Baisden v. State

• Decision Date: 29 September 1967
• Docket Number: No. 1057,1057
• Citation: 203 So.2d 194
• Parties: Jack Ernest BAISDEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 194

203 So.2d 194

Jack Ernest BAISDEN, Appellant, v. STATE of Florida, Appellee.

No. 1057.

District Court of Appeal of Florida, Fourth District.

Sept. 29, 1967.

Rehearing Denied Nov. 1, 1967.

W. Ted Whidden, Deerfield Beach, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Fred T. Gallagher, Asst. Atty. Gen., Vero Beach, for appellee.

WEISSING, LOUIS, Associate Judge.

This is an appeal from judgment and sentence imposed on a jury verdict finding the Defendant-Baisden guilty of robbery. The defendant appeals, and we affirm. Evidence of guilt is strong; however, the issue on appeal is whether or not the defendant obtained a fair trial.

Six points are raised on appeal. Five are insufficient to warrant treatment by this court by way of opinion. One point raised, however, deserves mention. During the cross-examination of the state's chief witness, defense counsel began asking a series of questions without apparently giving the witness, Coonce, an opportunity to answer each question individually. The record reflects several pairs of questions asked before the Assistant State Attorney finally interrupted and objected because defense counsel was attempting to confuse the witness. The trial court indicated that the question asked was in reality three questions and admonished counsel to ask only one question at a time. This sound advice was gradually ignored and the record is full of two, three, and even four-part questions. The trial court finally interceded on its own motion and the following colloquy took place:

'THE COURT: Are these questions, Mr. Whidden--

'MR. WHIDDEN: Yes, sir--

'THE COURT: Just be quiet while I am speaking. I tell you now, if you are asking questions, ask one at a time and allow the witness to answer. The witness is not on trial, and keep your voice at a normal conversation. Ask the questions and we will get an answer.

'BY MR. WHIDDEN:

'Q. Is that right?

'A. What is your question?

'THE COURT: I will strike that question. Ask a question that is one question.

'Q. Mr. Coonce, you are not positive about your identification of Mr. Baisden, isn't that correct? You are not positive about how any of them looked, isn't that correct?

'* * *

'THE COURT: Those are two questions, sir, and you have disregarded my request.

'BY MR. WHIDDEN:

'Q. Answer the second question first. Do you know what they looked like generally, except that they were--

'THE COURT: Mr. Lee, (sic: Whidden) this is about the fourth time you have disregarded my instructions, and I may have to hold you in contempt if you continue to do so. If you will ask one question and allow the witness time to answer, we might get an answer. If you are going to continue to badger him with questions, I will stop the examination at this point.'

On appeal the defendant argues the court interrupted and reprimanded the defense counsel during his cross-examination of a material witness at a critical stage of the trial, thus committing prejudicial error. In support of his position, he cites two cases, Giglio v. Valdez, Fla.App.1959, 114 So.2d 305, and Skelton v. Beall, Fla.App.1961, 133 So.2d 477, 94 A.L.R.2d 820. This court has no quarrel with the propositions of law involved in the cases relied on by defendant and would even go so far as to relying on those cases to buttress its position in this appeal. The cases which the defendant cites to induce this court to reverse on the grounds that the 'rebuke' of counsel was reversible error all presuppose one thing--that is that the court improperly admonished counsel in the presence of the jury. The general rule now seems to be that the prior unbridled discretion of trial judges to discipline and rebuke counsel, justifiable or not, has gradually broken down and because of a change in the attitude of courts the position now seems to be that the defendant is entitled to have his counsel treated with civility and respect. See 62 A.L.R.2d 170, 181. Counterbalanced to the above proposition is the trial court's duty to maintain a proper forum and decorum in trials and to protect parties, attorneys, witnesses, court personnel, juries, and the public from any infringement of the due and orderly process of administering justice. The trial court is under a positive duty to conduct an orderly trial, and the public, as well as the persons more directly involved, have the right to look to the judge for guidance, for the maintenance of dignity, and decorum so essential to the proper administration of justice and, in short, the trial court embodies the personification of fairness and equality before the law. Giglio v. Valdez, supra; 32 Fla.Jur., Trial, § 24. Thus, when the respect of the court, the respect and courtesy due a witness, a party or another attorney is violated, the court has a duty to see that the unjust intervenor is stopped. Usually counsel will initiate this procedure by voicing an objection or other appropriate motion. At times, however, counsel through inadvertence or design, will not object and let the wrongdoer suffer. The wrongdoer must then suffer the censure of the court. If feasible and practicable, a rebuke from the bench at an attorney ought to be directed in the absence of the jury. This has been recognized as the better practice, but is not necessarily an essential practice. See Olive v. State, 1938, 131 Fla. 548, 179 So. 811. Rules of practice and their employment in their conduct of trials are not inflexible. Their strict technical enforcement cannot straight-jacket the justice of the cause. Primarily, they are formulated and employed so that the court may regulate and keep within legal bounds the general conduct of the trial. This court has always recognized that a trial court has wide latitude in regulating the conduct of trials. See Hahn v. State, Fla.1952, 58 So.2d 188, 191. The conduct of counsel during the progress of the trial is also under the supervision and control of the trial court in the exercise of its discretion. See the strong rebuke directed at an attorney in Murray v. State, 1944, 154 Fla. 683, 18 So.2d 782, reversed on other grounds.

Thus it is readily seen without citing any other authorities that the court has a duty to maintain the dignity of the law in the courtroom which also includes the protection of witnesses under examination. The reasons for this are quite simple and readily apparent:

'Except in the case of a few privileged relationships, there is a compelling social interest that both the state and the accused shall have the power to require anyone in possession of knowledge relevant to the subject matter of a criminal trial to give testimony. But an unwonted appearance in court as a witness is a terrifying experience to many persons, even if their apprehensions are exaggerated.

'Besides detracting from the court's dignity, unnecessary browbeating and humiliation of witnesses can, by interfering with their recollection and articulation, defeat the purpose of their presence at the trial--to divulge their information to the jury. And more generally, the dread of testifying can result in crime going unreported. The protection of witnesses from the attacks of attorneys is therefore recognized as a part of the duties of the judge, and he has everywhere all needed authority to see that their visits to curt authority to see that their visits to court are as little harrowing as may be.

'But posed against this is one of the cornerstones of our legal system, the right to scrutinize and sift testimony by cross-examination.

'The loose, cloudy, and hard-to-apply principle that emerges is that the judge, so long as he does not hobble fair and effective examination, may take all needed measures against an attorney to insulate a witness from discourtesy and embarrassment. The nicest sort of judgment is required to distinguish between the need to spare a timid witness, such as the proecutrix in a case involving a sexual offense, from wanton mortification, and the basic requirement that the accused shall have full opportunity to save himself from unmerited punishment by bringing out inconsistency, bad repute, and all the other painful indicia of lying.' 62 A.L.R.2d 170, 244.

The test whether these alleged rebukes of the court constituted reversible error should be as follows and as outlined in State v. Faust, 1961, 254 N.C. 101, 118 S.E.2d 769, 779, 96 A.L.R.2d 1422:

1. (T)he burden is upon appellant to show prejudice.

2. (I)t is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for.

3. (T)he remarks are to be considered in the light of the circumstances under which they were made.

4. (T)he ultimate consideration is the probable...