DeLaine v. State

• Decision Date: 09 January 1970
• Docket Number: Nos. 67-358-67-363,s. 67-358-67-363
• Citation: 230 So.2d 168
• Court: Florida District Court of Appeals
• Parties: William E. DeLAINE, Joseph L. Graier, James C. Hillary, Wilbur L. Hunter, Irving Knight, and Charlie Waters, Appellants, v. STATE of Florida, Appellee.

Page 168

230 So.2d 168

William E. DeLAINE, Joseph L. Graier, James C. Hillary, Wilbur L. Hunter, Irving Knight, and Charlie Waters, Appellants, v. STATE of Florida, Appellee.

Nos. 67-358-67-363.

District Court of Appeal of Florida, Second District.

Jan. 9, 1970.

Rehearing Denied Feb. 6, 1970.

Robert E. Jagger, Public Defender, and Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellants.

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

PER CURIAM.

Appellants named above, defendants below, appeal to this Court from their convictions and sentences to imprisonment.

An indictment was returned into the Pinellas County Circuit Court charging all the said defendants and another, Jesse Brown, who has appealed separately, with the crime of rape. All defendants except Wilbur L. Hunter were adjudged insolvent and the Public Defender was appointed to represent them. Hunter was represented by private counsel. At the end of a 14-day trial all defendants were convicted of rape, with recommendation for mercy, and were forthwith sentenced to imprisonment. This appeal will concern only the defendants herein.

The defendants here submit eight points for consideration in their appeal which will be discussed seriatim.

Point 1. Defendants contend the Court erred in quashing defendants' witness subpoenas.

Prior to trial the Court denied defendants' motion to subpoena certain prospective witnesses, pursuant to the authority purportedly granted the Public Defender in a Special Act, Ch. 61-2663, Section 5 of which reads inter alia:

'The Public Defender shall be allowed full process of court to summon defendants and witnesses to appear before him at such convenient places and at times as may be designated by the Public Defender, to testify before him concerning the financial ability of any defendant to employ counsel for their own defense or Any matter pertaining to the defense of the defendant. * * *' (Emphasis added).

At the time the instant appeal was taken to this Court, the validity of Ch. 61-2663, § 5, was very much in dispute. This 2nd District Court had jurisdiction to determine the question of constitutionality under Art. V, § 4, of the Constitution, F.S.A because the trial Court, while denying the motion to subpoena, expressly declined to hold Ch. 61-2663, § 5, valid or invalid, and therefore his ruling was not one 'directly passing upon the validity of a state statute', which would have vested jurisdiction in the Supreme Court.

However, we preferred not to exercise such prerogative of constitutional determination in light of the fact that we were apprised of a case wending its way to the Supreme Court where the point would be squarely presented. Therefore, we have withheld decision in the instant case for what may have seemed an inordinate lapse of time, awaiting the decisive opinion of the Supreme Court. That Court has now spoken in the case of Miller v. State, 225 So.2d 409, opinion filed July 16, 1969, and has held that 'so much of Chapter 61-2663 as permits the defender to summon witnesses to testify before him is violative of Article V, Section 3 of our Constitution'.

This disposes of Point 1 adversely to defendants.

Point 2. Defendants contend that the Court erred in allowing several photographs into evidence over objection.

Defendants objected first to admissibility of the photographs because they were not disclosed or produced for them prior to trial in accordance with the Court order. The attorney for Wilbur Hunter admitted he was shown the picture of his client Hunter, and that there were 'some others there' and he thought he 'looked at them'. An investigator for the State Attorney's office testified be showed the pictures in question to counsel for Hunter and to one of the Public Defenders representing the other defendants, who admitted that 'Now, he may have shown me these pictures. I can't truthfully deny this.' No error appears.

Defendants further objected because no predicate was laid as to the date the photographs were taken. The photographer, a newspaper reporter, admitted he did not know the exact date when he took the pictures. But a member of the St. Petersburg police department testified they were taken on January 12, 1967, at the scene of the crime. No error is demonstrated.

One of the photographs objected to contained the words 'The Victim' on the reverse side, and defendants claim that such notation was made by unsworn persons, which rendered the picture inadmissible as hearsay. This raises a serious question.

Defendants rely upon Adams v. State, 1891, 28 Fla. 511, 10 So. 106; 108 A.L.R. 1415; State v. Rombolo, (1916) 89 N.J.L. 565, 99 A. 434, later 91 N.J.L. 560, 103 A. 203; and Anthony v. State, 1942, 30 Ala.App. 425, 7 So.2d 513, in support of their contention.

