Palmer v. State

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Palmer v. State, 106 Fla. 237, 145 So. 69 (Fla. 1933)
• Decision Date: 02 January 1933
• Parties: PALMER et al. v. STATE.

145 So. 69

106 Fla. 237

PALMER et al. v. STATE.

Florida Supreme Court

January 2, 1933

En Banc.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 143 So. 126.

COUNSEL

Burnside & Richard and R. G. Tittsworth, all of Tampa, for plaintiffs in error.

Cary D Landis, Atty. Gen., and Charles B. Parkhill, State Atty., of Tampa., for the State.

OPINION

PER CURIAM.

On July 19, 1932 we affirmed the judgment of death entered against the plaintiffs in error, holding at that time that no reversible error warranting a new trial had been made to appear.

While we did not in our opinion filed at that time undertake to discuss in detail each and every separate assignment of error which had been raised and argued, it does not follow that all of the assignments properly presented to us were not just as fully considered as if they had each been separately discussed.

Opinions prepared and filed by an appellate court are intended to serve two principal purposes: (1) To preserve for the benefit of the practitioners and the courts the reasons for the decision in the case as a precedent for further cases of like character; (2) to operate as a check upon arbitrary and whimsical decisions by appellate courts whose only restraint in the nature of things is the requirement that, when as an appellate court it decides cases a particular way, it shall record its reasons for so doing. Leading members of the judiciary and of the bar have long been protesting the needless multiplication of long and involved opinions by reviewing courts, where only fact questions or questions of law presenting no new questions are involved, and, in an effort to obviate the objection as applied to this court, it has become our settled policy to specifically discuss in our opinions only the major points involved in the appeal, not thereby indicating, however, that the minor points not specifically discussed were not just as fully considered and studied by us as were the ones concerning which discussion was had. We deem it necessary to call attention to this practice of ours at this time, because of the frequent number of petitions for rehearing which we are called on to consider, based almost solely on the complaint that, because some point was not specifically dealt with in the opinion we filed, therefore it must not have been considered by us at all.

The present writ of error involves a judgment of death rendered against each plaintiff in error, and for that reason we have again completely considered and reviewed the entire case in the light of the two specific grounds set up in the petition for rehearing filed on behalf of Norman Heidt.

The first ground of the petition for rehearing is that the court neglected to consider the assignment of error relating to the denial of Heidt's motion for a severance of his trial from that of Victor Palmer. This point was carefully considered by us, but not sustained on the original hearing, except by one justice of this court, who filed a dissenting opinion as to that particular proposition.

The majority view was that, under the case of Suarez v State, 95 Fla. 42, 115 So. 519 (relied upon by plaintiff in error for reversal), the granting of the motion for severance was so largely discretionary that only an abuse of discretion in denying such a motion would warrant a reversal of the judgment therefor, and that no such abuse appeared in the present case.

Heidt's motion for severance was based upon the allegation that Victor Palmer had confessed the murder of Johnson, and that it would prejudice Heidt to be jointly tried with the man who had confessed his part in a killing in which he (Heidt) was charged with being implicated, because no charge of the jury to disregard the confession by Palmer as evidence against Heidt would erase it from the jury's consideration as such, whether consciously or unconsciously. Ordinarily, this might be a good objection. And under the Suarez Case we will always consider a violation of the defendant's rights by denial of a severance in a proper case requiring it, as being reversible error, 'unless the record shows that no injury resulted therefrom to the movant.' See fifth headnote, Suarez Case, 95 Fla. text 43, 115 So. 519.

But Heidt's motion for a severance went further than merely to set up that evidence which was incompetent against Heidt (that is, Palmer's confession) was to be introduced, so as to be prejudicial to Heidt in the eyes of the jury. It set up that Victor Palmer was to be called as a material witness in Heidt's favor, and that to deny a severance would preclude Heidt from the benefit of putting Palmer on the stand as such a defendant's witness, as Palmer might elect to refuse to testify, inasmuch as he was a defendant on trial.

But Victor Palmer did not refuse to testify. In fact, he did testify and testified fully to everything that he could possibly have testified to had the severance been granted and he been called simply as Heidt's witness. What he testified to was as much in Heidt's favor as it could well have been under the particular circumstances under which the killing was perpetrated. Heidt's only defense to the charge of complicity in the murder was that he went down to the place of the attempted homicide and robbery without knowing why Levine and Palmer were going there, and that the acts of Levine and Palmer in attempting the robbery and accomplishing the resulting murder were without his knowledge until after they had happened. His presence near the scene was admitted. The only thing that was not admitted was that he was present with knowledge that Palmer and Levine had gone off to commit a robbery and had succeeded in committing a murder instead.

The motion for severance affirmatively stated that, unless a severance was granted to the defendant Norman Heidt, and he allowed to have a separate trial apart from that of Victor Palmer, the movant could not place Victor Palmer on the stand as a witness, and would be prevented from having the benefit of his testimony which would be material and of benefit to the defense. The court had the right to take this statement in the motion for severance, at its face value, and to conclude therefrom that the defendant Heidt, the movant, was desirous of using Palmer as a witness in his behalf concerning what transpired at the scene of the homicide, so as to show that movant was not implicated in the murder which had occurred at the hands of Palmer. The record shows that at the trial Victor Palmer was in fact called and testified as a witness in the case. While it was expressly stated that he was not called as a witness for Heidt, the testimony that was given by him related the whole transaction from beginning to end, and Heidt had the benefit of using such parts of it as were favorable to himself, without having to call Palmer as his own witness.

The circumstances, therefore, bring the denial of Heidt's motion for a severance within the ruling of the Suarez Case supra, where it was said that, where the defense or interests of two or more jointly indicted...