McCullers v. State, D-123

• Decision Date: 03 July 1962
• Docket Number: No. D-123,D-123
• Citation: 143 So.2d 909
• Parties: Lois Mary McCULLERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 909

143 So.2d 909

Lois Mary McCULLERS, Appellant, v. STATE of Florida, Appellee.

No. D-123.

District Court of Appeal of Florida, First District.

July 3, 1962.

Rehearing Denied Sept. 20, 1962.

T. J. Jennings, Jr., and James T. Norton, Greencone Springs, for appellant.

Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

STURGIS, Judge.

Lois Mary McCullers, defendant below, appeals from a judgment of conviction of manslaughter in the death of her husband.

We paraphrase in inverse order the points of law involved: (1) Whether the evidence is sufficient to sustain the verdict. (2) Whether the trial judge committed prejudicial error by offering to have the personal needs of the sequestered jurors attended to by the sheriff and his deputies. (3) Whether it was error to overrule defendant's challenge of juror Frank C. Jones for cause. (4) Whether it was error to admit defendant's alleged confession in evidence, where it is made to appear the same was voluntarily given in her home in the presence of the coroner, who was also the committing magistrate, but not as an incident to any official proceeding, and said official did not advise defendant or her constitutional rights. (5) Whether it was error to permit an expert witness, Dr. William Ingram, Jr., to state an opinion as to appellant's sanity at the time of the commission of the alleges crime, where it is made to appear that the same was based in substantial part upon extrajudicial and undisclosed statements made to the witness by third persons concerning defendant's actions shortly prior to and immediately following the homicide.

Point 1

The jury rendered a verdict finding defendant guilty of manslaughter and a careful review of the record discloses that there was ample evidence, aside from the challenged evidence of Dr. William Ingram, Jr., hereinafter discussed, to support that verdict. It is elemental that an appellate court will not substitute its judgment for that of the jury on questions of fact.

Point 2

The jury selected to try this case was sequestered. After the jury was selected the trial judge announced that the sheriff would made arrangements for clothing that they might need and for delivery sheriff would make arrangements for clothing to their families or others. A juror inquired what was to be done with his automobile and the judge directed the question to a deputy sheriff, who was a witness for the state, and the deputy said: 'We can either park them here or get them home to your family or pick up your family and have them pick them up. Either way you would like to have it done we can arrange it.' The judge also informed the jury that the state would pay for their subsistence and room. He inquired of the deputy sheriff if he knew of any reason way any juror should need any money, and the deputy replied that he did not. When alternate jurors were selected on the following day, the judge informed them that arrangements for the needs of other jurors had been made through the sheriff's office, that they were entitled to the same consideration, and that the sheriff would be glad to take care of their requests. The defendant made no objection to the foregoing transactions and on this appeal asserts for the first time that this conduct of the trial judge tended to place the sheriff and his office in a highly complimentary position and to prejudice the defendant to the extent that she could not possibly receive a fair trial. Considering defendant's failure to object and the innocuous nature of these transactions, appellant's argument here is picayune and without merit.

Point 3

The defendant's challenge of juror Frank C. Jones for cause was properly rejected. A careful review of the questions addressed to him on the voir dire and his responses thereto, which we find no need to set out verbatim, reflect that he was fully qualified to serve. He meets the test recently restated in the case of Singer v. State (Fla.), 109 So.2d 7, 24:

'* * * the true test to be applied should be not whether the juror will yield his opinion, bias or prejudice to the evidence, but should be that whether he is free of such opinion, prejudice or bias or, whether he is infected by opinion, bias or prejudice, he will, nevertheless, be able to put such completely out of his mind and base his verdict only upon evidence given at the trial. Lamb v. State, 107 So. 530, supra, at page 535, citing Hopt v. People 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708.'

