CHRISTOPHER W. KIRALY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a subsequent voluntary confession is admissible even if preceded by an involuntary one, and that a defendant cannot impeach on cross-examination about a confession after defense counsel opened the door.
The appellant, a minor, was convicted of first-degree murder after his juvenile jurisdiction was transferred to circuit court. He appealed the admissi…
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The appellant, defendant in the trial court, was arrested and charged with murder in the first degree. At the time of his arrest he was 16 years of age. Jurisdiction over the appellant was in the juvenile and domestic relations court which, after hearing, transferred jurisdiction to the circuit court pursuant to § 39.02(6), Fla.Stat., F.S.A. The appellant was tried by a jury on a charge of murder in the first degree, and the jury returned a verdict of guilty with a recommendation of mercy. The appellant is now seeking review of the conviction and life sentence entered pursuant to the jury verdict.
The appellant has raised two points for review on this appeal. The first point alleges error in the admission into evidence the testimony of one Thomas Cundiff (who was under arrest for a capital offense) regarding an alleged confession made to him by the appellant. The alleged error is based on alleged failure of the State to show the circumstances surrounding a prior illegally obtained confession had been removed at the time the appellant allegedly confessed to Cundiff. The second point alleges the trial court errered in permitting the State to impeach the appellant on cross-examination by use of the aforementioned illegally obtained confession.
As to the first point, it is clear that the time and circumstances under which the first confession was made are totally different from those existing at the time the appellant made the incriminating statements to Cundiff. The first confession was made within hours after the ap*313pellant’s arrest, and was made subsequent to intensive interrogation by police officers pending arrival of the attorney requested by the appellant and his father. Under these circumstances, the trial court properly held the confession inadmissible. However, the second confession was made some five months after the arrest and subsequent to the appellant being provided with counsel. It is uncontradicted that the confession made to Cundiff was unsolicited and voluntary. It was not given in the presence of police officers and Cundiff had not been induced to solicit a confession from the appellant. In ruling on the proffer of Cundiff’s testimony,1 the trial court correctly determined the confession did not refer to the initial illegal confession. Therefore, it appears that the relation between the earlier, and admittedly, involuntary confession and the confession made to Cundiff was so dissimilar in character that it cannot be said the latter confession was tainted with the first and, therefore, inadmissible. State v. Outten, Fla.1968, 206 So.2d 392; United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L. Ed. 1654. See also: Schneble v. State, Fla.1967, 201 So.2d 881; Biglow v. State, Fla.App.1967, 205 So.2d 547. While the testimony before the jury differed from the proffer,2 appellant’s counsel failed to raise timely objection thereto. Robertson v. State, 94 Fla. 770, 114 So. 534.
The appellant’s second point is without merit. Generally, an involuntary confession may not be used to impeach a witness. Dedge v. State, 68 Fla. 240, 67 So. 43; Crawford v. State, 70 Fla. 323, 70 So. 374; Morris v. State, 100 Fla. 850, 130 So. 582. However, in the instant case, testimony elicited from the appellant by defense counsel on direct examination made reference (for the first time) to an admission of guilt made to certain detectives.3 None of the prosecution witnesses had testified to this fact. Therefore, as the defense had opened the door to line of questioning, the State could properly pursue the subject on cross-examination. Ivey v. State, 132 Fla. 36, 180 So. 368; Cf. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344. Furthermore, defense counsel failed to timely object to such cross-examination but, rather, proceeded to inquire further into the subject on redirect. As a result, the appellant cannot be heard to object thereto by this appeal. Walker v. *314State, 152 Fla. 455, 13 So.2d 4; Montalvo v. State, Fla.App.1963, 154 So.2d 713.
Therefore, for the reasons above stated, the conviction and sentence here under review be and the same is hereby affirmed.
Affirmed.
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Errol Resnick v. State, 287 So. 2d 24 (Fla. 1973)…e accused for the purpose of impeaching his credibility, even though such statements were inadmissible to establish the prosecution’s case-in-chief under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Accord Kiraly v. State, 212 So. 2d 311 (3d D.C.A.Fla.1968). It is perhaps a sad comment on the times and on the practices of the system of justice, that in a case in which there was a great deal of evidence leading towards conviction, the State would have chosen to suppress evidence fav…
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Wimberly v. State, 393 So. 2d 37 (Fla. 3d DCA 1981)…v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Nash, 563 F. 2d 1166 (5th Cir.1977); Gilpin v. United States, 415 F. 2d 638 (5th Cir.1969); Harney v. United States, 407 F. 2d 586 (5th Cir.1969); Kiraly v. State, 212 So. 2d 311 (Fla.3d DCA 1968). Defendant Wimberly contends the confession was the product of the earlier statement, the fruit of the poisonous tree, French v. State, 198 So. 2d 668 (Fla.3d DCA 1967), and should have been suppressed. Examining the totality of c…
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Thomas v. State, 216 So. 2d 780 (Fla. 3d DCA 1968)…as no objection made in the trial court to the introduction of this evidence [Walker v. State, 152 Fla. 455, 13 So. 2d 4; Montalvo v. State, Fla.App.1963, 154 So. 2d 713; Simpson v. State, Fla.App.1968, 211 So. 2d 862; Kiraly v. State, Fla.App.1968, 212 So. 2d 311], but it appears that counsel for the appellant stipulated that the funds belonged to the entity described in the information and no objection nor assignment [*782] of error was filed. This point is found not to he well taken and the judgment here u…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Rogers v. United States, 340 U.S. 367 (U.S. 1951)
- United States v. Bayer, 331 U.S. 532 (U.S. 1947)
- Morris v. State, 100 Fla. 850 (Fla. 1930)
- Robertson v. State, 94 Fla. 770 (Fla. 1927)
- Williams v. Barron Roofing Co., 206 So. 2d 392 (Fla. 1968)
- State v. Outten, 206 So. 2d 392 (Fla. 1968)
- Crawford v. State, 70 Fla. 323 (Fla. 1915)
- Ivey v. State, 132 Fla. 36 (Fla. 1938)
- Schneble v. State, 201 So. 2d 881 (Fla. 1967)
- Walker v. State, 152 Fla. 455 (Fla. 1943)