Smith v. State, Z--100

Citation344 So.2d 915
Decision Date06 April 1977
Docket NumberNo. Z--100,Z--100
PartiesReginald Evans SMITH, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Walter G. Arnold, of Arnold, Strarford & Booth, Jacksonville, for appellant.

Robert L. Shevin, Atty. Gen., Wallace E. Allbritton and Richard L. Wilson, Asst. Attys. Gen., for appellee.

BOYER, Chief Judge.

Appellant was indicted for first degree murder, tried by a jury and convicted of second degree murder. He now urges several grounds for reversal, claiming that: The attempted cover-up of the murder became a feature and the homicide an incident of the trial; his wife, in derogation of the marital privilege, was allowed to testify as to certain statements made by him to her; the prosecutor made prejudicial comments in his opening and closing statements to the jury; and the instructions given to the jury were deficient because the jury was misled as to a killing committed by virtue of unrestrained passion or ungoverned temper, and because the jury was not read an instruction relative to the testimony of an accomplice contended to be applicable to the wife's testimony.

On June 30, 1974, appellant shot and killed Jose Fernandez DeCastro. The state established that on that date, shortly after appellant left his home to go to his place of employment, his wife received a telephone call from DeCastro, who then proceeded to appellant's home where he picked up Mrs. Smith. The couple visited a local nightclub where they had a drink, danced, and talked. When they returned to appellant's residence around 20:00 a.m., the telephone was ringing. When Mrs. Smith picked up the phone and discovered that there was no one at the other end, she realized it was her husband who had the habit of checking up on her by calling her up and then putting the telephone on hold. When she hung up the telephone, appellant immediately called again and inquired where she had been. Mrs. Smith answered that she had been asleep. She then fastened the safety latch on the door and fixed herself and Mr. DeCastro a drink. Appellant, in the meantime, decided to return home. When he arrived, he noticed the DeCastro car parked in front of his house. Looking through the glass partition in the front door he also noticed Mr. DeCastro's boots in the foyer. After attempting to enter the home and finding that the safety latch was secured, appellant kicked the door open, drew his gun and shot DeCastro two times.

In addition to proving the killing itself, largely through the testimony of the wife, the state also sought to present evidence concerning the cover-up of the crime. The wife described in vivid detail how she and her husband removed the body from the home, wrapped it up and buried it in a secluded spot. The defense vociferously objected to such evidence on the grounds of relevancy and materiality, that the evidence showed an independent offense for which appellant was not charged and that it was calculated merely to prejudice appellant without any evidentiary value to prove the offense for which he was charged. The objection was overruled. Defense counsel also objected to testimony of the wife during which she related conversations between herself and her husband occurring after the shooting, the ground of objections being that such testimony invaded the confidential privilege between husband and wife. With but a few exceptions, the objections were overruled.

The defense asserted at and before trial the defense of temporary insanity and that appellant could at worst be found guilty of manslaughter. The psychiatrists called by the defense supported the insanity theory but the state's psychiatrists testified contra.

Appellant initially claims that the state made the attempted cover-up of the homicide the feature and the homicide an incident of the trial, thereby depriving him of a fair trial. On that point, the wife's testimony is most significant. Her testimony of the events leading up to the homicide and of the homicide itself, contained in 37 pages of trial transcript, is concise yet descriptive. Her testimony of the burial of the body and cover-up, covering 115 pages of trial transcript, presents an intricately drawn picture of the words and deeds of appellant from the time immediately after the homicide until his arrest. Specifically, the wife told how she and her husband disposed of the body, using plastic garbage bags, cords, mattress covers, a shovel, and an ax; how, after the body was buried, they disposed of the deceased's automobile and returned home where, after showering and changing clothes, they went to a country club for dinner; how, the next day, they burned the couch upon which the victim was sitting when he was shot and concealed the remains thereof. In short, the wife's version of the attempted cover-up was both extensive and complete.

