Grant v. State, 31760

Decision Date08 January 1965
Docket NumberNo. 31760,31760
PartiesDaniel GRANT, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Ray A. Munson, Miami, for appellant.

Earl Faircloth, Atty. Gen., and Bruce R. Jacob, Asst. Atty. Gen., for appellee.

CALDWELL, Justice.

The appellant was convicted of murder in the Circuit Court for Dade County on December 7, 1961, and was sentenced to death. He seeks reversal of the judgment on appeal.

The facts are that the body of the victim, Mrs. Hyman Nudel, was discovered at about 10:15 A.M., on the morning of June 24, 1961, in the back room of an upholstery shop operated by deceased and her husband in the City of Miami. The medical examiner testified death was caused by strangulation by hands and ligature, such as a cord or wire; that deceased was wearing shorts, unzipped along the left hip and briefs rolled to mid thigh level. It is unnecessary to detail the evidence offered to show the victim had been raped.

The defendant, 31 years old, was charged with the crime. He had worked part time in the upholstery shop and was known to a neighboring storekeeper from whom he bought a soft drink at approximately 9:30 A.m., on the morning of the crime. He returned to the store 20 to 25 minutes later and bought candy. The appellant testified that he was in the upholstery shop as late as 9:45 A.M., when he left to return within a few minutes. He admitted being near the shop and seeing a postman, Austin James Scott, who testified the deceased was alive between 9:40 and 9:45 AM.

The defendant made certain admissions to police officer Philip Doherty and to Dr. Harry Moskowitz. He also made a confession and allowed pictures to be taken to his re-enactment of the crime. The defendant, in his confession, admitted he went to the upholstery shop about 9:40 A.M. on the morning in question to borrow money; that the deceased was there alone, but that within a few minutes the postman came by and, at that time, he, the appellant, was in the doorway between the office and the back part of the shop where the body of the deceased was later found; that after the postman left he went to the box for ice water and stood by a sofa in the back of the shop; that the deceased walked up behind him and he turned around and bumped into her; that the deceased became frightened and began to call him names.

He further confessed he tried to stop the deceased from screaming and attempted to ravish her but denies having accomplished the act; that he stranged the deceased with his hands and with an extension cord and then wrapped a bedspread around her head, after which he went next door and purchased three pieces of candy.

The first and second questions presented have to do with the trial judge's refusal to allow questions by defense counsel touching alleged third party confessions; his denial in acting on a motion for continuance of defendant's asserted right to comment on matters having political connotation, or to present testimony in connection therewith, and the Judge's failure to disqualify himself on suggestion by counsel for the defendant. We find no error on these points and see no purpose to be served by discussion.

The third point on appeal is whether it was prejudicial error and a denial of the rights of the accused under the Florida and Federal Constitutions to admit the confession of the defendant because he had been held 53 hours before interrogation. The defendant was questioned by police officers from 6:31 P.M. until 2:00 A.M., at which time he confessed the commission of the crime. The accused testified the confession was procured by torture and brutality.

The extra-judicial confession and the relevant facts incident thereto were examined by the trial judge, in the absence of the jury, and the confession was found to have been freely and voluntarily given. The Judge allowed its admission for the jury's determination as to its credibility. The record discloses the defendant was free to act uninfluenced by hope or fear and that no compulsion or force was used in obtaining the confession. His testimony that he was tortured was rebutted by numerous witnesses. The confession appears to have been freely and voluntarily made as a result of reasonable choice. We find nothing in the voluminous record to indicate error in this respect

The appellant contends his statements to a psychiatrist were improperly admitted in evidence. It appears the defendant had complained of headaches and the psychiatrist was sent to examine him. During the course of his questioning the defendant admitted grabbing the deceased by the throat to keep her from screaming, after he had accidentally bumped into her. The trial judge, in the absence of the jury, heard evidence touching this admission and was convinced the statements were freely and voluntarily made. There was no showing of psychological coercion and we find, in this respect, there was no error. 1

The defendant presents as error the admission, over his objection, of a color motion picture film and seven still photographs portraying a re-enactment of the crime. The film and photographs were made at approximately 5:15 A.M., after he had confessed.

