Campbell v. State, 35622

• Decision Date: 11 June 1969
• Docket Number: No. 35622,35622
• Citation: 227 So.2d 873
• Parties: Calvin Carlos CAMPBELL, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 873

227 So.2d 873

Calvin Carlos CAMPBELL, Appellant, v. The STATE of Florida, Appellee.

No. 35622.

Supreme Court of Florida.

June 11, 1969.

Rehearing Denied Dec. 2, 1969.

Richard J. Wilson, Gainesville, for appellant.

Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

ROBERTS, Justice.

The appellant was convicted of murder in the first degree without recommendation to mercy and has appealed to this court from the judgment of conviction as authorized by Section 4(2), Article V, Constitution of Florida, F.S.A.

The victim of the crime was a deputy sheriff who was shot while attempting to arrest the appellant as a suspected bank robber. The state adduced evidence that showed conclusively that the appellant had robbed a bank at Kingsland, Georgia, and then fled in an automobile that he had rented under an assumed name. A good description of the get-away car and of the appellant was given to law enforcement officers; and officers at all levels--city, county and state--from both Georgia and Florida, alerted by radio, participated at one time or another in the pursuit of appellant at speeds generally exceeding 100 miles per hour. The chase began at Kingsland, Georgia, proceeded to a point in Florida near Macclenny just south of the Georgia-Florida line where the fatal shooting occurred, and then to a point in Georgia just north of the line where a road block had been set up and the appellant was finally apprehended.

Testimony of witnesses to the shooting showed that the victim, Deputy Sheriff Fish, was in hot pursuit of the appellant, both travelling at a high rate of speed, when the appellant's car failed to make a turn and came to rest in a ditch. Deputy Fish and the appellant both got out of their cars and moved over to stand by the patrol car. There was evidence from which the jury could find that the deputy was holdig a sawed-off shotgun in one hand and was trying to handcuff the appellant with the other. It was also shown that the deputy carried his revolver in a holster on his left hip with the handle pointed forward, that three shots had been fired from it, and that the bullet that fatally wounded Deputy Fish had been fired from it. The appellant's fingerprints were on the gun. The jury also had the right to find that the appellant snatched the gun from the holster and shot twice in quick succession and at close range and then fired the third shot to remove the handcuff that the deputy had succeeded in placing on one wrist. (It was shown that the appellant's own gun, which he had used in intimidating the bank employees during the robbery, had been thrown or had fallen out of his car when it struck the ditch.) The appellant then continued his flight in the patrol car and, a few minutes later, was apprehended at the road block set up by both Georgia and Florida law enforcement officers. The appellant stated to these officers that he took Deputy Fish's gun away from him and shot him twice as he was being handcuffed. At the trial, however, he testified that the pistol went off twice during a struggle with Deputy Fish but denied that he intended to shoot the deputy. His defense was not guilty, and not guilty by reason of insanity. As noted, the jury returned a verdict of guilty without recommendation to mercy. This appeal followed.

On this appeal the appellant contends that the recent decision of the United States Supreme Court in Witherspoon v. Illinois, 1968, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, concerning the qualifications of jurors who are opposed to capital punishment to serve as such in a capital case, is contrary to the law of Florida as expressed in § 932.20, Florida Statutes, F.S.A., and as interpreted in Piccott v. State, Fla.1959, 116 So.2d 626. We do not so interpret the Witherspoon decision. In it the court expressly limited its decision to those cases in which a prospective juror is challenged and removed solely on the ground that he is opposed to capital punishment or has conscientious scruples against inflicting the death penalty. Its statement in this respect is as follows:

'The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from a jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who said that they were opposed to capital punishment and all who indicated that they had conscientious scruples against inflicting it.' 88 S.Ct. at pp. 1772--1773.

Our statute, § 932.20, supra, provides that

'No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be allowed to serve as a juror on the trial of any capital case.'

And our decision in Piccott v. State, supra, 116 So.2d 626, stands for the proposition that, to be qualified to serve in a capital case, the juror must be able to consider impartially not only the question of the guilt or innocence of the defendant but also the question of whether or not to recommend mercy for the defendant. If the juror says that, because of his views on capital punishment, he can render a verdict of guilty only if accompanied by a recommendation to mercy, he is not qualified. Piccott v. State, supra, 116 So.2d at page 628, citing Metzger v. State, 1881, 18 Fla. 481, 487.

It appears, therefore, that both the statute, § 932.20, and the decision in Piccott are in accord with the holding in the Witherspoon case, supra. And there is nothing in Piccott nor in Witherspoon to support the appellant's contention that reversible error was committed in excluding Juror Green because of his views on capital punishment. This juror was interrogated at length by counsel for the state and for the defense and by the trial judge with respect to his religious scruples against the death penalty. The only logical conclusion was that Juror Green would not be able to consider impartially the question of the guilt or innocence of defendant on account of his religious scruples against the death penalty. We think the able trial judge correctly exercised his discretion in excluding this juror from the panel. Moreover, the state did not exhaust its peremptory challenges so that, even if not excused for cause, Juror Green could have been excluded. We find no error in excluding Juror Green--nor, in fact, in excluding the other five jurors who were challenged for cause on capital-punishment grounds.

The appellant also argues that the systematic exclusion of jurors opposed to the death penalty 'tends to deny appellant an impartial jury with regard to the issue of guilt,' contrary to the due process clause of the Fourteenth Amendment. A similar contention was dealt with by the United States Supreme Court in the Witherspoon case, supra, as follows:

'We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.' 391 U.S. at p. 518, 88 S.Ct. at pp. 1774, 1775, 20 L.Ed.2d at p. 782.

Thus, even if error had been committed in excluding Juror Green--and, as noted, we do not so find--the error would not have warranted a new trial on the question of guilt.

The appellant next contends that this court should recede from its views concerning the defense of insanity and abandon the 'right or wrong' test of McNaghten's case. We have reconsidered this question in the light of argument of counsel for the appellant and have concluded again as we did in Piccott,...