watford to be guilty of unlawful escape, as charged, and committed him to the custody of the Division of Corrections. The trial judge certified as to defendant’s fingerprints but not to the judgment and sentence as required by Section 921.241(1), Florida Statutes.

Defendant contends that the trial court erred in refusing to permit him to testify as to his purpose in leaving custody and as to his lack of intent to escape.

In Helton v. State, 311 So.2d 381 (Fla. 1st DCA 1975), this court held that the elements of the crime of escape are the physical act of leaving or not being in custody coupled with the intent to avoid lawful confinement. In holding intent to be a necessary element of the crime of escape, this court announced that it was joining the minority view of other jurisdictions, and stated:

“In considering this issue, we are not concerned with the weight of sheer numerical superiority: We look instead to justice and fairness, and on that foundation conclude that the crime of escape necessarily entails as an essential element thereof the intent to escape . . . .”

This court then proceeded to clearly point to several typical instances in which a prisoner may be separated from his lawful custodian without being able to control the circumstances, and further observed the line of cases which recognize the “narrow but time-honored defense of necessity available to a prisoner whose escape has been motivated by sufficiently perilous circumstances.”

In Helton, however, we upheld the trial court’s refusal to permit the defense to introduce evidence of Helton’s claimed intoxication as a defense on the basis that, under the evidence presented, intent ceased to be a viable issue.

See also Lewis v. State, 318 So.2d 529 (Fla. 2d DCA 1975), in which the Second District Court of Appeal reversed and remanded the trial court’s order striking Lewis’ motion to quash. In so reversing, the court, citing Helton, supra, found that Lewis’ allegations, if true, could have been a valid defense insofar as they might have established a lack of willful intent to avoid lawful confinement or at least create a reasonable doubt that there was one, and held that a defendant had a right to establish such a defense at trial.

In the more recent case of Bavero v. State, 347 So.2d 781 (Fla. 1st DCA 1977), Bavero left the confinement of a Gaines-ville road camp and was recaptured 10 or 11 hours later in the City of Gainesville. At his trial for the escape, Bavero proffered testimony to the effect that he had no intention to escape but, rather, that he was seeking medical assistance for a chronic asthmatic condition.

The trial court ruled that Bavero’s proffered testimony was, as a matter of law, an insufficient defense that could not be presented to the jury. In reversing, we held:

“. . . that the proffered testimony should go to the jury and if the jury finds (or has reasonable doubt that) under all the circumstances shown in the evidence presented by both appellant and the state, that appellant had reasonable grounds to believe that there was a real, imminent and impending danger to him of death or serious bodily harm if he did not leave the place for which he was confined and that he left because of such danger rather than with the intent to elude lawful authority, the jury should find him not guilty of the crime of escape.”

In summary, we declare the general rule to be that when the State has established its right to legal custody and the conscious and intentional act of defendant of leaving the established area of such custody, the offense of escape is prima facie established. In such circumstances, the only viable defense to such a charge that may be available is necessity involving, as to such defendant, reasonable grounds to believe that he is faced with real, imminent and present danger of death, great bodily harm, or such type of danger to his health, if he does not temporarily leave his place of confinement. See Annot., 69 A.L.R.3d 678 (1976).

In the instant case, considering the evidence presented, and viewing the proffered testimony in the light most favorable to the defendant that his declared purpose in leaving custody was not to escape but merely to flee to a place where he would try to obtain from the superintendent an explanation for his transfer, fails to present for jury determination a viable issue as to necessity. Defendant had no legal right to flee lawful custody for such reason or excuse as the case may be.

The judgment appealed is affirmed; however, the cause is remanded to the trial court for the purpose of imposing judgment and sentence in the manner and form required by Section 921.241, Florida Statutes.

SMITH, Acting C. J., and ERVIN, J., concur.

      . Two weeks after his escape, Helton called Alachua County officials promising to surrender within two days. However, it was not until two weeks after this call, or fully a month after his escape, that Helton finally surrendered to custody.

      . Although a second prisoner succeeded in escaping completely, Lewis was discovered on a radio antenna atop the county jail. In his motion to quash, Lewis alleged the defense of necessity found upon his fear of homosexual assault.

      . Bavero’s proffer indicated that he had been a life-long asthmatic; that he had previously held a prison medical classification requiring lighter work; that he had attempted unsuccessfully on numerous occasions to have his medical condition reclassified; that continued hard labor placed him in danger of death or serious bodily harm and that he had left confinement solely for the purpose of bringing his problems to the attention of other authorities.


source: Caselaw Access Project

author: MILLS, Acting Chief Judge.

license: Public Domain

text:
    B. W. WAIT, III, as Director of Utilities Commission, City of New Smyrna Beach, Florida, and Utilities Commission, City of New Smyrna Beach, Florida, Appellants, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Appellee.
    No. HH-406.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1978.

      John E. Chisholm, North Smyrna Beach, Spiegel & McDiarmid, Washington, D.C., Joseph C. Jacobs of Ervin, Yarn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    Jack W. Shaw, Jr. and John E. Mathews, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, Matthew M. Childs of Steel, Hector & Davis, Miami, for appellee.
   MILLS, Acting Chief Judge.

Appellants appeal from an order granting appellee’s application for a peremptory writ of mandamus and ordering appellants to make all records and documents in their possession available to appellee for inspection and copying as provided by the Public Records Act, Chapter 119, Florida Statutes (1975).

Appellants contend that Florida Appellate Rule 5.12(1) which provides that an appeal by a public agency stays the performance of the order appealed, controls over Section 119.11(2), Florida Statutes (1975), which provides there is no automatic stay, and further contend that the Public Records Act retains common law privilege.

Representatives of appellee requested to inspect the public records of appellants’ electrical system subject to the provisions of Chapter 119. Appellants contended they had the right to have their counsel review the records prior to their review by appel-lee. Appellee did not agree and applied for a writ of mandamus.

It was stipulated by counsel for the parties that no factual dispute existed which had bearing upon the relief sought. The trial court held that Chapter 119 was applicable to all records and documents in the possession of appellants and that no attorney-client privilege existed because the legislature waived this privilege by enactment of Chapter 119. The court granted appel-lee’s application for writ of mandamus and made its order effective 48 hours after entry unless otherwise ordered by an appropriate appellate court.

Chapter 119 provides that public records of this state and its political subdivisions shall be open to the public for examination, inspection and copying. When an action is filed to enforce the provisions of the chapter, the court must set an immediate hearing, giving the case priority over other pending cases. Section 119.11(1). When the court orders an agency to open its records for inspection, the agency must comply within forty-eight hours unless otherwise specifically provided by the court or unless an appellate court issues a stay order within the forty-eight-hour period. Section 119.-11(2). The filing of a notice of appeal shall not operate as an automatic stay. Section 119.11(2). A stay order shall not be issued unless the court determines that there is a substantial probability that opening the records for inspection will result in significant damage. Section 119.11(3).

In Clark v. Walton, 347 So.2d 670 (Fla. 4th DCA 1977), it was held that whether a public agency taking an appeal need obtain a stay order is procedural, therefore Rule 5.12(1) takes precedence over Section 119.-11(2). The statement of the law in Clark is accurate but we do not reach the same conclusion.

It appears to us that Rule 5.12(1) was adopted to protect the public treasury from the payment of an appeal bond premium. We do not have a money judgment here nor would a bond be of any protection to the appellee. Thus, we conclude that the rule is not applicable here.

