Hitchcock v. State

• Decision Date: 25 February 1982
• Docket Number: No. 51108,51108
• Citation: 413 So.2d 741
• Parties: James Ernest HITCHCOCK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 741

413 So.2d 741

James Ernest HITCHCOCK, Appellant, v. STATE of Florida, Appellee.

No. 51108.

Supreme Court of Florida.

Feb. 25, 1982.

Rehearing Denied May 27, 1982.

Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen. and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

James Ernest Hitchcock appeals his conviction of murder in the first degree and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

A jury convicted Hitchcock of first-degree murder for the death of his brother's thirteen-year-old stepdaughter under an indictment charging one count of premeditated murder. After weighing the aggravating and mitigating factors, the trial court agreed with the jury's recommendation and imposed the death sentence. We affirm both the conviction and sentence.

Unemployed, ill, and with no place to live, Hitchcock moved in with his brother Richard and Richard's family two to three weeks before the murder. On the evening of the murder, appellant watched television with Richard and his family until around 11:00 p. m. He then left the house and went into Winter Garden where he spent several hours drinking beer and smoking marijuana with friends.

According to a statement Hitchcock made after his arrest, he returned around 2:30 a. m. and entered the house through a dining room window. He went into the victim's bedroom and had sexual intercourse with her. Afterwards, she said that she was hurt and was going to tell her mother. When she started to yell because he would not let her leave the bedroom, Hitchcock choked her and carried her outside. The girl still refused to be quiet so appellant choked and beat her until she was quiet and pushed her body into some bushes. He then returned to the house, showered, and went to bed.

At trial Hitchcock repudiated his prior statement. He testified that the victim let him into the house and consented to having intercourse. Following this activity, his brother Richard entered the bedroom, dragged the girl outside, and began choking her. She was dead by the time appellant got Richard away from her. When Richard told him that he hadn't meant to kill her, Hitchcock told him to go back inside and that he, the appellant, would cover up for his brother. According to Hitchcock, he gave his prior statement only because he was trying to protect Richard.

On appeal, Hitchcock raises numerous points which will be addressed in order of presentation to this Court.

I. In his first point, Hitchcock claims that the trial court improperly restricted his presentation of evidence corroborating his defense theory, his impeachment of a key prosecution witness, and his explanation of his false "confession." An examination of the record does not reveal that the trial judge committed error as Hitchcock alleges.

Defense counsel called the defendant and a series of Hitchcock's relatives--a brother and his wife, several sisters, and Hitchcock's mother--to the stand, asking each essentially the same questions, specifically, details of the defendant's conduct around children, the early lives of the two brothers, and whether Richard Hitchcock had ever exhibited violent tendencies. The state objected successfully to most of such questions on the grounds of immateriality and irrelevance. ¹

The person seeking admission of testimony must demonstrate why sought-after testimony is relevant. See Haager v. State, 83 Fla. 41, 90 So. 812 (1922). Hitchcock has presented nothing to show that he made a clear offer of proof which would overcome the state's objections. We find the excluded testimony regarding Hitchcock's conduct around children and his relationship with Richard so remote and so slightly probative of any relevant issue that the trial judge, in his discretion, could properly exclude the testimony.

The testimony of family members who would be called to establish that Richard Hitchcock had a violent nature and a reputation for violence was also properly excluded. The trial court found the proffered testimony irrelevant and refused to admit it. Appellant claims this evidence would impeach Richard and would tend to prove his substantive defense that Richard, not the appellant, committed the murder.

A defendant has the right to present witnesses in his own defense but must comply with established rules of procedure and evidence designed to assure both fairness and reliability. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness. Fulton v. State, 335 So.2d 280 (Fla.1976). For impeachment purposes the only proper inquiry into a witness' character goes to reputation for truth and veracity. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940). The excluded testimony could have been relevant only to show Richard Hitchcock's alleged bad acts and violent propensities and, thus, was properly excluded for impeachment purposes. Nor is there merit to appellant's claim that the testimony concerning Richard's character would tend to prove that Richard committed the murder. The testimony offered in the instant case was too remote to be relevant.

II. Hitchcock's next point concerns the trial court's communication with the jury during its deliberations. As a general rule, it is error for a judge to respond to a jury's question without the parties being present and having the opportunity to discuss the request. Ivory v. State, 351 So.2d 26 (Fla.1977).

In the instant case, the jury sent the following note to the judge: "Is it required for us to recommend death penalty or life at this time?" Because the jury was then deliberating on guilt or innocence, the judge wrote back: "You should not consider any penalty at this time--only guilt or innocence." These notes are marked as being filed in open court, but the record is silent as to whether or not the parties were present during this exchange. This communication does not fall within the scope of Florida Rule of Criminal Procedure 3.410, and Hitchcock has failed to demonstrate anything more than harmless error regarding this point.

III. Hitchcock also contends that the exemption, on request, of mothers with young children from jury service denied his right to a jury drawn from a fair cross-section of the community. ² In McArthur v. State, 351 So.2d 972 (Fla.1977), this Court held that mothers with young children do not comprise a constitutionally significant class. ³ Excluding such women, therefore, does not infringe upon a defendant's right to a jury composed of a fair cross-section of the community.

Hitchcock cites Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), to support his contention. Duren held unconstitutional a Missouri statute which, upon request, exempted all women from jury service. Section 40.01, Florida Statutes (1975), on the other hand, provides only a limited exemption, and we find nothing in Duren which makes it necessary to recede from the Court's previous rulings on this issue.

IV. As his fourth point on appeal, Hitchcock challenges the sufficiency of the evidence to convict him of first-degree murder. He alleges that the evidence presented was insufficient to show either premeditation or felony murder.

A judgment of conviction comes to this Court with a presumption of correctness, and a claim of insufficiency of the evidence cannot prevail if substantial competent evidence supports the verdict. Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). Furthermore, when it is shown that the jurors have performed their duty faithfully and honestly and have reached a reasonable conclusion, more than a difference of opinion as to what the evidence shows is required for this Court to reverse them. Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). At trial, Hitchcock testified that the girl consented to intercourse, that his brother Richard discovered them, and that Richard strangled the girl. The jury, however, also heard Hitchcock's prior statement that he choked the girl while still in her bedroom and then carried her outside where he again choked and beat her until she was quiet and finally hid her body in some bushes.

It is well settled that the credibility of witnesses and the weight to be given testimony is for the jury to decide. Coco v. State, 80 So.2d 346 (Fla.), cert. denied, 349 U.S. 931, 75 S.Ct. 774, 99 L.Ed. 1261, cert. denied, 350 U.S. 828, 76 S.Ct. 57, 100 L.Ed. 739 (1955). Choking the girl, taking her outside, and then choking her again--all to make her be quiet--is substantial evidence to have supported a finding of premeditation. In addition, the total circumstances, including the time of night, entry through a window, the victim's tender years, and medical testimony that the child was of previously chaste character, refuted Hitchcock's claim of consent and could be a basis to find that the sexual battery was committed on the victim by force and against her will, thus warranting the instruction on felony murder. Under these circumstances, the jury could easily have considered Hitchcock's contention that the girl consented to have been unreasonable. See Conner v. State, 106 So.2d 416 (Fla.1958).

We hold, therefore, that the evidence was sufficient to allow the state to take the case to the jury on theories of both premeditation and felony murder.

V. At the close of the state's evidence, Hitchcock moved for a judgment of acquittal, claiming insufficiency of the evidence to show either premeditation or felony murder. The trial court denied the motion as to premeditation but reserved ruling on the felony aspect until the defense concluded its presentation. ⁴ Defense counsel renewed...