McClendon v. State, 35090

• Decision Date: 15 March 1967
• Docket Number: No. 35090,35090
• Citation: 196 So.2d 905
• Parties: Eddie Thomas McCLENDON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 905

196 So.2d 905

Eddie Thomas McCLENDON, Appellant, v. STATE of Florida, Appellee.

No. 35090.

Supreme Court of Florida.

March 15, 1967.

Donald P. Kohl, West Palm Beach, for appellant.

Earl Faircloth, Atty. Gen., and T. T. Turnbull, Asst. Atty. Gen., for appellee.

PER CURIAM.

This is an appeal from a judgment of conviction and death sentence entered in the Circuit Court in and for Palm Beach County. Reference to the case of Newman v. State, Fla., 196 So.2d 897, will disclose this case arose out of the same circumstances involved in the Newman case.

The record reflects that on the evening of June 2, 1965 about 10:00 P.M., three men came upon the victim and her fiance, who were parked along the beach in Boca Raton, Florida. Appellant McClendon allegedly was one of those who held the victim's fiance at gun point some distance down the beach while the other two men, whom the victim positively identified, raped her two times each. They then exchanged places with the Appellant, who then allegedly raped the victim when no one else was present. The victim never identified the Appellant. She stated that she could not be positive he was the third man.

Appellant was individually indicted for the crime of rape of Judith Fertig, as were Richard Carter Newman and Harold Durell Jones. Newman and McClendon were tried separately the week of October 4, 1965 in West Palm Beach, Florida. Newman was tried first, then McClendon. Both were found guilty and received no recommendation of mercy from their trial juries and were sentenced to death. Jones was tried six weeks later, found guilty, but received a recommendation of mercy and was sentenced to life imprisonment.

The first case (Newman's) attracted extensive radio, TV and newspaper publicity in Palm Beach County. Since Appellant's trial was scheduled immediately thereafter, he moved for a continuance or change of venue because he feared such publicity would adversely affect a fair trial in his case. His motion was denied.

While individually indicted and tried, evidence of the State at the trial was offered to prove that Appellant committed the rape in association with Newman and Jones. The names of Richard Carter Newman and Harold Durell Jones, two dark-complexioned Negroes who had been positively identified by the victim, were brought to the attention of the jury and at one point in the trial the State brought both of them into the court room in the presence of the jury where they were identified by the victim. Appellant is a very light-complexioned Negro.

Evidence connecting Appellant with the crime was his confession, which the trial judge found to be voluntary, and testimony of witnesses relating to his presence and acts at the scene of the commission of the crime and will be more fully discussed later.

At the conclusion of the trial the judge gave the jury the same instruction based on F.S. § 776.011, F.S.A., relating to principals and aiders and abettors, as was given in the Newman case, to the general effect that if the jury believed any one of the three defendants raped the victim with the other two aiding and abetting all were equally guilty.

The Appellant raises eight points for consideration, viz.:

1. Did the trial court commit prejudicial error in denying the motion for continuance or in lieu a change of venue, forcing Appellant's trial immediately after the Newman trial which had attracted extensive news media publicity?

2. Was it error where the Appellant was separately indicted and tried to allow references in the trial testimony to, and the bringing before the jury the other two Negro defendants who were there identified by the rape victim?

3. Was it error to give the said instruction relating to F.S. § 776.011, F.S.A., which indicated the jury could find the Appellant guilty if it found the other two defendants, who were not indicted or tried with the Appellant, committed the rape with Appellant present aiding and abetting?

4. Was it error to refuse to give Appellant's requested instructions, including related and lesser offenses?

5. Was it error to permit the introduction into the trial evidence: (a) State's Exhibit No. 8 (a gun); (b) State's Exhibit No. 10 (victim's dress); (c) State's Exhibit No. 12 (confession), (d) permitting witnesses to testify whose names had not been furnished Appellant prior to trial pursuant to order of court.

6. Was it error to permit the State Attorney to 'testify' in final argument as to the deterrent effect of capital punishment while refusing defense counsel the opportunity to argue the effects of capital punishment as a deterrent in states where it has been abolished?

