Branch v. State

• Decision Date: 01 May 1968
• Docket Number: No. 7096,7096
• Citation: 212 So.2d 29
• Parties: Horace BRANCH and Dale Kelley, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 29

212 So.2d 29

Horace BRANCH and Dale Kelley, Appellants, v. STATE of Florida, Appellee.

No. 7096.

District Court of Appeal of Florida, Second District.

May 1, 1968.

On Rehearing July 26, 1968.

Thomas W. Perkins, Bartow, for appellants.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

OVERTON, BEN F., Associate Judge.

This cause concerns the same participants and similar offenses as set out in Kelley v. State, Fla.App., 212 So.2d 27, Opinion filed May 1, 1968. The appellants, Horace Branch, Dale Kelley and Bertram Dale Durden, were jointly charged in a two-count information filed in Polk County with the offense of conspiracy to commit robbery and robbery of a Kwik-Serv grocery in Mulberry, Florida, on March 11, 1965. On this date the appellant Branch was the Chief of Police and the appellant Kelley was a patrolman for the City of Mulberry.

As in the prior case, the co-defendant, Bertram Dale Durden, pled guilty and testified for the state as an accomplice witness. The appellant, Dale Kelley, on September 6, 1965, made an electronically recorded post-Escobedo pre-Miranda confession and on the next day entered a plea of guilty to the information in open court. He later denied the confession and was allowed to withdraw his plea of guilty. Three months after the related previous case the appellants, Branch and Kelley, were tried together on those offenses, and were each convicted of both counts, the appellant Branch being sentenced to a total of twenty years and the appellant Kelley being sentenced to a total of ten years consecutive with the total ten-year sentence imposed in the prior case. From their judgments and sentences the appellants appeal.

Both appellants contend it was error to deny the motions for change of venue. The appellant Kelley contends it was error for his confession to be admitted against him. The appellant Branch contends it was error to deny his motion for severance; it was error to admit Kelley's confession when it specifically implicated Branch; and further, that the court should have granted Branch a new trial on the grounds of improper conduct by the jurors in failing to follow the instructions of the court in considering said confession.

As in the related case, the appellants contend they were prejudiced by the notoriety and publicity generated by the unusual nature of the case, coupled with the publicity of the conviction of Kelley and acquittal of Branch in the prior case three months previous. The record reflects there was no difficulty encountered in selecting a jury. One hundred thirty-four prospective jurors were present. The court excused twenty-four prospective jurors for various reasons prior to beginning selection of a jury. A jury of six and one alternate was selected after the state and the defendants had exercised eight peremptory challenges. Each defendant was entitled to sixteen peremptory challenges under Section 913.08, Florida Statutes, F.S.A. Ninety-five veniremen were still remaining at the time the jury and the alternate were accepted.

Knowledge of the incident because of its notoriety is not in and of itself grounds for change of venue, and the appellants have failed to establish that the minds of the inhabitants were so infected by knowledge of the incident that a fair jury could not be selected. Singer v. State (Fla.1959) 109 So.2d 7; Collins v. State (Fla.App.1967) 197 So.2d 574, and cases cited therein. This record reflects no abuse of discretion by the trial court in denying a change of venue.

Related to this contention is the appellants' assertion as error that the trial judge failed to allow voir dire examination individually and outside the presence of the remaining prospective jurors. This again is discretionary with the trial court, and the record fails to reflect that the trial judge abused his discretion.

With reference to the confession in issue, the record reflects the confession The confession by Kelley clearly named and implicated his co-defendant Branch in the offenses, and the appellant Branch contends the lower court erred by admitting it into evidence. The record reflects the trial court admonished the jury that they must disregard entirely and reference made by Kelley in the confession to Branch. The jury was instructed on three occasions, as follows:

of the appellant Kelley in this case was made on September 6, 1965, immediately prior to the confession given by him in the previous case. The facts and circumstances leading up to the confession are identical to those set out in Kelley v. State, supra. In this cause the trial court made a separate determination and finding in this case that the confession was voluntary and admitted it into evidence. As in Kelley v. State, supra, the court allowed the jury to hear the recording and to assist them, permitted the jury to have a transcript of the confession to follow while listening to it. The confession was intelligently and voluntarily given, and its admission was proper and in accordance with the views of the Supreme Court of Florida as stated in its recent decision in State of Florida v. Outten, 206 So.2d 392 (Fla.1968).

First, at the commencement of the testimony of the deputy who received the confession:

'THE COURT: Any reference made throughout this testimony to this defendant Branch you will disregard. Any testimony here to this defendant Kelly can only be considered in determining his guilt or innocence, and have no application to your consideration of the issues here to the defendant Branch.

MR. CAMPBELL: The testimony of Kelly with Mr. Goodson.

THE COURT: That's right, with Mr. Goodson.

MR. EDMUND: And any statements Mr. Kelly might have made that contain any reference to Mr. Branch during, Your Honor has said is not to use that as any indication.

THE COURT: That is correct. You may only consider it as it relates to the guilt or innocence of Mr. Kelly and of he alone.'

Second, immediately prior to playing the confession for the jury:

'THE COURT: As this recording is being played you will again be admonished that any reference made in there by the man alleged to have made it to Mr. Branch you may disregard entirely. You may only consider this, if you consider it at all, for whatever value given to it in determining the guilt or innocence of Mr. Kelly and eliminate it as to Mr. Branch.

MR. EDMUND: Would Your Honor amend that admonishment to the jury from may disregard and substitute they must disregard any references made.

THE COURT: Yes, sir, you must. I thought that's what I said. You can only consider it in determining the guilt or innocence of Mr. Kelly.

MR. EDMUND: And cannot consider it it (sic) determining the guilt or innocence of Mr. Branch.

MR. EDMUND: That is correct. It is not evidence to be considered in determining the issues as it relates to Mr. Branch.'

Third, at the conclusion of the instructions to the jury:

'THE COURT: Gentlemen, I forgot to instruct you that this confession, if you give any weight to it whatsoever, that's your determination, but if you do, it can only be considered in determining the guilt or innocence of Dale Kelly, and not considered in any way as you determine the guilt or innocence of Horace Branch.'

Although the better practice would have been to separately try these defendants, the failure to sever and the admission into evidence Related to this issue is the assertion by the appellant Branch that the court should have granted a new trial because the jury failed to follow the court's instruction to disregard the confession insofar as it implicated Branch. This contention is based upon an affidavit by counsel for the appellant, which affidavit relates a conversation which counsel for the appellant had with one of the jurors immediately after the trial. The conversation came about by counsel inquiring for his own betterment and education....