Foxworth v. State

• Decision Date: 20 September 1972
• Docket Number: No. 42012,42012
• Citation: 267 So.2d 647
• Parties: William FOXWORTH, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 647

267 So.2d 647

William FOXWORTH, Petitioner, v. STATE of Florida, Respondent.

No. 42012.

Supreme Court of Florida.

Sept. 20, 1972.

Rehearing Denied Nov. 9, 1972.

Thomas C. MacDonald, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, for petitioner.

Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for respondent.

ADKINS, Justice.

By mandate of the United States Court of Appeals, Fifth Circuit, we are required to review the conviction of William Foxworth which occurred on December 5, 1944, more than 27 years ago. Habeas corpus is the proper vehicle for a full appellate review under the circumstances here presented.

A writ of habeas corpus has been issued and a return made by the Attorney General.

Petitioner, William Foxworth, hereinafter referred to as 'Foxworth,' was fourteen years of age at the time of the alleged commission of the crime of murder in the first degree. He and three other teen-age negro defendants (Charles Bevels, Robert Farmer and Floyd Alexander) were charged by indictment with the premeditated murder of Earl Wilson while all were incarcerated in a cell in a correctional institution for young offenders. Foxworth, Bevels and Farmer were represented by a court-appointed attorney, while the remaining defendant, Alexander, had other counsel, seemingly of his selection.

All of the defendants were convicted of murder in the first degree with recommendation of mercy. The conviction was affirmed on motion of the Attorney General by this Court on September 11, 1945. (Bevels et al. v. State, 156 Fla. 159, 23 So.2d 156). There was no brief filed on behalf of Foxworth, nor was the appeal orally argued on the merits.

In February 1964, Foxworth sought post-conviction relief and, upon summary denial of his petition by the Circuit Court, instituted habeas corpus proceeding in this Court. The petition was found to be without merit. Foxworth v. Wainwright, 167 So.2d 868 (Fla.1964).

On July 22, 1969, Foxworth filed a motion to vacate and set aside judgment and sentence in the Circuit Court of Jackson County, pursuant to Rule 3.850, Florida Rules of Criminal Procedure, 33 F.S.A. This motion was denied and Foxworth appealed to the District Court of Appeal, First District. The order of the trial court was affirmed in Foxworth v. State, 231 So.2d 229 (Fla.App.1st, 1970). A further petition for writ of habeas corpus to this Court was thereafter denied without opinion on July 16, 1970. Foxworth v. Wainwright (Case No. 39,933).

On September 21, 1970, Foxworth filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Florida. Following response by the Attorney General, and without hearing, the petition was denied on November 19, 1970. Foxworth v. Wainwright, 319 F.Supp. 593. Foxworth then appealed to the Court of Appeals for the Fifth Circuit. Counsel was appointed to represent him, and after oral argument the Court of Appeals filed its opinion in Foxworth v. Wainwright, 449 F.2d 319 (5th Cir. 1971), saying, inter alia:

'An appeal was perfected to the Supreme Court of Florida on the perfunctory ground that the trial court erred in denying the defendant's motion for a new trial. Having thus arrived at the threshold of the Supreme Court, Foxworth's counsel there abandoned him. He failed to even file a cursory brief. The case was therefore decided without argument on the merits on the motion of the Attorney General to affirm on the record, one Justice dissenting. Bevels v. State, 1945, 156 Fla. 159, 23 So.2d 156.' (p. 319)

'While it is true that Foxworth's appeal was perfected it was not prosecuted. Perfection is a half a loaf only, and here a half a loaf is no better than none.'

'* * *

'We conclude on the record that Foxworth is entitled to have a review of his trial and conviction as on an original appeal with counsel, or to be released.

'Because of our disposition of the case we pretermit consideration of the additional contentions of Foxworth that he was denied effective assistance of counsel at trial because of a conflict of interest between Foxworth and his co-defendant Bevels, and that there was a systematic exclusion of negroes from the grand and petit juries. Nevertheless, the record, and what may be judicially noticed, impels us to observe that Foxworth's constitutional arguments are ont insubstantial.

'We remand the case to the district court with directions to give the State an opportunity to provide Foxworth with a review of his conviction with the aid of counsel on direct appeal. If Foxworth is not afforded the opportunity to appeal within ninety days after the mandate has been received and filed in the district court, Foxworth shall be released.' (p. 320)

These proceedings resulted and we now consider the case in the posture of a direct appeal by Foxworth.

