Hawkins v. State, 36117
| Decision Date | 17 January 1968 |
| Docket Number | No. 36117,36117 |
| Citation | 206 So.2d 5 |
| Parties | Charles C. HAWKINS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
I. C. Smith, West Palm Beach, for appellant.
Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
We here review on direct appeal a verdict and judgment in which appellant Hawkins was convicted of first degree murder without recommendation to mercy and the death sentence imposed.
On February 3rd, 1966, Charles C. Hawkins, Clifford Howard, Billy James Whitworth and Riley 'Red' Porter went from a bar in Pahokee, Florida, to the Baskin Labor Camp west of Delray Beach, and then to Fort Lauderdale. They were travelling in an automobile operated by appellant. After staying in Fort Lauderdale until approximately six o'clock in the afternoon they returned to the labor camp, and subsequently went to Lantana Road and Military Trail west of the town of Lantana, at which intersection there was located the Firebrand Service Station. The automobile pulled into the station and the occupants ordered two dollars worth of gasoline. As the attendant opened his cash register he was killed by a shotgun blast in his neck and lower face. The evidence is in conflict as to who did the actual shooting but the jury determined that appellant Hawkins was the guilty one.
Testimony developed that within a period of eight days four very similar and almost identical robberies were perpetrated with three resulting in the death of the filling station attendant from a shotgun blast administered in approximately the same area of the body. A comparable felony murder was committed in Polk County on February 2nd, 1966; in Palm Beach on February 3rd, 1966; in Marion County on February 5th, 1966; and the robbery of a Super Par station in Palm Beach County on February 10th, 1966, but in the last crime the service station attendant, one Robert S. Eller, escaped with his life and was able to positively identify appellant as one of the two men who robbed him. Witness, Robert E. Wright, testified that appellant Hawkins shot and killed the attendant in the Polk County robbery on February 2nd, and defendant, Billy James Whitworth, testified that appellant shot and killed the attendant when robbing the station in Marion County, Florida, on February 5th. In each instance it was a service station attendant who was robbed and in three cases murdered; the weapon used in each instance was a shotgun; and appellant was involved in all four crimes. The testimony was abundantly sufficient to sustain the verdict of murder in the first degree.
Appellant contends that the trial court committed error in denying his motion for a change of venue; and in permitting the state to go too far in introducing testimony about other crimes, so that the inquiry transcended the bounds of relevancy to the charge being tried; and in admitting in evidence certain photographs and other paraphernalia.
The contention that it was error for the trial court to deny appellant's motion for change of venue is without merit. It has been uniformly held that motions for change of venue are addressed to the sound discretion of the trial court and that refusal will not be held error unless it appears that the court acted unfairly and committed palpable abuses of discretion. See Haddock v. State, 141 Fla. 132, 192 So. 802, in which this court said:
No showing has been made that the court failed to act with caution and prudence or without recognizing the natural apprehension of appellant. This is buttressed by the fact that the jury was selected in less than three hours and the appellant did not exhaust all of his peremptory challenges prior to acceptance of the jury. See Chisolm v. State, 74 Fla. 50, 76 So. 329, and Haddock v. State, supra. In reaching this conclusion we have not overlooked Singer v. State, Fla., 109 So.2d 7, and cases therein cited, and it is our opinion, and we so hold, that, measured against the rules announced in the cases above cited, the trial judge acted within the orbit of his discretion in denying a motion for change of venue, and that no error occurred.
Appellant contends that reversible error was committed when the state was allowed to detail testimony of other crimes and to introduce photographs of such crimes. We have carefully examined the testimony adduced and the photographs submitted and find that the trial judge closely observed the procedures, questioned the attorneys for both the state and appellant, and then allowed the testimony regarding multiple crimes, stating in defense of his ruling, 'He shows a similar plan and a scheme, a modus operandi.' An exhibit shows a body in a filling station rest room; others depict bodies similarly assaulted lying within the filling stations; and there are several scenes of the various filling stations that were robbed. It is our view that the prosecution was properly attempting to prove the commission by appellant of similar or related crimes. In this connection the instruction given by the trial judge is noteworthy:
'Now, there has been permitted to go before you in the trial of this certain evidence showing or tending to show, if you find such evidence to be true, that the defendant committed certain acts against and upon other service station attendants or owners other than Lonnie Hitt, victim named in the indictment in this case.
'The defendant is not charged in this case with the commission of any act or offense against or upon any person or persons other than the said victim Lonnie Hitt, and it is upon the charge that he killed the said Lonnie Hitt as set forth in the indictment in this case, and upon such charge alone, that you are sworn to try this defendant.
'Such evidence with respect to this defendant and other service station attendants and owners, if you believe such evidence to be true, must be considered by you only upon the question of the Defendant's identity, identity of weapon, his plan or design if you find from the evidence that he had a plan or design, or his mode of operating.
'The Court instructs you...
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...common scheme or plan, identity, absence of mistake, or the like. See, e.g., Dean v. State, 277 So.2d 13 (Fla.1973); Hawkins v. State, 206 So.2d 5 (Fla.1968); Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). The list of categories is no......
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