Huckaby v. State, 47736

• Decision Date: 17 February 1977
• Docket Number: No. 47736,47736
• Citation: 343 So.2d 29
• Parties: Benjamin F. HUCKABY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 29

343 So.2d 29

Benjamin F. HUCKABY, Appellant, v. STATE of Florida, Appellee.

No. 47736.

Supreme Court of Florida.

Feb. 17, 1977.

Rehearings Denied March 31, 1977.

Walter B. Dunagan, Daytona Beach, for appellant.

Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.

PER CURIAM.

By direct appeal pursuant to Section 921.141(4), Florida Statutes (1975), we have before us for review a conviction of Benjamin Huckaby for the rape of a child under the age of eleven, ¹ for which the jury recommended and the trial judge imposed a sentence of death. The facts are essentially uncontroverted; only their legal implications are in dispute. Huckaby admitted at trial that for more than fourteen years he had regularly engaged in sexual intercourse with his three daughters, beginning when the youngest was about six years old. He denied having ever used force, although admitting that the children probably did not understand the nature of his actions at first, and he suggested the entire course of conduct was condoned, possibly even initiated, by his wife and daughters. The children tertified that every incident involved the threat of force or actual force. Their testimony, and that of Huckaby's six sons, described a nightmarish family life of brutality, fear and sexual assaults which had continued for about twenty years before any family member gathered the courage to seek help. One neighbor confirmed that Huckaby was a brutal disciplinarian, but other neighbors testified he was merely a very strict parent.

The defense sought to impeach the credibility of the Huckaby children by showing that none of them mentioned the alleged sex acts even to their mother for a number of years, and that no one outside the family was told of these events until they and their mother became angry during divorce proceedings in which a proposed property settlement was not to their liking. There was also an attempt to prove insanity.

The medical evidence is extensive. Huckaby was discharged from the United States Navy in 1944 because of mental illness pre-dating his enlistment. He was classified as a schizoid personality, but was discharged to his own custody because he was not considered a menace to himself or others. During the next thirty years Huckaby established and ran a small successful construction company, and no public signs of mental disorder appear to have been exhibited at any time.

In 1974 Huckaby was injured in a two-story fall, hollowing which his behavior and physical condition changed. Shortly after the fall a violent incident occurred in his house during which he was stabbed several times by his wife and beaten with a glass bottle and a chair by one of his sons. He was treated at a hospital and admitted to a psychiatric unit after his wife and children reported that he had become irrationally violent. Shortly thereafter he was voluntarily committed to a state mental institution pursuant to The Baker Act, Chapter 394, Florida Statutes (1973). At the commitment hearing, medical reports were introduced which diagnosed his condition as schizophrenic. While under treatment at the state hospital, doctors learned for the first time of Huckaby's sexual acts with his daughters. Medical tests then taken showed an abnormality in Huckaby's brain wave pattern, suggesting a possible organic cause for his anti-social behavior. (At his trial there was testimony that the head injury he suffered a few months earlier when he fell could have caused this abnormality.)

After two months of treatment Huckaby was placed on medication to relieve the possible brain malfunction and released, it being found that he was no longer a menace to society. (The neighbor who testified that Huckaby had been a brutal disciplinarian also stated that upon his return from the state hospital 'he was a different man'.) It was at this time that divorce proceedings were commenced, and thereafter law enforcement officers were informed of Huckaby's sexual relationship with his daughters. Medical testimony at the preliminary hearing to determine whether Huckaby was competent to stand trial, and at trial, was unanimous that he should be given treatment pursuant to the Child Molester Act, Chapter 801, Florida Statutes (1973), or the Mentally Disordered Sex Offender Act, Chapter 917, Florida Statutes (1973).

