Henninger v. State, 38926
| Decision Date | 16 June 1971 |
| Docket Number | No. 38926,38926 |
| Citation | 251 So.2d 862 |
| Parties | John HENNINGER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
Daniel S. Pearson of Pearson & Josefsberg, Miami, for appellant.
This cause is before us to review a conviction of murder in the first degree without recommendation of mercy and sentence of death imposed in the Circuit Court, Eleventh Judicial Circuit, in and for Dade County. The original appearance of the matter before us resulted in a dismissal of the notice of appeal as not timely filed. 1 We determined, however, that the ends of justice require the Court consider the matter as a petition for writ of habeas corpus. The parties subsequently stipulated, with approval of the Court, that in all pleadings and papers the cause be treated as an ordinary appeal. In keeping with this the parties have been referred to throughout as 'appellant' and 'appellee.'
John Henninger, appellant herein, was found guilty of the murder by strangulation and stabbing of a young woman named Francoise Guimond. The evidence established that appellant was legally sane but indicated that when he was under the influence of alcohol or drugs his extreme aggressive tendencies came out. On the basis of this evidence, appellant contends that the single verdict procedure, whereby the jury determines guilt and punishment, is unconstitutional because it places on the accused the burden of choosing between presenting mitigating evidence on the issue of punishment or maintaining his privilege against self-incrimination on the issue of guilt. A similar argument was rejected by this Court in Craig v. State. 2
Appellant contends that the failure of the trial judge to instruct the jury on the 'standards applicable to the question of penalty to be imposed, and the factors which the jury may be permitted to take into account' rendered the death penalty in this case an arbitrary act. Counsel for Henninger requested a charge setting forth the standards and/or guidelines but no such standards and/or guidelines were proffered to the trial court and are not set out on appeal. In Baker v. State 3 this Court rejected the contention that Florida Statutes § 919.23(2), F.S.A., which allows the jury in capital cases to make a recommendation of mercy, was 'void for vagueness' in that it did not set out standards to govern a mercy recommendation.
Appellant's third point on appeal is that he was denied assistance of counsel when Mr. Manners, court-appointed trial counsel, announced that he was not going to talk to appellant during the ten-minute recess called by the court in the midst of cross-examination of appellant by the Assistant State Attorney. We find no merit in appellant's argument that this constituted an abandonment of appellant which the court should not have allowed. Rather than 'abandonment' it appears to have been part of counsel's trial tactics to let the jury know that appellant was 'on his own' and not being coached during the recess in the cross-examination.
Appellant's Point Four for error is based on the admission into evidence of a series of 'gruesome enlarged color photographs' which, says appellant, were not relevant and were prejudicial and inflammatory in effect. These photographs, specifically exhibits 3, 4 and 6, show the deceased in various positions showing knife wounds in the back and with her head half cut off. Cited in support of appellant's contention is Young v. State, 4 wherein this Court held that the introduction of 22 photographs taken away from the scene of the crime and showing all or portions of the partially decomposed torso of the victim was unduly prejudicial. Appellant interprets the Young case as holding that 'necessity' rather than 'relevancy' is the test for admissibility of gruesome photographs. 'Necessity' may be a consideration where, as in Young, large numbers of cumulative photographs of a gruesome nature taken away from the scene of the crime, are offered into evidence. But relevancy remains the basic test, as stated in Young: 5
'The fact that the photographs are offensive to our senses and might tend to inflame the jury is insufficient by itself to constitute reversible error, but the admission of such photographs, particularly in large numbers must have same relevancy, either independently or as corroborative of other evidence.'
In the instant case there are three photographs in evidence of the victim which can be classified as gruesome. Exhibit 3 is a colored photograph showing the body of the victim lying on the stairway as it was found. Exhibit 4 shows the deceased's back, exposing the knife wounds. Exhibit 6 shows the upper portion of the victim's body with the head partially severed and panty hose wrapped around the neck. These photographs were used in connection with testimony regarding the cause of death, identity and to refute appellant's claim of self-defense.
There is no question that the three photograph of the victim in the instant case are gruesome. The crime itself is so revolting that it would have been impossible to take pictures of the scene or the victim that were not gruesome. As we have indicated, however, the pictures in question were relevant and properly admitted into evidence.
Appellant contends that the trial court's instruction to the jury that 'whatever verdict you find, it must be signed by one of your number as foreman, and dated with today's date, May 16, 1969 * * *' required the jury to reach a verdict within a fixed and limited period of time and they did in fact return the verdict...
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Booker v. State
...v. State, 322 So.2d 485 (Fla.1975). The photograph was used in connection with testimony regarding the causes of death, Henninger v. State, 251 So.2d 862 (Fla.1971); the nature and extent of the "force and violence" used to perpetrate the crimes, Alford v. State, 307 So.2d 433 (Fla.1975), c......
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..."exceptional nature" of the proffered evidence. State v. Wright, 265 So.2d 361, 362 (Fla.1972) (emphasis supplied). See Henninger v. State, 251 So.2d 862, 864 (Fla.1971); and Meeks v. State, 339 So.2d 186 (Fla.1976). Bush argues that exhibit fifteen was unduly prejudicial because it was gru......
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Fischer v. State
...senses and might tend to inflame the jury is insufficient by itself to constitute reversible error ...." Id. at 347. See Henninger v. State, 251 So.2d 862 (Fla.1971). We find merit, however, in appellant's other point on appeal. Appellee candidly admits that this case must be reversed for a......
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...or as corroborative of other evidence, and may be used to establish identity. Young v. State, Fla.1970, 234 So.2d 341; Henninger v. State, Fla.1971, 251 So.2d 862; State v. Wright, Fla.1972, 265 So.2d 361; Bauldree v. State, Fla.1973, 284 So.2d 196. See also Talley v. State, 1948, 160 Fla. ......