Beckwith v. State, No. TT-431

CourtCourt of Appeal of Florida (US)
Writing for the CourtROBERT P. SMITH, Jr.; SHAW; BOOTH; BOOTH
Citation386 So.2d 836
PartiesAnn BECKWITH, Betty Beckwith, Charlie Brigham, Edward Brown, Melissa Day, John E. Fairchild, C. D. Faircloth, Norma N. Faircloth, Bradley Harvell, George Wesley Harvell, Vera Henderson, Bert Phillips, Geraldine Potter, W. L. Potter, and Robert Walden, Petitioners, v. STATE of Florida, Respondent.
Docket NumberNo. TT-431
Decision Date07 August 1980

Page 836

386 So.2d 836
Ann BECKWITH, Betty Beckwith, Charlie Brigham, Edward Brown, Melissa Day, John E. Fairchild, C. D. Faircloth, Norma N. Faircloth, Bradley Harvell, George Wesley Harvell, Vera Henderson, Bert Phillips, Geraldine Potter, W. L. Potter, and Robert Walden, Petitioners,
v.
STATE of Florida, Respondent.
No. TT-431.
District Court of Appeal of Florida, First District.
Aug. 7, 1980.

Page 837

Joseph C. Jacobs and Lewis M. Killian, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, and M. Howard Williams, Tallahassee, for petitioners.

Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, and Curtis A. Golden, State's Atty., Pensacola, for respondent.

ROBERT P. SMITH, Jr., Judge.

The 15 petitioners seek certiorari review of an order of the Circuit Court of Liberty County granting the State a change of venue for trial, to Leon County, on the ground that it is practically impossible to obtain an impartial jury in Liberty County, where the defendants reside and where they allegedly committed the felony of buying the votes of others. Section 104.061(2), Florida Statutes (1979).

The trial court has not made an exhaustive and unsuccessful effort to seat an impartial jury in Liberty County. For that omission we quash the order and remand the case for a more persevering effort to secure an impartial jury in Liberty County. Article I, Section 16, Florida Constitution; Ward v. State 328 So.2d 260 (Fla. 1st DCA 1976).

The trial court based its order changing venue on the testimony of several witnesses and on the court's own observations of the venire, the jurors, parties, witnesses, and spectators in two vote-buying trials held in Liberty County in December 1979. One of those trials resulted in a guilty verdict ("sheer luck," the trial judge said) and the other, disadvantaged by inadequate jury security and spectator control, was declared mistried when a juror spoke during recesses with the accused, petitioner Edward Brown, and then denied to the court that he had done so.

The trial court's order and the record on which it was entered make a formidable showing of conditions in Liberty County giving rise to doubts about the availability of an impartial jury: the complex relationship among families in this second-smallest Florida county; the familiarity most everyone has with most everyone else, and widespread conversation about vote-buying and these prosecutions; the alliances, allegiances, and antipathies which color the county's politics, public education system, and public employment; the feeling among some in the community that the buyers of votes should not be prosecuted if the sellers are not (it is not a violation of Section 104.061 to sell one's vote); the influences and pressures which threaten prospective witnesses and jurors; and the consequent lack of candor of some veniremen and some witnesses. If conventional methods of

Page 838

proof were alone sufficient to show the impossibility of seating an impartial jury, or if the trial judge's earnestness of opinion and felicity in expressing it were sufficient grounds for sustaining his action, we should immediately affirm and, so doing, recede from Ward.

But with all deference to the contrary and well-spoken opinion of the trial judge, we cannot sustain this departure from the rather explicit holding of Ward and, vastly more important, from the historical and legal precedents which Ward sought to preserve. Over the defendant's objection, the State may not be granted a change of venue from the county where the State charges the defendant committed the crime, to a county where the State fancies it may find a jury that will do its duty less reluctantly, until the impossibility of seating an impartial jury where the offense was laid has been verified by an exhaustive attempt to seat such a jury.