To grant an automatic stay to a public agency under the circumstances present here would permit the agency to avoid its statutory mandatory duties. Duval County School Board v. Florida Public Employees Relations Commission, 346 So.2d 1087 (Fla. 1st DCA 1977). By the mere taking of an appeal, the agency could delay a person’s right to examine public records until through the sheer lapse of time, the need expired. This would defeat the purpose of the Public Records Act which we cannot permit.

In addition, appellants have not submitted evidence to us that significant damage will result to them by the opening of their records for inspection. In this situation, we have no authority to order a stay.

It is our opinion that Section 119.-07(2)(a), Florida Statutes (1975), which states:

“All public records which presently are provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt from the provisions of subsection (1).”

clearly waives any common law privilege of confidentiality which includes attorney-client communications. This section exempts only those records expressly provided by general or special law to be confidential. This does not include common law privilege or attorney-client privilege which the legislature had the authority to waive and did waive.

We cannot readily conceive of attorney-client communications which the client may not freely make public or which if made public would violate the attorney’s independent obligations under the Code of Professional Responsibility. Appellants have made no suggestion in this case that the public records in dispute are of such a character.

The other arguments made by appellants are without merit and without relevancy to the central issues raised by this appeal.

Wé affirm the order and the peremptory writ of mandamus appealed.

MELVIN and SMITH, JJ., concur.


author: MILLS, Judge.

text:
    Lloyd Gregory CARROLL, Appellant, v. STATE of Florida, Appellee.
    No. FF-339.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1978.
    Michael J. Minerva, Public Defender, Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond Marky and Michael H. Davidson, Asst. At-tys. Gen., for appellee.
   MILLS, Judge.

Carroll was charged with five counts of manslaughter by culpable negligence [Section 782.07, Florida Statutes (1975)] and five counts of manslaughter by driving a motor vehicle while intoxicated [Section 860.01, Florida Statutes (1975)]. A jury convicted him of the five counts of manslaughter by culpable negligence but acquitted him of the five counts of manslaughter by driving a motor vehicle while intoxicated. He appeals contending the trial court erred in allowing testimony concerning his drinking of intoxicating beverages and his manner of driving an automobile three to five hours before the accident resulting in the offenses charged.

Apparently the testimony adduced by the State that Carroll found objectionable was that between 6:00 P.M. and 11:00 P.M., the time of the offense, Carroll had drunk between one and a half and two six-packs of beer, that at 7:00 P.M. he was probably drunk, that he was seen drinking later in the evening, that between 7:00 P.M. and 8:00 P.M. he drove at a speed of approximately seventy miles per hour while drinking a beer, and that he struck a curb while driving.

Carroll argues that the objectionable evidence was introduced by the State to show the propensity of Carroll to drive recklessly at a later time and this prejudiced the jury against him. Not so. Although Carroll was subsequently convicted of only manslaughter by culpable negligence, at the time of trial he was also charged with manslaughter by driving while intoxicated. The evidence in question was admissible on this latter charge to show intoxication.

Carroll also argues that the evidence was inadmissible under Williams v. State, 110 So.2d 654 (Fla.1959). Under the facts in the case before us, the Williams Rule is not applicable.

We affirm the judgment.

McCORD, C. J., and BOYER, J., concur.


author: MILLS, Judge. BOYER, Judge,

text:
    HOLIDAY INNS, INC., a Tennessee Corporation, and South Carolina Interstate Motel Enterprises, Inc., a South Carolina Corporation, Appellants, v. Jerry M. JAMISON, Appellee.
    No. GG-276.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1978.
    John J. Schickel of Cowles, Coker & Myers, Jacksonville, for appellants.
    Geoffrey B. Dobson, Pensacola, for appel-lee.
   MILLS, Judge.

This is an interlocutory appeal from an order denying defendant Enterprises’ amended motion to dismiss plaintiff Jami-son’s complaint. By his complaint, Jamison, a Florida resident, sought damages from Enterprises, a South Carolina corporation, for personal injuries he sustained at Enterprises’ motel in South Carolina. Service of process on Enterprises was made under Section 48.181(1), Florida Statutes (1975). This section provides that a nonresident corporation who operates, conducts, engages in or carries on a business or business venture in this state constitutes the secretary of state as its agent for service of process in any action against it arising out of any transaction or operation connected with or incidental to the business or business venture. By its amended motion to dismiss, Enterprises challenged the sufficiency of the allegations of the complaint to support service of process on it under Section 48.181(1).

The pertinent allegations of the complaint are:

1. Enterprises is a South Carolina corporation doing business in Florida;

2. Enterprises is a franchisee of Inns, a Tennessee corporation;

3. Enterprises has participated in a program of advertising its facilities throughout Florida and has distributed or caused to be distributed from numerous locations within Florida, directories advertising its facilities located in Florence, South Carolina;

4. Enterprises has directly solicited residents of Florida to do business with it and has advertised or caused to be advertised through Inns, its willingness to accept reservations at numerous locations maintained by Inns, and has furnished residents of Florida confirmation of such reservations from such locations within Florida; and

5. Jamison, a Florida resident, while traveling through South Carolina, registered at the Florence, South Carolina, Holiday Inn, owned and operated by Enterprises. While entering the motel, Jamison slipped and fell, suffering injuries and damages.

A motion to dismiss for lack of jurisdiction over the person of the defendant admits all facts properly pleaded pertinent to the conduct and the activities of the defendant in the forum state. But, it constitutes an assertion that as a matter of law such facts are legally insufficient to demonstrate the applicability of the long-arm statute. Elmex Corp. v. Atlantic Federal Savings and Loan Association, 325 So.2d 58 (Fla. 4th DCA 1976).

Where process is served under Section 48.181(1), a complaint which fails to allege that a cause of action arises out of a transaction or operation connected with or incidental to the defendant’s doing business or conducting a business venture within this state is insufficient and does not support personal jurisdiction over a non-resident defendant. O’Connell v. Loach, 194 So.2d 700 (Fla. 2d DCA 1967).

We doubt that the allegations regarding the advertising and solicitation activities of Enterprises are sufficient to show that it carries on a business or business venture in this state. See Reader’s Digest Ass’n v. State ex rel. Conner, 251 So.2d 552 (Fla. 1st DCA 1971). But we have no doubt that the complaint is totally deficient in alleging that Jamison’s injury and damages arose out of a transaction or operation connected with Enterprises’ alleged doing business within our state. There is no allegation that Jamison’s slip, fall and injury in Enterprises’ motel in Florence, South Carolina, had any connection whatsoever with Enterprises’ alleged advertising and solicitation activities in Florida. The trial court erred in denying Enterprises’ motion to dismiss Jamison’s complaint.

The contention of Inns that the trial court erred in denying its oral motion to dismiss for lack of jurisdiction over its person is without merit and does not warrant further discussion by us.

We reverse the trial court’s order denying Enterprises’ amended motion to dismiss and remand with directions to vacate the order and to enter an order granting the amended motion. We affirm the oral order of the trial court denying Inns’ oral motion to dismiss.

McCORD, C. J., concurs.

BOYER, J., specially concurs.

BOYER, Judge,

concurring specially.

I concur in the majority opinion. However, as we stated in American Baseball Cap, Inc. v. Duzinski, 308 So.2d 639 (Fla.App. 1st 1975), in my view appellee Jamison should be afforded a further opportunity to plead and seek service on Enterprises.


author: MILLS, Judge. BOYER, Acting Chief Judge,

text:
    Herman Thomas PALMER, Jr., Appellant (Respondent), v. Pamela Kay PALMER, Appellee (Petitioner).
    No. HH-163.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1978.
    Clayton J. M. Adkinson of Thompson, Ad-kinson & Beasley,. Defuniak Springs, for appellant.
    E. Allan Ramey, Defuniak Springs, for appellee.
   MILLS, Judge.

