Ford v. State, 47059

• Decision Date: 18 July 1979
• Docket Number: No. 47059,47059
• Citation: 374 So.2d 496
• Parties: Alvin Bernard FORD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 496

374 So.2d 496

Alvin Bernard FORD, Appellant, v. STATE of Florida, Appellee.

No. 47059.

Supreme Court of Florida.

July 18, 1979.

Rehearing Denied Sept. 24, 1979.

Robert T. Adams, Jr., Marianna, for appellant.

Jim Smith, Atty. Gen., and Patti Englander, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is here on direct appeal from a conviction of first degree murder and sentence of death. We have jurisdiction under article V, section 3(b)(1), Florida Constitution.

On the morning of July 21, 1974, Ford and three others, who had decided to commit a robbery, went with weapons to a Red Lobster Restaurant in Fort Lauderdale, Florida. During the robbery, after two people had escaped from the restaurant, Ford's three accomplices realized the police would soon arrive and so left the scene of the crime. Ford remained in order to effectuate the theft of some $7,000 from the restaurant's vault and was confronted by Officer Dimitri Walter Ilyankoff of the Fort Lauderdale Police Department. Ford shot the policeman three times, wounding him fatally. Appellant escaped in the decedent's police car, and his fingerprints were later found in the vehicle after it had been abandoned. He was arrested in the vicinity of Gainesville, Florida, and was returned to Fort Lauderdale for indictment and trial.

At trial, defense counsel moved to sequester the jury in view of allegedly heavy media coverage of all the events surrounding the death of the local officer. The judge denied the motion to sequester. Later in the trial, unauthorized reading material four magazines of the Time-Life variety was discovered in the jury room. A motion for mistrial was denied, it appearing to the judge that no prejudice had been demonstrated. Among the thirty witnesses presented by the State at trial was Mrs. Barbara Buchanan, an employee of the Red Lobster, who saw and heard the firing of the final shot. Some twenty witnesses later, appellant's counsel attempted to recall Mrs. Buchanan for further cross-examination after learning that she had made inconsistent statements which were not produced during discovery proceedings. This request was denied, as was the opportunity of calling another witness for the defense for the purpose of impeaching Mrs. Buchanan through evidence of her allegedly inconsistent prior statements.

Near the end of this two-week trial, defense counsel's secretary answered a call from an anonymous informant, who claimed that he had seen a juror, one Huber, in a box at a local racetrack on the preceding Friday. This informant said that he had heard Huber telling a companion that he was a juror at the trial of "the guy who killed the cop" and that the State had an "open and shut case." With the jury excluded, the secretary testified to this effect in court. Huber was brought before the judge, confirmed that he had been to the racetrack the preceding Friday, had sat where and with whom the tipster had indicated, and that he had told his companions that he was a juror on the Ford case. However, Huber denied that he had made any statement suggesting that he had made up his mind about the defendant's guilt or innocence. The judge denied a defense motion for mistrial on the basis of juror misconduct.

The jury found appellant guilty of first degree murder, and after the second phase of the trial held pursuant to section 921.141, Florida Statutes (1975), recommended the death penalty. The trial court entered judgment on the verdict and sentenced Ford to death.

On this appeal Ford raises three points. The first is that the death penalty statute is unconstitutional on both state and federal constitutional grounds. Second, he contends that the court's refusal to allow defense Section 921.141, Florida Statutes (1975), has been authoritatively upheld as constitutional on both state and federal grounds. Proffitt v. Florida,428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973). To the extent that Dixon did not lay to rest appellant's argument that the death penalty is per se violative of the "right to enjoy . . . life" under Article I, Section 2, Florida Constitution, we do so now.

counsel to recall Mrs. Buchanan for further cross-examination in the nature of impeachment was erroneous. Third, he argued that, in light of subsequent juror misconduct, it was reversible error for the trial court to deny a motion to sequester the jury.

