Murphy v. State of Florida, No. 73-3528.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGEWIN, THORNBERRY and SIMPSON, Circuit
Citation495 F.2d 553
PartiesJack Roland MURPHY, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee.
Decision Date12 July 1974
Docket NumberNo. 73-3528.

495 F.2d 553 (1974)

Jack Roland MURPHY, Petitioner-Appellant,
v.
STATE OF FLORIDA, Respondent-Appellee.

No. 73-3528.

United States Court of Appeals, Fifth Circuit.

June 10, 1974.

Rehearing and Rehearing Denied July 12, 1974.


495 F.2d 554

Harvey S. Swickle, Miami Beach, Fla., for petitioner-appellant.

J. Robert Olian, Asst. Atty. Gen., Miami, Fla., Robert L. Shevin, Atty. Gen., Tallahassee, Fla., William L. Rogers, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 12, 1974.

SIMPSON, Circuit Judge:

The lower court, by a reported opinion, Murphy v. State of Florida, S.D. Fla.1973, 363 F.Supp. 1224, denied appellant's petition for habeas corpus relief from two state sentences received in a single trial, to life imprisonment for armed robbery and consecutively to twenty years imprisonment for assault with intent to commit robbery. We affirm.

The attack upon the state convictions both in the trial court and here is based primarily upon a claim of denial of Fourteenth Amendment due process because of extensive pre-trial newspaper publicity regarding Murphy, known as "Murph the Surf",1 and resultant prejudice to his Sixth Amendment right to a trial before an impartial jury. Inasmuch as the background facts are fully set forth in the lower court's opinion,2 a brief outline of them will suffice here.

The issues here as below are (1) whether the Florida state trial court erred in denying appellant a change of venue in the light of the pre-trial publicity; (2) whether that court erred in failing to dismiss for cause those trial jurors who knew Murphy was a convicted felon; and (3) whether that court erred in refusing to bifurcate the trial on the issues of guilt and sanity.

Petitioner was arrested with three other persons in January 1968 as they fled the scene in Dade County, Florida of the robbery of Mrs. Olive Wofford, a wealthy resident of Miami Beach. In May, 1968 before his trial for the Wofford robbery, the petitioner was arrested and indicted for the double murder in an adjoining Florida county, Broward, of two young women, Terry Rae Kent Frank and Annalie Mohn. These killings became notorious in the press as the "Whiskey Creek Murders."

Pre-trial proceedings in the Wofford robbery case involved the trial judge's controversial ruling as to the petitioner's competency to stand trial. Extensive newspaper coverage again occurred. The robbery charges in the Wofford case were nolle prossed to permit the Broward County trial for the Whiskey Creek Murders to proceed. In August 1968, prior to that murder trial, Murphy and three others were indicted by a federal grand jury for conspiring to transport stolen securities in interstate commerce, charges related to the Whiskey Creek case and so played up in the press. Murphy was found guilty on March 1, 1969, of one of the Whiskey Creek murders, that of Terry Rae Kent Frank. Again, the trial and its result were extensively publicized by the news media.

Thereafter on August 25, 1969, the state prosecutor refiled the Wofford robbery case. In December of the same year, Murphy pled guilty to one count of the federal indictment.3 During the

495 F.2d 555
early July 1970 pre-trial proceedings in the Wofford case, Murphy moved for change of venue on the basis of prejudicial pre-trial publicity, including the publicity attendant upon the earlier hearing in the Wofford robbery case, the Star of India theft, the Whiskey Creek Murders, and the federal conspiracy charges. The state trial judge deferred ruling on this motion pending voir dire examination of the jury panel. Voir dire commenced on July 27 and was completed on August 10, 1970. Of 78 veniremen questioned, 12 were excused peremptorily by the petitioner, and 8 by the state, 27 were excused for medical or economic reasons and 3 were excused for miscellaneous reasons. 20 were excused because they stated that they had formed an opinion as to petitioner's guilt and could not give him a fair trial. 8 jurors were selected to serve at the trial, 6 regular and 2 alternate

Of the 8 selected, 5 had read or heard about the facts surrounding the Wofford robbery through the media, from discussions with friends or through discussions with other prospective jurors. Each of the eight knew that Murphy had previously been convicted either in the Star of India theft or the Whiskey Creek Murders, but each assured the court that he would reach a verdict based solely on evidence introduced at the trial. The court denied the motion for change of venue and the trial proceeded. Murphy's plea of insanity was rejected and he was convicted and...