The wife filed a petition for dissolution of marriage which included claims for child support, alimony, attorney’s fee and costs. The husband, a resident of Florida and a career Army officer stationed in Germany, was served with process by publication. The husband moved to dismiss the claims for child support, alimony, attorney’s fee and costs on the ground that the court had not acquired in personam jurisdiction over him. The trial court denied the motion and the husband took this interlocutory appeal.

The husband contends that as he was served with process by publication the court obtained only in rem jurisdiction. The wife contends, and the trial court agreed, that although the husband was served by publication, the provisions of Section 48.193(l)(e) gave the court in personam jurisdiction. We agree with the husband and reverse.

Several sections of Chapter 48, Florida Statutes (1975), enacted in 1973, are involved here and they provide:

“48.193 Acts subjecting persons to jurisdiction of courts of state.—
“(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
“(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.
“(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s. 48.194. The service shall have the same effect as if it had been personally served within this state.
“(4) Nothing contained in this section shall limit or affect the right to serve any process in any other manner now or hereinafter provided by law.

“48.194 Personal service outside state. —Service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.”

Prior to the enactment of Sections 48.-193(l)(e) and (2), and 48.194, a plaintiff had to obtain personal service of process upon a defendant by serving the defendant personally in Florida. By this service plaintiff achieved in personam jurisdiction. Where personal service was impossible the only alternative open to plaintiff was to obtain service of process by publication. This service achieved only in rem jurisdiction.

Since the enactment of Sections 48.-193(l)(e) and (2), and 48.194, a plaintiff has another alternative. In a dissolution of marriage action which seeks alimony, child support or division of property, a defendant,, who maintains a matrimonial domicile in this state or resides in this state preceding the commencement of the action, whether cohabiting or not, may be personally served with process outside this state as provided in Section 48.194. This service shall have the same effect as if it had been served personally in this state.

A plaintiff in a dissolution of marriage action now has three methods by which he or she may serve a defendant. Section 48.193(4). The method selected by a plaintiff depends upon the alternative available and the option of the plaintiff.

In this case the wife had two alternatives available, personal service under Sections 48.193 and 48.194 or service by publication under Section 49.021, Florida Statutes (1975). She had the option to select the method of service. She selected service by publication. In so doing the court obtained in rem jurisdiction. If she had selected the other alternative available, the court would have obtained in personam jurisdiction. She did not. The trial court, therefore, erred in denying the husband’s motion to dismiss.

Reversed.

ERVIN, J., concurs.

BOYER, Acting C. J., concurs specially.

BOYER, Acting Chief Judge,

concurring specially.

I agree with the reasoning and conclusion reached by Judge Mills based upon the cited statutes. I think it important, however, to note that we do not here pass upon the constitutionality of F.S. 48.193(l)(e), no constitutional issue having been presented.


author: PER CURIAM.

text:
    Thomas Wayne KENDRICK, Appellant, v. STATE of Florida, Appellee.
    No. HH-315.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1978.
    Thomas Wayne Kendrick, in pro. per.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   ON MOTION TO SUPPLEMENT THE RECORD ON APPEAL AND MOTION FOR EXTENSION OF TIME

PER CURIAM.

Appellant has filed herein a Notice of Appeal from a lower court order denying post conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant now moves to supplement the record on appeal in this cause by including therein a transcript of testimony taken at the entry of Appellant’s guilty plea, together with a pre-sentence investigation report considered by the trial judge at sentencing.

Our examination of this appeal reveals that Appellant seeks to have this Court review a lower court order denying post conviction relief upon a finding that a plea of guilty entered by Appellant was freely and voluntarily entered with a full understanding of the constitutional rights waived and the maximum penalty that could be invoked. The order appealed from reveals that Appellant has previously taken a full appeal from this judgment and sentence in Kendrick v. State, 336 So.2d 115 (Fla. 1st DCA 1976). In that case, we considered Appellant’s sole contention that the judgment and sentence imposed therein followed a guilty plea which was involuntary and coerced. Our consideration of that argument included a full review of testimony taken at the entry of the guilty plea, and our decision after that review was to affirm the judgment and sentence of the lower court. We now decline to repeat that judicial labor by considering anew the voluntar-iness of Appellant’s guilty plea. It is well settled that points considered and held not to be error on a plenary appeal from a judgment and sentence will not again be considered on an appeal from denial of post conviction relief. Mears v. State, 232 So.2d 749 (Fla. 3d DCA 1970). Florida Rule of Criminal Procedure 3.850 is not a procedural vehicle through which a belated appellate review of a judgment and sentence can be obtained. Mays v. State, 285 So.2d 637 (Fla. 4th DCA 1973).

Appellant’s Motion to Supplement the Record on Appeal is denied. Appellee’s Motion for Extension of Time is denied but Appellee is granted fifteen (15) days from the date hereof within which to file its brief or any other pleadings, as it deems appropriate, authorized by the Florida Appellate Rules.

IT IS SO ORDERED.

McCORD, C. J., and BOYER and MELVIN, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Jimmy MATHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1301.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1978.
    Enrique Escarraz, III, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Mathews and his codefendant Johnny Baker were originally charged with the aggravated battery of Cecil Pratt (count 1) and the battery of Donald Fetzer (count 2). Both were convicted as charged on count 2, but on count 1 appellant was found guilty of aggravated assault, while Baker was found guilty of the lesser included offense of battery. Appellant claims on appeal that the trial court’s failure to grant his motion to sever made on the morning of trial, coupled with the admission of a prejudicial statement by his codefendant and the excision of an exculpatory portion of appellant’s own statement (neither defendant testified), amounted to reversible error. We agree.

The offenses involved herein took place in a “drunk tank” at the St. Petersburg city jail. Appellant and Baker were blacks. Their victims were white. A third black man, Howard Copeland (who testified for the state at trial), was also imprisoned in the drunk tank but took no part in the night’s brutality. Appellant and Baker beat and kicked Pratt and Fetzer continuously over a period of several hours, as well as subjecting them to various indignities. Neither victim did or said anything to provoke their assailants, nor did they make any attempt to fight back.

Pratt apparently received the worst of it. At one point during the beating, his nose was bleeding profusely. When he saw a doctor a few days later, he was found to have a broken nose and three broken ribs.

The testimony of Copeland and the two victims was in substantial accord. However, Pratt’s testimony additionally revealed that one of his assailants was wearing high-heeled, wooden-soled shoes. None of the witnesses, however, made specific reference to one or the other of the defendants as having inflicted specific injuries, nor was the assailant who wore the wooden-soled, high-heeled shoes identified.

Before the trial began, appellant filed a motion to sever on the ground that he would be prejudiced by the admission of his codefendant’s statement to the police. The prosecutor replied that all references to appellant in Baker’s statement had been excised. On that basis, the trial court denied appellant’s motion.

Both defendants had made statements to the police, which the state introduced at trial. Though any direct reference to either defendant by the other was excised by the prosecutor prior to proffer of their statements to the court during trial, both defendants raised objections to portions of the proffered statements. In their respective statements, each defendant admitted to having kicked and beaten Pratt and Fetzer and further admitted that neither victim had provoked his brutal treatment or retaliated in any way. However, appellant stated that he did not feel he had struck or kicked either victim hard enough to have caused serious injury, in that he was wearing tennis shoes at the time of the offense. To this. Baker objected, arguing that it implied that any serious injuries must have been inflicted by Baker. Over appellant’s protest the trial court sustained this objection in part, ordering the reference to the tennis shoes excised.

