Abbott v. State

• Decision Date: 25 May 1976
• Docket Number: No. 74--1791,74--1791
• Citation: 334 So.2d 642
• Parties: Dalton ABBOTT, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 642

334 So.2d 642

Dalton ABBOTT, Appellant, v. The STATE of Florida, Appellee.

No. 74--1791.

District Court of Appeal of Florida, Third District.

May 25, 1976.

Rehearing Denied July 29, 1976.

Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Steven Ginsburg, Legal Intern; Richard E. Gerstein, State's Atty., and Lance R. Stelzer, Asst. State's Atty., for appellee.

Before PEARSON, HENDRY and NATHAN, JJ.

PER CURIAM.

The appellant, Dalton Abbott, was one of the defendants in an information which charged him in two counts. Other defendants were charged in other counts. Defendant Abbott was charged with conspiracy to commit a felony, to-wit: accessory after the fact and with being an accessory after the fact to the crimes of grand larceny, forgery and uttering forged instruments. He was found guilty by a jury, adjudication and sentence were entered and this appeal ensued.

The principal defendant at the trial of the seven defendants was S. K. Bronstein who was charged in sixty-three counts with appropriation of monies belonging to Cedars of Lebanon Hospital Corporation, an institution in Miami, Florida. In substance, those counts charged that Bronstein, the President of the Cedars of Lebanon Hospital Corporation, wrongfully caused that hospital to issue twenty-one checks to various payees, which were fraudulently endorsed and cashed and the proceeds of which were appropriated by Bronstein.

Abbott has presented four points for our consideration in this appeal. We have studied the voluminous record of the trial court proceedings in this cause and we conclude that none of the points demonstrates reversible error. All four points will be discussed in this opinion.

The first point is whether the trial court erred in denying a co-defendant's motion for continuance based on television and newspaper publicity prior to trial. It is a general rule that the trial judge is vested with broad discretion in matters of a requested continuance, and by virtue of his closeness and intimacy with the circumstances of the case he will not be reversed on appeal unless there is a clear showing of a palpable abuse of this judicial discretion. Matera v. State, Fla.App.1969, 218 So.2d 180; Sikes v. State, Fla.App.1973, 280 So.2d 17.

During voir dire examination of the prospective jurors, each juror was asked whether he/she had heard, read or seen anything about the case. Those who replied affirmatively were asked whether or not what they observed caused them to form an opinion as to the guilt or innocence of the defendants. Of the sixty-five persons who had some form of knowledge about the case, only seven responded that they had formed an opinion, and two were not sure whether they had an opinion. Four of these nine were promptly excused for cause based on their statements of opinion. The other five were ultimately excused and formed no part of the final jury panel. The remaining prospective jurors (fifty-six) all stated that they had formed no opinion as to the guilt or innocence of any of the defendants. The panel indicated that they understood that what was read or seen outside of court did not constitute evidence, and they agreed to consider only the evidence presented at trial. The jurors were asked if they could lay aside anything they may have read, observed or heard, or any feelings they might have. The response was affirmative. Affirmative response also came when questioned if they could give both the defendants and the State a fair and impartial trial. The jurors promised to consider each individual defendant separately. As to the television publicity, only sixteen prospective jurors saw anything at all about the case. At least thirty-four jurors saw absolutely nothing. Of those that saw anything on television, what they saw was characterized by the jurors themselves as: a glimpse, a few times, very little, no court proceedings, once over a month ago, twice, but nothing recently, and no opinion of what was seen, a little, but didn't learn from it nor remember. On the question of newspaper publicity, some of the jurors stated they seldom or hardly read the newspaper. Others restricted their readings to such sections as sports, television, comics and horoscopes. Others managed to 'glance' through the newspaper or see headlines relating to the case. These people did not read any of the articles. Most of these people were not interested in what they read, did not remember anything, and only noticed anything several months prior to the trial when the story first broke. Only a few answered that they read articles relating to the case. Of all of the jurors who indicated they had heard or read something about the case, none of them knew of defendant Abbott, appellant herein.

In a case such as this, when the publicity is neither inherently inflammatory nor the circumstances of the case egregiously prejudicial, the declarations of the jurors as to their impartiality must be dispositive unless the appellant surmounts the burden of showing actual substantial prejudice to him from trial before the jury. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Gordon v. United States, 5th Cir. 1971, 438 F.2d 858; United States v. D'Andrea, 3rd Cir. 1974, 495 F.2d 1170, 1172 fn. 5. Based on the foregoing, we find that the trial judge did not abuse his discretion in denying the motion for continuance based on pretrial publicity.

The second point is whether the trial court erred in denying the defendant's motions for severance made prior to and during the course of the trial. The thrust of this point is a 3-pronged attack, contending (1) that the trial court erred in denying Abbott's motion for severance seeking relief from misjoinder; (2) that the trial court erred in denying his motion for severance where it was shown that Bronstein, the principal defendant, charged with 63 counts of larceny, forgery and uttering forged instruments, would give exculpatory testimony on behalf of Abbott if a severance were granted; and (3) that the trial court erred in denying Abbott's motions for severance seeking relief from prejudicial joinder because evidence irrelevant to Abbott was introduced against Bronstein which was prejudicial to Abbott, and because verbal exchanges between Bronstein's counsel and the prosecutors, in the presence of the jury, rendered a fair trial for defendant Abbott impossible.

On the question of misjoinder, Rule 3.150(b), Florida Rules of Criminal Procedure, provides:

'(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information upon which they are to be tried:

(1) when each defendant is charged with accountability for each offense charged;

(2) when each defendant is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy; or

(3) when, even if conspiracy is not charged and all defendants are not charged in each county, it is alleged that the several offenses charged were part of a common scheme or plan.

Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.'

Rules 3.150, 3.151 and 3.152 of the Florida Rules of Criminal Procedure provide for one trial in instances involving related offenses as well as those instances involving several defendants charged with the same offense. Certainly, conspiracy to cover up a larceny is a related offense. In Wilson v. State, Fla.App.1974, 298 So.2d 433, 434--435, the rule is stated that joinder is not proper unless:

'. . . the charging document makes one of the following allegations: (a) each defendant is charged with accountability for each offense, or (b) ...