Hoy v. State

• Decision Date: 02 December 1977
• Docket Number: 49449,Nos. 49448,s. 49448
• Citation: 353 So.2d 826
• Parties: Darrell Edwin HOY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 826

353 So.2d 826

Darrell Edwin HOY, Appellant, v. STATE of Florida, Appellee.

Nos. 49448, 49449.

Supreme Court of Florida.

Dec. 2, 1977.

Rehearing Denied Jan. 30, 1978.

Jack O. Johnson, Public Defender, Steven H. Denman, Chief Asst. Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, and Patrick H. Doherty of Gross & Doherty, Clearwater, for appellant.

Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

We have for review by direct appeal judgments of guilty of murder in the first degree and sentences of death. Jurisdiction vests pursuant to Article V, Section 3(b)(1), Florida Constitution.

The bodies of David Sawyer and Susan Routt (both teenagers) were discovered on the morning of August 27, 1975, on Dunedin Beach in Pinellas County. Appellant made several confessions as to his direct involvement in the murders and rape. He provided three versions of how the crimes were committed. It appears from the last version of the confession that appellant and one Jesse Lamar Hall went to Dunedin Beach where they saw the victims, David Sawyer and Susan Routt. They approached the victims' car, and Hall, with gun in hand, told the victims that appellant wanted to have intercourse with the girl. The victims' car was moved from the beach to a designated parking lot, and the boy and girl were forced at gunpoint to go with Hall and Hoy to a secluded area of the beach. With Hall guarding Sawyer, Hoy overcame Miss Routt's resistance and, ignoring her cries for help, sexually assaulted her. Attempting to break away from Hall to go to the girl's aid, Sawyer was shot in the face. After falling to the ground, he was shot twice more in the head. Hall then proceeded to take his turn in sexually assaulting Routt, both vaginally and anally. Hall shot her twice in the side of her head. Appellant then returned and assaulted her anally, after which he rolled her over and shot her in the forehead. Sawyer's wallet was then taken from his body by Hoy.

On September 27, 1975, appellant was charged by indictment with murder in the first degree of David Sawyer, with murder in the first degree of Susan Routt, with involuntary sexual battery of Susan Routt and with robbery of David Sawyer. The public defender was appointed to represent him on September 7, 1975.

A motion to control pre-trial publicity was filed by appellant on September 11, 1975, declaring that, since his arrest, state and local officials had been quoted extensively concerning matters which directly or indirectly concerned the proceedings against him, and suggesting that quotations from public officials may exceed limits imposed by Disciplinary Rule 7-107, Code of Professional Responsibility. After hearing, this motion was denied by the trial court.

Appellant was arraigned October 10, 1975, and entered a written plea of not guilty. At that time, a trial date of December 15, 1975, was set. Motion for change of venue was filed on December 5, 1975, and an amended motion for change of venue was filed December 9, 1975. Therein, appellant alleged that a motion to control pre-trial publicity had previously been filed and denied and that, prior to and subsequent to the filing of that motion, appellant had received widespread prejudicial publicity, including, but not limited to, an article in the Clearwater Sun which concerned an alleged confession and reproduced portions thereof. Motion for continuance was filed by appellant on December 9, 1975, on the basis that, in view of the length and complexity of the case, the defense was unable to be ready for trial on December 15, 1975, and on the basis that a "cooling period" between the publication of extensive pre-trial coverage of his case and trial of the cause was necessitated. These motions were denied by the trial court on December 11, 1975.

The case proceeded to trial on December 15, 1975, resulting in a jury verdict of guilty of both charges of murder in the first degree and the charge of involuntary sexual battery. Judgment of acquittal had been entered as to the robbery charge, and a verdict of guilty was returned as to the lesser included charge of petit larceny. After sentencing hearing, a majority of the jury recommended life imprisonment. Prior to sentencing, the judge obtained a pre-sentence investigation report and a psychiatric examination report. Upon considering and weighing the aggravating and mitigating circumstances, the trial judge determined that, under the circumstances presented, the imposition of the death penalty was appropriate on each charge of murder in the first degree.