Upon careful consideration of the trial testimony, we have concluded that the inquiry conducted by the state concerning the cover-up transcended the bounds of relevancy and became a feature of the case instead of the crime charged in the indictment. (See Williams v. State, 117 So.2d 473 (Fla.1960).) Numerous decisions have applied the so-called Williams rule. (See Simmons v. Wainwright, 271 So.2d 464 (Fla.1st DCA 1973); Randall v. State, 239 So.2d 81 (Fla.2d DCA 1970); Lucas v. State, 257 So.2d 261 (Fla.1st DCA 1971).)

The state counters that evidence of the cover-up was to show the state of mind of the accused, relevant in light of appellant's insanity defense. Appellant concedes, and we agree, that the state was entitled to show that the body of the deceased was removed from the home and buried in a secret location, and that appellant tried to conceal the homicide. The issue, however, is not resolved by a bare finding of relevancy. We have held in other contexts that the trial court must engage in a balancing process to determine whether the relevancy of certain evidence is outweighed by the potential prejudice to the defendant. (See Josey v. State, 336 So.2d 119 (Fla.1st DCA 1976); see also Dodson v. State, 334 So.2d 305 (Fla.1st DCA 1976); and Colbert v. State, 320 So.2d 853 (Fla.1st DCA 1975).) Although it is extremely difficult to delineate the exact point at which the state may be said to have gone too far in the presentation of collateral matters, we can identify certain factors that are helpful in balancing the relevancy of evidence of collateral matters against the potential prejudice to a defendant. One factor is the issue of relevancy itself. To what extent is the objectionable evidence relevant? Clearly, testimony as to the events occurring immediately subsequent to the homicide are relevant to the insanity issue. Evidence that appellant acted coolly and calmly after the shooting was consistent with the state's psychiatric testimony that a person who was temporarily insane at the time of the homicide would continue to remain in that condition for some time afterwards. However, the objectionable evidence, relating to deeds after the killing, would not be relevant to the issue of whether the crime was committed in such a heinous manner as to justify the death penalty. (See Halliwell v. State, 323 So.2d 557 (Fla.1975).)

A second factor is the necessity of the testimony. How important is the testimony to the state's case? Sub judice, appellant had conceded that the killing and cover-up had occurred, and indicated that he was relying on extenuating circumstances as his defense. Consequently, the state's need to introduce every shred of evidence and every word of testimony at its disposal was reduced.

A third factor might be termed 'quality of testimony'. Was the testimony directly related to the material issues of the case, or was it more inclined to demonstrate the bad character of the accused, thereby unduly prejudicing him? Sub judice, some aspects of the testimony presented at trial could have served no purpose other than to assault appellant's character. Illustrative of such evidence is testimony concerning appellant dragging the body of the deceased to the clandestine grave site, his jumping on the victim's knees in order to flatten them out in the grave, and throwing away the deceased's bibles, prayer books, screwdriver and class ring.

The several factors discussed and applied above are by no means exclusive. They should be, however, helpful analytically and have aided this court in arriving at our decision in this case. The inescapable conclusion is that the State engaged in overkill and that thereby appellant was deprived of a fair trial.

Appellant further urges, on the basis of the marital privilege, that the wife should not have been allowed to testify as to certain comments made to her by appellant after the shooting. 1 Over appellant's objection, the wife was permitted to testify that immediately after killing Mr. DeCastro, appellant, when asked by his wife what he had done, replied, 'I killed him.' In other conversations as related by the wife, appellant told her to lock up the cat and keep it away from the victim's body, instructed his wife as to the method of removing the body so that if an investigator should come by the house the body would not be found, stated how the body should be buried so that it would never be found, and informed her that the couch on which the deceased had been sitting when killed would have to be burned. The trial court determined that most of the statements made by appellant to his wife after the shooting would be admissible on the basis that the statements were made not by reason of the existence of the marital relationship, but because his wife happened to be the person who had witnessed the murder and cover-up.

The commonlaw privilege regarding confidential communications between husband and wife has been consistently followed in Florida. The policy underlying the marital privilege was well expressed in Mercer v. State, 40 Fla. 216,...

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