There are four major legal issues before us: (1) whether Huckaby could legally be guilty of rape when his acts may also have constituted incest; (2) whether the jury should have been charged on the crime of incest as a lesser included offense; (3) whether the trial court abused its discretion by imposing a criminal penalty rather than ordering confinement for medical treatment pursuant to Chapter 917; and (4) whether the death penalty is appropriate under the facts of this case. ²

(1) Incest and rape. Huckaby has analyzed the history of incest statutes in Florida and the evolution of case law under them, and he argues that the kinship element of criminal incest is and has always been the determinant which bars criminal prosecution under rape, fornication, adultery and other like statutes, whether the conduct charged includes or does not include force. He argues, in effect, that the legislative and judicial policy regarding non-spousal, intra-family sexual intercourse has eliminated the customary prosecutorial discretion which exists when a course of conduct is punishable under more than one criminal statute. See Fayerweather v. State, 332 So.2d 21 (Fla.1976). ³ His argument advances an interesting approach to statutory construction which would give each of the violent sex offense statutes an exclusive and independent area of operation, varying on the basis of such factors as force, consent, relationship of victim, and age. We cannot accept Huckaby's assertions, however. Since 1908 this Court has at least implied that the crimes of rape and incest are not mutually exclusive, and that prosecutorial discretion exists when conduct would be criminal under both incest and other statutes. McCaskill v. State, 55 Fla. 117, 45 So. 843 (1908). Of course, the definitions and elements of these crimes have been altered over the years. ⁴ Nonetheless, this Court has adhered to the multiplecrime, optional prosecution theory applicable to conduct which is incestuous. ⁵ We reject Huckaby's suggestion that we now should recede from this view.

(2) Lesser included offense. In Brown v. State, 206 So.2d 377 (Fla.1968), we discussed at length the rules to be followed by the trial courts of this state when instructing a jury on lesser included offenses. Since the crimes of rape and incest are independent of each other, the only arguable basis for giving an instruction on incest would be if this case fell into the so-called 'category four' group of cases.

'(4) There should be an instruction on all lesser offenses which are covered by the accusatory pleading and supported by the evidence, even though the major crime charged could otherwise be established without proof of the lesser offense.' ⁶

This case does not come within this language because the indictment against Huckaby here does not allege the critical element of the crime of incest--requisite consanguinity between the defendant and his victims.

(3) Penalty or confinement. Huckaby asserts that the trial judge abused his discretion in refusing to commit him as a mentally disordered sex offender pursuant to Chapter 917, Florida Statutes (1973). ⁷ The appellate courts of this state have rarely been called upon to interpret this statute, and this Court has not been required to explain how the trial courts of this state are to apply it within the context of the death penalty statute, Section 921.141, Florida Statutes (1973). We do so now.

A 'mentally disordered sex offender' is defined in Section 917.13 as 'a person who is not insane but who has a mental disorder and is considered dangerous to others because of a propensity to commit sex offenses.' Insofar as it pertains to this case Section 917.14 provides that the trial court 'may' suspend Huckaby's sentence and certify him for a special hearing, ⁸ if (i) there is probable cause to believe he falls within the statutory definition and (ii) his mental disorder has existed for at least the preceding four months. Both of those elements being present in this case, the trial judge had discretion to certify Huckaby if he so chose.

If at the special hearing it is determined that the person is a mentally disordered sex offender, Section 917.19 directs that the court 'shall commit the defendant' for treatment. Thereafter reports on the defendant's condition are made to the committing court at least annually, and upon receiving a recommendation for discharge from care from the state institution the court is required to hold a hearing to determine whether the defendant would be a menace to others. If it is found that the defendant is not, his discharge from treatment is ordered and the criminal proceedings then automatically recommence. ⁹

Huckaby asserts that the trial judge abused his discretion when he refused to invoke Chapter 917. The state points to Huckaby's release from treatment prior to these criminal charges being lodged as evidence that Huckaby was no longer a menace to society and, therefore not within the statutory definition of 'mentally disordered sex offender.' The circumstances of this case convince us that the trial judge's denial of certification was not an abuse of discretion.

In his findings on which the death penalty sentence was predicated, the judge expressly found that Huckaby is presently 'a danger and menace to society'. This finding, of course, was improper in the sentence phase of the trial judge's responsibility. ¹⁰ It suggests, however, that the trial judge could have exercised his discretion and granted Huckaby's request for certification under Chapter 917. That he did not do so may reflect the judge's acquaintance...