Francis v. State, V--35

• Decision Date: 19 February 1975
• Docket Number: No. V--35,V--35
• Citation: 308 So.2d 174
• Parties: Kenneth M. FRANCIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 174

308 So.2d 174

Kenneth M. FRANCIS, Appellant, v. STATE of Florida, Appellee.

No. V--35.

District Court of Appeal of Florida, First District.

Feb. 19, 1975.

Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appellee.

BOYER, Judge.

Appellant was charged in an indictment along with nine other persons with murder in the first degree, and was charged by information with false imprisonment, use of a weapon in the commission of a felony, aggravated assault, two counts of assault, two counts of aggravated battery, and kidnapping. After a jury trial, he was found guilty of first degree murder, false imprisonment, use of a weapon in the commission of a felony, aggravated assault, and aggravated battery. The trial judge sentenced him to life imprisonment for first degree murder and withheld sentence as to the remaining charges.

At trial the following factual picture became clear: Appellant and the victim, Michael Ross Cochran, had attended the Green Valley School at the same time. Cochran had acted as an informant for local law enforcement officers regarding illegal activities, mostly regarding drug offenses, taking place at the school. Several witnesses for the State, as well as the appellant himself, testified that Cochran's activities as a police informant had angered the appellant, and that he blamed Cochran for the police raid on the school.

On the day before and the day of the murder, the appellant had been using drugs heavily. Appellant spent the night and slept at 27 N. Grandview (otherwise known as roach haven) in Daytona Beach the night of April 26, 1973. When the appellant awoke on the next morning, he found Cochran asleep in the same room. Appellant, as well as others in the room, became incensed at Cochran's presence. Thereafter followed an afternoon of torture and abuse of the victim by the appellant and others which resulted in the victim's murder. After being beaten and otherwise abused, the victim was placed in the trunk of a car, taken into some woods located south of Daytona Beach, and was clubbed to death with a log. At trial, the appellant admitted striking the victim at 27 N. Grandview, but denied striking him in the head with the log and asserted that during the entire proceeding, he was incapacitated by the effects of the drugs that he had taken during the previous evening and the day of the murder. However, our examination of the record reveals other evidence which under the circumstances supports the contrary obvious findings of the jury.

During the presentation of the appellant's case, defense counsel attempted to offer the testimony of Deborah Shook, one of the other persons named in the original first degree murder indictment, regarding certain statements against penal interest allegedly made by another person named in the indictment, David O. Hester. After the State objected to this offer on the grounds of hearsay, the trial court sustained the objection on the ground that the defense did not show that the appellant had also heard Hester's alleged statements against interest.

Appellant now appeals his conviction and sentence and as grounds thereof urges that the trial court erred in ruling on the admissibility of Ms. Shook's testimony proffered by the defense before the defense had completed its proffer of the evidence.

Appellant is quite correct in his assertion that a trial court should not refuse to allow proffered testimony to be read into the record outside of the presence of the jury in order to insure a defendant full and effective appellate review. The record, however, does not support the appellant on this issue. On the contrary, the record reveals that the trial court merely ruled that the proposed...