We suggested in Ward that the defendant's right to jury trial in the county where the offense was committed is as old as the jury system itself, and is inseparable historically and doctrinally from that system. It is a right carefully included in the constitutions of the original states of this union, written there by colonists who rebeled at the idea of prosecutors carrying citizens away for trials in far places, where they were strangers. Florida's Constitution assures these Liberty Countians, as it has assured all our forebears since 1885, that they will be tried at home, by a jury of their own county, for crimes allegedly committed at home; that they will be tried abroad only for crimes committed abroad. There is but one constitutional exception to the rule, namely, "the impossibility of securing an impartial jury in that county." Hewitt v. State, 43 Fla. 194, 199, 30 So. 795, 796 (1901) imposed that constitutional restriction on a statute which seemingly authorized more liberal changes of venue; and Ward concluded that the Supreme Court would read that same constitutional restriction into Fla.R.Cr.P. 3.240, together with the test determining "impossibility" as prescribed by other Supreme Court decisions. Recently, citing Ward, the Supreme Court reemphasized the "doubtful validity" of changing the place of trial over the defendant's objection:

The defendant has the constitutional right to a trial where the offense occurred and a change of venue granted without an appropriate motion or the consent of the defendant is of doubtful validity. North v. State, 65 So.2d 77 (Fla.1952), aff'd North v. Florida, 346 U.S. 932, 74 S.Ct. 376, 98 L.Ed. 423 (1954). See also Ward v. State, 328 So.2d 260 (Fla. 1st DCA 1976).

Stone v. State, 378 So.2d 765, 768 (Fla.1980) (dictum).

The means by which the impossibility of securing an impartial jury is to be determined, when on that ground the State wishes to change the venue for trial, is implied from the very word impossible, which here means practically impossible, impossible as a practical matter. The term does not mean absolutely impossible, as would be implied by examining every resident of the county for jury service, only to find that six impartial persons cannot be found; but neither does the term impossible simply mean difficult, problematic, inconvenient, laborious, or frustrating. When the State urges that it is practically impossible to secure an impartial jury, what is required is a showing that such a jury cannot be secured by an exhaustive or persevering judicial effort. And the way for the trial judge to determine that possibility or impossibility is to summon a venire, swear them, join with counsel in asking them questions bearing on their qualifications, and excuse both the partial jurors and the evasive ones by exercising that skill of judgment which Justice Alderman described in Manning v. State, 378 So.2d 274, 279 (Fla.1979) (dissenting opinion):

In some cases, it is not advisable for the trial judge to rule on a motion for change of venue until after the jury selection process actually begins. This is the "acid test" to determine if it is possible to obtain a fair and impartial jury.

Page 839

During the jury selection process, the trial judge is in the best position to make the final decision as to whether a fair and impartial jury can be obtained. He has the opportunity to observe firsthand the prospective jurors during the voir dire examination, to weigh the credibility of their answers, and to judge the state of their minds as well as the general atmosphere in the courtroom and the community.

Judging of this type is an art, not a science. It is not possible to reduce all of the elements considered by a trial judge in such a situation to a computer card and obtain a mechanistic answer. In deciding a motion for change of venue, more is involved than the sterile application of legal principles. The trial judge must also function as the finder of facts.

The Court's decision in Manning, that a defendant's motion for change of venue may be determined either before trial or after an attempt is made to seat a jury, does not affect the requirement that an exhaustive or persevering effort be made to seat an impartial jury when the State moves for and the defendant resists a change of venue for trial. Indeed, the Court's reference to Singer v. State, 109 So.2d 7, 14 (Fla.1959), underscores the difference between the two situations. Manning, 378 So.2d at 277, quoted Singer :

A change of venue may sometimes inconvenience the State, yet we can see no way in which it can cause any real damage to it. On the other hand, granting a change of venue in a questionable case is certain to eliminate a possible error and to eliminate a costly retrial if it be determined that the venue should have been changed. More important is the fact that real impairment of the right of a defendant to trial by a fair and impartial jury can result from the failure to grant a change of venue.

Similar reasoning requires an actual attempt to seat a jury when the defendant resists a change of venue for trial. The State cannot be damaged in any way by a persevering attempt to empanel a jury, and the attempt may be successful, confounding all the analysts and prophets of impossibility. See, e. g., Stone, supra, 378 So.2d at 768: "The ease in selecting the jury is further evidence that a change of venue was not required." And if the effort is unsuccessful, it is not for that reason futile; the effort affords the accused, insofar as reasonably possible, his right to trial by impartial jury in the county where it is charged he committed the crime. Thereby the court decides the critical issue not by weighing the opinions or predictions of a few selected witnesses who are asked whether others can be impartial there is much of that in this record, and not a little hearsay but by making individual judgments about particular prospects who are questioned under oath in the jury box. That is "the acid test." Manning, supra, 378 So.2d at 279 (dissenting opinion).

