Morgan v. State

• Decision Date: 18 March 1982
• Docket Number: No. 54939,54939
• Citation: 415 So.2d 6
• Parties: Floyd MORGAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 6

415 So.2d 6

Floyd MORGAN, Appellant, v. STATE of Florida, Appellee.

No. 54939.

Supreme Court of Florida.

March 18, 1982.

Rehearing Denied July 9, 1982.

Michael E. Allen, Public Defender and Margaret Good, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

FACTS

Appellant was convicted of the murder of Joe Saylor, who was stabbed to death in his cell in Union Correctional Institute at approximately 2:00 a. m. on July 16, 1977. At the time of the murder, appellant was under a sentence of thirty years imprisonment for second-degree murder.

Glynn Griffin, another inmate, testified that at appellant's request he made a knife for him in the prison shop. At the trial Griffin identified a knife as the one he made. The knife was admitted into evidence. Griffin testified further that appellant told him he wanted the knife in order to stab a man who owed him $400 and would not pay.

Dan Helton, one of appellant's cellmates, testified that he, the victim Joe Saylor, and two other prisoners were in their cell in bed and asleep by 12:00 midnight on the night of July 15. Helton testified that he was later awakened by a yell following which a cellmate told him to turn on the light. Then he saw Joe Saylor on the floor covered with blood.

Michael Daly, a prisoner whose cell was nearby, testified that he was sitting at a table in the hall writing a letter that night after most of the other prisoners had gone to sleep. He heard noises from appellant's cell. Then, appellant walked out of the cell. He walked down the hall toward a lavatory. Daly followed him to find out what had happened. In the lavatory, he saw that appellant's right hand was cut on the palm side across the base of the fingers.

William Williamson, who slept in a nearby cell, was reading at 2:00 a. m., he testified, when he heard noises. He went out of his room and saw appellant, whose hand was bleeding. Morgan said, "I killed him."

On the morning of the murder, appellant was interrogated by prison investigators. Inspector Ackett testified that appellant voluntarily made a statement admitting that he committed the murder. That same day, appellant was removed from his residence at Union Correctional Institute and taken to the Lake Butler Reception and Medical Center, where he was confined until September 9, 1977. Then he was transferred to Florida State Prison until his arraignment on January 16, 1978. Appellant was indicted on November 28, 1977, and was represented by counsel at his arraignment.

On May 19, 1978, appellant filed a pro se motion for discharge from the accusation made in the indictment, asserting that the state's failure to afford him a "prompt first appearance" under Florida Rule of Criminal Procedure 3.130(b) and its failure to afford him a probable cause determination under Florida Rule of Criminal Procedure 3.131 and the cited case of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), had denied him due process of law. The trial judge denied the motion without a hearing and declared in his order that he would not consider any more pro se motions of the defendant.

Inmate Helton's testimony included reference to Alvin Robitaille, another of appellant's cellmates. Helton testified that Robitaille was present in the cell when the lights were turned on and Saylor's body discovered. Robitaille was listed by the state as a prospective witness, but was never called to testify. At the conclusion of the evidence, the defense had the "middle" closing argument, preceded and followed by the closing remarks of the state's counsel. After the defense made its closing remarks, the court took a ten minute recess. After court reconvened, the defense asked to briefly re-open its closing argument for the purpose of commenting on the state's failure to call Robitaille as a witness. The court denied this request.

ISSUES ON APPEAL OF THE JUDGMENT OF CONVICTION

Appellant contends that the trial court committed reversible error in failing to ensure the reporting and transcription of all of the proceedings below. He argues that the requirement in section 921.141(4), Florida Statutes (1977), of "certification by the sentencing court of the entire record," together with the constitutional requirement of uniformity in capital sentencing which appellate review is designed to ensure, mandate that all proceedings leading to a judgment of conviction of a capital felony be reported, transcribed, and made a part of the record. Appellant points out that his arraignment, a number of pre-trial hearings, and several bench conferences appear not to have been reported.

The state responds by pointing out that all of the court reporter's notes of proceedings before the trial court were transcribed, made a part of the record, and forwarded to the supreme court for review. The state argues that this complied with section 921.141(4) and Florida Rule of Appellate Procedure 9.200. We sustain the state's position. By certifying the reported and transcribed materials along with all the documents of record, the court complied with the requirement of certification of the "entire record." The fact that parts of the proceedings were not reported has not prejudiced the appeal in this case.

Appellant contends that the trial court committed reversible error in denying his pro se motion to discharge without holding a hearing on the possibility of intentional and prejudicial delay of prosecution. In his testimony on behalf of the state's proffer of appellant's confession, Inspector Ackett testified that following his inculpatory statement, appellant asked to see an attorney. Appellant now argues that the state's delay of over four months in bringing the charge and six months before providing counsel and an appearance before a judicial officer denied him due process of law. He contends that his May 19, 1978 motion raised this issue and should not have been denied without inquiry into the reasons for and the prejudice caused by the delay.

Appellant correctly points out that there are cases where the Due Process Clause is implicated by prosecutorial delay even though neither the defendant's right to a speedy trial nor the applicable statute of limitations are offended. See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla.1978). We do not find, however, that appellant's May 19, 1978 motion was effective to raise the issue of prejudice resulting from the four-month delay between the crime and the indictment occurring the previous summer and fall. If the pre-accusation delay was intentional and prejudiced the defense, and presented an issue of denial of due process, appellant should have moved to dismiss the indictment on that ground as soon as possible after the indictment was returned. Moreover, we find that the delay in the appointment of counsel did not prejudice the appellant.

Appellant contends that the trial court failed to make a sufficiently thorough inquiry into the voluntariness of his confession. In the absence of adequate inquiry, he argues, it was error to admit testimony about the confession and therefore he is entitled to a new trial. Appellant claims that there was an inconsistency between the testimony of the state's witness and the representations of the state's counsel on the question of whether a tape recording of appellant's statement conclusively showed that appellant confessed before asking for an attorney. This argument is without merit. If the tape showed anything that would have raised a question on this issue, appellant could have presented it to the court. The trial court found that the confession was voluntary based on the evidence submitted. The court did not abuse its discretion by not making further inquiry on its own motion. By holding a hearing outside the presence of the jury on the question of the voluntariness of the confession, the court did all that was required to protect appellant's rights under the Fifth Amendment. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We find that the court correctly determined the confession to be admissible.

Appellant contends that the trial court erred in denying his motion to exclude employees of the state prison system from service on the jury. His motion was based on the allegation that Union County, where the trial was held, has a disproportionate share of its eligible population in the employ of the state prison system due to the presence of numerous correctional facilities in that region of the state. Appellant argues that section 40.07, Florida Statutes (1977), which disqualifies sheriffs, deputies, and municipal police officers from jury service, should be construed to apply to correctional officers.

We decline to hold that all correctional officers were intended to be included within the classes of persons disqualified from jury service by section 40.07(2). In their briefs, both parties agree that since appellant did not exhaust all his peremptory challenges to prospective jurors, we are not required to consider whether any juror served who should have been excused for cause. Young v. State, 85 Fla. 348, 96 So. 381 (1923). Nevertheless, we have reviewed the transcript of jury selection. We are satisfied that all persons selected were qualified; none were subject to challenge for cause.

Appellant presents three instances in which he contends the trial court improperly limited his cross-examination of state witness Glynn Griffin. The first instance had to do with Griffin's...