Adams v. State, supra, involved a map or diagram of the terrain where the crime was committed. It was made by a witness who testified as to the route he and the accused traveled. On the map were two other routes traveled by two other witnesses. The Court said:

'We think a map or diagram of the country in its physical condition at the time can be put in evidence, and any witness, in giving testimony as to localities, can indicate on the map the relative position of things or persons. But for a person who knew nothing of these matters, except what he heard from others, to designate the movement of persons on the map would be testimony of a secondary character, and improper to be admitted.'

In State v. Rombolo the Court held that a photograph of the defendant taken while in the reformatory, containing a statement on the reverse side that he was charged with burglary and had violated his parole, was inadmissible, since the evidence was hearsay, coming from an unknown source and not made under oath. This was one of the 'rogues gallery' or 'mug shot' class of cases, where such photographs convey to the jury the information that the defendant has a police record.

In Anthony v. State, supra, numerous pictures, purported to have been taken at the scene of the crime, were admitted into evidence. The Court held that they were improperly and erroneously admitted for the reason that on the back of each was an explanation of the photo, including: 'Sam Anthony Car Parked.' The Court said:

'Such endorsements must of necessity have been the mere conclusion of the writer thereof, and each of said endorsements affirmatively appears as the surmise, opinion or conjecture mayhap, suspicion, of the writer of the endorsements, all of which were wholly unauthorized and illegal.'

In the case of Cohoon v. State, Fla.App.1968, 207 So.2d 338, this Court affirmed the lower Court without a written opinion. One of the questions involved was the introduction of a fingerprint card which had on the reverse side the words: 'Breaking and Engering (sic).' The trial Judge had instructed that the exhibit consisted only of the front of the card and to ignore the writings on the back.

In Haager v. State, 1922, 83 Fla. 41, 90 So. 812, the Supreme Court held that the use of the word 'slayer' by the trial Court in one of its instructions to the jury in referring to a person on trial for homicide, was not reversible error.

Since the prosecutrix took the stand and testified as to the assault and identified the picture as being that of herself, we do not believe that the word 'Victim' on the back of the picture injected reversible error into the record. Point 2 is without merit.

Point 3. Defendants claim they were deprived of a fair trial by the intentional actions, statements and innuendos of the prosecuting attorney throughout the trial.

During voir dire examination the prosecutor stated:

'Mrs. Morelli, Mrs. Iske, Mrs. Wagner, and gentlemen, all I'm going to do is amplify the last question asked by defense lawyer, Mr. Chambers, and ask each of you to pause and reflect momentarily in your own hearts and consciences and ask yourselves can you think of any reason under the sun why you could not be a fair and impartial juror, not only for each of the defendants, but for the people of the State of Florida as well? Can you think of any reason in the world why you should be challenged to sit on this panel and try this case by anybody? Can any of you think of any reason why anybody should challenge you.

'Each of you is satisfied you can sit as that fair and impartial juror for both parties?

'The State is satisfied and accepts this jury, Judge.'

During a bench conference with the attorneys out of the prospective jurors' hearing the Court said:

'Isn't that another way of saying to them is any of you conscious of any reason why he ought not be--why he could not be a fair and impartial juror?'

The Court then denied appellants' motion for a mistrial, based upon the above voir dire question.

Defendants cite Gibbs v. State, Fla.App.1967, 193 So.2d 460, where the trial Court suggested on voir dire examination that a juror's mind should be in the same state he would like a juror's mind to be in if he, the juror, were being tried. This Court, in reversing the judgment, said:

'It is improper to ask a juror if his mind is in the same state he would like the juror's mind to be in if he, the juror, were being tried. 14 F.L.P. Jury, § 139; Roberts v. State, 94 Fla. 149, 113 So. 726. The suggestion of this test by the court was clearly erroneous, as a juror does not possess the right to pass upon questions touching his qualifications to serve in a particular case. That prerogative rests with the court. See Story v. State, 53 So.2d 920 (Fla.1951).'

We do not believe that the aforesaid statement made by the prosecuting attorney in the case sub judice can be considered analogous to the statement made by the trial Judge in Gibbs, and we agree with the trial Judge that the statement made by the prosecuting attorney was just another why of asking the jurors if they were conscious of any reason why they...