Collins v. State

• Decision Date: 15 March 1967
• Docket Number: No. 5904,5904
• Citation: 197 So.2d 574
• Parties: Earnest COLLINS, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 574

197 So.2d 574

Earnest COLLINS, Jr., Appellant, v. STATE of Florida, Appellee.

No. 5904.

District Court of Appeal of Florida, Second District.

March 15, 1967.

Rehearing Denied April 26, 1967.

William K. Howell, Jr., Winter Haven, and Thomas W. Perkins, of Kirkland & Perkins, Auburndale, for appellant.

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

PIERCE, Acting Chief Judge.

This is an appeal by Earnest Collins, Jr., defendant below, from a judgment and sentence imposed upon him by the Circuit Court for Hardee County, pursuant to a jury verdict convicting him of second degree murder upon trial of an indictment charging him with first degree murder.

The indictment charged Collins with the murder of one John D. Goff on July 11, 1964, by striking him with a stool. Several motions were filed to the indictment, among which was a motion for change of venue on the ground that Collins could not receive a fair trial in Hardee County. On October 12, 1964, the trial Judge denied all pending motions, including the motion for change of venue. On October 24, 1964, after trial by jury, defendant was convicted of murder in the second degree and sentenced to life imprisonment.

Mr. Goff was owner of a country store and gasoline station on the south town limits of Wauchula on U.S. Highway 17. On the evening of Friday, July 10, 1964, Mr. Goff was in his store with his son, Marvin B. Goff. At about 1 o'clock in the early morning of Saturday, the 11th, the son, deciding that his father was going to stay up in the store, as was not unusual, left to spend the night at his father's home adjoining the store building. At about 3:25 A.M. a neighbor looked out and saw Mr. Goff standing in front of the store when a man walked up and they both went inside the store. The neighbor could not tell whether the man was white or colored or how he had gotten there.

A route salesman delivering bread for Sunbeam Bakeries, a Mr. Jowers, drove up in front of the store at approximately 4:40 A.M. on that morning. ¹ He looked in the store, and at that time he saw a colored man coming out, thinking he was a casual early morning customer. He went on into the store, noticed the cash register was open, and that the arms had been broken off Mr. Goff's regular 'lounge chair' and were on the floor. He then 'walked down by the ice cream counter and looked over behind it and Mr. Goff was laying there on the floor' face down with both hands 'kind of under him' with considerable blood around his head. Jowers then drove to the Sheriff's office and made the report. He gave a brief description of the man he saw leaving the store, but later testified that nothing in the man's actions caused him any suspicion. He told the officers he doubted if he would be able to identify him, and in fact subsequently 'viewed two line-ups' at the Sheriff's office (both participated in by defendant Collins) and failed to make an identification

Frank Tice, a Wauchula police officer, was going off duty about 4:55 A.M. when he received a call and went immediately to the Goff store. He saw the cash register open, an arm broken off the easy chair that usually sat directly inside the front door, then looked around and found Mr. Goff lying face down near the back door of the building with a bloody wound on his head. He noticed a stool toppled over on the floor and one of Mr. Goff's shoes off. Mr. Goff had stopped breathing and had no pulse. Tice turned the body over and there was an open pocket knife in the palm of Mr. Goff's right hand.

Sheriff Odell Carlton of Hardee County arrived at the store shortly after 5 A.M. and found the cash register open and all the currency taken, with a little silver left in the drawer. A large chrome metal stool with a red top cover was on the floor on its side about three or four feet from Mr. Goff's feet. Numerous photographs were taken by the Sheriff of the interior and exterior of the building, the body, the cash register, the stool, etc.

Lorenzo Elwood Mack, a 19 year old negro living in the same colored boarding house in the Wauchula 'quarters' as defendant Collins, testified that on that night he and Collins were in a 'crap game across the tracks'; that about 3 A.M. they drove back to the boarding house, then at Collins' request he drove to a place near the Goff store, where he stayed in the car while Collins got out, saying he was going to try to get some gasoline on credit; that Collins about fifteen minutes later came out of the store somewhat in a hurry and told Mack, 'I hit the old man up there'; that they drove back to Mack's room, at which time Collins took some money out of his pocket and insisted that Mack take some of it, which he did; that Collins said, referring to Mr. Goff, '(a)fter I hit him, knocked him down with my fist, he came at me with a knife and I had to hit him with a stool then.' ²

Gus Willie Cleve, a negro living near the boarding house, testified that about 4 A.M. he was standing on his front porch and saw Collins call Mack to go with him some where, that a few minutes later he saw Collins' car go north on Highway 17 with two men in it, neither of whom he could recognize.

