Gibbs v. State, 6975

• Decision Date: 06 January 1967
• Docket Number: No. 6975,6975
• Citation: 193 So.2d 460
• Court: Florida District Court of Appeals
• Parties: William Russell GIBBS, Appellant, v. STATE of Florida, Appellee.

Page 460

193 So.2d 460

William Russell GIBBS, Appellant, v. STATE of Florida, Appellee.

No. 6975

District Court of Appeal of Florida, Second District.

Jan. 6, 1967.

Goldburg, Putney, Taylor & Hampton and Manuel M. Garcia, Tampa, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

ADKINS, JAMES C., Jr., Associate Judge.

Defendant was tried upon an indictment charging him with the offense of first degree murder by shooting Robert Earl Catrett. He was convicted of murder in the second degree and sentenced to twenty years in the state penitentiary, from which judgment and sentence he appeals to this court.

While negotiating a lease, Donald Everett Walker, an uncle of deceased, occupied property owned by defendant. The lease negotiations failed and Walker decided to move from the premises on Labor Day, 1965. The defendant met Walker and his nephew, Catrett, at the premises in the morning for the purpose of opening the premises and permitting Walker and Catrett to remove personal belongings from the premises. Apparently the parties were amicable during the morning.

In the early afternoon Walker and Catrett returned to the premises and proceeded to load their truck with some lumber. The defendant arrived and told them they could not have the lumber. Conflicting descriptions were given of the events transpiring after this dispute arose.

Walker testified that no conversation took place between defendant and deceased; that the only conversation was a calm statement by defendant that they could not have the lumber and a calm statement by Walker that the lumber had been given to his nephew Catrett; that there was no argument; that Catrett suddenly reached for defendant's hand and a shot was fired into the ground; that he saw a gun in defendant's hand; that Catrett and defendant tussled and during the tussle two more shots were fired, striking Catrett.

Buddy Wells, a 69 year old Negro who was working nearby, testified that loud cursing attracted his attention; that he then saw Walker, Catrett and defendant tussling with each other; that he heard gunshots and immediately went to the nearest house.

Defendant who was 70 years old and suffering from a heart condition, did not testify. Catrett was 33 years of age and in good health.

Much of the voir dire examination was conducted by the Court. Although there is nothing in the law to prohibit the court itself from conclusively conducting such examination, yet the most convenient and better practice sanctioned by long usage, is to allow such examinations to be conducted by the counsel in the cause, the court judicially supervising, directing, supplementing or rectifying the same. Pinder v. State, 27 Fla. 370, 8 So. 837, 26 Am.St.Rep. 75; Jones v. State, 35 Fla. 289, 17 So. 284.

During the course of the examination the court made the following statement:

'Now, there is one test that the Court can suggest to you that you could apply along with any other test that you might think would be reasonable in determining whether or not you can be fair and impartial as a jury in this case, and that test is this: That if you were here this morning, not as a Juror but as the defendant or the attorneys representing the state, either one, would you be satisfied that you'd get a fair trial if every member of the Jury Panel that was going to try your case had the same state of mind that you have as you sit there now.'

The purpose of the examination of jurors on the voir dire is to ascertain the qualifications of the persons drawn as jurors, and whether they would be absolutely impartial in their judgment. 14 F.L.P. Jury, § 114. The examination should be so varied and elaborated as the circumstances surrounding the jurors under examination in relation to the case on trial would seem to require in order to obtain a fair and impartial jury whose minds are free of all interest, bias or prejudice. Pope v. State, 84 Fla. 428, 94 So. 865; Pinder v. State, 27 Fla. 370, 8 So. 837, 26 Am.St.Rep. 75.

It is improper to ask a juror if his mind is in the same state he would like the juror's mind to be in if he, the juror, were being tried. 14 F.L.P. Jury, § 139; Roberts v. State, 94 Fla. 149, 113 So. 726. The suggestion of this test by the court was clearly erroneous, as a juror does not possess the right to pass upon questions touching his qualifications to serve in a particular case. That prerogative rests with the court. See Story v. State, 53 So.2d 920 (Fla.1951).

After suggesting the above test, the court added:

'That is, that you presume the defendant to be innocent, and you are going to seek the truth--verdict--that is what verdict means, the truth; that you are going to seek the verdict based on the evidence that comes before you in the courtroom, the testimony and any other evidence that might be admitted by the Court. That doesn't mean that you are going to be friendly to the defendant, or friendly to the State, or anything like that; it just simply means as you sit there right now, you have only one desire, and that is to seek the truth based on the evidence, and if at any time any one of you has a feeling that you cannot do this, you have an obligation to make that known to the Court.'

Jurors are required to consider all the evidence in a case and from it, And from the law as charged them by the Court arrive at a verdict. A verdict is the determination of the jurors after applying their findings of fact to the law given in charge by the court. The latter statement of the court lessens the importance of the instructions of the court...