Appellant, in turn, objected to the inclusion of Baker’s declaration that he knew Pratt was being seriously injured because at one point Pratt was lying on the cell floor holding his sides and bleeding profusely from the nose. Appellant argued that the wording of his remark, coupled with the evidence already before the court, would lead the jury to infer that Baker was merely looking on at this point and that appellant, rather than Baker, had caused Pratt’s condition. This objection was overruled.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the United States Supreme Court held that a defendant’s right to confront his accusers is violated when a codefendant’s confession incriminating the defendant is admitted and the codefendant does not testify. Fla. R.Crim.P. 3.152, which was promulgated to cope with the Bruton problem, sets out, in subsection (b)(2), three options available to the state in such a situation:

(b) Severance of defendants.
(2) If a defendant moves for a severance of defendants on the ground that an oral or written statement of a co-defendant makes reference to him but is not admissible against him, the court shall determine whether the State will offer evidence of the statement at the trial. If the State intends to offer the statement in evidence, the court shall order the State to submit its evidence of such statement for consideration by the court and counsel for defendants and if the court determines that such statement is not admissible against the moving defendant, it shall require the State to elect one of the following courses:
(i) a joint trial at which evidence of the statement will not be admitted;
(ii) a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of such evidence with deletions will not prejudice the moving defendant; or
(iii) severance of the moving defendant.

The state here proceeded under (ii), albeit belatedly and after having partially edited the statements on its own without court or defense consideration. When the method set forth in subsection (ii) is utilized, questions sometimes arise as to whether the expurgation was sufficient to remove the prejudicial taint condemned in Bruton. See generally Cook v. State, 353 So.2d 911 (Fla.2d DCA filed December 28, 1977). Here we hold that it was not.

In Cook, supra, this court approved the following standard: A Bruton violation has occurred if the jury was highly likely to draw an incriminating inference against the defendant from a codefendant’s statement, even if the inference drawn was incriminating only when considered in light of other evidence offered at trial. While Cook and several of the cases cited therein involved statements referring to one or more nameless individuals who could be inferred to be the confessing defendant’s codefendants, we are aware of no other case involving a statement implicitly incriminating a person not even mentioned therein, as is the case here. Nevertheless, we find the standard adopted in Cook is applicable to the aggravated battery charge in the instant case.

Although the confession of Baker did not mention appellant, the testimony of Pratt, Fetzer, and Copeland placed appellant in the same cell with Baker and the victims during the time period in issue. While the jury may have wondered why the statement of neither defendant mentioned the other, they were obviously not confused by the omissions. Moreover, not only was the jury “highly likely” to infer from Baker’s statement that appellant was the one who inflicted Pratt’s more severe injuries, the fact that they did draw such an inference is apparent from their verdict. Appellant was convicted of aggravated assault upon Pratt, while Baker was convicted of a simple battery. The excision of appellant’s exculpatory statement that he was wearing tennis shoes at the time of the offense may also have prejudiced appellant and was error.

Although the trial court made a good faith effort to edit both statements in a manner that would not prejudice either defendant, we conclude that this was impossible under the circumstances sub judice. The trial court should have either excluded both statements entirely or granted appellant’s motion for severance.

We must also point out that the procedure followed by the trial court was improper. In the first place, all of the state’s evidence of a defendant’s statement must be submitted to the court and defense counsel. Fla.R.Crim.P. 3.152(b)(2). The state is not authorized to partially edit a statement beforehand. Such a procedure would defeat the purpose of the rule and could lead to prejudice of the defendant or a codefendant without any inkling thereof on the part of the court or the defense. Secondly, if a motion to sever is filed pursuant to Fla.R.Crim.P. 3.152(b)(2), all statements should be considered and, if necessary, edited at the hearing on the motion to sever rather than after trial has begun.

We find no error in any of the other points raised by appellant. Because the evidence, including appellant’s admission, that appellant participated in the battery of Fetzer was so overwhelming, any Bruton violation with respect to that charge was harmless error. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Cook, supra. The judgment and sentence on count 2 (the battery charge) is therefore affirmed. The judgment and sentence on count 1 is reversed and the cause is remanded for a new trial on that count.

OTT and RYDER, JJ., concur.


author: OTT, Judge.

text:
    Allan Dale SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 77-222.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1978.
    Rehearing Denied Feb. 7, 1978.
    Donald G. Doddington and John A. Gillis, P.A., Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of second-degree murder and sentenced to 30 years. We affirm for the reasons hereafter stated.

Appellant pled not guilty and raised an insanity defense. Appellant’s attorney requested an instruction in order to “give the jury the idea this man [the appellant] may not necessarily go completely free if he is found not guilty by reason of insanity.” Appellant’s attorney — in requesting the instruction-stated that “the jury may be laboring under [a] presumption that is not entirely correct . . . .”

The trial judge denied appellant’s requested jury instruction and stated that he would not give any instructions “other than those that are covered by the standard instructions that I have previously indicated that I would give.” None of those contained anything on the consequences of a verdict of not guilty by reason of insanity.

In giving the instructions to the jury, the trial judge gave the usual insanity instructions [See Florida Standard Jury Instructions in Criminal Cases 20-22].

Later in the instructions, the trial judge stated that one of the' forms of possible verdicts was “not guilty by reason of insanity.”

Although the trial judge had denied appellant’s request he inexplicably read the requested instruction on the consequences of a verdict of not guilty by reason of insanity as follows:

I would further charge you that when a person tried for an offense shall be acquitted by the jury for the cause of insanity, that is, as I have explained it to you, found not guilty by reason of insanity, the jury in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of the defendant shall be considered by the Court manifestly dangerous to the peace and safety of the public, the Court shall order him to be committed to jail or to a mental institution, to be cared for as an insane person, and such person shall be held in custody until released by order of the committing Court, or the Court may give him into the care of his family or friends, on their giving satisfactory security for the proper care and protection of such person.

In Roberts v. State, 335 So.2d 285 (Fla.1976) the supreme court held that the failure to instruct on the consequences of a verdict of not guilty by reason of insanity constituted reversible error.

The Roberts court found that the refusal to give such an instruction had the effect of leaving the jury wondering. Moreover, the court noted that the jury may be further confused by the efforts of counsel for both sides to supply partially accurate information as to those consequences.

The trial judge’s denial of appellant’s requested instruction would normally constitute reversible error. However, the fact that the judge thereafter included the requested instruction in his charge cured the error of previous denial. Although counsel were never advised of the trial court’s decision to include the charge and may have been somewhat restricted as to pertinent comment in closing arguments we conclude the jury was adequately advised and no reversible error was committed.

Appellant’s contention that Fla.R. Crim.P. 3.220 was violated is also without merit. The state’s proffered testimony of one rebuttal witness and the introduction by the state of police officers’ testimony about the appellant’s statements does not run afoul of Richardson v. State, 246 So.2d 771 (Fla.1971). See Cumbie v. State, 345 So.2d 1061 (Fla.1977); Hardison v. State, 341 So.2d 270 (Fla. 2d DCA 1977); Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977). The elements of surprise and prejudice to the appellant were not sufficient herein to require a reversal.

BOARDMAN, C. J., and RYDER, J., concur.


text:
    Ricky WILCHER, Appellant, v. STATE of Florida, Appellee.
    No. 77-333.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1978.
    Ricky Wilcher pro se and Jack O. Johnson, Public Defender, and James A. Cornelius, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

HOBSON, Acting C. J., and GRIMES and OTT, JJ., concur.


text:
    Irvine K. DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-799, 77-800.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1978.
    Jack O. Johnson, Public Defender, Stephen O. Rushing, Asst. Public Defender, and William Murphy, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed, but this case is remanded for resentencing of the appellant. The present sentence does not specifically set forth the period of credit time to be allowed, as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). Moreover, the phrase “at hard labor” in the sentence is improper. Speller v. State, 305 So.2d 231 (Fla.2d DCA 1974). Appellant need not be present for this purpose.

