Courtney v. State
| Decision Date | 25 April 1978 |
| Docket Number | No. 77-290,77-290 |
| Citation | 358 So.2d 1107 |
| Parties | . The STATE of Florida, Appellee. District Court of Appeal of Florida,Third District |
| Court | Florida District Court of Appeals |
Alvin E. Entin, Miami, for appellant.
Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
Before KEHOE, J., and BOYD, JOSEPH A., Associate Judge and CHARLES CARROLL (Ret.), Associate Judge.
Appellant, defendant below, brings this appeal from a judgment of conviction entered pursuant to a jury verdict finding him guilty of two counts of first degree murder and of two counts of attempted first degree murder (all counts involving different persons). For these crimes, appellant was sentenced to consecutive life terms, without the possibility of parole for 25 years, plus an additional 15 years to run consecutively to the two life terms. For the reasons set forth below, we hold that the judgment of conviction and sentence should be affirmed.
Appellant was jointly indicted, along with Dale James King and James Randolph Jacobs, by the Grand Jury on May 4, 1976. King was tried separately, found guilty of two counts of first degree murder and two counts of attempted first degree murder, and sentenced to life imprisonment for the first degree murder charges and to 15 years imprisonment for the attempted murder charges. This judgment of conviction and sentence were affirmed by this court in King v. State, 355 So.2d 831 (Fla. 3d DCA opinion filed February 21, 1978). Jacobs was tried jointly with appellant herein, Phillip Brannon Courtney. Jacobs was found guilty on two counts of the lesser offense of second degree murder and two counts of the lesser offense of aggravated battery. His appeal, from this judgment of conviction and sentence, is presently pending before this court in Jacobs v. State, 538 So.2d 1110 (Fla. 3d DCA).
The ruthless and savage action which compelled the joint indictment of appellant, Jacobs, and King, was the discharge of a shotgun by one of them, from an automobile in which they were riding, at a group of persons standing adjacent to a street. This barbaric action resulted in the death of two persons and the wounding of two others. The facts of the incident are related in detail in this court's opinion in King v. State, cited above, authored by the late Justice E. Harris Drew, Retired, as Associate Judge. For the purposes of the instant appeal, it is unnecessary for us to restate those facts in detail.
Appellant raises the following three points on appeal: (1) that the comment of the prosecutor characterizing a statement made by Dale James King, which was not introduced into evidence, as a confession, was so prejudicial as to deprive him of a fair trial; (2) that certain photographs, taken at the scene of the crimes and at the autopsies of the victims, were so gruesome and irrelevant that their introduction into evidence was so prejudicial as to deny him a fair trial; and (3) that the trial court erred in allowing the prosecutor to elicit certain hearsay testimony, allegedly under the co-conspirator exception to the hearsay rule, because the testimony concerned inculpatory statements made by the co-defendant which were not made in the furtherance of any conspiracy, thereby, violating his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution.
During the course of the trial, appellee sought to admit an item of documentary evidence. When appellee attempted to have one of its witnesses identify the document, appellant's counsel immediately asked to be told the nature of the document. In response, appellee replied, "It is the confession of Dale James King." A side-bar conference was immediately held and appellee informed the trial court that he intended to introduce King's confession into evidence under the co-conspirator hearsay exception and that, because King had been severed from this trial, he was available for cross-examination. The trial court ruled that the document was inadmissible and then instructed the jury to disregard it, as follows:
"THE COURT: I want to instruct the jury at this time I believe it was yesterday that I said lawyers are advocates and make statements in court, both as to the law and as to evidence.
I have instructed you that the evidence will come from the witness stand or through the clerk and the instructions will come from me.
Just because somebody labels a document in such a manner, that is not for your consideration. You are to disregard any comment on what the document purports to be."
Subsequently, King was called as a witness, but he refused to testify on the ground of self-incrimination. Although the trial court ruled that King had waived the privilege by testifying at his own trial, he still refused to testify, and the document in question was never admitted into evidence.
Under these circumstances, the principles espoused in Bruton v. United States...
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Wilson v. State
...court's discretion and that court's ruling will not be disturbed on appeal unless there is a showing of clear abuse. Courtney v. State, 358 So.2d 1107 (Fla. 3d DCA), cert. denied, 365 So.2d 710 (Fla.1978); Phillips v. State, 351 So.2d 738 (Fla. 3d DCA 1977), cert. denied, 361 So.2d 834 (Fla......
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...(1985); Booker v. State, 397 So.2d 910, 914 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981); Courtney v. State, 358 So.2d 1107, 1109 (Fla. 3d DCA), cert. denied, 365 So.2d 710 (Fla.1978); Bretti v. State, 192 So.2d 6, 7 (Fla.3d DCA 1966), cert. denied, 201 So.2d 459......
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McCullough v. State, 80-2312
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