Proffitt v. State, 45541
| Decision Date | 28 May 1975 |
| Docket Number | No. 45541,45541 |
| Citation | 315 So.2d 461 |
| Parties | Charles William PROFFITT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James A. Gardner, Public Defender, and Robert T. Benton, II, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
This cause is before the Court on direct appeal from the recommendation and sentencing to death of the appellant, Charles William Proffitt, by the Circuit Court of Hillsborough County, Florida. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.
The appellant was charged by a grand jury indictment with the murder in the first degree of Joel Ronnie Medgebow by stabbing.
The evidence produced at trial established that on the morning of July 10, 1973, at about 4:45 A.M., the decedent's wife, Patricia Kay Medgebow, was awakened, apparently by her husband's moaning. She saw her husband propped up on one elbow with what later was discovered to be a knife in his hand. Suddenly, a man jumped up and struck her in the face several times fleeing through the open sliding glass doors. Fingerprints were later found on the door, however, they did not match the appellant's prints. The decedent's wife gave a description of the assailant but, at trial, she was unable to identify the appellant as the man who struck her on the morning of the homicide. In her description of the assailant, she claimed that he was wearing a white pin-striped shirt and either brown or grey trousers. She stated that on the evening prior to the killing she had shared a marijuana cigarette with four other people.
The testimony of Michael Charles Seary, appellant's coworker, was presented to show that on the night preceding and during the morning prior to the homicide, the appellant and Seary had been out drinking until 3:30 or 3:45 A.M., and that the appellant had driven Seary home, had a brief conversation and left. Seary also stated that at the time, the appellant was wearing a short-sleeved, white Maas Brothers' shirt with a blue oval emblem over the left breast, and grey trousers.
Further testimony revealed that the appellant and his wife lived in a two-bedroom mobile home, renting the other bedroom to a Mrs. Mary Helen Bassett and her infant daughter. Mrs. Bassett testified that on the evening prior to the homicide she had waited up with the appellant's wife for his return until approximately 1:00 A.M., but finally retired prior to his arrival. Over defense counsel's objection, she testified that she was awakened about half past five on the morning of July 10, 1973, and overheard a conversation between the appellant and his wife. She admitted that she did not hear the complete unbroken conversation, hearing only intermittent segments. She stated that she heard the appellant say that he had stabbed and killed a man during an attempted robbery and that he had beaten a woman. Mrs. Bassett also stated that she had not seen the appellant during the conversation but that she had recognized his voice.
Mrs. Proffitt, appellant's wife, testified that on the evening prior to the homicide, her husband had gone to work dressed in a white Maas Brothers' shirt and grey pants and returned from work at about a quarter past five the next morning wearing the same shirt and pants but was at that time barefooted.
A droplet and a smear of human blood were found on the Maas Brothers' shirt, however, the quantity was insufficient to type. The blood found on the knife was shown to be the same type as that of the victim but no fingerprints were detectable.
Upon this evidence, the jury found the defendant guilty as charged. The second half of the bifurcated proceeding was held, at which time it was shown that the appellant had been convicted in 1967 of the crime of breaking and entering without permission. In addition, the evidence adduced at trial was reiterated and the jury then retired to consider the recommendation of sentence. Upon returning, the jury recommended that the death penalty be imposed. The trial judge then ordered a mental examination of the defendant to determine his mental condition then and at the time of the homicide. The examination revealed that at the time of the commission of the homicide, the appellant was not mentally impaired.
The trial judge then sentenced the appellant to death and this appeal ensued.
Appellant has raised eleven points on appeal. Each shall be treated in the order presented. The first two points are devoid of merit. Appellant first contends that the court erred in refusing to allow defense counsel to pursue questions dealing with whether the victim was a dealer in marijuana and whether his death was a result of those dealings. It is clear from reading the record that counsel for the appellant was not attempting to impeach or discredit the witness but rather was taking an expedition into immateriality. The trial judge properly exercised the broad discretion allowed him by limiting the scope of cross-examination. Baisden v. State, 203 So.2d 194 (Fla.App.1967). There is no need to speculate as to the goal of the expedition, however, it is interesting to note that in viewing the evidence sought to be admitted, the only purpose which its introduction would serve would be the confusion of the ultimate issue and the impairment of the fairness of the trial.
Appellant's second alleged error challenges whether the State may recall a witness after the witness has stepped down. The record reveals that the witness had stepped down but had remained sequestered and had not mingled with the public generally. Further, the information solicited upon recall was not critical to either the State's case or prejudicial to the defendant. If any error has been committed, our review of the record clearly indicates that that error, if any, was harmless and within the purview of the statutes. (Fla.Stat., §§ 59.041 & 924.33, 1974).
Appellant's third and fourth points on appeal relate to the admissibility of the testimony of Mrs. Bassett and the challenged privileged character of the conversation she overheard between the appellant and his wife. Appellant first asserts that the record is devoid of any suggestion that either appellant or his wife had any indication that they were being overheard.
The general rule, and clearly the weight of authority is to the effect that testimony of a third party who overhears a confidential communication is admissible. Wigmore on Evidence, Vol. VIII, § 2336. However, it has long been held in this State that privilege of non-disclosure between husband and wife and attorney and client attaches to the conversation or the communication itself, and protects it from exposure in evidence, wheresoever or in whosesoever hands it may be. Mercer v. State, 40 Fla. 216, 24 So. 154, 158 (1898). In Schetter v. Schetter, 239 So.2d 51 (Fla.App.1970), an attorney recorded a conversation he had with his client over the telephone, without telling the client until the end of the conversation. The attorney then gave the recording to a psychiatrist who later testified at a hearing which resulted in the appointment of a guardian ad litem for the client.
The thrust of the opinion in Schetter, reversing the admissibility of that testimony is the assertion basic to the attorney-client privilege, that is, that the communication in question must have been made in confidence. Id. at 52.
The question then in this case, however, is whether it can be determind from the record that the appellant and his wife knew or should have known that their privileged communication was being overheard or whether as the appellant asserts that the record is devoid of any suggestion that the appellant or his wife had any indication that the privileged communication was being overheard. The testimony of the appellant's wife indicates that she was aware of Mrs. Bassett's presence in the trailer on the morning after the homicide. It is equally clear that the appellant knew that she was residing in the same trailer since Mrs. Bassett was paying one hundred dollars a month as rent on the room she and her infant daughter were occupying. Additionally, it is readily apparent from the record that the appellant and his wife were not attempting to keep their voices at an indiscernible level since it was their voices which must have awakened Mrs. Bassett in spite of the fact that her door was closed. The testimony of Mrs. Bassett also shows...
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