377 So.2d 640 (Fla. 1979), 49668, Lewis v. State

Docket Nº:49668.
Citation:377 So.2d 640
Opinion Judge:Author: Per Curiam
Party Name:Enoch LEWIS, Jr., Appellant, v. STATE of Florida, Appellee.
Attorney:Emmett A. Moran, Winter Park, for appellant.
Case Date:November 01, 1979
Court:Supreme Court of Florida

Page 640

377 So.2d 640 (Fla. 1979)

Enoch LEWIS, Jr., Appellant,


STATE of Florida, Appellee.

No. 49668.

Supreme Court of Florida.

November 1, 1979

Rehearing Denied Jan. 8, 1980.

Page 641

Emmett A. Moran, Winter Park, for appellant.

Jim Smith, Atty. Gen., and George R. Georgieff and Raymond L. Marky, Asst. Attys. Gen., Tallahassee, for appellee.


This cause is an appeal from a judgment of guilty of murder in the first degree and sentence of death entered by the Circuit Court for Orange County, Florida. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Enoch Lewis, Jr., appellant, was indicted for the first degree murder of Essie Lee Martin on November 28, 1975. The case came to trial on May 3, 1976, in the Circuit Court for Orange County, Florida.

The following facts emerged: Appellant and Martin had been friends for twenty years, but according to appellant their friendship had diminished in the six months preceding the shooting because Martin wanted money appellant had received from an insurance claim. Appellant testified that Martin and another friend, David Swift, repeatedly threatened him. Thomas McCann of the Orange County Sheriff's Department testified that approximately two months before the shooting he investigated a complaint by appellant that Swift had threatened him. McCann also testified, however, that appellant had not implicated Martin in the threats.

Martin's daughter and son witnessed the shooting. The daughter and son testified that the appellant drove up in a car and began talking with Martin; that after talking

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for several minutes, appellant pulled out a gun and shot Martin several times; and that appellant continued to shoot Martin as the latter attempted to flee.

In support of a claim of self defense, appellant testified that on the day of the shooting he was carrying a gun because he was going to his cousin's house to kill a hog. Appellant testified that as he was driving past Martin's house, Martin flagged him down and said, "I told you I was going to kill you," and that believing Martin was about to shoot him, he shot Martin first.

The jury rendered a verdict of guilty of murder in the first degree and, during the sentencing phase of the proceedings, returned an advisory sentence of death. Appellant was sentenced to death by the trial judge who, in his findings of fact in support thereof, noted the following aggravating circumstances pursuant to section 921.141, Florida Statutes (1975): (1) that appellant had been previously convicted of a felony involving the use or threat of violence to the person (subsection (5)(b)); (2) that appellant had knowingly created a great risk of death to many persons (subsection (5)(c)); and (3) that the crime was especially heinous (subsection (5)(h)). As the sole mitigating factor, the trial judge found that appellant had no significant history of prior criminal activity (subsection (6)(a)).

Five issues are presented for our consideration with respect to the propriety of appellant's conviction for murder in the first degree: (1) whether the questioning of a prospective alternate juror by the state's attorney during voir dire resulted in an impermissible comment upon the credibility of law enforcement officers as witnesses; (2) whether it was error to permit the wife of the victim to testify as to the latter's identity and whether she, as well as the victim's two children, were properly permitted to reveal their relationship to the deceased in their testimony; (3) whether appellant's witness, David Swift, was improperly qualified as a character witness as to appellant and, if so, whether such precluded inquiry by the prosecutor into specific acts of the accused; (4) whether the state's attorney's closing argument to the jury constituted a prohibited "golden rule" argument; and (5) whether the trial court erred in declining to instruct the jury on the offense of aggravated battery.

For the reasons hereinafter expressed, we affirm the conviction of appellant for murder in the first degree.

In his first point on appeal, appellant contends that a question propounded by the state's attorney to a prospective alternate juror during voir dire proceedings and in the presence of the rest of the venire, constituted an impermissible suggestion that the jury should more readily believe the testimony of a police officer than that of a lay witness. A reading of the disputed inquiry, however refutes this contention of appellant. In questioning the prospective alternate juror, a former law enforcement officer, the state's attorney asked:

(B)efore you heard any of the testimony, could you look at each witness' testimony with an open mind or do you think that your experience with the Winter Park Police Department has just given you a predisposition so that you could know that the police officers are always correct and always accurate and you would believe a police officer against someone else no matter what the circumstances are?

The prospective juror responded in the negative. This question did not contain a suggestion that the testimony of a police officer should be given greater weight than that of a lay witness. Rather, it was a proper and, indeed, highly commendable inquiry by the prosecutor as to any favorable bias which this former law enforcement officer and prospective alternate juror might possess with regard to a witness who was of the same profession. The purpose of the voir dire proceeding is to secure an impartial jury for the accused. See Pope v. State, 84 Fla. 428, 94 So. 865 (1923); Hunt v. State, 330 So.2d 502 (Fla.3d DCA 1976); Barker v. Randolph, 239 So.2d 110 (Fla. 1st DCA 1970); Gibbs v. State, 193 So.2d 460 (Fla.2d DCA 1967). Consequently, the possible bias of a member of the jury venire

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which, as here, might affect the fairness of the trial of the accused, is clearly a proper ground of inquiry during this proceeding.

Appellant next challenges the fact that the wife of Essie Lee Martin, the victim, was permitted to testify that she identified the deceased as her husband at the Orange County morgue. It is argued that McKinley Lewis, a friend of the deceased and witness to his shooting, should instead have been called to testify with respect to the identity of the deceased. We are cognizant of the well-settled principle of law that a member of a murder victim's family may not testify for the purpose of identification of the deceased where a nonrelated witness is...

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