Baker v. State, 37931

• Decision Date: 29 July 1970
• Docket Number: No. 37931,37931
• Parties: Bernard R. BAKER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 683

241 So.2d 683

Bernard R. BAKER, Appellant, v. The STATE of Florida, Appellee.

No. 37931.

Supreme Court of Florida.

July 29, 1970.

Rehearing Denied Dec. 7, 1970.

L. B. Vocelle, and C. Wendell Harris, Vero Beach, for appellant.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

ROBERTS, Justice.

This cause is before the court on a direct appeal from a verdict and judgment of guilty of murder in the first degree without recommendation to mercy. This is its second appearance here. On the first appeal, judgments of guilty without recommendation against appellant and his companion in crime, one Charles O. Dalton, Jr., were reversed and the causes remanded for new trials because of the error of the trial judge in appointing two attorneys to represent both defendants jointly. See Baker v. State, Fla.1967, 202 So.2d 563. On the new trial, the appellant was tried alone, his companion, Dalton, having in the meantime been adjudged insane.

The facts relevant to the crime and the appellant's participation therein are stated in detail in our former opinion, Baker v. State, supra, 202 So.2d 563. (We note, parenthetically, that the evidence adduced by the State, including written statements of the appellant, form the basis for this reconstruction of crime, as the appellant did not take the stand nor offer any evidence in his own defense.)

In brief, sometime before nine o'clock on the evening of Christmas Day, 1965, the appellant and Dalton observed an elderly couple (the deceased and his wife, Mr. and Mrs. McKenzie) leave a restaurant and get into a big car. Marking them as easy preys, as well as potentially lucrative victims, they followed the McKenzies to their home and there embarked upon the activities resulting in the death of Mr. McKenzie. Dalton hit Mrs. McKenzie over the head with a hammer and then struck and felled Mr. McKenzie with the same weapon. The appellant had his knife out but did not use it. After Mr. McKenzie fell, the appellant searched him and found $50.00 which he took. Dalton then hit Mr. McKenzie a second time. After they got back into the car, the appellant gave Dalton $20.00 of the money. They then proceeded north and, at some point, 'commandeered' another vehicle, in which they traveled to St. Augustine, Florida. There, around one o'clock in the morning of December 20th, they entered a Holiday Inn and assaulted the night clerk with a hammer. This time, it was the appellant who wielded the weapon. The night clerk showed more stamina than did the elderly 77-year-old Mr. McKenzie and did not fall. He turned to get his pistol and to call the police, and his assailants fled. They were apprehended shortly thereafter by police officials of St. Augustine. As noted, appellant has been twice convicted of murder in the first degree, without recommendation to mercy.

On this appeal, the appellant first contends that questions asked by the State's Attorney of a prospective juror on the voir dire created such prejudice against his counsel that he was denied his constitutional right to a fair trial. The prospective juror was asked whether she had ever been a member of the 'NACCP', to which she answered in the negative. She was then asked whether she had ever been in any organization that 'might be classified as a civil rights group' that the attorneys were a member of, to which she again answered in the negative. In answer to the question, 'Have you ever been to a meeting that Mr. Harris and Mr. Vocelle ever attended?', she replied, 'It seems like to me it was a Democrat dinner here in Vero once, and I attended that. I am not positive whether either of those men were there or not.' It was at this point that counsel for the appellant moved for a mistrial on the ground that the State's Attorney was 'interjecting' into the trial extraneous issues 'that people have strong feelings about one way or another.' The motion was denied.

On this appeal, it is argued that the question was irrelevant because there were no negroes involved in the trial, that no saving instruction could possibly have erased the prejudice created against defense counsel, and that the 'effective assistance of counsel was grievously injured.' Assuming arguendo that all the jurors had been selected and heard this colloquy between the juror and the State's Attorney, we do not see how it could possibly have been prejudicial to the appellant, nor does the appellant elaborate on the bare statement of prejudice. We cannot hold the trial judge in error for refusing to grant a mistrial because of some remote possibility that the jurors might have conjectured that defense attorneys were members of the NAACP and the equally remote possibility that this would have so prejudiced them against counsel as to make it impossible for them to perform their duty as jurors.

It is next contended that it was error to admit into evidence a re-enactment of the crime by the appellant and Dalton that was recorded with a movie camera by the police officials. The basis of this contention is that the movie was made after Mr. McKenzie died, and that this fact was concealed from the appellant by the State. The record shows to the contrary. It appears, clearly and unambiguously, that three re-enactment sequences were made after the appellant was advised of Mr. McKenzie's death and that the only sequence shown was one made after he was advised of the death. None of the re-enactment film was given to the jury after they retired. In these circumstances, no error has been made to appear.

The appellant also argues that it was...