Johnson v. State, 58713

• Decision Date: 17 November 1983
• Docket Number: No. 58713,58713
• Citation: 442 So.2d 185
• Parties: Larry Joe JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 185

442 So.2d 185

Larry Joe JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 58713.

Supreme Court of Florida.

Nov. 17, 1983.

Rehearing Denied Jan. 16, 1984.

Milo I. Thomas, Jr., Public Defender, Third Judicial Circuit, Lake City, and Michael J. Minerva and Clifford L. Davis, Sp. Asst. Public Defenders, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction of a capital felony for which a sentence of death was imposed. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant Larry Joe Johnson was convicted of first-degree murder and armed robbery. At the trial Patty Burks testified that on March 16, 1979, she and Johnson stopped at a service station along Interstate Highway 10 in Madison County. She said that Johnson aimed a sawed-off shotgun at the proprietor while she took money from the cash register. She testified that after she left the building, Johnson shot the proprietor. They drove on to Kentucky where Burks, through her mother, informed the police of the murder. The police arrested Johnson for violating probation and later turned him over to Florida authorities. Found in his car were a sawed-off shotgun and number five shot shells, the same type of shot found in the victim's body.

In accordance with the jury's recommendation, the trial judge imposed a sentence of death for the offense of first-degree murder. Johnson was sentenced to life imprisonment for the offense of armed robbery. In this appeal, Johnson argues that the sheriff should not have been allowed to act as bailiff, that the prosecutor's closing arguments were improper and prejudicial, and that his sentences were improperly imposed. Since we find no reversible error was committed, we affirm.

Johnson's first argument on appeal is that he was denied his fourteenth amendment due process right to be tried by an impartial jury. This argument is based on the assertion that the county sheriff, who had participated in the investigation of the crimes and assisted counsel in the selection of the jury, acted as bailiff during the trial. Johnson points out that in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), the United States Supreme Court held that it was a violation of due process to allow two deputies who were material witnesses for the state to act as custodians of the jury even though there was no proof of improper communication between them and the jury. The Court concluded that since the credibility of the witnesses was a deciding factor in the case, the procedure was improper and prejudice was inherent in the continual association of the witnesses with the jury. Johnson argues by analogy that prejudice is also inherent in the present situation where the sheriff helped the prosecution select the jury and then acted as bailiff.

Long before Turner was decided this Court held that prejudice would be presumed where a material witness for the prosecution was allowed to act as bailiff. See Owens v. State, 68 Fla. 154, 67 So. 39 (1914). However, the Court has never extended this holding to cases where the bailiff's testimony was not material to the case. See Rhone v. State, 93 So.2d 80 (Fla.1957); Moseley v. State, 60 So.2d 167 (Fla.1952). Thus we are not aligned with those jurisdictions that hold that the mere association of the bailiff with the prosecution is sufficient cause to reverse a conviction. See 4 C. Torcia, Wharton's Criminal Procedure § 563 (12th ed. 1976); Annot., 38 A.L.R.3d 1012 (1971).

Different considerations apply when the bailiff has helped in the investigation and in the selection of the jury than apply when the bailiff is a material witness. In Turner the Supreme Court emphasized that the credibility of the witnesses was enhanced by their continued association with the sequestered jurors during the trial. Because of the witnesses' continual and close association with the jury, the Court found that their credibility in the eyes of the jury was affected by factors taking place outside of the courtroom. In this case the sheriff did not testify so his credibility was not an issue. Therefore we are not faced with the issue of whether the jury may have been influenced by extraneous factors in assessing the credibility of a witness.

In Smith v. State, 251 Miss. 241, 169 So.2d 451 (1964), while the jury was being empanelled and tendered to the state, the district attorney motioned for the sheriff and his deputies to retire with him to pass upon the jury. This was done in the presence of the jury. Over the defendant's objections, the trial court later appointed two of the deputies as bailiffs. The Mississippi Supreme Court reversed the conviction on the ground that an appearance of impropriety might weaken the public's confidence in the judiciary.

