Beasley v. State

• Decision Date: 02 July 1975
• Docket Number: No. 73--940,73--940
• Citation: 315 So.2d 540
• Parties: John M. BEASLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 540

315 So.2d 540

John M. BEASLEY, Appellant, v. STATE of Florida, Appellee.

No. 73--940.

District Court of Appeal of Florida, Second District.

July 2, 1975.

B. Anderson Mitcham, James S. Parham, and Lee S. Damsker, Tampa, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.

McNULTY, Chief Judge.

Appellant was convicted by a jury of second degree murder in the shooting death of his wife. His appeal herein assails only the denial of his motion for a new a new trial which, while it did question the fairness of the trial, was predicated essentially on 'newly discovered evidence.' The evidence relied on consists of recantation of testimony by certain eyewitnesses to the shooting together with the circumstances surrounding such recantation. We affirm the judgment and sentence but remand for further proceedings as will hereinafter more fully appear.

The tragedy occurred the day after Christmas in 1972. At the time the victim-wife and the three teenage children of the parties, Gary, Carilyn and Susan, were preparing to move out of the family home because of long standing domestic difficulties. While they were packing their belongings appellant was entreating them to stay. The record reflects an irreconcilable conflict as to what followed next; but the evidence cannot be avaluated here, only whether the jury's conclusions therefrom must stand.

Before trial, each of the three children testified under oath before the assistant state's attorney and before the grand jury. Essentially, their testimony was consistent and, taken as a whole, established that when the victim-wife refused to yield to appellant's pleas that the family remain together appellant pulled a gun from his pocket, placed it against her head and fired, killing her.

Two police officers testified at trial that appellant, after having been given Miranda warnings upon his arrest, orally indicated he killed his wife because she was 'running around' and because she was leaving him. A subsequent pre- trial statement by appellant given to a stenographer before the state's attorney, and again after Miranda warnings, repudiated sich inculpatory statements. He contended at that time that the shooting was an accident. He said that just before the shooting, in renewal of a long-time agitation concerning his son Gary's involvement in the drug scene, 18-year-old Gary, whom he feared, came at him and punched him in the eye, knocked him down and jumped on him to continue pummeling him. He contends he fired the gun at Gary in self defense and that his wife must have gotten in the line of fire. This also was the substance of his testimony at trial. Additionally, at trial, he denied ever making statements to police officers to the contrary. As indicated, each of the children disputed appellant's version in their pre-trial testimony before both the state's attorney and the grand jury.

On the morning of trial, however, Gary and the younger daughter Susan informed the state's attorney that they were going to change their testimony. They said they had lied to the police officers, to the state's attorney and to the grand jury and that the truth was that Susan was in the bedroom at the time of the tragedy and doesn't know what was going on; that Carilyn, the older daughter, was outside at the car packing it with a suitcase and also was not present at the time of the tragedy; and that appellant was telling the truth when he said that the shooting took place in the course of an altercation between Gary and him. The assistant state's attorney in charge of the trial warned the two recanting witnesses of the consequences of prejury and that if they changed their testimony they were in serious jeopardy thereof. They persisted, however, and as a result neither of them was called by the state to testify. Accordingly, the sole eyewitness to the shooting called by the state to testify was the older daughter Carilyn. She substantially reiterated her original story and the jury believed her.

Following the trial the court conducted a lengthy hearing on the motion for a new trial. After having been fully and commendably warned by the court of the dangers of potential perjury charges, and after the assertion by the state that immunity would not be granted therefor, Gary and Susan nevertheless, even after having taken an afforded opportunity to talk to neutrial counsel, testified under oath that they had indeed lied to the state's attorney's office and to the grand jury.

Carilyn, on the other hand, stuck to her guns and insisted that she had told the truth not only to the state's attorney and to the grand jury but also at trial; and that her testimony was consistent on all three occasions. Since the trial, though, and since she has undergone undeniable emotional trauma, she admitted that she has had numerous nightmares and has often dreamed of the tragedy. She is not sure now, therefore, she said, whether her present recollection of what actually occurred is the truth as she witnessed it or as it has been influenced or contaminated by her nightmares. She affirmatively stated, however, that she thinks she told the truth at the time of trial. Other witnesses were called who testified to inconsistent statements made by Carilyn, but their testimony related largely to such inconsistencies occurring Before trial.

On the foregoing...