HOBSON, Acting C. J., and GRIMES and OTT, JJ., concur.


text:
    Lenton CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 77-976.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1978.
    Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit timé to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

HOBSON, Acting C. J., and GRIMES and OTT, JJ., concur.


text:
    Carmelo FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1424.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Emilio De La Cal, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In separate counts of an information the appellant, defendant below, was charged with unlawful possession of cocaine, hashish, and cannabis. The evidence against the defendant upon which the charges were predicated resulted from a search made pri- or to arrest. Defendant moved to suppress such evidence challenging the legality of the search. The motion was denied. Defendant then pleaded nolo contendere, reserving right of appeal from said order. State v. Ashby, 245 So.2d 225 (Fla.1971). This appeal by the defendant ensued. In lieu of a brief in response to appellant’s brief the State has filed a confession of error. Whereupon the conviction and sentence entered on said plea are hereby set aside, and the cause is remanded to the trial court with direction that the appellant be accorded the opportunity to withdraw his plea of nolo contendere. See: Wallace v. State, 321 So.2d 97 (Fla. 4th DCA 1975).


text:
    FLORIDA NATIONAL BANK OF CORAL GABLES, Appellant, v. Kenneth D. ROSEN and Greater Miami Realty, Inc., Appellees.
    No. 77-1378.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 2, 1978.
    Robertson & McLeod and Addison E. Walker, Coral Gables, for appellant.
    Shevin, Shapo & Shevin, Miami, for ap-pellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

This is an appeal from an order allowing only Ten Dollars to appellant-garnishee for costs and attorney fees claimed as a result of services rendered and costs expended in connection with a writ of garnishment issued to the garnishee-bank seeking funds to satisfy a judgment debt owed to the appel-lee by one Van Bruce, a depositor of the bank.

Appellant contends that the court committed reversible error in refusing to tas. costs and awarding a reasonable attorney fee to appellant-garnishee.

We agree and reverse. See Buyer Finance Corporation v. Oliveros, 196 So.2d 451 (Fla. 3d DCA 1967) and Jefferson National Bank of Miami Beach v. Cloverleaf Hospital, Inc., 194 So.2d 287 (Fla. 3d DCA 1967).

Reversed and remanded for further proceedings.


author: DENNIS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Gilbert Ray SELF.
    No. 59400.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearings Denied Oct. 21, 1977.
    Dissenting Opinion Jan. 30, 1978.
    Henry C. Gahagan, Jr., Gahagan & Gaha-gan, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Gilbert Ray Self, was convicted in a judge trial of negligent homicide, La.R.S. 14:32, and sentenced to three years imprisonment at hard labor. His sentence was suspended, but he was required to serve one year in jail as a condition of probation.

On December 4, 1975, two automobiles collided head-on in the north-bound lane of U.S. Highway 171 about one-tenth of a mile south of Many, Louisiana. Sergeant C. J. Miller of the Louisiana State Police, who was driving a 1974 Chevrolet State Police vehicle in a northerly direction, was killed in the accident. The defendant, Gilbert Ray Self, was driving southward in a 1969 Chevelle Malibu which crossed the highway dividing line causing the fatal mishap. A passenger riding with Miller testified that the police vehicle was traveling about fifty miles per hour before the accident. According to three physicians, the defendant suffered from amnesia resulting from the accident and could not remember anything about the collision.

In endeavoring to meet its burden of proving beyond a reasonable doubt that defendant’s conduct was “a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances,” La.R.S. 14:12, the State tendered a state police officer as an expert in the field of determining the speed of motor vehicles involved in collisions. The officer had investigated over nine hundred auto accidents and had attended two traffic investigation schools where he learned to calculate vehicular speed by use of a template or nomograph and the mathematical formulae upon which this device is based. At one of the schools he observed an experiment in which an automobile was propelled against a cement barrier at a predetermined speed. However, the witness admitted that he was not an expert at estimating the speed of vehicles from collision damage, and he conceded that he did not understand the derivation of the speed calculation formulae upon which the template is based. Nevertheless, the court, over defendant’s objection, qualified the officer as an expert for the purposes tendered.

After being, qualified, the officer testified, over a defense objection, that in his opinion the combined speed of both vehicles was 65 to 70 miles per hour at the moment of impact. He further testified that during pre-collision skidding defendant’s vehicle lost 32 miles per hour, and the police car lost 39 miles per hour in speed. These opinions were based upon three factors: experiments conducted by the officer under circumstances somewhat similar to those surrounding the accident from which he derived a “coefficient of friction” for each vehicle; his calculations with a template, using skid mark lengths and coefficients of friction, of the “speed lost” by each vehicle during skidding before impact; and his estimation of the combined speed of the vehicles at the moment of impact based upon his visual inspection of the damages sustained.

La.R.S. 15:466 provides:

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

Determination of the competency of an expert witness is a question of fact and the trial court’s ruling should not be disturbed in the absence of manifest error. State v. Rogers, 324 So.2d 358 (La.1976).

In the Rogers case we held that it was manifest error for the trial court to qualify as an expert in determining speed by use of a template a witness who had only superficial knowledge of how the template works and no comprehension of the theory behind its use, and who had simply been taught how to use the template, which given the necessary input and correct application, purports to express minimum vehicle velocity prior to skidding caused by brake application. Although the state police officer in the instant case certainly had superior credentials in terms of schooling and experience, it is apparent from his testimony, as he freely admitted, that his knowledge of the template and the scientific correlations it expresses was equally as superficial as that of the Rogers case witness.

This alone clearly indicates the witness lacked sufficient knowledge to qualify as an expert in speed calculations. There are other reasons, however, why the trial court should not have found the witness competent to testify upon the subject. The reasons should be expressed, since the instant case may be retried, and also because these reasons point up some of the causes of our distrust of vehicular speed determination evidence in criminal cases, except when given by very knowledgeable experts.

The template, like the slide rule, is no more reliable than the expert who uses it and no more accurate than the data used in his calculations. Many scholars of both instruments can be taught to perform basic calculations accurately and to solve satisfactorily simple hypothetical problems. However, when it comes to gathering data and correctly determining, after the fact, the speed of vehicles prior to real accidents, a great deal more expertise may be required.

The template or nomograph has the form of an alignment chart and has been devised for use in finding the speed of a vehicle, if the skid mark distance, grade of the incline, and average coefficient of friction are known. When the distance skidded is aligned with the coefficient of friction, the template will indicate its manufacturer’s computation of the minimum speed at which the vehicle was traveling.

The coefficient of friction, or drag factor, is an experimental variable. According to one expert in the field, it can be found properly by conducting several braking experiments with a vehicle of comparable weight on a similar surface, and at the approximate speed of the vehicle referred to in the court testimony. Cook, Speed Calculations and the Expert Witness, 42 Neb.L.Rev. 100, 114 (1963). Although the State’s witness in the present case attempted to use this procedure, he did not state how many tests were conducted or whether the drag factor used was derived from more than one experiment with a vehicle of comparable weight. Moreover, since the speed of defendant’s vehicle before the accident was unknown, it appears that it would have been preferable to run tests at several different speeds in order to arrive at reliable coefficients of friction. Id. at p. 115. The State’s witness further testified that it was unnecessary to make any adjustment of the coefficient of friction factor because the experiment surface was inclined. Another expert, however, appears to be of the opinion that allowance for slope influence is essential to accurate calculation of speed. Id. at p. 115. If the prosecution witness used improper procedures in these respects there is a significant risk that the coefficient of friction crucial to all his calculations was incorrect.