As indicated above, at trial the State produced an eyewitness who saw and heard the last shot and identified Ford as the killer. After being examined by counsel for both sides, Mrs. Buchanan was excused. Later, appellant's attorney learned from another lawyer not involved in this case that the witness had made allegedly inconsistent statements with regard to this identification at a bond hearing held three months earlier for DeCosta, one of the other men charged with the instant criminal action. Apparently, the testimony at the DeCosta bond hearing was never transcribed, although the prosecuting attorney in Ford's case was aware of its existence and had in fact participated in the hearing. Appellant's attorney asked that Mrs. Buchanan be called for further cross-examination. The trial judge denied the request. Defense counsel later asked that a Fort Lauderdale police officer, one Bucata, be called as a witness for the defendant to testify to the fact that Mrs. Buchanan had told him that she could not see the killer above the waist. The defense evidently thought that such testimony would provide the predicate for impeachment by further cross-examination of Mrs. Buchanan concerning her ability to identify the defendant, an issue of critical importance in the trial. In his brief appellant submits that "(t)his factual situation clearly shows an abuse of discretion by the trial court in a capital case."

We do not find that the court erred in declining to accede to the defense request to recall Mrs. Buchanan for further cross-examination. Section 90.10, Florida Statutes (1975), clearly sets forth the prerequisites to impeachment of an adverse witness:

"Impeachment of witness by adverse party If a witness, upon cross examination as to a former statement made by him relative to the subject matter of the cause and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to witness, and he must be asked whether or not he made such statements."

Under the statute it is clear that a proper predicate for Mrs. Buchanan's impeachment could have been laid only by presenting her with the circumstances of her alleged prior inconsistent statement. This defense counsel failed to do. It was not the State's responsibility to transcribe the text of the DeCosta hearing, and nothing prevented defense counsel from requesting that such a transcription of Mrs. Buchanan's allegedly inconsistent testimony be made for purposes of impeachment at trial. Defense counsel never moved for a continuance to allow a court reporter to transcribe notes taken at the prior hearing. (We might point out that appellant has not furnished us a transcript of such testimony even now to aid us in determining the merit of this point on appeal.) Much the same can be said of the attempt to call Officer Bucata about the allegedly conflicting statements concerning identification which Mrs. Buchanan had supposedly made to him. Defense counsel had had an opportunity to explore this matter in cross-examination; trial judges have considerable latitude in deciding whether to alter orderly courtroom procedure, even in order to compensate for an attorney's oversight. See generally Rose v. Yuille, 88 So.2d 318 (Fla.1956); Arbogast "Q (Defense Counsel) Well, just let me ask you this: We are all human. With regard to these three or four times you talked to the officers and at least a couple of times with Mr. Satz, did your stories differ, at least to some extent, considering all of those statements?

v. State, 266 So.2d 161 (Fla.3d DCA 1972); Bowen v. Manuel, 144 So.2d 341 (Fla.2d DCA 1962). Finally, the appellant was not prejudiced by the trial court's rulings because the witness herself admitted on cross-examination that she had in fact given differing accounts of this criminal episode at different times:

"A Yes.

"Q They did; correct?

"A Yes."

Appellant's third argument is that, in view of subsequent juror misconduct, it was reversible error for the trial court to have denied his motion to sequester the jury. The purported misconduct consisted of the comments allegedly made by Huber at the racetrack and of the presence in the jury room during trial (but before deliberations) of news magazines which included articles on "Godfather II" and "The Law: Living on Death Row." Appellant further urges that it is an automatic abuse of discretion to deny a motion to sequester the jury in a capital case.

The State argues correctly that there is no authority for appellant's position that denial of a motion to sequester in a capital case is an automatic abuse of discretion. Rule 3.370(a), Fla.R.Cr.P., leaves the decision to the trial judge's discretion, and there is nothing about a capital case which makes a refusal to sequester a per se abuse of that discretion. Furthermore, the appellant has made no showing that there was such an abuse in the instant case. At trial, appellant's motion to sequester was supported only by the recollections of his counsel:

I would at this time move the Court to sequester the jury. As I indicated, it would be a distinct possibility. I don't think anybody is going to purposely violate the rule of the Court, particularly the jurors, but, Judge, knowing the news media, who are still present in the courtroom, I don't see how anybody can live in society...