Date: 03-07-1985

Case Style:

State of Florida v. Robert DuBoise

Case Number:

Judge: Not Available

Court: Tenth Judicial Circuit Court, Hillsborough County, Florida

Plaintiff's Attorney: Hillsborough County Florida District Attorney's Office

Defendant's Attorney:

Description: Tampa, Florida criminal defense lawyer represented Defendant charged with first-degree murder.

The Supreme Court of Florida affirmed Defendant's conviction in 1988, stating:

"This cause is before the Court on appeal of a judgment of conviction of capital felony for which a sentence of death was imposed. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Robert Earl DuBoise appeals his conviction of first-degree murder, three convictions of violation of probation, and the sentence of death. The state cross-appeals the trial court's order arresting judgment on a jury verdict of guilt of attempted sexual battery. We affirm the convictions, reverse the order arresting judgment, vacate the sentence of death, and remand with instructions to the trial court to impose a sentence of life imprisonment.

DuBoise was indicted for first-degree murder and sexual battery. The body of the victim, Barbara Grams, was found behind a dentist's office in Tampa. The evidence showed that when found, the body of the victim bore a bite mark. The medical examiner testified that the victim died as a result of two blows to the head inflicted with a blunt instrument. The same medical expert also testified that the bite mark occurred roughly around the time of death. The examiner also found semen in the vagina indicating sexual intercourse could have occurred up to seventy-two hours before death.

The police took beeswax impressions of several persons, including appellant, and sent them to a dentist, Dr. Powell, who made stone cast models from them. These stone cast models were forwarded to Dr. Souviron, a dentist specializing in forensic odontology, who compared them to a photograph of the bite mark found on the body.

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On October 21, 1983, Dr. Souviron called the Tampa police and told them that it was DuBoise who made the bite mark. On October 22, the police brought DuBoise in at 2:00 a.m. and questioned him for about one hour. He was arrested around 5:00 a.m., and, after he started screaming and kicking, he was restrained by ropes and handcuffs and sedated with a tranquilizer called Haldol. At 4:00 that afternoon, the police escorted DuBoise to Dr. Powell's office to have a stone cast model made of his teeth. Although the officers had a search warrant in their possession, they never served it because DuBoise agreed to go willingly. After this second stone cast model was made, it was sent to Dr. Souviron. Dr. Souviron testified at trial that within a reasonable degree of dental certainty DuBoise had bitten the victim.

The other main evidence linking DuBoise to the crime was the testimony of a cellmate, Claude Butler. Mr. Butler stated that DuBoise had told him that he, his brother and a friend had tried robbing a woman of her purse. When she recognized his friend, they abducted her and later, when he was having sex with her, his friend and brother struck her with boards.

The jury found DuBoise guilty of first-degree murder and attempted sexual battery. After hearing the evidence and argument presented at the sentencing phase of the trial, the jury recommended life imprisonment.

The court, finding several aggravating circumstances and no mitigating circumstances, imposed a sentence of death. The court granted DuBoise's motion for arrest of judgment as to the second count of the indictment, vacating the verdict of guilt of attempted sexual battery. DuBoise also filed a motion for new trial on the ground that the bite mark evidence should have been excluded since the arrest was illegal. The court agreed that the arrest was illegal, but denied the motion on the ground that voluntary consent had been given. After a notice of appeal was filed, the court entered its written findings in support of the sentence of death leaving out the aggravating circumstance that DuBoise had previously been convicted of a violent felony.

ISSUES ON APPEAL OF THE CONVICTIONS

;DuBoise argues that his convictions should be reversed because the stone cast models of his teeth were products of an illegal arrest and therefore should not have been admitted into evidence. He claims that any consent he gave was tainted and rendered involuntary because of the illegal arrest.

The trial judge found, and the state concedes, that the initial arrest was illegal because it was based on bite mark identification made from a beeswax impression. This method of identification was found not to be scientifically reliable so the police needed a second stone cast model of DuBoise's teeth. The state claims that he voluntarily consented to have this stone cast model made.

;DuBoise relies on Norman v. State, 379 So.2d 643 (Fla.1980), and Bailey v. State, 319 So.2d 22 (Fla.1975). In Norman, this Court said:

The voluntariness vel non of the defendant's consent to search is to be determined from the totality of circumstances. But when consent is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search.

