Downs v. State

• Decision Date: 22 May 1980
• Docket Number: No. 53524,53524
• Citation: 386 So.2d 788
• Parties: Ernest Charles DOWNS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 788

386 So.2d 788

Ernest Charles DOWNS, Appellant, v. STATE of Florida, Appellee.

No. 53524.

Supreme Court of Florida.

May 22, 1980.

Rehearing Denied Sept. 12, 1980.

Richard Lovett Brown, Jacksonville, for appellant.

Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Ernest Charles Downs was convicted of the murder in the first degree of Forrest Jerry Harris, Jr. The jury recommended that the death penalty be imposed, and, after weighing the aggravating and mitigating circumstances, the trial court imposed a sentence of death. Downs' conviction and sentence of death are before this Court on direct appeal pursuant to article V, section 3(b)(1), Florida Constitution. Downs also appeals his conviction for conspiracy to commit first-degree murder. We have reviewed the record, considered the fifteen points raised on appeal, and have found no reversible error.

In April, 1977, John Barfield approached Downs with an offer of five thousand dollars if Downs would kill Harris. Downs accepted the contract to kill Harris and enlisted the assistance of Larry Johnson. On April 23, 1977, at Downs' insistence, Johnson phoned Harris and identified himself as Joseph Green, from whom Harris was expecting a call, and told Harris that he wanted to talk to him about flying contraband. They arranged a meeting in Jacksonville. Downs drove down a dirt road and left Johnson there to await Downs' return with Harris. Downs picked up Harris Downs argues that his conviction should be reversed because the trial court erred in allowing into evidence a diagram prepared by Johnson outside the courtroom, because he was denied due process by the prosecutor's interruption of defense counsel during defense reply summation, because he was denied an impartial jury, because he was deprived of due process by not being allowed to videotape depositions, because his right to cross-examine a witness was curtailed, because he was deprived of his right to compulsory process for obtaining witnesses, because he was denied his fifth amendment right against self-incrimination, because he was denied due process by admission of a particular hypothetical question propounded by the prosecutor to the medical examiner, because the judge commented on the evidence, and because the evidence is insufficient to support the conviction.

and drove to the location where he had left Johnson. Harris exited the car and approached Johnson at which time Downs shot Harris four times in the head with a .25 caliber automatic pistol. Together, Downs and Johnson dragged the body off the road into the bushes where Downs fired another shot into Harris' chest to make sure that he was dead.

For the most part, Downs' points on appeal are completely without merit and do not require explication; however, his allegation that he was denied an impartial jury under the sixth and fourteenth amendments and contrary to the dictates of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), does warrant discussion. Downs contends that it was improper to excuse five jurors for cause who indicated an inability to vote for the death penalty but an ability to determine guilt.

The Supreme Court, in Witherspoon, held that a sentence of death cannot be carried out if the jury that imposed or recommended the death penalty was chosen by excluding veniremen for cause who voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction but who did not state that they would automatically vote against the imposition of such punishment. At Witherspoon's trial, the prosecution eliminated almost half the prospective jurors because they expressed qualms about capital punishment. Only five out of the forty-seven jurors excused for cause in Witherspoon stated that under no circumstances would they vote to impose the death penalty. The Supreme Court explained:

If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply "neutral" with respect to penalty. But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.

391 U.S. at 520-521, 88 S.Ct. at 1776. The Supreme Court did not disturb the conviction but only held that under the circumstances the death sentence would not be carried out.

Although in Witherspoon the Supreme Court was not directly confronted with the question presented by Downs whether a juror, who states that he is able to determine guilt in an unbiased manner but would never vote for death penalty, may be excused by the State for cause it did say:

We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.

391 U.S. at 517-518, 88 S.Ct. at 1774-1775. Furthermore, the Court noted The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.

We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (emphasis supplied) (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case.

391 U.S. at 523, n.21, 88 S.Ct. at 1777, n.21. See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

In Witt v. State, 342 So.2d 497 (Fla.1977), we applied Witherspoon and held that it is proper to exclude prospective jurors for cause who say that they could never vote to impose the death penalty.

The identical point presented by Downs was dealt with by the United States Court of Appeals, Fifth Circuit, in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. den., 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). Therein, two veniremen, excluded for cause, stated that they would automatically vote against imposition of the death penalty but that they could fairly judge defendant's guilt or innocence. The Fifth Circuit found nothing constitutionally impermissible in the exclusion of these veniremen and reasoned:

But the state also enjoys the right to an impartial jury, Williams v. Wainwright, supra, 427 F.2d at 923, and impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution. . . . Florida, however, has determined that even though a venireman states he can fairly judge guilt or innocence, if he also states that he is irrevocably committed before the trial has begun to vote against the penalty of death, regardless of the facts and circumstances that might emerge at trial, he must be excluded completely. The state has decided that the parties' right under the Sixth and Fourteenth Amendments to an impartial trial and the state's interest in the just and evenhanded application of its laws, including Florida's death penalty statute, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen. The Constitution does not prohibit this judgment. . . . The jury that emerges after excluding such veniremen, having been carefully examined to exclude also for cause those veniremen who are biased against the defendant, either as to guilt or as to punishment, is impartial. To call it prosecution-prone is to misunderstand the meaning of impartiality. . . .

578 F.2d at 596.

The jurors in the present case who were excluded stated that they could not, under any circumstances, vote to impose the death penalty after a verdict of guilty was returned. By stating that they were unwilling to consider all the penalties provided by law, they evidenced their inability to follow the law and were properly excluded by the trial court.

In addition to reviewing the record in light of the errors alleged by Downs, which we find to have no merit, we also have reviewed the record pursuant to Florida Rule of Appellate Procedure 9.140(f) to determine whether the interests of justice require a new trial and conclude that no We next consider Downs' challenges to the imposition of the death penalty. The trial court, in a detailed sentencing order, stated:

new trial is required. Although defense counsel diligently tried to find weak points in the State's case and to raise doubts as to the credibility of the State's witnesses, the evidence of Downs' guilt is overwhelming, and the jury could not have reasonably returned any other verdict. Downs received the full due process of the law and a fair trial free of any reversible error. Accordin...