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20 practice notes
  • Passman v. Blackburn, No. 79-3802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 6, 1981
    ...as to deprive the petitioner of due process. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); opinion below 495 F.2d 553, 556 (5th Cir. 1974); Snyder v. Coiner, 510 F.2d 224 (4th Cir. 1975). In light of this juror's scant response, there was no violation of fundamental......
  • State v. Rogers, No. 84-784
    • United States
    • United States State Supreme Court of Ohio
    • June 5, 1985
    ...should be tried separately or together. E.g., Vardas v. Estelle (C.A.5, 1983), 715 F.2d 206, 212-213; Murphy v. Florida (C.A.5, 1974), 495 F.2d 553, 557, affirmed (1975), 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589. Federal courts have further held that the question of bifurcation rests sol......
  • Collins v. State, No. 4907
    • United States
    • United States State Supreme Court of Wyoming
    • January 29, 1979
    ...accounts are largely factual rather than inflammatory, they cannot be considered prejudicial. Murphy v. State of Florida, 5th Cir. 1974, 495 F.2d 553, aff'd. 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589; U. S. v. Schwartzenberger, 9th Cir. 1972, 457 F.2d The defendant passed all jurors for c......
  • US v. Duran, Crim. No. 94-447 (CRR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 5, 1995
    ...v. Patterson, 405 F.2d 696, 697 (10th Cir.1969), cert. denied, 404 U.S. 880, 92 S.Ct. 212, 30 L.Ed.2d 160 (1971); Murphy v. Florida, 495 F.2d 553, 557 (5th Cir.1974), aff'd, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); United States ex rel. Garrett v. Anderson, 391 F.Supp. 174, 179 (......
  • Request a trial to view additional results
20 cases
  • Passman v. Blackburn, No. 79-3802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 6, 1981
    ...as to deprive the petitioner of due process. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); opinion below 495 F.2d 553, 556 (5th Cir. 1974); Snyder v. Coiner, 510 F.2d 224 (4th Cir. 1975). In light of this juror's scant response, there was no violation of fundamental......
  • State v. Rogers, No. 84-784
    • United States
    • United States State Supreme Court of Ohio
    • June 5, 1985
    ...should be tried separately or together. E.g., Vardas v. Estelle (C.A.5, 1983), 715 F.2d 206, 212-213; Murphy v. Florida (C.A.5, 1974), 495 F.2d 553, 557, affirmed (1975), 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589. Federal courts have further held that the question of bifurcation rests sol......
  • Collins v. State, No. 4907
    • United States
    • United States State Supreme Court of Wyoming
    • January 29, 1979
    ...accounts are largely factual rather than inflammatory, they cannot be considered prejudicial. Murphy v. State of Florida, 5th Cir. 1974, 495 F.2d 553, aff'd. 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589; U. S. v. Schwartzenberger, 9th Cir. 1972, 457 F.2d The defendant passed all jurors for c......
  • US v. Duran, Crim. No. 94-447 (CRR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 5, 1995
    ...v. Patterson, 405 F.2d 696, 697 (10th Cir.1969), cert. denied, 404 U.S. 880, 92 S.Ct. 212, 30 L.Ed.2d 160 (1971); Murphy v. Florida, 495 F.2d 553, 557 (5th Cir.1974), aff'd, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); United States ex rel. Garrett v. Anderson, 391 F.Supp. 174, 179 (......
  • Request a trial to view additional results

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