The trial court clearly erred in accepting the State’s witness as an expert in estimating automobile speed based on the amount of vehicle damage. Not only was the witness qualified over his own protest, but his experience in observing such damages under controlled conditions and at a known speed appears to have been limited to one instance.

The most disturbing aspect of this case, however, is the possibility that the State witness’ simple combination of two different speed calculation methods may have caused the trier of fact to draw an erroneous inference as to the defendant’s speed before the accident. Since Sergeant Miller’s passenger testified the patrol car’s speed before the accident was 50 miles per hour, and the State’s expert testified it lost 39 miles per hour before impact, the trier of fact was invited to conclude that the police vehicle was going 11 miles per hour at the time of impact. From this it would have been logical to deduce that the defendant was driving 86-91 miles per hour just prior to the accident by subtracting the patrol car’s speed from the two vehicles’ estimated combined speed of 65 to 70 miles per hour at the point of collision and by adding the 32 miles per hour of speed calculated to have been lost by the defendant’s car before the collision.

At least one recognized expert observes that such a rationale will produce an exaggerated estimate of vehicular speed. Professor Cook states:

“Another possible source of error in using a speed-skid mark calculator lies in improper application to a vehicle which does not come to a full stop. The charts are prepared with a full stop assumed, and therefore should not be used in any other' condition, except to indicate that the vehicle must have been traveling above a certain minimum speed. Even then, any statement made might be misleading, as will be illustrated by the following example. Let us assume that an auto were to skid seventy feet on a surface having a coefficient of friction of 0.6, and then strike a parked vehicle, doing appreciable damage. This damage we will estimate, for the purpose of illustration, as being due to a collision speed of twenty miles per hour. Now we shall apply the skid mark chart to the moving auto, obtaining a speed of at least 35 miles per hour. Misleading information might be conveyed here, because a jury would very likely add the estimated impact damage speed of twenty miles per hour to the skid mark chart indicated speed of 35 miles per hour, and conclude that the initial speed of the auto was fifty five miles per hour. A correct solution of this type of problem entails a direct application of the general equation of Conservation of Energy, without resorting to speed-skid mark charts. By applying the Law of Conservation of Energy the correct speed would be forty miles per hour, a difference of fifteen miles per hour.” Id. at p. 123.

If Professor Cook’s view represents a sound application of the fundamental physical laws which apply to the motion of automobiles, the expert testimony in the instant ease probably hindered rather than aided the trier of fact in reaching a correct decision as to the defendant’s speed. Even under Dean Wigmore’s permissive view— that the only true criterion of an expert’s competency to testify should be whether the evidence he gives will help the judge or jury in reaching a decision — the State’s speed calculation witness would not have been qualified to give evidence on this subject. 7 Wigmore, Evidence § 1923 at 21 (3d ed. 1940).

In view of the foregoing, we find that the trial judge erroneously qualified this witness as an expert, and improperly allowed him to express opinion testimony. We further find that the improper admission of this testimony, supporting as it does an inference that defendant was driving his car at a highly excessive rate of speed immediately prior to the accident, amounted to a substantial violation of defendant’s statutory rights, and constituted reversible error. La.C.Cr.P. art. 921.

Accordingly, the defendant’s conviction is reversed, his sentence is set aside, and the case is remanded to the district court for a new trial.

# * #

SANDERS, C. J., dissents.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents.

SUMMERS, Justice

(dissenting).

Speed was not an essential ingredient of the charge of negligent homicide in this case. Crossing over into the opposite lane of travel, however, was a crucial fact in the State’s case. La.Rev.Stat. 14:32; La.Rev. Stat. 32:77. Defendant’s car did cross over into the opposite lane of travel and collide with decedent Miller’s patrol car contrary to a statutory prohibition, thereby establishing presumptive evidence of negligence. Physical facts at the scene and the law made this much uncontroverted.

Surely the state police officer who had investigated over nine hundred auto accidents and who had attended two traffic investigation schools was qualified to give his estimate of the speed at which these vehicles were traveling. He could base this upon the physical facts available at the site after the accident and his prior experience in these matters. The fact that he used the template and based his estimate of speed on that calculation also was a matter going to the weight of the evidence to be judged by the trier of fact, not a question of admissibility.

Several other witnesses, including eye witnesses, testified to facts fully corroborating the State’s position in this prosecution.

In my view the Court has unnecessarily reversed this conviction on the issue of defendant’s negligence by finding the state police officer’s testimony to be inadmissible.

I respectfully dissent.

       Cook, David L„ B.S. 1942, M.A. 1950, University of Nebraska; Member, Engineers Club of Lincoln, Nebraska Engineering Society, American Society for Engineering Education. Associate Professor of Engineering Mechanics, University of Nebraska.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Kenny Wayne WHITMORE.
    No. 59832.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Jan. 27, 1978.

      James F. Abadie, Roy, Kiesel, Patterson, Hudson & Abadie; Joseph P. Brantley, IV, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie F. Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SANDERS, Chief Justice.

The Grand Jury of East Baton Rouge Parish indicted defendant with the second degree.murder and armed robbery of Marshall Bond which occurred on August 15, 1973. After a jury trial, defendant was found guilty on both charges and sentenced to life imprisonment on the murder conviction and ninety-nine years imprisonment without benefit of probation, parole or suspension of sentence on the robbery conviction. The sentences are to be served consecutively. Having specifically abandoned Assignments of Error Nos. 11 and 13, defendant relies upon thirteen assignments of error for reversal of his convictions and sentences.

The offense occurred in the following manner: The victim, an elderly drugstore owner, was known to carry large sums of money on his person. The victim went daily to his pastureland to check on his horses. On the day of the murder, while the victim was at the barn, two young men approached him: the defendant and one Donahue, who was tried separately from the defendant. Donahue grabbed the victim, and both perpetrators brutally beat and stabbed the elderly man. They took approximately $1,000 from the victim and left the scene. A short time later James Robinson, an employee of the victim, found the victim and arranged to have him taken to a hospital, where he subsequently died. After a lengthy investigation, detectives acted on an informer’s tip and interviewed defendant on February 8, 1975. Eventually, defendant confessed.

Evidence at trial against defendant consisted primarily of his two taped inculpato-ry statements and the introduction of a bucket found some distance from the scene of the crime. The defendant testified that his friend, Donahue, gave him a ride home from the place where he worked and took him to Charles Armwood’s [or Lockwood’s] house. Donahue and the defendant then rode out to talk to the victim in order for Donahue to ask him for a job. Defendant testified that he sat in the car while Donahue went to talk to the victim. He further stated that Donahue and the victim went around the barn, and that, when Donahue returned with a knife and wallet, he told defendant that he had beaten and robbed the victim.

ASSIGNMENT OF ERROR NO. 1

Defendant claims that the court erred in failing to grant a mistrial on its own motion because the prosecutor mentioned defendant’s confessions during his opening statement.

In his opening statement, the assistant district attorney described in detail the confessions given by the defendant that were to be used in evidence against him. When the defense counsel objected, the prosecutor admitted that Article 767 of the Louisiana Code of Criminal Procedure clearly prohibits any reference to inculpatory statements before they are admitted into evidence, but he argued that, in opening argument, he was required to explain the nature of his evidence in the case. He argued that, since the bulk of his evidence consisted of defendant’s confessions, he properly referred to the confessions, in spite of the clear prohibition in Article 767 of the Louisiana Code of Criminal Procedure.