There was evidence of an oral confession by the defendant at the jail house two days after he was arrested, which will hereinafter be gone into in more detail.

The foregoing is a fair synopsis of the State's evidence, exclusive of the confession. Numerous questions are raised on appeal, only two of which are worthy of discussion: (1) denial of the motion for change of venue, and (2) admission of the confession into evidence. We hold there was no error as to the former, but that the confession was erroneously admitted. We will take the two matters up separately.

A--Change of Venue

Defendant's petition for change of venue, filed September 30, 1964, fourteen days after the indictment was returned, alleged that he did not believe it would be 'practicable' to receive an impartial trial in Hardee County. One affidavit of the defendant and three affidavits of his counsel, Jack T. Edmund, filed in support of the application, set forth substantially the following facts: that the deceased victim, John D. Goff, was a well-known white man who had operated a business in Wauchula; that after the death of Mr. Goff, the Herald Advocate, a weekly newspaper in Hardee County, with a circulation of about 3000 and read by over ninety percent of the populace, commenced carrying news accounts about the homicide, including statements by the investigating officers and the local Sheriff, which gave 'a very graphic account of the charge'; that said articles 'contained lengthy compilation of an alleged crime record of the defendant, along with pictures of the defendant' prominently displayed; that two issues of the newspaper, August 7 and 28, 1964, 'contain references to the alleged confession of the defendant'; that on September 30, 1964, Attorney Edmund had attempted to interview a State witness, Lorenzo Mack, in the Hardee County jail, but was advised that such interview would be permitted only in the presence of a deputy sheriff 'which would have created an untenantable (sic) situation and rendered it impossible' to properly interrogate Mack, and that it was 'of paramount importance' that Edmund be permitted to question Mack in private; that permission had been secured from Mack's attorney to have the private interview; that defendant was 'an itinerant negro * * *, not well known in the area * * *,' and could not receive a fair trial there because he was 'so odious to the inhabitants of Hardee County and the surrounding counties in the Tenth Judicial Circuit'; and that he had 'no friends nor does he know anyone in said county' who would sign supporting affidavits to his venue petition.

No other affidavits were submitted except those of the defendant and his counsel. No other evidence was proffered to the Court. At the hearing upon the petition the trial Judge denied it 'for the present,' apparently to see if there would be any difficulty in getting a jury to try the case.

The trial started on October 22, 1964, and selection of the jury began. Forty-two prospective jurors were examined on their voir dire. The Court excused seventeen: the State excused three; the defendant excused ten. After the defense had exhausted its permissible ten peremptory challenges and twelve unchallenged jurors were seated in the box, defense counsel moved the Court to allow three additional peremptory challenges, which motion was denied. Defense counsel thereupon renewed the motion for change of venue, which was denied. The trial proceeded with the twelve men then in the box. Defendant contends here that, upon the showing made, in the sworn petition, the supporting affidavits, and the proceedings upon voir dire of the jurors, the trial Court committed error in refusing defendant a change of venue. We disagree.

The questioning of Lorenzo Mack and the denial of three additional peremptory challenges may be disposed of in short order. If defense counsel were entitled as of right to question Mack in private and same was denied, a simple petition to the Court could insure such privilege; and besides, there is no relationship between a private interview with a witness and a change of venue. And as to the additional peremptory challenges, the law makes no provision for any challenges beyond the statutory limit. ³

This leaves the venue petition resting for factual support upon these contentions: the victim was a well-known white business man in the community; the defendant was a friendless, itinerant negro with a reported criminal record; the local weekly newspaper had given coverage to the robbery and homicide and the developments thereafter ensuing; and the 'difficulty' of getting an impartial jury to try the case.

A firmly-embedded principle of criminal jurisprudence is that a person accused of crime must, as a general...