Francois v. State
| Citation | 407 So.2d 885 |
| Decision Date | 15 October 1981 |
| Docket Number | No. 54461,54461 |
| Parties | Marvin FRANCOIS, Appellant, v. STATE of Florida, Appellee. |
| Court | United States State Supreme Court of Florida |
Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, Miami, for appellant.
Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee.
This cause is before the Court on appeal of a judgment of the Circuit Court of the Eleventh Judicial Circuit, Dade County, which adjudicated the appellant guilty of six counts of murder in the first degree, along with additional crimes, pursuant to which six sentences of death were imposed upon him. This Court has jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Const.
The appellant was convicted on six counts of first-degree murder, two counts of attempted first-degree murder, and three counts of robbery. The evidence showed that in the early evening of July 27, 1977, John Errol Ferguson gained admittance to the home of Livingston Stocker in the Carol City section of Miami by posing as a power company employee. Margaret Wooden was present in the home at the time. After entering, Ferguson bound Wooden's hands and blindfolded her. Then he admitted Beauford White and the appellant Marvin Francois. The three men searched the house for valuables, taking some firearms and some of Margaret Wooden's jewelry. Then the three men covered their faces with masks.
Shortly thereafter Livingston Stocker arrived home with five friends-Henry Clayton, Johnny Hall, Randolph Holmes, Charles Stinson, and Gilbert Williams. The intruders tied the six men up and took their valuables. Still later Michael Miller, Livingston Stocker's nephew, arrived at the house. He too was tied up and robbed.
The appellant's mask then slipped off and he declared that all the victims would have to be killed. Ferguson took Margaret Wooden and Michael Miller into a bedroom and shot them both in the head with a pistol. Appellant Francois took the other six victims into another bedroom, made them lie down on the floor, and shot them each in the head with a shotgun.
After the three attackers departed, Margaret Wooden ran to a neighbor's house to call for help. When the police arrived they found Johnny Hall crawling toward the back door of the house. Both Wooden and Hall survived and testified at trial. The other six victims died. At trial, Johnny Hall identified the appellant as the man who shot him and five others with a shotgun. Theresa Rolle testified that Francois admitted to her his participation in the murders.
Adolpus Archie testified that he took Francois, Ferguson, and White to Stocker's home in his car and waited for them down the street. He testified further that it was unnecessary for him to pick the other three up and drive them away since they departed the scene in Stocker's car. Archie met the other three later and assisted in disposing of evidence. He testified that appellant Francois told him that the real purpose of the venture was not robbery but murder. Francois stated further, according to Archie's testimony, that he and Ferguson had done the shooting. Archie pled guilty to second-degree murder and received a sentence of twenty years imprisonment.
Prior to trial, appellant moved to dismiss the indictment on the ground that it was issued by a grand jury selected under a procedure that systematically excludes minorities from participation. He moved also for an evidentiary hearing on the motion, and for discovery of the master list from which grand jurors are drawn.
Appellant, in essence, presents three issues on appeal of the judgments of conviction. He contends first that the evidence presented at trial was insufficient to support the judgments of conviction. We find, however, that the judgments were rendered pursuant to jury verdicts that were based on competent, substantial evidence. Appellant's first argument is without merit.
Secondly, appellant argues that he should have been granted a new trial because of newly discovered evidence and because the evidence in question was known to the state at the time of trial but not disclosed to him. Appellant's motion for new trial alleged that shortly before sentencing a woman named Sheila Walker approached defense counsel and said that appellant was with her at 11:00 p.m. on the night of the murders. The motion asserted that this was newly discovered evidence and that the state had suppressed information concerning the identity and whereabouts of this witness. If anyone had known about this witness and her possible value to the accused for alibi purposes, however, it would have been the defendant. Furthermore, the evidence showed that the murders were committed well before 11:00 p.m., so the testimony it was alleged the witness would give would not have been probative and would not have changed the outcome. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). Therefore, appellant's contentions on this issue are without merit.
Thirdly, appellant contends that the judgments must be reversed because to try a defendant under an indictment returned by a grand jury from which persons of a particular race have been systematically excluded denies equal protection of the law. Appellant's motion to dismiss alleged that there had been for a number of years a substantial disparity between the percentage of blacks and Hispanics in Dade County's eligible population and the percentage serving on grand juries. He contends that in order for him to have made out a prima facie case of discriminatory selection, which would have required a showing of justification from the state, he needed to have access to the grand jury master list and also should have been afforded an evidentiary hearing.
Appellant argues that his affidavits and proffered exhibits demonstrated a disparity that was unlikely to be due to chance, thus entitling him to discovery of the master list and an evidentiary hearing. See Castanda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Dykman v. State, 294 So.2d 633 (Fla.1974); Rojas v. State, 288 So.2d 234 (Fla.1973); Seay v. State, 286 So.2d 532 (Fla.1973), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974). In response the state argues that the appellant waived his right to raise this issue by not timely filing his motion. The state refers us to section 905.05, Florida Statutes (1977), which provides:
A challenge or objection to the grand jury may not be made after it has been empaneled and sworn. This section shall not apply to a person who did not know or have reasonable ground to believe, at the time the grand jury was empaneled and sworn, that cases in which he was or might be involved would be investigated by the grand jury.
We find that this statute does not apply to the instant case. Rather, we conclude that the time limit for the filing of the motion to dismiss was governed by Florida Rule of Criminal Procedure 3.190(c), which provides that a motion to dismiss is to be made either before or upon arraignment unless the court grants further time. The motion here was timely filed because the court granted the appellant additional time in which to file his motion.
Although we find that the motion was timely filed, we hold that appellant waived his right to appeal the denial of his motions for discovery, for a hearing, and to dismiss the indictment, by failing to diligently pursue the matter and by inducing the trial court to rule against him. The record shows that appellant's motion came up for consideration at a pre-trial hearing held January 3, 1978, at which other motions were argued. At that hearing appellant's counsel stated:
The only other motion that I filed is the motion to dismiss the Grand Jury indictment based on the Blue Ribbon Grand Jury and requesting an evidentiary hearing on that point, but it-I am going to forego any arguments on that. In fact, I am not going to ask for a hearing on it until a later date simply because I do not think there is any way I can get this case to trial by next week.
Transcript of Proceedings, vol. I, at 12-13. Further pre-trial hearings were held on February 21 and 23, 1978, and again the matter was not brought up by defense counsel. On February 27 defense counsel declared that he was ready for trial. However, the trial was not finally scheduled to begin until April 17. On that day defense counsel, Mr. Diamond, brought the motion to dismiss to the court's attention and the following exchange ensued:
MR. DIAMOND: Your Honor, just before we start on the motion to suppress, I am not sure what pretrial motions have at this point been granted and have not, because of the fact that we have three defendants. Now there are four. Well, four defendants have been charged throughout.
There were motions to adopt based on all motions previously filed. I filed a motion to dismiss the grand jury indictment in this case originally. I believe it was dismissed-I mean, it was not dismissed by this Court. It was dismissed in other courts with regard to these defendants. This Court did not dismiss the indictments against them.
Transcript of Proceedings, vol. I, at 40.
This exchange reveals that defense counsel practically invited the court to rule against him. A favorable ruling on the motion would have resulted, possibly, in the convening of a new grand jury and the issuance of a new indictment, or at least in a delay of the trial for purposes of discovery or an evidentiary hearing or both. Yet the record also reveals that appellant and his counsel did not press for a pretrial ruling because they did not want to delay the trial. The defense tactic was to delay the deciding of the claim of grand jury...
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