March v. State, s. 82-1451

• Decision Date: 13 September 1984
• Docket Number: 82-1742 and 82-1743,Nos. 82-1451,s. 82-1451
• Citation: 458 So.2d 308
• Parties: Willie Lee MARCH, Andrei Stephonne Kelly, and David Murphy, Appellants, v. STATE of Florida, Appellee. Case
• Court: Florida District Court of Appeals

Page 308

458 So.2d 308

Willie Lee MARCH, Andrei Stephonne Kelly, and David Murphy, Appellants, v. STATE of Florida, Appellee.

Case Nos. 82-1451, 82-1742 and 82-1743.

District Court of Appeal of Florida Fifth District.

Sept. 13, 1984.

Rehearings Denied Oct. 9 and Nov. 2, 1984.

James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant March.

J. William Masters, II, Orlando, for appellant Kelly.

Charles A. Tabscott, Orlando, for appellant Murphy.

Jim Smith, Attorney General, Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Appellants appeal from convictions of manslaughter following a jury trial on charges of second degree murder. We affirm.

The charges arose out of a shootout between appellants March and Murphy on the one side, and appellant Kelly on the other. The evidence reflects that all three appellants were engaged in drug trafficking and that the dispute arose over "turf." In the course of the altercation, Little Walter Tukes, a bystander, was killed by a bullet which the evidence shows was fired from Kelly's rifle.

March and Murphy contend that the evidence does not support their conviction because they were using handguns and the fatal bullet came from Kelly's rifle. There is no merit to this contention. Because all three parties were engaged in the same felonious activity (the shootout) their participation in the episode would have been sufficient to support a finding that they were aiders and abettors to second degree murder, so the evidence was sufficient to support the conviction of the lesser offense of manslaughter. See LaMura v. State, 424 So.2d 25 (Fla. 4th DCA 1982).

Kelly asserts the position that he was clearly trying to protect himself from March and Murphy so that his use of the rifle was in self-defense and he was entitled to a directed verdict of acquittal. Unfortunately for his position, the evidence is capable of the inference that he was the aggressor on the day of the fatal shooting and that he arrived on the scene with his rifle ready to do battle because of an altercation which had taken place the previous day between the same parties. The issue of self-defense was properly submitted to the jury.

One other point concerns us greatly. Appellant March contends that he was denied a fair trial by virtue of lengthy prayers recited by the trial judge to open each court session ¹ and to which he objected below. He contends that these were more than prayers for divine guidance--that they were thinly disguised comments on the evidence and nature of the crime for which appellants were being tried, and that as a result appellant March was deprived of a fair trial and is entitled to a new trial, free of any such influence of the trial judge upon the jury.

We have carefully reviewed the content of the prayers given by the trial judge and agree that they are more than the usual nonsectarian benedictions used by many public officials to solemnize the opening of public functions. The prayers invoked here are clearly sectarian in nature and might be construed as an expression of the judge's personal religious preferences. There is an inherent danger that litigants who hold different religious beliefs would feel that their cause was not being decided solely on the merits, and that a jury might be similarly influenced.

It should be clear that we do not criticize the proper use of prayers, including recognition of a supreme being, in the opening of judicial or legislative sessions. We agree that such prayers serve an important function while not jeopardizing the interests of any party. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The sessions of this court are opened daily with such a prayer.

However, when a trial judge offers an invocation which is in effect a sermon, the judge may appear to the parties and to the jury to be espousing a standard to be applied in evaluating the evidence or the parties, and in effect, to be giving a jury instruction. In any litigation, and especially in a criminal trial, the trial judge must refrain from any activity which even remotely could appear to the jury as a comment on the evidence or on the proceedings before the court, or on the character of the defendants who are on trial. References to "save us from violence, discord and confusion;" or "subordination and obedience to government;" or "brotherly affection and love for one another or their fellow citizens;" or "a sense of our responsibility in saving the world from ruin;" and "obedience to thy law" could well be taken by jurors as an indication by the court that defendants were misfits who had violently departed from the divine umbrella of justice and brotherly love and thus should be punished.

We have admittedly taken the comments out of...