Coleman v. State

• Decision Date: 30 October 1968
• Docket Number: No. 1566,1566
• Citation: 215 So.2d 96
• Parties: Cornelius COLEMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 96

215 So.2d 96

Cornelius COLEMAN, Appellant, v. STATE of Florida, Appellee.

No. 1566.

District Court of Appeal of Florida, Fourth District.

Oct. 30, 1968.

Lavon Ward, Public Defender, and Patrick O'Neal, Asst. Public Defender, Fort Lauderdale, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.

BARNS, PAUL D., Associate Judge.

Compare Mobley v. State, District Court of Appeal, Fourth District, 215 So.2d 90, opinion filed October 30, 1968.

After being found guilty by a jury on a change of robbery, motion for new trial denied and after being adjudged guilty and sentenced, the defendant entered this appeal. We affirm.

His counsel on appeal, the public defender, has failed and neglected to state in his brief with his points in argument the specific assignments of error relied on for reversal as is expected of him in the rendering of professional services to his client and to the court. F.A.R. 3.7(f)(4), 32 F.S.A. When seeking a reversal for errors of the lower court, the appellant gains no advantage by not stating the alleged error about which he argues. Furthermore, if he states it, he is more likely to address his argument to it. To do so is good professional practice even in the absence of a court rule.

I

Appellant's first point: 'A Prosecuting Attorney may not express his personal belief of the guilt of the accused in closing argument' which point appears to be within the scope of his first assignment of error: 'That the Court erred in denying * * * Motions for Mistrial, and either of them, made by the Defendant during 'Gentlemen, I feel the State has proved this case beyond a reasonable doubt, not beyond a shadow of a doubt, but beyond a reasonable doubt that Cornelius Coleman was one of the people who did rob Reverend Penn on June 21st of last year in Broward County, Florida.

the course of the trial.' The facts and circumstances giving rise to the point occurred at the end of the closing argument of the prosecution to the jury as follows:

'I ask of you that you weigh the evidence, consider it carefully, consider the law as the judge gives it to you, and if you believe the same way I do, bring back a verdict of guilty.

'Thank you for your attention, gentlemen.

'You have been real kind.

'MR. SANDSTROM: May it please the court, I have an objection to make and I would rather make it in the absence of the jury.

'* * * (The judge and counsel retired to the jury room.)

'MR. SANDSTROM: Comes now the defendant and objects to the closing remark of the prosecutor expressing his personal belief in the guilt of the defendant in this particular case and thereupon moves for a mistrial.

'THE COURT: Motion is denied.'

The language used by the prosecutor 'and if you believe as I do' when considered in full context as used was not an expression of personal opinion irrespective of the evidence but was a permissive conclusion or deduction by him of the sufficiency of the evidence to establish the defendant's guilt. It was fair comment made in the discharge of the function of his office, Washington v. State (per Justice Terrell), 1923, 86 Fla. 533, 98 So. 605; Adams v. State, 1907, 54 Fla. 1, 45 So. 494; at least it was not unfair comment.

Appellant's second point is that 'The defendant was dneied a fair and impartial trial.' His counsel again fails and neglects to correlate this point to any judicial act assigned as error. In support of the point, his counsel imputes error on the voire dire examination of the jury, after directing that the court reporter in transcribing the trial proceedings for this appeal should omit 'the voire dire examination of the jurors', which he did. He also contends res gestae evidence to be hearsay and inadmissible. He contends error in denying at trial a request for the prosecution to produce statements of witnesses taken before trial which statements were later produced and inspected by the defendant's counsel at trial. The foregoing contentions are frivolous and without any merit.

