Diecidue v. State, 30913

• Decision Date: 24 May 1961
• Docket Number: No. 30913,30913
• Parties: Frank A. DIECIDUE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 7

131 So.2d 7

Frank A. DIECIDUE, Petitioner, v. STATE of Florida, Respondent.

No. 30913.

Supreme Court of Florida.

May 24, 1961.

Rehearing Denied June 21, 1961.

Frank Ragano, Tampa, for petitioner.

Richard W. Ervin, Atty. Gen., and Edward S. Jaffry, Asst. Atty. Gen., for respondent.

ROBERTS, Justice.

This case is before us on petition for certiorari directed to an opinion of the District Court of Appeal, Second District, Diecidue v. State, Fla.App., 119 So.2d 803, upon the theory of a conflict between the decision of that court and prior decisions of the Supreme Court of Florida.

The case against petitioner is founded upon an information consisting of three counts which was filed against the petitioner and six co-defendants. The first and second counts charge the petitioner and the six co-defendants with violating the lottery laws of the State of Florida and the third count charges the petitioner and the co-defendants with conspiring to violate the lottery laws of the State of Florida. Upon pleas of not guilty the defendants were put to trial before a jury. The jury was unable to agree upon a verdict with reference to six of the petitioner's codefendants which resulted in a mistrial as to them. Petitioner was found guilty under the first and second counts of the information.

The facts of this case as disclosed by the opinion rendered by the District Court of Appeal, Second District, are in substance: On March 22, 1958, law enforcement officers entered the home of the defendant with a search warrant, seized sundry items of bolita paraphernalia and arrested some of the defendants.

'At the time of the raid the appellant (petitioner here) was not present, nor did the state prove that he ever handled any of the * * * lottery paraphernalia which was seized. His conviction was on circumstantial evidence and no testimony was offered by the [appellant].' (Emphasis supplied.) Diecidue v. State, Fla.App., 119 So.2d 803, 804.

It is apparent that: the evidence against petitioner was wholly circumstantial in character; the State did not prove by positive or direct testimony that petitioner had knowledge of, or that he consented to, the illegal activities which allegedly took place in his home and he did not take the witness stand in his own defense.

Petitioner contends that: the evidence was insufficient to uphold a conviction and his motion for directed verdict, which was denied, should have been granted; the instruction given by the trial judge at the specific request of the jury upon the question of inferred possession amounted to a comment by the presiding judge, directly, indirectly or covertly to the fact that petitioner did not take the witness stand in his own defense; the testimony of an alleged expert witness was improperly admitted into evidence.

We first direct our attention to the contention of petitioner that the specific instruction given upon the request of the jury, after prolonged deliberation, which pinpointed the fact that the members of that body were interested primarily, if not exclusively, in the subject of presumed possession, constituted harmful and therefore reversible error.

We are not unmindful of the postulate that our statute, F.S. Section 918.09, F.S.A. makes specific reference only to the fact that the prosecuting officer may not make reference directly, indirectly or covertly to the fact that an accused in a criminal case did not take the stand in his own defense. Nevertheless, when a trial judge steps beyond the admonition contained in F.S. Section 918.10, F.S.A., wherein it is declared that 'the presiding judge shall charge the jury only upon the law of the case [upon] the conclusion of argument of counsel, * * *' (emphasis supplied) it cannot be said 'that the error complained of has (not) resulted in a miscarriage of justice.' Way et al. v. State, Fla., 67 So.2d 321, 323.

Moreover such 'stepping aside' can, and we believe in this case did, deny to the petitioner 'the fair and impartial trial guaranteed to him by Section 11 of the Declaration of Rights of our constitution, F.S.A.' Jones v. State, Fla., 92 So.2d 261.

