McAden v. State
| Citation | 21 So.2d 33,155 Fla. 523 |
| Parties | McADEN v. STATE |
| Decision Date | 30 January 1945 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied March 14, 1945.
Appeal from Circuit Court, Hillsborough County; Harry N. Sandler, judge.
Whitaker Bros., Pat Whitaker, and Charles F. Blake, all of Tampa, for appellant.
J. Tom Watson Atty. Gen., and John C. Wynn, Asst. Atty. Gen., for appellee.
The appellant Pearl McAden, was indicted by a grand jury of Hillsborough County, Florida, for the unlawful killing of Charles William Vanderhorst, Jr., on the 15th day of January, 1944, in Hillsborough County. He was placed upon trial and convicted of murder in the second degree and sentenced to life imprisonment in the State Prison. He has perfected an appeal here.
The record discloses that the trial court, upon motion of the defendant below, on the 24th day of March, 1944, entered an order directing the State Attorney to furnish to the defendant, or his counsel, a complete list of all witnesses intended to be used by the State Attorney as witnesses at the trial of the case.
On April 3, 1944 counsel for the defendant below filed a motion for subpoena duces tecum to be directed to the Court Reporter, J. G Nesbit, the State Attorney, Assistant State Attorney, and Special Assistant State Attorney requiring them to appear produce and file, so as to be made available to the defendant, the transcribed testimony and stenographic notes taken at all hearings and investigations had between January 15 and February 1, 1944, concerning the killing of Vanderhorst. It was made to appear that the hearings were held in the city hall of Tampa and the county jail of Hillsborough County. The witnesses interrogated at said hearings were Major Stribling, Willie Williams, Pearl Sanderson, Matthew Isom and Herman Williams.
The petition for subpoena duces tecum sought the production, so as to be available to the defendant below, a transcript of the testimony taken at the aforesaid hearings and is described viz.: 'All the shorthand notes taken down stenographically by the official court reporter of Hillsborough County, Florida, or by any of his deputy reporters between January 15th and February 1st, 1944, at all hearings and investigations held and conducted into the subject-matter of the killing of Charles William Vanderhorst, Jr., in the City Hall of Tampa, Florida, or at the County Jail of Hillsborough County, Florida between January 15th and February 1st, 1944, as well as all of the transcriptions of said stenographic notes of said statements and testimony.'
Pertinent portions of the motion for subpoena duces tecum are viz.:
'Defendant further shows that the above cause is set for trial in the above court to begin on Wednesday, the 5th day of April, 1944, and it is of vital importance and highly material to the defense of the defendant that this official testimony herein sought be made available to him at the beginning of said trial and unless it is brought in before the court and made so available the defendant will be placed at a great disadvantage at said trial.
'Defendant further respectfully shows unto the court that he is informed and verily believes that the said witnesses, towit: Major Stribling, Willie Williams, Pearl Sanderson, Matthew Isom and Herman Williams, at the time of giving said testimony in said official investigation, made different statements, that is to say, each of them made entirely different material statements of fact, one of which was contradictory of the other within itself, so that each witness gave contradictory statements as to what he saw and heard, and in relation to what he knew in connection with the subject-matter here under prosecution; that it is highly material and of vital importance to the defendant that he have available this transcribed testimony and the stenographic notes thereof at the time of the trial of the above cause, so that his counsel may be able to properly cross-examine each of said witnesses above named, as well as establish the contradictory statements made by said witnesses.'
Counsel for the parties were heard on the merits of the petition and thereafter the trial court on April 3, 1944, made and entered an order overruling and denying the motion for the issuance of the subpoena duces tecum. On this appeal it is contended that the aforesaid order denied the defendant below rights vouchsafed to him by Section 11 of the Declaration of Rights to the Constitution of Florida and was a substnatial denial of due process and equal protection as guaranted by Amendments 5, 6 and 14 of the Federal Constitution; and that the subpoena duces tecum should have issued under the authority of State ex rel. Brown v. Dewell, 123 Fla. 785, 167 So. 687.
In the case of State ex rel. Brown v. Dewell, supra, it was made to appear that the State had produced Sam Rogers and E. F. Poulnot, who were interrogated by the prosecution during the progress of the trial of a criminal case. It was also made to appear by appropriate allegations that these witnesses gave contradictory testimony concerning the same transaction when they were before a grand jury of Hillsborough County. The testimony of the witnesses before the grant jury was taken down in shorthand by the court reporter, R. F. Johnson. Counsel for defendants in the criminal prosecution desired a transcript of the testimony of the two witnesses as given in the same transaction before the grand jury.
Subpoena duecs tecum issued to the court reporter Johnson and in response thereto he appeared in the Criminal Court of Record of Polk County and stated that he was willing to comply with the subpoena by turning over the transcribed testimony of the two witnesses as given before the Hillsborough grand jury in the same transaction but the Honorable Robert T. Dewell, Judge of the Criminal Court of Record, held that the court reporter Johnson could not be required to turn over the transcribed testimony to the clerk for inspection and use by counsel in the cross-examination of Sam Rogers and E. F. Poulnot.
In a mandamus proceeding instituted in this Court against the Honorable Robert T. Dewell, Judge, we held that counsel for the defendant in the criminal suit then being tried before him was entitled under Section 11 of the Declaration of Rights of the Florida Constitution to an inspection and use in cross-examination of a transcript of the testimony of the witnesses in the same transaction given before the grand jury in Hillsborough County. The court reporter had taken the testimony when the two witnesses were interrogated before the grand jury of Hillsborough County. It was not disputed that the transcript of the testimony was a part of the proceedings had before the aforesaid grand jury.
It is not here contended that the testimony of the above -named witnesses was given either before a grand jury or a magistrate, but only before the official court reporter of the Circuit Court of Hillsborough County in the present of the State Attorney, Assistant State Attorney and Special Assistant State Attorney. It is not clear from the petition that the named witnesses appeared before the State Attorney and associates pursuant to subpoenas ad testificandum or that either of the witnesses were examined in the hearings after the administration of an oath.
Section 29.01, Fla.Stats.1941, F.S.A., prescribes the qualifications of a court reporter for Circuit Judges and Criminal Courts of Record, and each shall be appointed by and hold office at the pleasure of the Governor. Section 29.02, Fla.Stats.1941, F.S.A., prescribed the duties of a court reporter. It is his duty to 'report the testimony and proceedings * * * in the trial of any criminal case in the circuit court, and the testimony in any preliminary hearing when so requested by the circuit judge or state attorney of that circuit, and shall report * * *.' Sections 29.03 and 29.04, Fla.Stats.1941, F.S.A., fix the compensation and salary of a court reporter. Section 29.05, Fla.Stats.1941, F.S.A., makes it the duty of a court reporter to furnish the State Attorney or the presiding Judge a typewritten transcript of the testimony and proceedings in any criminal case.
We are not familiar with any statute or rule of law making it the duty of a State Attorney or his assistants to deliver to counsel for defendant a transcript of testimony of State witnesses taken or made at a conference had or held between the State Attorney and Assistants and the State's witnesses, nor can counsel for defendant in a criminal case be required to deliver to the State Attorney a transcript of the testimony of witnesses for the defendant made at a conference between defendant's witnesses and his counsel. Some of the authorities hold that a witness' statement made to a prosecutor and put in writing is not a public document open to defense counsel's inspection as a mattter of right, although it becomes such when used before a jury. See 23 C.J.S., Criminal Law, p. 426, § 1036.
The case of Padgett v. State, 64 Fla. 389, 59 So. 946, Ann. Cas.1941B, 897,...
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