379 So.2d at 646-47. In Bailey v. State, the Court said:

There may be a few rare instances in which a valid consent could be made after an illegal arrest, provided that circumstances were so strong, clear and convincing as to remove any doubt of a truly voluntary waiver. However, ordinarily consent given after an illegal arrest will not lose its unconstitutional taint.

319 So.2d at 27-28. He argues this is not one of those rare instances. We disagree and find there was a valid consent here.

There are many factual dissimilarities between this case and Bailey which


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render the holding in Bailey inapplicable. First, in Bailey, the search was made immediately after the arrest. In this case several hours had elapsed. Second, in Bailey, the arresting officers' testimony consisted entirely of conclusions. Here the detective who took DuBoise to the dentist testified that he obtained a search warrant to have the stone cast model made, but never served it because everything DuBoise did was voluntary. He said that when he explained to DuBoise that they were going to take him to the dentist to get an impression of his teeth, DuBoise replied, "Fine, go ahead and do it. I'll prove to you that I didn't bite the girl. I didn't have anything to do with it." While waiting in the dentist's office DuBoise stated, "I'm glad you're doing it." Finally, the defendant in Bailey testified that she did not give her consent and specifically asked about a search warrant. There is no such conflicting testimony in this case.

Counsel relies heavily upon the fact that DuBoise was administered 10 milligrams of the tranquilizer Haldol at 6:20 a.m., roughly ten hours before he was taken to the dentist's office. However, both the detective and dentist testified that DuBoise did not appear to be under the influence of any drugs and acted calmly and rationally. No evidence was presented concerning the nature or length of the drug's effects. We conclude that the evidence clearly and convincingly supports the trial court's finding that DuBoise had voluntarily consented to have the dental impressions made of his teeth.

;DuBoise next argues that it was reversible error to allow his cellmate Claude Butler to recount his statements. He argues that the statements, like the second dental impressions, were a product of an illegal arrest and that he was deprived of his sixth amendment right to counsel because Butler was an agent for the state. See Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). We find the incriminating statements were not a product of DuBoise's illegal arrest. The statements were made several months after appellant was arrested. They were spontaneous utterances, not the product of active questioning. Furthermore, by the time of the statements DuBoise had been validly arrested for violating probation.

We also find that Butler was not acting as a state agent. Upon his arrest, DuBoise was placed in a sixteen-man holding cell in which Butler was already residing. Later some police officers, while questioning Butler about unrelated matters, asked him if he knew anything about DuBoise. When he indicated that all he knew was that DuBoise was in the cell and had talked about a girl, they said to him, "If you hear anything, hear a conversation, call us. See what you can do for us or whatever." They did not ask him to question DuBoise or to take any other affirmative action to obtain information. This is not a case where the police moved an informant into a defendant's cell for the express purpose of questioning the defendant. There is nothing to indicate that the authorities promised Butler any favorable treatment. Several months later when Butler asked DuBoise how things were going, he unburdened himself with his confession. There was no evidence that Butler deliberately attempted to extract a confession from DuBoise. When questioned why he was testifying against DuBoise, Butler explained that he knew DuBoise was not going to say anything against his cohorts and that he did not think he should take the sole rap for the murder. Given these facts, we find that there was no deliberate attempt to deprive DuBoise of his sixth amendment right to counsel. See Dufour v. State, 495 So.2d 154 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987).

Next DuBoise argues that the trial court erred in refusing to rule upon his motion to suppress the evidence until after the trial. He points out that we have held that, when requested, an evidentiary hearing on the voluntariness of a confession must be held before the confession can be submitted to the jury. Land v. State, 293 So.2d 704 (Fla.1974). DuBoise concludes


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that the trial court erred by not holding an evidentiary hearing on the voluntariness of his consent before allowing the stone cast model of his teeth and his statements to his cellmate into evidence.