Initially, appellant argues that the trial court erred in denying his motion for change of venue since pre-trial publicity regarding his case was extensive. He contends that his alleged confession was twice front page news in the local newspaper. Having considered this argument and carefully studied the record, including the jury voir dire, we find that the trial court did not err in refusing to allow a change of venue. Appellant has failed to show that he did not receive a fair and impartial trial, i. e., that the setting of his trial was inherently prejudicial. Cf. Dobbert v. State, 328 So.2d 433 (Fla.1976). In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), the Supreme Court of the United States held that, under the circumstances of that case where there had been pervasive pre-trial publicity, defendant was not denied a fair trial, and opined:

"To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner's trial was not fundamentally fair.

"The constitutional standard of fairness requires that a defendant have 'a panel of impartial, "indifferent" jurors.' Irvin v. Dowd, 366 U.S. (717) at 722, 81 S.Ct. 1639, 6 L.Ed.2d 751. Qualified jurors need not, however, be totally ignorant of the facts and issues involved.

" 'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' Id., at 723, 81 S.Ct. 1639, 6 L.Ed.2d 751.

At the same time, the juror's assurances that he is equal to this task cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate 'the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.' Ibid.

"The voir dire in this case indicates no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside. Some of the jurors had a vague recollection of the robbery with which petitioner was charged and each had some knowledge of petitioner's past crimes, but none betrayed any belief in the relevance of petitioner's past to the present case. Indeed, four of the six jurors volunteered their views of its irrelevance, and one suggested that people who have been in trouble before are too often singled out for suspicion of each new crime a predisposition that could only operate in petitioner's favor."

This court, in Dobbert v. State, supra, concluded that defendant had failed to show that the trial court abused its discretion in denying a motion for change of venue and explained:

"Relative to appellant's argument that the trial court erred in not allowing a change of venue, we find from the record that the trial judge did everything possible to insure an impartial trial for the defendant. The jurors, carefully and extensively examined by defense counsel to determine that they could be fair and impartial, were sequestered and comprehensive gag order was placed on all participants of the trial. As further evidenced by the record, seventy-eight prospective jurors were interviewed; allowed thirty-two peremptory challenges, the defense only exercised twenty-seven. Upon the selection of twelve persons, the trial judge denied the motion for change of venue with the following analysis:

" 'Both the State and the defendant have challenges left. We have selected the jury.

" 'Most times the jurors have heard about the case in some fashion from the media. However, a number of them did not hear about it. Some of them that did not hear about it are on the jury. Some are not.

" 'As I said those that were selected, in the main, if I recall correctly, at least I was satisfied. I'm sure counsel for both sides have different ideas. I'm satisfied some of them had no opinions. If they had opinions they said that it would not affect their decisions. Some had impressions about the nature of the case. So I deny the motion for a change of venue.' "

Sub judice, the trial court questioned each group of prospective jurors extensively as to their prior knowledge of appellant's case and their exposure to publicity about it. The transcript of the voir dire evidences that a great many of the prospective jurors had not even heard about the case, others had read brief accounts, but mostly in the St. Petersburg Times rather than the Clearwater Sun, and only had a vague recollection, if any, of the occurrences. The allegedly inflammatory articles to which our attention is directed by appellant were contained in the Clearwater Sun. Only six jurors were excused by the trial court due to a prior acquaintance with the cause. Eleven were excused by the State by peremptory challenge. The defense utilized only twenty-five peremptory challenges when permitted forty by the trial court. With only a very few exceptions, the prospective jurors stated that they could unreservedly render an impartial verdict.

The voir dire of the jury selected to hear the cause reveals that eight of them had no prior knowledge whatsoever of the cause prior to being called for...