We agree with the basic tenet in Smith that it is not good practice for the bailiff to help select the jury. However, we disagree with the conclusion that such a practice is so inherently prejudicial as to require reversal of a conviction. Unlike the situation where the bailiff testifies and his credibility is affected by his close and continual association with the jury, for the bailiff to assist in the selection of the jury does not necessarily have a direct bearing on any issue to be determined by the jury. Therefore prejudice cannot be inferred but must rather be proven.

Johnson has failed to show how he has been prejudiced in this case. The record shows that it is not unusual for the sheriff to assist the state attorney in selecting a jury. Because of the small size of Madison County, the sheriff's staff is not very large so the sheriff himself often acts as the bailiff. He is not allowed to do so when he is a witness. The sheriff testified that during voir dire he did carry on whispered conversations with the state attorney. He said these conversations took place about fifteen feet behind and to the right of the jury box and were outside of the prospective jurors' hearing. He said that he had not and would not discuss the case with any members of the jury. The court found no improprieties had been committed. We therefore find that Johnson was not denied his right of due process under the fourteenth amendment to be tried by an impartial jury.

Appellant argues that on three separate occasions during the closing arguments of the penalty phase of the trial, the prosecutor made improper comments. We will not consider two of those occasions since appellant failed to object. Clark v. State, 363 So.2d 331 (Fla.1978). As for the third occasion, the prosecutor argued as follows:

You have heard some evidence presented by the defense here designed to tug at your heart strings, to show you that the defendant was a living, breathing, human being with feelings possessed by an ordinary person. You have become acquainted with his family here today. Another family, perhaps you haven't become closely associated with, that is the [victim's] family, will be facing this holiday season one short.

Defense counsel immediately objected and requested a bench conference. At the bench defense counsel requested that the jury be instructed to disregard the comment and moved for a mistrial. The trial court sustained the objection but denied the motion for mistrial. The trial court also found that it would be inappropriate to say anything further to the jury since the comment was not prejudicial.

Appellant is correct in contending that during closing arguments a prosecuting attorney should not attempt to elicit the jury's sympathy by referring to the victim's family. Grant v. State, 171 So.2d 361 (Fla.1965), cert. denied, 384 U.S. 1014, 86 S.Ct. 1933, 16 L.Ed.2d 1035 (1966); Pait v. State, 112 So.2d 380 (Fla.1959). Although this Court reversed the defendants' convictions in the two cited cases, the same result is not required in this case. In both cases the references to the families of the victims were but small parts of closing arguments the whole tenor of which were improperly emotional and prejudicial. In this case, there was a single comment made at the sentencing portion of the trial in response to the testimony of the defendant's relatives in his behalf. Although improper, the comment was not so prejudicial as to have influenced the jury to render a more severe recommendation than it would have otherwise and is therefore not reversible error. See Darden v. State, 329 So.2d 287 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977).

After the penalty phase of the trial, the jury recommended the death penalty. The trial judge adopted this recommendation, finding three aggravating circumstances: that appellant had previously been convicted of a felony involving violence and was under sentence of imprisonment; that the murder was committed during the commission of a felony and for pecuniary gain; and that the murder was committed to avoid arrest and to hinder law enforcement. The judge found no mitigating circumstances.

Appellant first challenges the imposition of the death sentence by asserting that the jury was improperly influenced by various reasons, some of which we have already discussed. Since none of the reasons mentioned establish any improper prejudice, we find that the jury was not improperly influenced in reaching its recommendation.

Next appellant argues that the court erred in finding as an aggravating circumstance that the murder was committed to avoid arrest and to hinder law enforcement. This finding was based on the testimony of Patty Burks who said that appellant explained he killed the proprietor because "dead witnesses don't talk." Appellant argues that Ms. Burks' testimony was not credible because she was only seventeen and a participant in the crime. The credibility of a witness is for the finder of fact, not an appellate court, to determine. The testimony...