Kilgore v. State
| Decision Date | 01 December 1972 |
| Docket Number | Nos. 70--898,70--899,s. 70--898 |
| Citation | 271 So.2d 148 |
| Parties | Wade KILGORE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
T. David Burns, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant Wade Kilgore appeals to this Court from separate judgments and sentences entered against him in two cases which were consolidated by the trial Court for purpose of trial.
Direct informations were filed against Kilgore in the Polk County Criminal Court of Record, charging him respectively with second degree murder and carrying a concealed firearm. Upon being arraigned he entered a plea of not guilty to each information. Trial by jury was set for October 6, 1970 by separate trial orders. On the latter date the Court, over objection of Kilgore's counsel, ordered the empaneling of a single jury to try jointly the two informations, and they were so tried.
During the afternoon of the first day's trial an unusual and unfortunate occurrence happened when the young four year old son of Kilgore's trial counsel, T. David Burns, had a certain accident at his home. A recess of trial was declared during which attorney Burns endeavored to get medical aid for his son. After again convening in Court, counsel renewed his request for an additional temporary suspension of the trial but the trial Judge, after several frustrating opinions in the matter, finally ordered the trial to proceed, which it did into a late night session, lasting until the following morning.
Also, Kilgore sought a jury instruction on self-defense but the Court refused such request.
There were other contentions of error made at the trial, and later here, but the foregoing constitute the material arguable points raised on behalf of Kilgore which we will briefly discuss here seriatim. They are: (1) was it proper for the trial Court to force Kilgore to defend before the same jury, in a joint trial, two separate informations charging separate and distinct felonies?; (2) should the trial Judge have instructed the jury on self- defense?; and (3) in the light of the facts then existing, should not the trial Judge have recessed further trial for the night of October 6, 1970?
(1) Was a forced joint trial under the circumstances proper?
We think not.
Information in our appeal No. 70--898 charged that Kilgore unlawfully had and carried 'on and about his person concealed, a deadly firearm, to-wit, a pistol . . .' without legal authorization. The other information in our appeal No. 70--899 charged Kilgore with the second degree murder of one Nathaniel McFadden pursuant to an assault upon McFadden 'with a deadly weapon, to-wit: a pistol'. Both informations were filed directly in the Polk County Criminal Court of Record by the County Solicitor without intervention of the grand jury, on May 11, 1970.
On June 10, 1970, separate arraignments and entries of pleas of not guilty to each information were entered, and jury trial in each case was set for October 6, 1970. On October 6th, at the beginning of the session when the Court was apparently preparing for a joint trial, Kilgore's counsel stated The prosecutor then interposed that 'both of these cases have been notified (sic) for trial . . .'. The Court stated that 'it would not be prejudicial in any way because the question of a firearm would come out necessarily in the testimony as a part of the other offense . . . I see no reason any way why the two couldn't be tried together . . . If they had been tried on a two count information you would have exactly the same situation.' Reminded by Kilgore's counsel that 'carrying a concealed weapon is not a lesser included offense in a crime of murder in the second degree' (to which the prosecutor and the Court readily agreed), the trial Judge ruled:
The consolidation of two or more separate criminal charges is not a matter of right by either party. It must be properly moved for in an orderly fashion by the party so desiring it, either the State or the defendant. This is implicit in CrPR 1.190(k), 33 F.S.A., as follows:
It will be observed that under the Rule two things must concur for a trial consolidation to be effective, namely, it must be upon motion of a party to the cause and it must be ordered by the Court; and then only 'if the offenses . . . could have been joined in a single . . . information . . .' It is somewhat the antithesis of a severance, or motion for severance, which is dealt with in subsection (g) preceding the consolidation Rule.
In the case sub judice, so far as the record shows, no motion for consolidation was made by anybody. Apparently, the first either party, certainly the defendant, knew that the trial Court had in mind to consolidate the two cases was when Court convened the morning of the trial. And, from the transcribed proceedings, when it became apparent that the two cases were intended by the Court to be tried together Kilgore, through counsel, timely objected and moved for separate trials, which motion was denied. And the cases then proceeded to trial jointly before the same jury, resulting as hereinafter mentioned in an aggregate sentence of 30 years in the penitentiary, 20 years in one case and 10 years in the other, to run consecutively. This was procedural error to a prejudicial degree.
This is not to say that a consolidation of two or more criminal charges, even felonies, contained in separate indictments or informations, should not be consolidated for trial under proper circumstances. It is often done with impunity by agreement of the parties. And it might be done by order of Court over objection of one or the other of the parties, when properly allowable. But when it is Imposed upon a party, particularly the defendant over his objection, and where there might conceivably be cogent and compelling reasons inveighing against such consolidation, we have an entirely different situation. Under such circumstances the Court should be rather chary in ordering a defendant to stand trial upon two joined felonies before the same jury.
There are salutary reasons for this. One important reason that comes readily to mind is the question of whether the defendant should take the witness stand in his own behalf. Experienced trial lawyers have always realized that this sometimes becomes one of the most critical and momentous decisions to be made in the course of a criminal trial. By taking the witness stand a defendant automatically subjects himself to cross-examination. And in a consolidated trial this might in turn subject him to such cross-examination on All the charges then being tried. It could well be that in the trial of case A, if not so joined, it might be strategic from the defendant's standpoint that he not voluntarily testify. But he would be caught in an inescapable vise if he was forced to take the stand in a consolidated trial, to protect his interests in case B, and thereby suffer the disadvantages in case A as mentioned. In fact, a practical illustration of being forced to choose between two horns of the dilemma arose in the instant case, when Kilgore's counsel was constrained to put him on the witness stand in his own behalf in an effort to produce a factual basis for self-defense to the homicide charge, when by doing so he Ipso facto was forced to virtually admit he was carrying a concealed weapon, which was the gravamen of the other charge.
Another incident of prejudice arising from a forced trial consolidation could arise, and has in fact actually arisen, in the matter of determining the number of peremptory challenges allowable to a defendant in such consolidated trial. See Meade v. State, Fla.1956, 85 So.2d 613, 59 A.L.R.2d 835; Johnson v. State, Fla.App.1968, 206 So.2d 673; Johnson v. State, Fla.1969, 222 So.2d 191; and McCoy v. State, Fla.App.1965 (2nd District) 175 So.2d 588. It is unnecessary to pause here to review these cited cases as the opinions therein speak for themselves.
A circumstance illustrating in stark focus the harmful consequences possible in even a procedural departure from the norm is shown in the instant appeals.
After trial, the jury returned separate verdicts finding Kilgore guilty in case No. 70--898 of carrying a concealed firearm and guilty in case No. 70--899 of murder in the 3rd degree. Upon the latter information, wherein Kilgore was convicted of 3rd degree murder, the trial Judge sentenced him to 20 years in the State Prison, the maximum allowable on October 28, 1970, at the time it was pronounced, although since then, as of January 1, 1972, such maximum sentence for 3rd degree murder has been reduced to 15 years imprisonment. F.S., §§ 782.04 and 775.082 F.S.A. In the former information, carrying a concealed firearm, the trial Judge sentenced Kilgore to serve 10 years in the State Prison, to run consecutively with the other 20 year sentence, making a total prison sentence of 30 years. ...
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