Lee v. State, G-138

• Decision Date: 06 April 1965
• Docket Number: No. G-138,G-138
• Citation: 173 So.2d 520
• Parties: Otis LEE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 520

173 So.2d 520

Otis LEE, Appellant, v. STATE of Florida, Appellee.

No. G-138.

District Court of Appeal of Florida, First District.

April 6, 1965.

Howard W. Dixon and Tobias Simon, Miami, for appellant.

Earl Faircloth, Atty. Gen., and William D. Roth, Special Asst. Atty. Gen., for appellee.

WIGGINTON, Acting Chief Judge.

Appellant seeks review of an order entered by the trial court denying his petition to vacate and set aside a judgment of conviction and sentence entered against him, which petition was filed pursuant to the provisions of Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.

Appellant was indicted by a grand jury in Bay County, Florida, on September 7, 1961, for the offense of rape. He was convicted by a jury and sentenced to imprisonment for and during the period of his natural life. On appeal to this court, the judgment was affirmed. ¹ Review of this court's decision of affirmance was sought by petition for writ of certiorari filed in the Supreme Court of the United States, which petition was denied by memorandum decision without opinion. ²

After having exhausted all avenues of appeal open to him under the laws of the United States and of the State of Florida, appellant instituted the proceedings under Criminal Procedure Rule No. 1 which culminated in the order which is the subject of this appeal.

By the first point of his brief appellant contends that he was denied rights guaranteed him under the Constitution of the United States when he, a Negro, was indicted by a grand jury, tried and convicted by a petit jury in Bay County, from each of which members of his race were systematically excluded. The arguments and contentions advanced by appellant under this point of his brief are improper and may not be considered on this appeal.

A review of the trial record which was lodged in this court in connection with appellant's original appeal reveals that at no time subsequent to his arrest did appellant make any attack upon the grand jury, the indictment which it returned, or upon the petit jury venire summoned for service in his trial. The record further establishes that the systematic exclusion of members of his race, if such in fact occurred, from the grand jury which indicted him and the petit jury which convicted him, was neither assigned as a ground for a new trial following the jury's verdict of guilty, nor was it assigned as error on the appeal of the judgment of conviction to this court.

In the case of Washington v. State ³ a person convicted of a criminal offense, whose judgment of conviction had on appeal been affirmed by the Supreme Court of Florida, filed a post-conviction proceeding seeking a writ of error coram nobis. Such a proceeding constitutes a collateral attack upon a judgment of conviction rendered in a criminal case in much the same manner as does the proceeding authorized by present Criminal Procedure Rule 1. By his petition the convicted defendant contended that he had been denied the equal protection of the laws guaranteed him by the Fourteenth Amendment to the Federal Constitution by reason of the fact that members of his race had been systematically excluded from the list of petit jurors eligible to serve in the court which tried and convicted him, and had been excluded from the jury which returned the verdict of guilty on which his judgment of conviction was predicated. In affirming the order of the trial court denying the prayer of the petition for writ of error coram nobis, the Supreme Court said:

'While an unlawful discrimination against Negroes because of their race or color practiced by an officer in summoning jurors may render the act of summoning illegal, the panel of jurors as formed might not be illegal. Where a jury that is competent under the law, and that is impartial as required by the Constitution, has been tendered, it may be accepted by the accused, who thereby waives his right to object to the panel on the ground that in summoning the jurors members of his race were discriminated against; there being no duress or other improper influence to embarrass or injure the accused. The jurors that tried the accused were all of the white race; and, if the defendant desired to assert his right to have it judicially determined whether the jury was selected without discrimination on account of race or color, such right should have been asserted before accepting the panel. This was not done and there is no suggestion that the accused was not tried by an impartial jury as required by the Constitution of the state. The accused was represented by competent counsel of his own race who had long been an active practitioner in the courts of the county and the state, and such counsel was of course familiar with the laws governing the rights of the accused, if not also acquainted with the general methods pursued in executing the laws relating to summoning and impaneling juries; the laws of the state not permitting discriminations against any race in selecting jurors.

'Timely and appropriate procedure must be invoked in asserting race discriminations in forming jury panels. Tarrance v. State, 43 Fla. 446, 30 So. 685; Tarrance v. Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572.

'The writ of error coram nobis is not available as a means of challenging, after a judgment of conviction and of affirmance by the appellate court, the legality of the trial jury that was accepted by an accused, particularly when there is no suggestion of duress or other improper influence exerted in forming or accepting the jury as impaneled, and no suggestion that the accused was not fairly tried by a competent impartial jury.'

In the subsequent case of State ex rel. Landis v. Lewis, ⁴ in a factual setting similar in all material respects to that in the Washington case above cited, the Supreme Court of Florida said:

'This court is committed to the doctrine that where a jury is competent under the law, and is impartial as required by the Constitution, and has been tendered by the state and has been accepted by the accused as the trial jury to try the issues of the accusation made against him, that, in the absence of duress or other improper influence tending to injure the accused, such jury's verdict is, for the purposes of judgment against the accused if found guilty, legally sufficient to support a judgment adjudicating guilt as well as the lawful sentence of the law that is permitted to be imposed pursuant to such adverse adjudication. In short, the verdict and resultant judgment are valid against collateral attack, even though a ground for challenge to the array of jurors, or to some of the individuals composing it, would have been sustained had such challenges been timely made. Washington v. State, 95 Fla. 289, 116 So. 470, text 474, certiorari denied 278 U.S. 599, 49 S.Ct. 8, 73 L.Ed. 528. * * *'

The rule of law enunciated in the Washington and Lewis cases above cited was adhered to by the Supreme Court in the subsequent case of Baker v. State. ⁵

Because of appellant's failure to timely raise in the trial court any objection which he had to the manner in which the grand jury and petit jury acting in his case were selected and impaneled, he is foreclosed from raising such question for the first time in a collateral attack upon the judgment of conviction by which he is presently restrained.

In support of his position that the question hereinabove discussed may be raised for the first time in a collateral attack upon his judgment of conviction, appellant cites several cases rendered by courts in the federal jurisdiction. ⁶ A review of each of the decisions on which appellant relies, with the exception of United States ex rel. Seals v. Wiman which we will presently discuss in detail, reveals that the assault made upon the grand jury and petit jury on the ground of systematic exclusion of Negroes was first made in the trial court. It was the trial court's judgment rejecting such assault, later affirmed by the appellate court of each state, which the appellate courts held was subject to collateral attack.

The only case cited by appellant which tends to support his contention is the Seals case. ⁷ A careful analysis of Seals clearly reveals that the decision is predicated upon controlling factors which are wholly absent in the case sub judice. The Seals case involved a petitioner who had been convicted of rape in Mobile, Alabama, which conviction was affirmed by the Supreme Court of that State. ⁸ The evidence adduced at the trial of the habeas corpus proceeding established without dispute that no motion based on the exclusion of Negroes from the grand jury or petit jury in Mobile, Alabama, had ever been made prior to the Seals trial, nor had the witnesses who testified even known of a Negro serving on a Mobile jury in a capital case in which a Negro was a defendant. This evidence conformed to a prior holding by the United States Circuit Court of Appeals for the 5th Circuit in the Goldsby case ⁹ to the effect that the court takes judicial notice of the fact 'that lawyers residing in many southern jurisdictions rarely, almost to the point of never, raise the issue of systematic exclusion of Negroes from juries.' An additional factor which influenced the court's decision was its finding that the evidence to support objections to the composition of the jury was entirely unknown to the...