Gavin v. State

Decision Date14 March 1972
Docket NumberNo. 71--371,71--371
Citation259 So.2d 544
CourtFlorida District Court of Appeals
PartiesJessie James GAVIN, Appellant, v. The STATE of Florida, Appellee.

Phillip A. Hubbart, Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appellee.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

HENDRY, Judge.

Defendant-appellant Jessie James Gavin seeks review of a judgment of conviction for (1) robbery and (2) assault with intent to commit murder in the first degree. A jury in the Dade County Criminal Court of Record found him guilty of those charges. The judge sentenced him to life imprisonment on the robbery charge and twenty years on the assault with intent to murder charge, sentences to run concurrently. See: §§ 813.011; 784.06; and 782.04(1) Fla.Stat., F.S.A. We affirm.

An information of two counts charged him with the crimes of: (1) robbery and (2) assault with intent to commit murder in the first degree. A second information of one count also charged him with robbery. The two informations were consolidated for trial. The jury found him guilty as to the two counts in the first information, but found him not guilty of robbery as charged in the other information which contained one count.

For reversal, he has presented these points: (1) excessive news publicity concerning the defendant so saturated and prejudiced the community that the defendant could not receive a trial by a fair and impartial jury in Dade County, Florida; (2) the state did not establish a prima facie case that the defendant committed a robbery against Betty Richardson as charged in the direct information, and (3) the state did not establish a prima facie case that the defendant committed an assault with intent to commit murder in the first degree on Theodore Rodriguez as charged in the information.

An initial question is presented as to whether the appellant has sufficiently presented for review his argument as to whether the court erred in refusing to grant his motions that two prospective jurors be excused for cause. Rule 3.7(f)(4), Florida Rules of Appellate Procedure, 32 F.S.A. Specifically, there is a question as to whether his contention as to this error is encompassed by his first point on appeal which is paraphrased above, relating to a fair and impartial jury. We assume, without deciding that the point is sufficiently preserved and proceed to a discussion of its merits.

To begin with, we will discuss the facts relating to Gavin's first point. The defendant filed on February 19, 1971, a pretrial motion for a change of venue under Rule 3.240, CrPR, 33 F.S.A. on grounds of excessive pretrial publicity prejudicial to defendant, thereby allegedly precluding an impartial trial in Dade County, Florida. Attached as exhibits to that motion were about sixty clippings from The Miami Herald, which is the morning paper of county-wide distribution, and The Miami News, the evening paper of county-wide circulation. The clippings, spanning two years, discuss the wide-spread hunt for Gavin as the murderer of a Miami Police Officer, his capture after a gun battle in Tennessee, his escape by holding two Miami Police Officers as hostages, and subsequent recapture. The articles frequently mention that Gavin had pleaded guilty to the murder of the police officer and was sentenced to the electric chair. The testimony of the veniremen also revealed that there was television coverage of the manhunt for the defendant and that radio news items concerning the defendant were also heard by certain prospective jurors.

This pretrial motion for change of venue was denied. The defendant urged this denial as a ground for his motion for new trial under Rule 3.600, CrPR, and assigned this as error on the constitutional grounds herein presented.

The defendant has summarized the results of the selection of the jury panel from a venire of forty-three men and women, without contradiction by the state. Of the forty-three veniremen, thirty-eight were examined individually and five were excused by the state exercising peremptory challenges before such voir dire. Of those thirty-eight, twenty-nine stated that they had seen and read pretrial newspaper and/or television publicity concerning defendant, and knew him by name before coming to court. Two had not seen or read such news and had never before heard of him. Defendant exhausted his twenty peremptory challenges, and the state exercised ten.

During voir dire, on February 24, 1971, defendant renewed his motion for change of venue and inserted in the record a February 23, 1971, Miami News article and a February 24, 1971 Miami Herald article. Both items related that defendant in open court, but out of the presence of the venire: threatened his counsel with physical violence, walked into court with a lead piep, stated he would commit perjury to gain an acquittal, and would tear the court apart. Only the first and third matters are supported in the record, and apparently Gavin had walked into the courtroom with some object (but not a lead pipe).

Leonard E. Curney, who served on the jury, read the latest Herald article and stated that he had formed the opinion that Gavin was guilty of committing the acts in the courtroom outside the jury's presence the previous day. He stated that he did not know why that opinion should influence his opinion in the case to be tried, that his expressed opinion on the courtroom conduct would 'not necessarily' affect his determination in the case, and that he 'will try' to 'set aside that publicity' he has read. We have read, but do not need to reproduce here, the relevant questions and answers concerning the veniremen's statements that they would fairly try the case solely on the evidence presented at trial.

Prospective juror Eva Buck testified that she had read 'all the newspaper articles' relating to Gavin. We have read, but do not need to reproduce here, the pertinent questions and answers relating to whether she had formed an opinion of guilt or innocence as to the charge of murdering the police officer. Defendant moved that she be excused for cause, and upon motion being denied, defendant exercised a peremptory challenge.

A defense motion for change of venue was later made and denied. A defense motion to sequester the jury was also later made and denied.

Appellant has not contended that the news items were inaccurate or slanted, but he has urged that their excessiveness precluded a fair trial. The news items in the record are virtually all straight news items reporting the facts, and those items which might be characterized as editorials do not resemble in the least those in the Sam Sheppard trial. Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d...

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11 cases
  • Dobbert v. Strickland
    • United States
    • U.S. District Court — Middle District of Florida
    • January 30, 1982
    ...225 So.2d 913 (Fla.1969). No prescribed length of time is necessary over which the element of premeditation must form. Gavin v. State, 259 So.2d 544, 547 (Fla.3d DCA), cert. denied, 265 So.2d 370 (Fla.1972). In fact, the period which must elapse between the formation of and the execution of......
  • Pitts v. State
    • United States
    • Florida District Court of Appeals
    • February 3, 1975
    ...a reviewing court will not upset the trial judge unless his abuse of discretion is manifest. See: Sheppard v. Maxwell, supra.' (259 So.2d at pages 545--547) As the citation reveals, the Supreme Court of Florida denied certiorari Adopting the rationale of the two last mentioned cases, and th......
  • Stone v. State
    • United States
    • Florida Supreme Court
    • November 1, 1979
    ...was prejudicial. The ease in selecting the jury is further evidence that a change of venue was not required. See Gavin v. State, 259 So.2d 544 (Fla.3d DCA 1972). During the voir dire examination, defense counsel requested that each prospective juror be examined individually with the others ......
  • Oats v. State, 60489
    • United States
    • Florida Supreme Court
    • February 23, 1984
    ... ... The motion for change of venue was properly denied. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida; Gavin v. State, 259 So.2d 544 (Fla. 3d ... DCA), cert. denied, 265 So.2d 370 (Fla.1972) ...         Appellant next argues that the trial court erred by allowing the introduction of evidence of the ABC crime in the state's case in chief following the introduction of Oats' confession. Oats ... ...
  • Request a trial to view additional results

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