Unlike the case of Reynolds v. State, 92 Fla. 1038, 111 So. 285, wherein the charge was possession of intoxicating liquor (We do not now decide because it is unnecessary to determine whether the instruction upon the subject of inferred possession given in the Reynolds case is applicable to, or in, a case of the character of the one now under consideration) no one of the charges herein was specifically one of possession of any type of illegal contraband. The information filed in this case contains three counts. The petitioner was convicted only upon counts one and two. Counts one and two charge the petitioner and others with violating the lottery laws of the State of Florida. Neither of these charges specifically charges petitioner with the possession of contraband but it was necessary for the State to prove knowledge of, or consent to, by positive testimony, or by circumstantial evidence which meets the criminal rule with reference thereto, in order to justify a verdict of guilty on counts one and two of the Information. Allen v. State, Fla., 62 So.2d 70.

We have delayed quoting the charge which is challenged and which was given as hereinbefore recited upon special request of the jury, after lengthy deliberation, and which obviously pin-pointed not only an instruction upon the law which might, under ordinary circumstances, have been appropriate but the trial judge made direct reference to the defendant, Diecidue, by name in said charge. Human experience dictates that jurors, especially in criminal cases, are ever alert to detect the view which the trial judge entertains with reference to the evidence and to the guilt or innocence of the defendant. The jurors in this case could not have been oblivious of the fact that the trial judge, at least covertly drew their attention to the failure of the petitioner to take the stand in his own defense. The prohibition against comment to the jury about the failure of a defendant to testify is a partial legislative implementation of the Fifth Amendment to the Constitution of the United States and the Declaration of Rights. If a defendant can be compelled to give testimony by holding him up to ridicule and scorn before a jury for failure to testify, he then is in fact coerced into giving testimony against himself in violation of the spirit, if not the letter, of his rights. The holding him up to ridicule simply becomes an alternative method to the rack and torture so prevalent in medieval times.

After the jury had been diliberating for some time the members thereof returned to the court room where the following colloquy between the court and juror number four took place:

'The Court: Gentlemen, do you have an inquiry to direct to the Court, or a report to make?

'Juror No. 4: Your Honor, I am not the foreman. The jury would like you to read again the definition of possession and also to tell us which count is the conspiracy count.

'The Court: Well, that last one is easy. The third count is the conspiracy count.

'Possession is usually defined as having personal charge of or exercising right of ownership, management or control of the thing said to have been possessed. To constitute possession, there need not necessarily be an actual manucaption of the things possessed; that is, it does not have to be held in the hand, nor is it necessary that it be otherwise actually upon the person of the possessor. There must, however, be a conscious and substantial possession by the accused as distinguished from a mere involuntary or superficial possession. Whether or not the accused, or any of them, were in conscious and substantial possession of the things alleged to have been found in the premises said to have been owned by the defendants Diecidue, may be lawfully inferred by the surrounding circumstances, especially in the absence of contrary or exculpatory evidence.' (Emphasis supplied.)

The instruction above quoted which is challenged herein was given to the jury in the original charges without objection by petitioner. However, upon this specific request by the jury, which indicated clearly that their thoughts were on the question of possession and its effect, counsel for petitioner strenuously objected upon the ground that the trial court improperly established the material fact of possession and directly or at least indirectly or covertly called the jury's attention to the fact that the appellant had not testified in his own behalf. With reference to the subject, the District Court in its opinion made the following pronouncements:

'viewing an instruction in isolation is a far different matter than viewing it in context with all other instructions, as the jury does. The test is whether the law is fairly presented to the jury, and it is well established that a challenged instruction must be considered in connection with all other instructions bearing on the same subject. Driver v. State, Fla.1950, 46 So.2d 718; Higginbotham v. State, 155 Fla. 274, 19 So.2d 829 (1944); Barkley v. State, 152 Fla. 147, 10 So.2d 922 (1942); Smith v. State, 149 Fla. 511, 6 So.2d 383 (1942).

'When considered with the other instructions, we cannot hold this instruction error. The jury was properly informed that they could take into consideration all the surrounding circumstances in determining whether or not the accused was in conscious and substantial possession of the lottery paraphernalia. Also, when read in context, we cannot see that this instruction violated appellant's rights by calling attention to the fact that he did not testify.'

We have no disagreement with the District Court pronouncement of the law with reference to the fact that ordinarily a challenged instruction must be considered in connection with all other instructions bearing on the same subject. This is the general rule. In this case, however, the instruction was...