Kellum v. State
| Decision Date | 24 June 1958 |
| Docket Number | No. 57-206,57-206 |
| Citation | 104 So.2d 99 |
| Parties | Raymond H. KELLUM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard H. Hunt, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and John C. Reed, Asst. Atty. Gen., for appellee.
Appellant was informed against in August of 1956 on two counts, charging him with being present, aiding and assisting one James W. Robinson (1) in the commission of the crime of entering without breaking with intent to commit grand larceny, and (2) in the commission of grand larceny. He was tried before a jury in the Criminal Court of Record of Dade County, convicted, and sentenced to imprisonment for two consecutive eighteen month periods.
A brief reference to the facts as disclosed by the record is indicated. The appellant Raymond H. Kellum was a police officer of the City of Miami. He and Officer Branning were on duty together in a police prowl car. Officers White and Robinson, who were off duty, while driving past a certain business establishment in the night time, observed a door open. Through police communications they called for appellant who, with Branning, responded and joined them. The four men inspected the premises in question. Another prowl car came by. Appellant conversed with its occupants, and that car then left. White and Robinson took several small rugs and two mirrored bathroom medicine cabinets, which articles were found later in the home of one of them.
The evidence on the issues in the case was conflicting. The testimony of White and/or Branning, presented on behalf of the State, tended to sustain the charges by indicating that appellant knew of the intent of the others to steal the articles; that he and his partner Branning were acting as look-outs for them; and that appellant misled the occupants of the second prowl car to protect White and Robinson. That testimony was contradicted by appellant, who disclaimed that he knew or was informed of any intent of White or Robinson to take anything from the property; that the articles were taken without his knowledge; that they must have been taken and removed from the premises during the interval when appellant was talking to the officers in the second prowl car; that his conversation with the latter had not been of the character and for the purpose recited by the state's witnesses; and that he and Branning were there simply to make an official inspection of the premises which had been found open (the other officers being of duty at the time), to determine if any action was necessary and to close up the premises, which was done.
The credibility of the state's witnesses White and Branning was drawn into question because of White's admission of commission of the crime which resulted from taking the articles; because Branning had been convicted of a different offense for which he was serving time in the state penitentiary at the time of the trial of this case; and because for his co-operation as a state's witness he had been given certain assurances that he would receive official help to be paroled. White, for his cooperation with the police department in disclosing this and other burglaries known to him to have been perpetrated by police at about that time, had avoided prosecution altogether, and had continued to serve as a police officer of the city.
Nine assignment of error were filed on behalf of the appellant. Those included assignments charging that the court was in error in failing to direct a verdict for the defendant, and in failing to grant a motion for new trial, under which the sufficiency of the evidence to sustain the verdict and conviction was asserted. The motion for new trial also included grounds that the verdict had been improperly motivated by matters ourtside the evidence, including remarks made by the trial court.
In view of our disposition of this appeal, as shown hereinbelow in this opinion, we are not required to pass upon the several questions raised by appellant under his assignments of error, except the contention of appellant that the evidence was insufficient to support the judgment (rule 6.16, subd. b., Fla.App.Rules, 31 F.S.A.), which contention we reject after inspecting the record.
We have concluded, however, that the interest of justice would best be served by reversing the judgment and remanding the cause for a new trial, because of prejudicial error which resulted from certain statements by the court during the course of the trial in the presence of the jury regarding a defaulting police officer and revealing that there had been a wave of more than fifty of such crimes by police officers, and because of the improper admission into evidence of the testimony by an assistant police chief making reference to such other crimes.
Certain of the remarks of the trial judge followed the disclosure that Police Officer White had remained on duty on the police force after having admitted the theft of the articles on the occasion involved. The trial judge may have been properly incensed over that circumstances, but in expressing his low regard for such a policeman he showed how he felt about defaulting policemen generally, and how he felt about the case, and, by inference, about the defendant.
'In the case of Lewis v. State, 55 Fla. 54, 45 So. 998, this Court held that the utmost care should be used by the trial Judges, and especially in criminal prosecutions, not to make any expression that is capable of being interpreted by the jury as an indication of what the Judge thinks of the prisoner. See also Roberson v. State, 40 Fla. 509, 24 So. 474.
'In the case of Leavine v. State, 109 Fla. 447, 147 So. 897, 902, the Court said:
"For the judge to have said that he thought the evidence was not material probably emphasized the error in excluding the question if the answer had been an affirmative one, because a trial court should avoid making any remarks within the hearing of the jury that is capable directly or indirectly, expressly, inferentially, or by innuendo of conveying any intimation as to what view he takes of the case or that intimates his opinion as to the weight, character, or credibility of any evidence adduced." Seward v. State, Fla.1952, 59 So.2d 529, 531.
In the case of Roberson v. State, 40 Fla. 509, 24 So. 474, 477-478, the court was concerned with a statement which the trial judge made in a criminal case in ruling on an objection to evidence, to-wit: and with reference to which the Supreme Court said:
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...59, 37 So. 575; Smith v. State, 65 Fla. 56, 61 So. 120), except where the interests of justice would not be served. Kellum v. State 104 So.2d 99 (Fla.Ct.App.3d Dist.). Hearsay evidence takes on added importance in jury trials. It is excluded if prejudicial. Owens v. State, 65 Fla. 483, 62 S......
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State v. Wendel
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