The more debatable question in this case is whether...

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5 practice notes
  • Nurse v. State, No. 93-2027
    • United States
    • Court of Appeal of Florida (US)
    • July 5, 1995
    ...(Fla. 5th DCA 1988). See generally Lages v. State, 640 So.2d 151, 152 (Fla. 2d DCA 1994) (Altenbernd, J., concurring); Beckwith v. State, 386 So.2d 836, 842 (Fla. 1st DCA), review denied, 392 So.2d 1379 An example is set forth in State v. Wimberly, 498 So.2d 929 (Fla.1986), where defendant ......
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...took place, including earlier in this very prosecution. See Sailor v. State, No. 97-3798 (Fla. 1st DCA Oct. 17, 1997); Beckwith v. State, 386 So.2d 836 (Fla. 1st DCA 1980); Ward v. State, 328 So.2d 260 (Fla. 1st DCA 1976); Davis v. State, 256 So.2d 565 (Fla. 1st DCA 1971). (The failure to r......
  • State v. Manning, No. 24727
    • United States
    • United States State Supreme Court of South Carolina
    • October 9, 1997
    ...County residents based on the evidence presented by the State to support its motion. 5 See State v. Easler, supra; Beckwith v. State, 386 So.2d 836 (Fla.Dist.Ct.App.1980) (the court must attempt to seat a jury before concluding it is impossible to obtain an impartial jury when deciding a St......
  • State ex rel. Owens v. Brown, No. 17409
    • United States
    • Supreme Court of West Virginia
    • December 9, 1986
    ...is necessary in order to obtain a fair and impartial trial. See Cosner, 129 W.Va. at 742-43, 42 S.E.2d at 43; see also Beckwith v. State, 386 So.2d 836 (Fla.Dist.Ct.App.1980); Newberry v. Commonwealth, 192 Va. 819, 66 S.E.2d 841 (1951). Before a trial court may summon a jury from another co......
  • Request a trial to view additional results
5 cases
  • Nurse v. State, No. 93-2027
    • United States
    • Court of Appeal of Florida (US)
    • July 5, 1995
    ...(Fla. 5th DCA 1988). See generally Lages v. State, 640 So.2d 151, 152 (Fla. 2d DCA 1994) (Altenbernd, J., concurring); Beckwith v. State, 386 So.2d 836, 842 (Fla. 1st DCA), review denied, 392 So.2d 1379 An example is set forth in State v. Wimberly, 498 So.2d 929 (Fla.1986), where defendant ......
  • Sailor v. State, No. 98-1476.
    • United States
    • Court of Appeal of Florida (US)
    • April 23, 1999
    ...took place, including earlier in this very prosecution. See Sailor v. State, No. 97-3798 (Fla. 1st DCA Oct. 17, 1997); Beckwith v. State, 386 So.2d 836 (Fla. 1st DCA 1980); Ward v. State, 328 So.2d 260 (Fla. 1st DCA 1976); Davis v. State, 256 So.2d 565 (Fla. 1st DCA 1971). (The failure to r......
  • State v. Manning, No. 24727
    • United States
    • United States State Supreme Court of South Carolina
    • October 9, 1997
    ...County residents based on the evidence presented by the State to support its motion. 5 See State v. Easler, supra; Beckwith v. State, 386 So.2d 836 (Fla.Dist.Ct.App.1980) (the court must attempt to seat a jury before concluding it is impossible to obtain an impartial jury when deciding a St......
  • State ex rel. Owens v. Brown, No. 17409
    • United States
    • Supreme Court of West Virginia
    • December 9, 1986
    ...is necessary in order to obtain a fair and impartial trial. See Cosner, 129 W.Va. at 742-43, 42 S.E.2d at 43; see also Beckwith v. State, 386 So.2d 836 (Fla.Dist.Ct.App.1980); Newberry v. Commonwealth, 192 Va. 819, 66 S.E.2d 841 (1951). Before a trial court may summon a jury from another co......
  • Request a trial to view additional results

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