The first question is whether 'the conviction of appellant is totally devoid of evidentiary support.' Nine boys had been placed in a small cell for running away and had been there for periods ranging from a few days to a few weeks. Foxworth had been there three weeks at the time of the death of the victim. An escape plot was hatched during the week preceding the death of Earl Wilson. A stick, variously likened to a shovel or broom handle, found its way into the cottage to be used in the escape.

The indictment charged that Foxworth, together with Bevels, Farmer and Alexander, murdered Earl Wilson 'by striking him with some blunt instrument.' A physician testified that Earl Wilson died as a result of a blow upon his head by a blunt instrument. He found no bruise on the neck muscles.

There were eight eyewitnesses to the homicide and they related two separate episodes, a striking of the head of Earl Wilson with the stick by Bevels and a later pressing of the stick against the neck of Earl Wilson, a happening in which Foxworth admittedly was involved. One witness testified that he saw Bevels hit Earl Wilson as Farmer and Alexander were holding Wilson's legs and Foxworth was holding Wilson's hands. This was corroborated by two other witnesses. We agree with the conclusion of the District Judge of the United States District Court when he said:

'The evidence at trial against this petitioner and his co-defendants was weighty since the commission of the crime had been performed in the presence of eye-witnesses who testified against the petitioner and his confederates.' 319 F.Supp. 593, 598.

What persons combine to commit unlawful acts, each person is criminally responsible for the acts of his associates. If Foxworth rendered assistance in the commission of the crime, he is equally guilty as a principal in the first degree. See In re Vann, 136 Fla. 113, 186 So. 424 (1939); 6 F.L.P., Criminal Law, § 133, Fla.Stat. (1941) § 776.01. The following appears in Henry v. State, 81 Fla. 763, 89 So. 136 (1921):

'The principle is well established that, when several persons combine together to commit an unlawful act, each is criminally responsible for the acts of his associates committed in furtherance or prosecution of the common design, and if several persons combine to do an unlawful act, and in prosecution of the common object a culpable homicide results, all are alike criminally responsible for the probable consequences that may arise from the perpetration of the unlawful act they set out to accomplish. The immediate injury from which death ensues is considered as proceeding from all who are present and abetting the injury done, and the actual perpetrator is considered as the agent of his associates. His act is their act, as well as his own, and all are equally criminal.' (p. 138)

See also Pope v. State, 84 Fla. 428, 94 So. 865 (1923). The evidence was sufficient to sustain the verdict.

Foxworth also says he was denied effective assistance of counsel because his attorney was denied adequate time to prepare for trial, his attorney was appointed to represent codefendants in the cause, and his attorney failed to prosecute the original appeal in this Court in 1945.

A term of court began in Jackson County on the second Monday in November, 1944. Fla.Stat. (1941) § 26.35, F.S.A. The crime was discovered on September 1, 1944, and an indictment returned on November 15, 1944, the attorney was appointed on November 22, 1944 and the case was tried seven days later. The trial lasted one day. The following principles discussed in Roberts v. Dutton, 368 F.2d 465 (5th Cir., (1966), are applicable in considering the nature of Foxworth's trial:

'We take judicial notice that White County, Georgia, is a rural county where indictments are most frequently returned and trials had during fixed sessions of court, where information concerning witnesses and events is more generally known than in large cities, and, accordingly, where the necessary preparation can often be accomplished during court week, as was the case with Bibb County, Alabama, referred to by Mr. Justice Black in Avery v. State of Alabama, 1940, 308 U.S. 444, 450--452, 60 S.Ct. 321, 84 L.Ed. 377. Accordingly, whether Roberts' right to the effective assistance of counsel was denied by the shortness of the time allowed for preparation depends upon the particular circumstances of the case.' (p. 470)

A criminal prosecution in 1944 was not as complicated as it is today, as there were no discovery proceedings available to the defendants. No question of search and seizure was involved in the case and there was no confession by any of the defendants. There were numerous eyewitnesses to the offense, all of whom were confined and were easily accessible. It does not appear that Foxworth's attorney was denied adequate time to prepare for trial.

As to the alleged denial of effective assistance of counsel, based upon the fact that Foxworth's attorney also represented joint or codefendants, Foxworth has failed to demonstrate actual prejudice caused thereby. The record shows that Wilson, Washington and Gordon accused Bevels, Farmer,...