7. Was the evidence sufficient to convict under the subject indictment in view of the lack of positive identity?

8. Was F.S. § 794.01, F.S.A., unconstitutionally applied to Appellant, a Negro defendant charged with the rape of a white adult female?

Point 1. Appellant, in support of his motion for continuance or in lieu thereof a change of venue, brought to the attention of the trial court that the Newman case which immediately preceded Appellant's scheduled trial had been the subject of extensive news coverage in the three newspapers and other news media that circulate or are broadcast in Palm Beach County; that articles in the newspapers referred to all three defendants and informed that Newman, one of them, was found guilty without a recommendation of mercy. Appellant presented the trial court seven exhibits from said newspapers, viz., excerpts of more than ninety-five column inches of news coverage, exclusive of headlines.

In arguing that the publicity of the Newman trial prejudiced his trial immediately following, Appellant refers to the fact that Harold Durell Jones, who he asserts was the 'ringleader' of the assailants, received a recommendation of mercy in his trial held some six weeks later after the publicity had subsided.

Appellant relies primarily upon Shepherd v. State of Florida (1951), 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740, in which the Supreme Court of the United States reversed the conviction of several Negro defendants accused of the rape of a 17-year-old white female in Lake County, Florida. Mr. Justice Jackson, with whom Mr. Justice Frankfurter joined, concurred in the reversal, saying:

'But prejudicial influences outside the courtroom, becoming all too typical of a highly publicized trial, were brought to bear on this jury with such force that the conclusion is inescapable that these defendants were prejudged as guilty and the trial was but a legal gesture to register a verdict already dictated by the press and the public opinion which it generated.'

Our inspection of said newspaper excerpts does not lead us to the conclusion they were so flagrant and prejudicial as to render the Appellant's trial unfair. The articles appear to be factual and not sensational, and not beyond the bounds of commonly accepted news media reportorial standards which are guaranteed under freedom of the press. They responsibly informed the public of the facts of the Newman trial within legitimate limits which did not in our opinion render unfair the immediately succeeding trial of Appellant. The coincidental circumstance that Newman was tried first and the news media reported his case in the factual manner indicated does not warrant the presumption Appellant was prejudiced thereby or the jurors in this case were unfairly influenced against him.

The foregoing circumstances are not of the category of those in Shepherd v. Florida, supra, where community passions had been aroused to a high pitch by the news reports of the rape involved, resulting in riots and the burning of Negro houses and churches.

Nor is this case comparable with the recent case of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, where pre-trial and concurrent trial publicity included many facets manifestly unfavorable to the defendant which were never presented in court. In the instant case all that was publicized was substantially reproduced in the trial evidence for the jury to evaluate pro and con. The news media reports of the evidence adduced at the Newman trial were abbreviated in their content and were not materially different from the evidence of facts submitted by the State to prove the alleged crime of rape at Appellant's trial. In Sheppard v. Maxwell there were harmful extraneous influences which the Supreme Court of the United States characterized as 'massive, pervasive and prejudicial publicity and disruptive influences attending the prosecution.' No similar showing of unfairness has been made in this case.

In Sheppard v. Maxwell, supra, the press had flatly and repeatedly proclaimed the guilt of the accused as being unquestioned. The trial therein was found to be conducted in a carnival atmosphere; news people and photographers so overwhelmed the court room as to distract and disturb the privacy and composure of the defendant and his counsel.

Though claiming that the publicity attendant on the preceding Newman trial was prejudicial to his immediately succeeding trial, Appellant did not demonstrate from his voir dire questioning of veniremen or from his challenges, peremptory or for cause, that the panel had been adversely conditioned psychologically by the news media from fairly trying the case.

Against the veniremen from whom the jury was chosen, the defense directed only six peremptory challenges. The panel of prospective jurors was not exhausted; several remained after the jury was chosen.

Our Court in the case of Singer v. State, Fla., 109 So.2d 7, where it viewed a situation more drastic insofar as a defendant's fair trial was concerned than in the present case, concluded there that the trial judge did not commit error in refusing to grant a change of venue. There, as here, prospective jurors were questioned as to whether they were biased by the news media reports of the Singer case. The trial judge concluded those chosen...