Defense counsel specifically stated that he did not request a mistrial and that he opposed a mistrial. The court correctly ruled that the remark did not fall under Article 770 of the Louisiana Code of Criminal Procedure which would mandate a mistrial. The court then admonished the jury that the remarks were not evidence and to disregard them.

Under the circumstances, the question is whether or not the trial court erred in failing to order a mistrial on its own motion over defense counsel’s objection. We conclude that there was no error on the part of the trial court.

Article 770 of the Louisiana Code of Criminal Procedure describes four categories of prejudicial remarks which mandate a mistrial when one is requested. The reference to the confessions in this case, although a clear violation of Article 767, does not fall into any of the four categories.

Prior to the adoption of our present Code of Criminal Procedure, in order for a confession to be admissible into evidence, the district attorney was required to mention it in his opening statement. State v. Davis, 241 La. 974, 132 So.2d 866 (1961); State v. Clark, 231 La. 807, 93 So.2d 13 (1957). Articles 767 and 768 of our present Code of Criminal Procedure prohibit reference to a confession until such time as it is offered into evidence. This new procedure avoids the prejudice which might flow from the district attorney’s reference to a confession or inculpatory statement later held to be inadmissible. LSA-C.Cr.P. Art. 769, Official Revision Comments (b) and (c). Since the defendant had been put on notice that the State intended to use his inculpatory statements [LSA-C.Cr.P. art. 768] and the statements were later admitted into evidence, the defendant suffered no prejudice from the premature reference to them. LSA-C.Cr.P. arts. 766-769 and Official Comments; State v. Snedecor, La., 294 So.2d 207 (1974); State v. Cannon, 184 La. 514, 166 So. 485 (1936). Hence, the trial court did not err in failing to grant a mistrial on its own motion.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 4, AND 15

Prior to trial, defense counsel made two motions requesting the State to advise the defense of any self-incriminating or incul-patory statements made by the defendant to any law enforcement official and further requested the State to provide copies of any written, typed, recorded, or video-taped statements made by the defendant. The State responded that it possessed two tape recorded statements, which were confessions made by the defendant to Baton Rouge law enforcement authorities, and that the defendant had made incriminating oral statements which were unrecorded.

On the third day of trial, defense counsel learned that other statements, not revealed by the State on the above requests, had been tape recorded during lie detector tests. The prosecutor was unaware of the tapes’ existence at the time he answered defendant’s requests. Upon learning of the tapes, he investigated the matter and found that the recordings had been made after the defendant had made his second confession. At the time the recordings were made, during lie detector tests the defendant took, the authorities considered them at best inconclusive, and most of the tapes had been erased by reuse. The trial judge, prosecutor, and defense attorney listened to the tapes in camera and concluded that “all of the information on that tape recording directly implicated the defendant in this robbery and murder.” [Tr. 177.] Defense counsel admitted there was little or nothing on the tape that would have been material or that could have been used in the defense or at the Motion to Suppress. [Tr. 179.] The trial judge who listened to the tape found “that it would not have denied the defendant a fair trial in any way, that it’s [not] exculpatory in any way, and would not have aided in the defense.” [Tr. 185.]

Defendant contends that the State’s failure to disclose the additional statements prevented him from gaining critical evidence of the voluntariness of the confessions which defendant had previously given. He alleges that the failure to disclose and produce the additional tape recorded statements resulted in a decision on voluntariness based on incomplete information. On this ground, he argues that the trial court should have reheard the Motion to Suppress after the defendant learned of the existence of the statements or granted a mistrial.

This argument is without merit. After hearing the tapes, defense counsel agreed that there was nothing on the tapes which could have helped the defendant’s case. In order for a constitutional violation of the duty to disclose to be shown, the omission must be of sufficient significance to amount to a denial of the defendant’s right to a fair trial. The tape recordings in question merely repeated defendant’s confessions which were introduced into evidence and could not have created “a reasonable doubt that did not otherwise exist.” United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976); State v. Bennett, La., 341 So.2d 847 (1976).

Assignments of Error Nos. 2, 4, and 15 are without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 9

On appeal defendant urges that the trial court erred in failing to sustain his Motion to Suppress the taped inculpatory statements on the grounds that: (1) the district attorney procured his statements by making threats, promises and other inducements; and (2) that he was told by police officers that the results of lie detector tests given to defendant could be used in court against him.

The district attorney testified at the hearing on the Motion to Suppress and refuted defendant’s allegations. The trial judge found no coercion or improper inducements. We find no basis for disturbing his finding. See, La., State v. Whitmore, 323 So.2d 133 (1975).

In Louisiana, as well as in most other jurisdictions, the results of a lie detector test or the fact that such a test was given is inadmissible evidence. State v. Davis, La., 351 So.2d 771 (1977); State v. Governor, La., 331 So.2d 443 (1976); State v. Corbin, La., 285 So.2d 234 (1973); State v. Refuge, 264 La. 135, 270 So.2d 842 (1972); McCormick on Evidence, § 207 (2d ed. 1972); Annotation, Physiological or Psychological Truth and Deception Tests, 23 A.L.R.2d 1306 (1952) and supplement; 22A C.J.S. Criminal Law § 645(2); 32 C.J.S. Evidence § 588(4); Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie Detection, 70 Yale L.J. 694, 724-28 (1961).

We have carefully examined the transcript of the Motion to Suppress and find that: (1) defendant was advised of his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights and waived those rights prior to each statement; (2) defendant was informed by the officers prior to taking the lie detector tests that he did not have to do so and, if he refused, the fact of his refusal could not be used against him in court; (3) prior to taking the tests, defendant was asked to enter into a stipulation which would permit the use of the results in court, if the court would allow such evidence. Clearly, defendant’s agreement to take the lie detector test was a voluntary decision on his part, and, therefore, cannot affect the voluntariness of his subsequent tape recorded incul-patory statements.

Assignments of Error Nos. 3 and 9 are without merit.

ASSIGNMENT OF ERROR NO. 5

Here, defendant argues that the trial court erred in denying his motion to recuse the District Attorney because of his involvement in the investigation and participation in the trial as a witness. He bases this contention on the fact that the District Attorney took the stand at the Motion to Suppress in order to refute defendant’s allegation that the District Attorney had made promises of leniency to him in order to induce him to confess and likewise testified at the trial in laying the foundation for the admission of the confession. Also, defendant again points out the discrepancy between his own testimony at the motion to suppress hearing, which indicates that the District Attorney appeared alone in the room where he was being interrogated to attempt to induce him to confess, and the District Attorney’s testimony that he was never in the room alone with the defendant.

The District Attorney’s participation in this case was routine and not at all a proper ground for a motion to recuse. State v. Bennett, La., 341 So.2d 847 (1976). Moreover, prior to trial, the defendant presented the issue of recusal of the District Attorney to this Court in an application for writs. In denying his writ application, La., 323 So.2d 133 (1975), we stated: “Application denied. There is no error in the trial judge’s denial of the motion to recuse.”

Assignment of Error No. 5 is without merit.

ASSIGNMENTS OF ERROR NOS. 6, 7, AND 8

Here, defendant argues that the trial court erred in failing to rehear his motion to suppress at trial and in failing to require the State to lay a foundation outside the presence of the jury before admitting the inculpatory statements. The original motion to suppress the inculpatory statements had been heard and denied by another judge.