The major distinction between Land and this case is that here DuBoise made no request for a hearing. On the third day of the trial, the trial judge heard arguments from counsel on both sides outside the presence of the jury concerning the motions to suppress certain evidence. At one point the judge suggested that a hearing should be held. However, neither side indicated they wanted one. Even after the trial DuBoise failed to request a hearing on the voluntariness of his consent. We therefore find no reversible error in the trial court's refraining from ruling upon the motions to suppress until after the trial.

Next DuBoise argues that the trial court erred in denying a motion for mistrial based upon the prosecutor's improper remarks during closing argument. This point has not been properly preserved since the motion was made after the jury had been given its instructions and had retired for deliberations. State v. Cumbie, 380 So.2d 1031 (Fla.1980).

;DuBoise also argues that the trial court erred in not granting a mistrial when it was discovered that state's witness Butler was acquainted with one of the jurors. After testifying, Butler notified the bailiff that he thought he recognized one of the jurors. Butler was then questioned outside the presence of the jury about this comment. He explained that he thought he recognized one of the jurors as a person he was acquainted with at a bar he frequented, but could not give the person's name. Each juror was questioned individually and all denied recognizing or knowing any of the witnesses in the case. Given these facts, we find no reversible error in the refusal to grant a motion for mistrial.

The next point on appeal is that DuBoise was deprived of his constitutional right to be tried by an impartial jury because of the exclusion of a prospective juror who was opposed to capital punishment. This very issue has recently been decided against DuBoise's position by the United States Supreme Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

The state cross appeals the order granting DuBoise's post-trial motion for arrest of judgment. The motion claimed that the second count of the indictment for sexual battery was deficient in that it failed to allege the use of actual physical force. The second count specifically provided:

The Grand Jurors of the County of Hillsborough, State of Florida, charge that ROBERT EARL DUBOISE, between the 18th day of August, 1983, and the 19th day of August, 1983, in the County and State aforesaid, did unlawfully and feloniously commit sexual battery upon BARBARA GRAMS, a person over the age of eleven (11) years, without the consent of the said BARBARA GRAMS, contrary to the form of the statute in such cases made and provided, to-wit: Florida Statute 794.011(3).

In his attempt to sustain the trial court's ruling, DuBoise argues that the failure to include an essential element of the offense, the use of actual physical force, rendered the indictment fundamentally defective for failure to charge a crime, citing State v. Dye, 346 So.2d 538 (Fla.1977). We find the holding in that case inapplicable to the facts in this case.

In State v. Dye, the defendant filed a pre-trial motion to dismiss the information. In this case DuBoise did not move to quash the indictment before trial, but instead waited until after the trial before filing a motion for arrest of judgment pursuant to Florida Rule of Criminal Procedure 3.610. That rule provides that a motion for arrest of judgment shall not be granted unless the indictment is so defective that it will not support a judgment of conviction. The reason for this provision is to discourage defendants from waiting until after a trial is over before contesting deficiencies in charging documents which could have easily been corrected if they had been pointed out before trial. See Sinclair


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v. State, 46 So.2d 453 (Fla.1950); State v. Cadieu, 353 So.2d 150 (Fla. 1st DCA 1977). Hence a charging document which is subject to pre-trial dismissal can nevertheless withstand a post-trial motion for arrest of judgment.

For example, the failure to include an essential element of a crime does not necessarily render an indictment so defective that it will not support a judgment of conviction when the indictment references a specific section of the criminal code which sufficiently details all the elements of the offense. McClamrock v. State, 374 So.2d 1076 (Fla. 2d DCA 1979). In this case the indictment specifically referenced section 794.011(3), Florida Statutes. By referencing section 794.011(3), which specifically defines all the elements of the offense, the indictment placed DuBoise on adequate notice of the crime being charged. Cotton v. State, 395 So.2d 1287 (Fla. 1st DCA 1981). Indeed the trial judge in this case specifically found that DuBoise was not misled or embarrassed in the preparation of his defense. See Fla.R.Crim.P. 3.140(o). We therefore find that the trial court erred in granting the motion to arrest the judgment."

Outcome: Defendant was found guilty and was sentenced to death.

Plaintiff's Experts:

Defendant's Experts:

Comments: DNA analysis of newly-discovered evidence "affirmatively excluded him Gov" as a suspect. Governor DeSantis approved a bill awarding DuBoise $1.83 million in damages ($50,000 a year).