Point 4

The record on appeal clearly reflects that a confession made by appellant at her home following the shooting was voluntary in character and not given as an incident to any legal proceeding. It was therefore admissible despite any failure of the coroner, who was also the committing magistrate and present at the time, to warn her of her constitutional rights. See Leach & Smith v. State (Fla.), 132 So.2d 329. See also Dawson v. State (Fla.), 139 So.2d 408, in which Mr. Justice Thornal, in a specially concurring opinion exhaustively summarizes the subject of the admissibility of extrajudicial confessions in state court prosecutions in those instances where the confessor is not first taken before a magistrate and advised of his constitutional rights as delineated by Section 902.01, Florida Statutes, F.S.A., and as prescribed by Section 901.23, Florida Statutes, F.S.A. Justice Thornal's opinion places the subject in juxtaposition with the decision of the United States Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and in accord with Rule 5, Federal Rules of Criminal Procedure, 18 U.S.C.A., as defined in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The subject confession was duly admitted in evidence.

Point 5

We come now to the critical question of the propriety of admitting in evidence the opinion of Dr. William Ingram, Jr., a witness for the state, as to whether the defendant was legally sane at the time of the commission of the alleged crime, where it appears that the opinion was based in substantial part on conversations between the doctor and persons purporting to know the facts concerning the conduct of the defendant prior to and immediately following the homicide, the nature of which conversations is not disclosed by the testimony of Dr. Ingram or of any other witness appearing in the case.

To the indictment charging the defendant-appellant with the crime of murder in the first degree, she entered a general plea of not guilty and also a plea of not guilty by reason of insanity. In support of the latter plea she produced several witnesses who testified that she was not sane at the time of the commission of the alleged crime. In rebuttal the state produced as a witness one William Ingram, Jr., M.D., who qualified as a neuropsychiatrist. On direct examination and as a predicate to eliciting from Dr. Ingram his professional opinion as to the sanity or insanity of the defendant on the night she shot and killed her husband, he testified that he conducted an examination of the defendant on only one occasion, saying:

'On that particular day I conducted a psychiatric interview and examination, and a brief neurological examination, and performed an electro-encephalographic test.'

Upon being asked if he did anything else in connection with her that would be considered by him as a basis for his final opinion in the matter, he said:

'In order to properly ascertain my opinion, anyway, what the condition of the patient was at the time of an offense, or an alleged offense, when I don't examine her at that particular time I draw inferences on the basis of her behavior immediately before and immediately after the time during which the crime was supposed to have been committed, so that I talked to individuals who had seen her before and immediately after the crime was supposed to have been committed.'

He then identified by name the persons with whom he talked concerning defendant's mentioned behavior, but the nature of such conversations is not divulged by any testimony presented to the jury or otherwise in this case.

In the course of further examination on direct, the witness was asked:

'All right. What did you find as a result of that examination that might have some bearing in this matter?'

at which point the defendant interposed an objection on the ground, inter alia, in substance, that no proper predicate had been laid for the testimony elicited in that his findings were based on hearsay and were therefore inadmissible. The objection was overruled and thereupon in brief order the following questions were asked and answers given without further objection being interposed by the defendant:

'Q. Well, now, Doctor, pursuant to your appointment by this Court, and based on your training, study, and experience as a psychiatrist, based further upon your examination of this defendant, and all the tests that you made, and all the information that you received pertinent to this inquiry, I will ask you, please, sir, to state to the Court and the jury what is your professional opinion on the question as to the sanity or the insanity of Mrs. McCullers on the night of May 2nd, 1961, when it is alleged that she shot and killed her husband?

'A. I thought that she was legally sane, sir.' (Emphasis supplied.)

* * *

* * *

'Q. All right, now, would you elaborate just what you construe the statement 'legally same' to mean?

'A. That she could tell the defference between right and wrong.'

* * *

* * *

'Q. You have said about right and wrong. What is your professional opinion, Doctor, based upon your examination of this woman as to whether she did or did not at the time of the killing of Mr. McCullers know that the act was wrong?

'A. I think that she knew that it was wrong.'

It will be noted that the foregoing questions were not stated in the form of a hypothetical, but called directly for objective findings of the witness.

Defendant...