The inculpatory statements at issue are the two February, 1975, statements given orally by defendant and tape recorded by the police.. Defendant filed a motion to suppress these two statements which was denied by Judge Lear after a hearing. When the case came to trial before Judge Gonzales, he refused to reconsider the admissibility of the statements on the ground that, under Article 703 of the Louisiana Code of Criminal Procedure, he was bound by Judge Lear’s ruling on the motion. Defendant asserts that Judge Gonzales was not bound by the prior ruling because the motion to suppress “a written confession or written inculpatory statement” is not applicable to a tape recorded confession or incul-patory statement. LSA-C.Cr.P. art. 703.

Defendant’s argument is without merit. The State was required to show the admissibility of the confession outside the presence of the jury. The defendant filed a Motion to Suppress the taped statements prior to trial. A hearing on that Motion to Suppress was held on October 1, 1975. The State presented its evidence regarding the voluntariness of that confession. The defendant also testified at the hearing. On the basis of the evidence presented, the trial judge found the statements to be admissible. Clearly, the defendant was afforded a review of the admissibility of his confession outside the presence of the jury.

A pre-trial ruling on a motion to suppress a confession or inculpatory statement is binding at the trial on the merits. If the confession is ruled admissible, no additional hearing by the judge to determine admissibility is required at the trial. LSA-C.Cr.P. art. 703(B); State v. Whatley, La., 320 So.2d 123 (1975).

Defendant contends that the hearing on the motion to suppress was invalid because his confession was a taped oral confession. He argues that a motion to suppress is limited to “a written confession or written inculpatory statement” by Article 703 of the Louisiana Code of Criminal Procedure.

Assuming that the motion to suppress is not an appropriate procedure for testing the voluntariness of a taped oral confession, the defendant is entitled to no relief here.

Defendant, himself, raised the issue of the admissibility of the confession through the filing of a Motion to Suppress. He requested the hearing and sought the pretrial determination of the admissibility of the confession. Hence, defendant is precluded from urging this procedure as error on appeal.

Assignments of Error Nos. 6, 7, and 8 are without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant urges on appeal that the trial court committed error when it allowed a bucket, found after the crime and a considerable distance from the scene, to be admitted into evidence.

Defendant asserts that the bucket should not have been admitted, because the State allegedly failed to show that this bucket was the one missing from the scene of the crime.

Relevant evidence is that which tends either to show the commission of a crime and/or intent, or to negate the commission of a crime and/or intent. Those facts which are necessary to explain a relevant fact or which support an inference raised by such a fact, are admissible. LSA-R.S. 15:441; State v. Giles, 253 La. 533, 218 So.2d 585 (1969). The standard test for relevancy is whether or not “there is a logical or rational connection between the fact which is sought to be proved and the fact which is at issue in the case.” State v. Giles, supra.

The bucket defendant complains of is clearly relevant and admissible evidence. It was identified as being the one missing from the scene of the crime. The bucket tends to corroborate the defendant’s confession in that it was found at the place where defendant confessed to leaving it.

Assignment of Error No. 10 is without merit.

ASSIGNMENT OF ERROR NO. 12

Here, defendant alleges that the trial court erred in allowing the prosecutor to question the defendant about details of pri- or convictions.

In response to questions by defense counsel on direct examination, defendant testified:

“Q. Now, Kenny, you been in trouble once before, haven’t you?
“A. Yes, I’ve been in trouble once before.
“Q. You don’t deny that, do you?
“A. No.
“Q. That was a robbery?
“A. Yes, it was.” [Tr. 368-369.]

On cross-examination, the prosecution asked defendant if he had ever been convicted of a crime. Defense counsel objected to the question, and the objection was overruled. Following are the questions and answers complained of:

“Q. Kenny, have you — on September 30, 1976, here in this very same courtroom, is it not a fact that you were convicted of the armed robbery of Mrs. Matthews out in Zachary?
“THE COURT: Before you answer
“[DEFENSE COUNSEL]: I’m going to object .
“THE COURT: Mr. Whitmore, you can answer to the nature of the offense but not to any details if in fact you have been convicted of a previous offense. Go ahead and ask the question.
“Q. Were you convicted of the armed robbery of Mrs. Matthews?
“A. Yes, I was.
“Q. Were you also convicted of the armed robbery of Bill Messer?
“A. I don’t know a Blanford Melton.
“Q. Who?
“A. I don’t know Blanford Melton.
“Q. You know where Bill’s shoe store is?
“A. Yes, Ido.
“Q. Do you know the man that owns it?
“A. Yes, I do.
“Q. Were you convicted of the armed robbery of that man?
“A. Of that store, yeah.” [Tr. 385-386.]

Defendant argues that this questioning went beyond the permissible scope of inquiry because it elicited the details of the crimes.

This Court has held that in such an impeachment, sufficient details are admissible to establish the true nature of the offense. See State v. Jackson, La., 307 So.2d 604 (1975); State v. Elam, La., 312 So.2d 318 (1975). In the present case, however, we need not rely on that jurisprudence. It is evident that the State’s questions were directed toward determining exactly the crimes of which defendant had been convicted, not the factual details of each offense. The victims were named in order to identify the conviction for defendant’s response. See State v. Victor, La., 347 So.2d 205 (1977).

We conclude that the assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 14

Defendant urges that the court erred in failing to sustain his objection to the district attorney’s closing argument concerning the guilt of the defendant.

Defendant complains that, in his closing argument, the district attorney did not confine his argument to evidence admitted, to the lack of evidence, the conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case. See LSA-C.Cr.P. art. 774. He also argues that the district attorney expressed his personal opinion on the guilt of the defendant. See State v. Sawyer, La., 350 So.2d 611 (1977); State v. Kaufman, La., 304 So.2d 300 (1974).

Following are the two statements complained of:

“Kenny Whitmore in his own voice from the tape recording, the second tape recording I played for you, admitted, that they took almost a thousand dollars. Said, I got four fifty or four twenty-five, and Donahue got around five hundred. That’s a theft from the person of another, by force or intimidation. I don’t think there’s been a case of more force involved in an armed robbery in this parish in years, brutal, vicious force. Taken from his pocket, a thousand dollars.” [Tr. 415.] “We do not have — and we cannot show you exactly what these weapons were. We know only, from the type of wounds Mr. Bond received, what could — and from what Mr. Whitmore told you on that tape what these weapons were. A tire tool or something of the nature of a tire tool. How was it used? It was used to bash in Mr. Bond’s skull. A screwdriver, Phillips or standard. How was it used? It was used to stab him, stab him in the arms and the chest and the back countless number of times. Are these articles which come in within this term? [‘dangerous weapon’] Any instrumentality which is calculated to produce great bodily harm. How could you produce any more bodily harm to a person with an instrumentality than the wounds that Doctor Landry got up here and testified about? So we have indeed in this case a murder in the second degree and an armed robbery.” [Tr. 417-418.]

The first statement is a proper summation of the evidence in the case. The evidence reveals that the victim was stabbed repeatedly with a screwdriver and beaten about the head with a blunt instrument. It was a brutal crime, and no error occurred when the prosecutor characterized it as such.

Defense counsel made no objection to the second statement either during or after argument; therefore, the issue is not preserved for our review. LSA-C.Cr.P. art. 841; State v. Gaines, La., 347 So.2d 1153 (1977). We note, however, that the prosecutor’s statements are within the proper bounds of closing argument.

Assignment of Error No. 14 is without merit.

For the reasons assigned, the convictions and sentences are affirmed.

DIXON, J., concurs.

DENNIS, J., concurs disagreeing with statement that the district attorney’s closing remarks were within proper bounds.