Carter v. State, 75--487
| Decision Date | 19 May 1976 |
| Docket Number | No. 75--487,75--487 |
| Citation | 332 So.2d 120 |
| Parties | Calvin CARTER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Lester W. Jennings, Okeechobee, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
The parties will be referred to as in the trial court. Defendant, Calvin Carter, timely appeals an adverse judgment and sentence rendered upon a jury verdict finding him guilty of rape. He was sentenced to serve 50 years in the state penitentiary. The facts adduced in evidence at the trial are as follows:
The victim and her husband lived in a trailer in Moore Haven, next to her in-laws. At approximately one o'clock in the morning of April 23, 1974, a telephone call was received by the victim's father-in-law, who operated a wrecker service business. The victim's husband listened to this conversation on an extension line. The caller advised that he had a tractor-trailer loaded with watermelons stuck on Highway 80 and gave directions on how to get there. There was also a brief discussion regarding cost. It was customary for two men to go out together on the night calls. Thereafter, the victim's husband went to join his father and the victim locked the trailer door and returned to bed. Both men left in the wrecker and proceeded to Highway 80 where they drove up and down the road looking for the alleged stranded vehicle, but were unable to find it. In the interim, while the men were looking for the truck, an assailant severed the victim's telephone lines, broke out a jalousie window on the trailer door, cut a small hole in the screen next to the lock and gained his entrance to the trailer. The victim was asleep on her stomach. She was awakened by her assilant, who was armed with a knife. The sexual act was completed in such a manner that the victim was unable to see the assailant's face. She did subsequently identify him by voice identification. The defendant's voice was also identified by other witnesses who testified for the state.
We state that in view of the record, the victim was attacked and raped by force and against her will as she testified. It is submitted that there is ample evidence, both direct and circumstantial, to support the judgment of conviction; however, we do mention that the evidence was not overwhelming.
Nevertheless, what has caused us to deliberate and study this case for what may be regarded as an inordinate period of time is the acceptance and recognition of our responsibility and duty to determine, upon review of the complete record, whether the defendant received a fair and impartial trial by his peers. It has been said that the most despicable wretch that walks the face of the earth is entitled to a fair trial--a defendant charged with the reprehensible and heinous crime of rape is no exception. After tedious review of the voluminous record we conclude that the defendant was denied his right and opportunity of a fair and impartial trial as prescribed by the Constitutions of Florida and the United States.
We shall now proceed to discuss certain of the alleged errors raised by defendant on this appeal. Initially, we consider the point of whether the trial court erred, as defendant contends it did, in allowing Mr. Herndon to serve as a member of the jury. During the voir dire examination, the following colloquy took place between the court and Mr. Herndon:
The court dismissed Mr. Herndon from the panel with the following remark:
THE COURT: I am going to accept Mr. Herndon as my strike, so that will give you another strike.
The state objected to the court excusing Mr. Herndon. The objection was merely noted, however, the ruling was not changed and the court nevertheless permitted Mr. Herndon to be sworn in as a member of the jury and he later was even elected its foreman.
It is true that the record does not show that counsel for defendant challenged Mr. Herndon for cause. However, the record does disclose that the defendant had one peremptory challenge that was not exercised. We are aware of the case of Withers v. State, Fla.1958, 104 So.2d 725, wherein it was held to be necessary for a defendant to exhaust his peremptory challenges before asserting as reversible error that the trial judge denied a challenge for cause; further, that challenges to be effective must be timely exercised. See Ex parte Sullivan, 1944, 155 Fla. 111, 19 So.2d 611. Notwithstanding, under the particular circumstances here, and in light of other errors hereinafter discussed, the seating of this juror deprived the defendant of the right to have his cause tried fairly before an impartial jury.
The court here quickly realized, after having heard Mr. Herndon state that he had formed an opinion as to circumstantial evidence, that he could not serve as a fair and impartial juror. The court's ruling was eminently correct. Mr. Herndon should have been excused. The state's argument that had the court stricken Mr. Herndon, as it indicated, it would, in effect, give defendant an additional peremptory challenge is untenable. The striking of Mr. Herndon was for Cause and defendant has unlimited challenges in this regard. The seating of Mr. Herndon as a member of the jury constituted error. In the case of Farese v. United States, 5th Cir. 1970), 428 F.2d 178, the court held:
The Sixth Amendment guarantees that the accused shall enjoy the right to a trial by an impartial jury and shall be confronted with the witnesses and evidence against him. Certainly the definition of impartiality is not a static concept, but can be defined only in relation to specific facts and circumstances. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). The most general interpretation of a fair trial is that it be conducted before unprejudiced jurors under the superintendence of a judge who instructs them as to the law and advises them as to the facts. . ..
Secondly, it is contended that cross-examination of the defendant exceeded permissible limits. The defendant took the witness stand and the following questions were propounded to him by the prosecutor:
(BY PROSECUTOR):
Q Kind of laying low since you raped Wanda?
Q Answer the question, Mr. Carter.
A Would you repeat it again?
Q Are you just laying low since you raped Wanda?
A I didn't rape Wanda.
Q Let's get to the next part. Are you kind of laying low until the heat's off?
A You might could say that.
Q Mr. Carter, other than the early morning that you raped Wanda .. ., have you ever threatened to rape a woman?
A Nope.
(Bracketed material supplied).
This line of questioning was highly improper and potentially prejudicial. In the state's case in chief, the prosecutor proffered the testimony of Mrs. Hill, see page 124 Infra. At that time the prosecutor knew or should have known that Mrs. Hill would not testify that the defendant either raped or attempted to rape her. The timely objections of defendant's counsel to the above questions should have been sustained as the evidence was inadmissible. The prosecutor had presented a prima facie case against the defendant as charged. This is another example of the prosecutor going for the overkill and it constitutes error.
Next, we turn to the admissibility of the testimony of Mrs. Hill, a rebuttal witness for the state. As indicated above, before the state closed its case in chief, the prosecutor proffered her testimony under the rationale of the Williams Rule. 2 Mrs. Hill's proffered testimony follows:
(PROSECUTOR): . . . In this instance the State would show under prior similar facts that in early March of this year prior to the attack in this case the defendant, Calvin Cater, knowing Tim Hill and his wife, Helen, and seeing Tim Hill shooting pool in the Pub in Clewiston, Florida, drove some 30 plus miles to Devil's Garden and called upon Mrs. Helen Hill knowing her to be by herself except for her small children. At that time the defendant, Calvin Carter, according to Mrs. Hill's testimony made certain advances on her trying to get her to have sexual relations with him and suggesting it to her in no uncertain terms. Further, at one point in there he stated to her 'What if I just make you do it, then you can't say that it was your fault,' to which she responded 'If you do so you will see what my husband will do about it.' The defendant further in the course of this matter attempted to grab and kiss the witness, but after being bluntly and flatly rebuffed by her departed her...
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