Luke v. State, s. 1046-1048

• Court: Florida District Court of Appeals
• Writing for the Court: BEASLEY, THOMAS D.; WALDEN, C.J., and McCAIN
• Citation: Luke v. State, 204 So.2d 359 (Fla. App. 1967)
• Decision Date: 14 November 1967
• Docket Number: Nos. 1046-1048,s. 1046-1048
• Parties: John Philemon LUKE, II, Appellant, v. STATE of Florida, Appellee. John Francis HENRY, a/k/a Chico, Appellant, v. STATE of Florida, Appellee. Hubert Ray STIDHAM, Appellant, v. STATE of Florida, Appellee.

Page 359

204 So.2d 359

John Philemon LUKE, II, Appellant, v. STATE of Florida, Appellee.

John Francis HENRY, a/k/a Chico, Appellant, v. STATE of Florida, Appellee.

Hubert Ray STIDHAM, Appellant, v. STATE of Florida, Appellee.

Nos. 1046-1048.

District Court of Appeal of Florida, Fourth District.

Nov. 14, 1967.

Rehearings Denied Dec. 13, 1967.

Garlon Davis and J. Luther Drew, of Ives & Davis, West Palm Beach, for appellant Luke.

Steadman S. Stahl, Jr., of Varon, Stahl & Perlin, Hollywood, for appellants Henry and Stidham.

Earl Faircloth, Atty. Gen., Tallahassee, Charles W. Musgrove and James T. Carlisle, Asst. Attys. Gen., Vero Beach, for appellee.

BEASLEY, THOMAS D., Associate Judge.

The appellants, together with one James Purkhiser, were indicted by a grand jury for Broward County, Florida, charging them with murder in the first degree in the killing of Catalina Flores; change of venue was granted and the cause transferred to St. Lucie County, Ninth Judicial Circuit of Florida; by an order of severance James Purkhiser was tried separately and convicted of murder in the first degree without recommendation of mercy.

The appellants were tried jointly. The court below directed a verdict of not guilty as to murder in the first degree and submitted the case to the jury on the lesser degrees of unlawful homicide, to-wit: murder in the second degree, murder in the third degree, and manslaughter, and charged the jury as to each offense by following the statutory words defining each such degree of unlawful homicide.

In the course of the trial the state was allowed to question a witness as to whether or not Appellant-Stidham had made certain statements following the events involved to the effect that if he had to return to Raiford there would be some funerals or a funeral before he went; Stidham testified that he had never been in Raiford or under sentence to Faiford; his motion for mistrial because of the question by the state and the answer was denied.

The Appellants-Luke and Henry did not testify, and the prosecuting attorney in his argument made this statement:

'Gentlemen, these are the last words that I will say. This isn't bargain day, as it has been described facetiously by counsel. What happened that night was not a lark, as has been described by other counsel. There are never going to be any brass bands for Catalina Flores Day. Just today. And she can't be here to ask Stidham, why did you take a gun up there, and she can't be here to ask the defendant Henry, why did you drive the truck up to my home and why did you bring an ax up on the porch of my home with a man that had the gun. She can't ask those questions. She will never be able to. But, this is the day that I ask the questions for her. As to the defendant Luke, why did you, a stranger, come up on the porch of my home with a man that had the gun that killed me. And as to the defendant Stidham, why did you drive the truck away? Because these are the questions that are rightfully asked of these three defendants, and I asked them that because, if there is any day for this child as to these three defendants, this is it. * * * The child had every right to ask why didn't you turn back defendant Henry, why didn't you turn back? But he didn't, and that is the main road of this case. * * *'

The jury returned verdicts against each appellant of guilty of murder in the third degree, upon which each was adjudged guilty and each was sentenced to serve a term of ten years in the state prison. After denial of post-trial motions each appellant perfected his appeal to this court, with the appeals being consolidated by order of this court.

The appellants seek reversal of their convictions because of (a) the remarks made by the prosecuting attorney as set forth above as to Luke and Henry, (b) insufficiency of the evidence, and (c) insufficiency of the court's charge to the jury with reference to murder in the second degree and murder in the third degree. The Appellant-Stidham seeks reversal on the additional ground that the court below erred in denying his motion for a mistrial.

The question as to the challenged remarks by the prosecutor can be summarily disposed of. We are not unmindful of the strict application of the prohibition against comment on a defendant's failure to take the witness stand, and we have given careful consideration to the authorities cited and the summary of decisions in Singleton v State, Fla.App.1966, 183 So.2d 245; however, we conclude that the complained of statement, as set forth above, was within the orbit of proper argument and cannot be construed as a comment on the failure of the appellants to testify.

Appellant-Stidham's attack on the refusal of the court below to grant his motion for a mistrial can also be summarily disposed of. If allowing the prosecution to question a witness as to statements made by Stidham concerning his returning to Raiford was error, which we do not hold, it was rendered harmless by Stidham's testimony that he had never been to Raiford or sentenced to serve a term there.

The other grounds upon which reversal is sought cannot be disposed of summarily or without a review of the facts...