Appellant's counsel further contends prejudicial error in permitting identification of the defendant by the state's witness in a police line-up in the absence of the defendant's counsel, contrary to United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. The case at bar came on for trial on April 3, 1967, and judgment was rendered on April 6, 1967. And Wade was decided June 12, 1967. The Supreme Court in Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, recognized that Wade was not the application of newly discovered old law, but that it was New law, and held that Wade was prospectively limited and was to be applied to the parties in the case in which it was announced but 'not to other litigants (then) similarly situated in the trial or appellate process who have raised the same issue.' Furthermore, it has not been made to appear that the in-court identification of the defendant was tainted by the police line-up identification process contrary to United States v. Wade, supra, and that the trial court committed error in respect thereto.

II

Perfunctory or Blind Appeals

It is evident that this appeal was taken perfunctorily and blindly without a thing to guide the public defender except the indigency of the defendant and his request that the public defender exercise his right to appeal, wholly devoid of any prior professional evaluation of merits. The public defender took up where the defendant's retained counsel quit--and before he could arrive at any professional conclusion as to the merits it was necessary that he procure the 746 pages of transcript of the trial proceedings from the official court reporter (with two carbon copies of course) at public expense. The result of this is that the state through the attorney general must incur the further expense of providing the use of assistants to the attorney general with adequate secretarial services to uphold the trial judge's judgment before the appellate court by briefs. Furthermore, the state must attempt to provide enough judges, research aides and clerical assistants on the appellate court to, with reasonable promptness, dispose of the appeal of such cases as well as the privately prosecuted appeals.

The state's public defenders, the attorneys appointed by the federal district courts and, it seems probable, that the Judicial Conference of the United States, in recommending the adoption of Fed.R.Crim.P. 32(a)(2) are laboring under the impression that Douglas v. People of State of California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, permits or requires attorneys assisting convicted indigent defendants charged with crime to take and enter appeals, devoid of the exercise of any professional evaluation of the good faith ground of the appeal, if the indigent convicted defendant so request; and that Douglas is in conflict with the ethical standards requiring good faith; hence, the ethical standard must yield to the Douglas law.

Douglas involved the right of the indigent to the assistance of counsel in a Pending appeal in the California District Court of Appeal and did not involve the constitutional right of the indigent to the assistance of counsel to take a blind or perfunctory appeal.

Argument has been made that since a rich man might more than likely be able to procure an attorney to take a frivolous appeal that it follows that the equal protection clause of the Fourteenth Amendment entitles the indigent convicted defendant to be provided with an attorney under the same circumstances to take an appeal. A frivolous or perfunctory appeal is not right, but wrong and the intent of the Fourteenth Amendment is not to ensure that the poor man shall have equal opportunity with a rich man to do wrong by having the sovereignty provide an attorney to take a frivolous or perfunctory appeal.

In construing and evaluating the Douglas decision (and other decisions) and its ratio decidendi, words should not be lifted out of context. As stated in 1B Moore, Federal Practice, 0.402(2) (2d ed. 1965):

'* * * We have been admonished by the Supreme Court, as early as Cohens v. Virginia (Cohens v. Virginia (1821) 6 Wheat 264, 399--400, 5 L.Ed. 257, 290), not to disregard the maxim that

"* * * general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it, are considered in their

relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."

III

EFFECTIVE ASSISTANCE OF COUNSEL--POST TRIAL NEGLECT:

The blind and perfunctory appeals taken pursuant to the general practice of the public defenders without prior professional evaluation are approximately five per centum (5%) successful, which practice tends to render a disservice to an indigent's appeal possessing merit and a disservice to the appellate court. The following quotations made in respect to appellate courts, likewise apply to the public defender as to results. Professor Geoffrey C. Hazard, Jr., in The Courts, The Public and The Law Explosion (Harry W. Jones ed. 1965), suggests that 'volume of cases his same * * * impact on the appellate judicial process' and 'the quality of business done is almost always that rising volume adversely affects quality'. To avoid the appellate court explosion, occurring in the United States Courts of Appeals as referred to by Chief Justice Warren. (See Mobley v. State 215 So.2d 90), (District Court of Appeal, 4th District opinion filed October 30th, 1968), in the state system it may be that we need full-time public...