Mayo v. Blackburn
| Decision Date | 29 January 1958 |
| Docket Number | No. 16681.,16681. |
| Citation | 250 F.2d 645 |
| Parties | Nathan MAYO, as Custodian of the State Prison, State of Florida, Appellant, v. Harlan BLACKBURN, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George E. Owen, Asst. Atty. Gen., Moie J. L. Tendrich, Sp. Asst. Atty. Gen., Richard W. Ervin, Atty. Gen., for appellant.
Pat Whitaker, Mark R. Hawes, Tom Whitaker, Tampa, Fla., for appellee.
Before RIVES, TUTTLE and BROWN, Circuit Judges.
This appeal is from a final judgment in a habeas corpus proceeding releasing and discharging from custody a State prisoner. Upon the record of the trial in the state court, and without taking any other testimony, the district court found:
"that in the denial of his motion to quash the information, in the denial of his motion for change of venue, and in the denial of his motion for severance by the Criminal (Court) of record for Polk County, Florida, the petitioner was denied due process of law and equal protection of the law under the Fourteenth Amendment to the Constitution of the United States."1
As has been stated, no testimony was offered before the district court, but its judgment was based upon the petition for habeas corpus and respondent's return to the writ and the exhibits thereto. Those exhibits include the original record and the trial proceedings in the Criminal Court of Record for Polk County, Florida, wherein the appellee was convicted, contained in ten volumes of more than 1800 legal size typewritten pages, "Exhibit A" to the motion for change of venue filed in evidence at the hearing of said motion showing photostatic copies of newspaper articles, and other original exhibits. Appellee's conviction had been affirmed by the Supreme Court of Florida, Blackburn v. State, 83 So.2d 694, and the United States Supreme Court had denied certiorari, Blackburn v. State of Florida, 350 U.S. 987, 76 S.Ct. 473, 100 L.Ed. 854.
Prior to the conviction upon which he is now imprisoned, appellee had been convicted in the same state court of conspiracy to violate the lottery laws of the state, and had been sentenced to pay a $500 fine and to imprisonment in the county jail for one year. Thereafter, the same lottery transactions were made the subject of a six count information against the appellee and twenty-three other defendants charging them with the commission of various substantive offenses under the lottery laws of Florida. Prior to appellee's trial, a number of his co-defendants had been eliminated, so that he was actually tried along with seven co-defendants on five of the six counts.
The question is presented as to whether there was such improper joinder that the appellee was denied due process of law when neither his motion to quash the information nor his motion for severance was sustained. It may be conceded, as the appellee so strenuously argues, that from the face of the information alone it would appear that distinct and separate offenses, committed in several counties, were charged against different persons, and that the information itself shows no connection between the several offenses nor between the various co-defendants. So far as those objections go to the propriety of the information as a pleading, this Court is concluded by the decision of the Supreme Court of Florida, subject to review under the due process clause only if it resulted in the denial to the appellee of fundamental fairness.2 The appellee doubtless knew from the evidence theretofore introduced in the conspiracy trial what the state claimed to be the connecting links between the various offenses and the several offenders. The state's evidence upon the trial of the defendant and his co-defendants for the several substantive offenses clearly went to prove that there was but one vast lottery operation, covering several counties, operated, backed and banked by the appellee. No further discussion is needed to demonstrate that there was no such misjoinder of parties or of offenses as to amount to a denial of due process of law or equal protection of the laws.
As to the motion for change of venue, we repeat that no evidence was offered before the district court which had not already received the consideration of the trial court and of the Supreme Court of Florida. The trial court entered an order denying the motion for change of venue, stating sound reasons for such denial, and carefully providing for its reconsideration in the event of difficulty in selecting a fair and impartial jury.3
The prospective jurors were examined at length on voir dire and twenty-six of them were excused as having fixed opinions. The six jurors finally selected had read of the case and heard it discussed but testified on voir dire that they had no fixed opinions and that they would give the defendants a fair and impartial trial. There was no unusual difficulty in choosing the jury. When the appellee renewed his motion for change of venue after the jury had been chosen and before it was sworn, the trial court ruled: "The Court is not of the opinion there has been any showing made here that it would be impossible for the defendant to secure a fair and impartial trial in this County, and the motion, therefore, is denied."
The Supreme Court of Florida attached little importance to the motion for change of venue, or for that matter to the motion to quash the information or the motion for severance, and disposed of all three in one sentence concluding its opinion:
"We have considered all other assignments of error and are not persuaded that the trial court committed reversible error in entering the judgment and sentence appealed from." Blackburn v. State, Fla., 83 So.2d 694, 696.
Whether the adverse publicity prevented the appellee from securing a fair trial was a question primarily addressed to the...
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