It is conceded that motion picture films and photographs are admissible in evidence if they tend to illustrate or explain the testimony of a witness. 2 The defendant insists the pictures were merely cumulative and added nothing to the confession previously made by him. He takes exception to the fact that the pictures showed the defendant in garb customarily worn by the inmates of a jail. The state contends the pictures were necessary, were taken of the shop as it was the morning of the crime and were taken to supplement and explain the confession.

The question of whether motion pictures and photographs purporting to show the reenactment of crime are admissible has not heretofore been determined in Florida. Such pictures have been held admissible under proper safeguards by the courts of other jurisdictions. 3 We have approved the use of motion pictures in civil controversies 4 and posed still pictures in criminal trials. 5 We have held admissible the testimony of a sheriff and others as to what was said and done at the re-enactment of a murder. 6

The rule governing admissibility in evidence of photographs applies with equal force to the admission of motion pictures. 7 We cite with approval the language of the court in the California case of People v. Dabb: 8

'A motion picture of the artificial recreation of an event may unduly accentuate certain phases of the happending, and because of the forceful impression made upon the minds of the jurors by this kind of evidence, it should be received with caution. As pointed out by Wigmore, such a portrayal of an event is apt to cause a person to forget that 'it is merely what certain witnesses say was the thing that happened' and may 'impress the jury with the convincing impartiality of Nature herself.' (3 Wigmore, Evidence [3rd ed.], § 798a., p. 203.) However, when the events which are being photographed consist of a voluntary re-enactment by the accused of what occurred, there is little, if any, danger of misleading emphasis which is unfavorable to him. Moreover, as a method of presenting confessions, sound motion pictures appear to have a unique advantage in that, while presenting the admission of guilt, they simultaneously testify to facts relevant to the issue of volition.'

Where a motion picture involves reconstruction and re-enactment it may be subject to the same objection as posed photographs of the scene, viz.: That the bias of the party or agent preparing the scene, directing and taking the pictures has intruded and affected the accuracy of pictures. 9 However, where, as here, the defendant himself has voluntarily acted out the crime at the scene, the danger of one-sided or inaccurate presentation is minimized. 10

In the instant case the defendant voluntarily re-enacted the crime with knowledge that the pictures were being taken. In State v. Palmer, the Louisiana Supreme Court reasoned as follows: 11

'It is significant that the defendant went to the scene of the crime where these photographs were taken, voluntarily and without protest. There is no denial of that fact. There is no proof or suggestion that the defendant was promised, induced, or coerced in any manner to enact the facts surrounding the crime. Manifestly, the words and actions of the defendant in describing how and in what manner he had committed the crime charged was a recapitulation of his oral confession of an hour previous and can be correctly held to be a second and separate confession. The photographs taken alone, in connection with the demonstrated actions of the defenant, with his voluntary statements, were also nothing less than a pictured confession, the admissibility of which is approvingly received by a great majority of our states. The testimony of the officers expalining these photographs and what transpired at that time, is not to be considered irrefutable proof of what in fact occurred, but as an illustration by the defendant himself in proof of his motive and intent.

'Let us assume that had the statements and actions of the defendant at the scene of the crime been made in the presence of these officers without the use of photography, can it be said that the proffered testimony of these officers detailing these facts at the trial would be inadmissible? We readily think not. * * *'

The trial judge in the absence of the jury scrutinized the films and pictures offered here, examined the evidence incident to their taking and found no infringement of the rights of the defendant. We find there was no error in the admission of the pictures.

The appellant complains that the re-enactment pictures were taken of the defendant in jail attire in the nature of bluishgrey service fatigues. This question has not heretofore been considered by this Court but an...

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