Irvin v. State

• Decision Date: 23 June 1953
• Citation: 66 So.2d 288
• Parties: IRVIN v. STATE.
• Court: Florida Supreme Court

Page 288

66 So.2d 288

IRVIN v. STATE.

Supreme Court of Florida, en Banc.

June 23, 1953.

Rehearing Denied July 27, 1953.

Alex Akerman, Jr., Orlando, Thurgood Marshall, New York City, and Paul C. Perkins, Orlando, and Elwood H. Chilsom, New York City, for appellant.

Richard W. Ervin, Atty. Gen. and Reeves Bowen, Asst. Atty. Gen., for appellee.

THOMAS, Justice.

A judgment convicting the appellant and another of rape was affirmed by this Court. Shepherd v. State, Fla., 46 So.2d 880. On certiorari the Supreme Court of the United States reversed our judgment apparently on the sole ground that there had been discrimination against the Negro race in the selection of the grand jury that returned the indictment, hence that petitioners' rights under the 14th Amendment of the Constitution of the United States had been violated. Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740.

Upon receipt of the mandate of the Supreme Court of the United States this Court issued its mandate reversing the judgment of conviction and directing the circuit court to grant another trial. A new indictment was then found charging appellant with rape and his trial culminated in a verdict of guilt and a sentence of death.

We are now concerned with an appeal from that adjudication.

At the outset a motion was made on various grounds to transfer the trial from Lake County where it was originally held and where the crime was alleged to have been committed. The judge granted this motion and ordered the appellant tried in the circuit court of Marion County.

When this matter had been settled the appellant was still dissatisfied so he sought a change of venue claiming he was so odious to the citizens of Marion County and the criminal transaction and preceding trial had received so much notoriety in that county that he could not get a fair trial there either. After an extensive examination of numerous witnesses and the presentation of many affidavits, this motion was denied.

Meanwhile there had also been offered in appellant's behalf a motion to suppress certain evidence obtained, by officers of the law from the appellant's mother without a search warrant and the ruling on this motion had been deferred until trial of the case in the new location, so, on the eve of the trial, the judge had for consideration and disposition this motion too, and it suffered the same fate as the other.

The cause then proceeded to trial on the merits before the jury of twelve men.

Adverting to the motion for change of venue the appellant first insists that he was deprived of a fair and impartial trial because the court in considering the evidence supporting the plea for a second change of venue, from Marion County to some other place, sustained an objection to testimony of one Dr. Julian L. Woodward about a poll of public opinion taken under his supervision. The matter of changing the site of the trial was one calling for the exercise of a sound judicial discretion and it was to aid the court in this function that appellant attempted to show what the people of Marion County thought about the impending proceeding. Parenthetically, the appellant does not now contend that the evidence he undertook to introduce was irrebuttable but only that it was admissible.

The witness described himself as 'A Research Executive with the Elmo Roper Research and Public Opinion Organization' and detailed his wide experience in conducting surveys to determine the attitude of the American people on varied subjects. The original forms of the questions which were to be asked persons in Florida were prepared in New York and were 'tested in and around Jacksonville.' The general plan of such an operation, as it was described by the witness, is to select the persons to whom the questions are to be propounded and, of course, from the ratio those interviewed bear to the whole population to determine the prevailing thought on the subject. Taken into consideration in planning the survey with which we are now dealing were the percentages of white adult persons, males and females, urban and rural residents.

After preliminary interviewers had tested the first form, in Jacksonville, the form was returned to the New York office of the firm to be revised for subsequent use in Lake County, where the crime was alleged to have been committed, Marion County, the place designated for the second trial, and in Gadsden and Jackson Counties, which are far removed from the other two. The latter two counties were said to have been selected by those in charge of the survey for 'statistical reasons'.

The arbitrary numbers of 500 white persons in the first two counties and 250 in the last two were selected for the interview and 'it was decided' to call on 150 colored persons in Marion County and about the same number in Lake County. It is not clear how many colored persons were chosen for interviews in the two remote counties. Armed with the questions that were eventually adopted, the interviewers under the immediate direction of a field representative then stated at random points in urban areas and made visits at every other house in each block. In country districts they evidently undertook to secure interviews equally as general.

The questionnaire contained introductory questions of a general nature about government and the integrity of government officials in the nation and state. These were followed by inquiries about the specific case such as the the guilt or innocence of the appellant, the reluctance or timidity of jurors to vote for acquittal. The closing questions were on unrelated subjects.

This witness was followed by the field representative who was in immediate charge of the interviewers but who, himself, heard none of the answers given. The answers were sent to the New York office of the organization for tabulation and the appellant proposed to show by the two witnesses, who were obviously familiar with the general plan but who were patently ignorant of what transpired between questioner and questioned, what the attitude of the people of Marion County was toward the defendant and his impendings trial.

We cannot approve this method of determining the likelihood of a defendant's being unable to receive a fair trial in a given community and therefore cannot attribute any abuse of discretion to the rejection by the judge of the proposed testimony. As the appellant points out the establishment of adverse sentiment of such degree as to indicate that the victim of it cannot receive a fair trial is informal and largely based upon hearsay. But the result of the poll taken in this case went far beyond the latitude allowed by the statute and by established procedure. Neither the witness, the one who had general supervision nor the one who served as field representative, pretended even to have made any interviews on which he could base an opinion as to facts which would support an application for change of venue. Any information he could give on the witness stand, would in our opinion, have amounted to hearsay based upon hearsay. Neither of the witnesses had more than vicarious knowledge of what occurred in the interviews. In preparing the questionnaire wholly dissociated subjects were used as an introduction and conclusion of the list of questions propounded. There was no semblance of there having been a voluntary expression of the attitude of the persons interviewed toward the defendant. The first witness explained the purpose of using irrelevant questions, and his explanation seems to us sensible so far as the plan might be used to elicit information about a household product or commodity, but it seems to us that there is a vast difference between that sort of inquiry and a demonstration to the court of some overpowering sentiment that would so penetrate the thought of the community as to indicate that twelve persons of the integrity and character to fit them to serve on juries could not be found who could take a solemn oath to decide a case upon legal evidence, and abide by the obligation.

Not only was such testimony inadmissible but its competency was suspect. We need say no more in this regard than quote the supervisor who said, in reply to questions about the survey conducted by his organization prior to the presidential election in 1948, 'in that kind of a survey we were very badly wrong * * *.' We think such a survey might as this witness said, indicate the attitude of prospective customers 'towards the products of a company,' but as it was conducted and attempted to be applied here, it was useless. In no sense did it indicate an aroused public against a prospective defendant in a court of justice.

From the tabulation of the answers acquired, a report had been prepared by the 'Research Executive', the witness Woodward. When the judge sustained an objection to the report, the appellant's counsel attempted to introduce the affidavit of the witness to which the report was attached. This was but an effort to place in evidence what had already been rejected and the affidavit did not cure the defective document. The right to introduce affidavits at the hearing did not carry with it the right to present an affidavit that had as its luggage a paper already properly excluded. And, anyway, the ruling on this piece of evidence could have caused the defendant no harm because the affiant was available and could have personally testified to any admissible facts in his affidavit.

On this phase of the appeal, appellant contends also that in all respects error was committed in failing to grant a removal of the case. It had become, so it is argued, a cause celebre of such proportions and steeped in such publicity that it was impossible for justice to prevail in the County of Marion. To gain the point an effort was made to bring into the hearing an unrelated occurrence of violence in far-away Miami and newspaper reports of the trial of two years before. Against the showing made in appella...