Kish v. State, 66--102

• Decision Date: 29 November 1966
• Docket Number: No. 66--102,66--102
• Citation: 192 So.2d 315
• Parties: James Clyde KISH and Leevy Carlton Mears, Jr., Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 315

192 So.2d 315

James Clyde KISH and Leevy Carlton Mears, Jr., Appellants, v. The STATE of Florida, Appellee.

No. 66--102.

District Court of Appeal of Florida, Third District.

Nov. 29, 1966.

Rehearing Denied Dec. 21, 1966.

Aram P. Goshgarian, Miami Beach, Tobias Simon and Alfred Feinberg, Miami, for appellants.

Earl Faircloth, Atty. Gen., and Barry N. Semet, Asst. Atty. Gen., for appellee.

Before HENDRY, C.J., and PEARSON and CARROLL, JJ.

PEARSON, Judge.

The appellants are James Kish and Leevy Mears. They were informed against in a two-count information for the crime of unlawfully and feloniously breaking and entering a dwelling house located in Dade County, Florida, with intent to commit a felony, to wit: robbery, and while unlawfully therein assaulting persons lawfully therein, and robbery. The information alleged that the crime was perpetrated on September 8, 1965. The causes were consolidated for trial. Pursuant to a jury verdict, the defendants were each adjudged guilty on both counts. Motions for new trial were denied, and after sentence, this appeal was prosecuted. We affirm.

The points presented are as follows:

I 'THE LOWER COURT'S DENIAL OF THE DEFENSE MOTION FOR A CONTINUANCE CONSTITUTED AN ABUSE OF DISCRETION WHICH RESULTED IN A DEPRIVATION OF THE DEFENDANTS' RIGHTS TO ADEQUATE REPRESENTATION BY COUNSEL IN VIOLATION OF THEIR RIGHTS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.'

II 'THE LOWER COURT ERRED IN DENYING THE DEFENDANTS' MOTION TO SUPPRESS OBJECTS ILLEGALLY SEIZED FROM THEIR POSSESSION AND IN ADMITTING SAME INTO EVIDENCE OVER THE OBJECTIONS OF THE DEFENDANTS IN VIOLATION OF THEIR RIGHTS AS GUARANTEED TO THEM BY THE FOURTH, FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.'

The essence of appellants' first point is their contention that the denial of their motion for a continuance of the trial was prejudicial error. In order to establish a frame of reference for the consideration of this contention, it is necessary to relate the history of the case from the filing of the information to the date of trial. On October 21, 1965, the first information was filed. In this information, a third person, George A. Johnson, was joined as a principal, and the alleged felony was grand larceny. Eight witnesses for the State were listed on the reverse of the information. On November 1, 1965, the trial date was set for November 17, 1965. On November 8, a motion to quash the information and a motion for bill of particulars was filed. The motion for bill of particulars requested a 'complete list of witnesses the State shall call at the trial of the cause.'

On November 10th, a new information was filed. An additional witness for the State was added to the list on the reverse of the information. This information charged only appellants Kish and Mears. George A. Johnson was not named as a co-defendant. A defense motion to suppress evidence seized pursuant to a search warrant and for return of property was filed on November 10th.

The motions came on before the court on Friday, November 12th. The motion to quash was directed to the new information and was denied. The motion to suppress was denied, and the motion for bill of particulars was granted in part and denied in part. The request for a list of the witnesses was granted. The record reveals the following argument before the court.

'MR. GOSHGARIAN: Could we have a list of witnesses?

'MR. BAKER: I have a girl upstairs preparing a list of witnesses. Are you going to be here anywhere Monday morning? If he wants to go upstairs with me right now, I will give him a list of witnesses.

'MR. GOSHGARIAN: I want to see the list of witnesses, because I understand now that we found out this morning they are going to use the prior course of conduct, and to give us a list of witnesses at a quarter of five, and there is going to be something like twenty witnesses on there, and have us ready for trial Wednesday morning would be a physical impossibility. He wants now to give me the list on Monday.

'MR. BAKER: I will give them to him right now.

'MR. GOSHGARIAN: I would like to move at this time for a continuance on the trial since we have now discovered that they are going to list all of these other robberies and the victims to show a prior course of conduct. I don't know what the rush is in this case. We had the new arraignment on Wednesday, and we argued the motions Friday. I would like to have two weeks to prepare or at least to try to talk to some of these witnesses and find out what they are going to testify to, and we can't possibly be ready by Wednesday.'

The oral motion for continuance was denied.

On Monday, November 15th, a list of State's witnesses in the cause was filed.

The next day, November 16th, a written motion for continuance of trial was filed by the defendants. The motion was heard before the court on the same day. The number of witnesses had been reduced to 28, and counsel for the defendants was told which witnesses would not be called. The State made the following statement:

'Now, the State has made arrangements for these witnesses to be here and testify in this case tomorrow. A continuance in this case at this time will be most detrimental to the State and I would represent I have a certificate in my office from Dr. Putter, telling me that Mrs. Murray, who is an essential witness in this case, is under his care for a heart condition. She saw her doctor as late as yesterday. The doctor does not want her to come to Court and testify, but she is going to come to Court. She has been given special medication so she might come to Court and testify. I submit that if this trial is delayed we may never hear from Mrs. Murray and I think the Defendants know it.'

The written motion for continuance was denied. The trial proceeded as scheduled on November 17, 1965.

The appellants argue that the time, from the filing of the second information (November 10) to the date of the trial (November 17), was so short as to deprive their counsel of an opportunity to adequately prepare for the trial. The State points out that the original information against these defendants was filed on October 21 and that it was practically the same information as the one under which the defendants were tried.

The appellants state that they had discovered that George A. Johnson, a codefendant in the first information, was in the Oklahoma State Penitentiary at the time of the alleged robbery, and that they relied upon this fact as a defense. They suggest that they had no obligation to proceed with a further defense until Johnson was eliminated by the information filed on November 10.

It is immediately apparent that Johnson's presence in the penitentiary was a defense only as to Johnson. Appellants were of the opinion that this mistake by the State would have cast doubt on the whole trial. We cannot agree that the appellants had an interest in the State's error.

The most telling argument of the appellants is that the list of witnesses contained 33 names, ¹ and that they could not reasonably be expected to interview all of the witnesses within the time allowed. Where a list of 33 witnesses, previously unknown to the defendant and his counsel, is funished shortly prior to trial, the denial of a motion for continuance could be prejudicial error. In the present instance, no prejudice to the appellants has been shown. There is no indication that the appellants were handicapped in their defense.

At the trial, the State produced the testimony of seven witnesses. Four of these witnesses were listed by the State on the original information filed against these defendants on the 21st of October 1965, and therefore, were known to them from that date. The additional three witnesses were Charles Black, Robert Hoelscher and June Taylor.

Charles Black was a Lieutenant in the Dade County Sheriff's Office and was listed on the second information as a witness. He was a participant in the search, pursuant to warrant, which produced some of the articles charged to have been stolen. He had testified on November 12 at the hearing on the motion to suppress. The existence of...