Paramore v. State, 37178

• Decision Date: 10 September 1969
• Docket Number: No. 37178,37178
• Citation: 229 So.2d 855
• Parties: Emmett James PARAMORE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 855

229 So.2d 855

Emmett James PARAMORE, Appellant, v. The STATE of Florida, Appellee.

No. 37178.

Supreme Court of Florida.

Sept. 10, 1969.

Rehearing Denied Oct. 10, 1969.

Richard M. Gale, Miami, for appellant.

Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

ADKINS, Justice.

The appellant was convicted of murder in the first degree without recommendation for mercy and has appealed to this Court from the judgment of conviction as authorized by § 4(2), Art. V, Constitution of Florida, F.S.A.

The deceased Stephens, a bakery truck salesman, went into a market in the City of Miami to deliver some bakery goods. While Stephens was inside the market, the appellant and several other individuals entered the back of Stephens' truck, apparently for the purpose of stealing some of the bakery goods within the truck. When Stephens returned to the truck he found the boys and an altercation ensued within the truck. All of the individuals except the appellant escaped and fled the scene. The appellant drew his pistol and, as he aimed it, Stephens begged him not to shoot, saying 'please, please.' Appellant ignored the pleading of Stephens and shot him.

All of this occurred during business hours and in the presence of five eye-witnesses whose testimony, aside from the usual variations in eye-witness testimony, sustained the above statement of facts.

Appellant first complains because three jurors were excused for cause, contending that this was in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, wherein the United States Supreme Court held a sentence of death could not be carried out if the jury that imposed it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. The decisions of this Court have long been in accord with the holding in the Witherspoon case, Supra. See Campbell v. State, Fla., 227 So.2d 873. Opinion Filed June 11, 1969.

Fla.Stat. § 932.20, F.S.A., provides that no person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be allowed to serve as a juror in the trial of any capital case. The statute does not disqualify a person merely because he may have 'conscientious scruples against the infliction of capital punishment for murder.' To be disqualified to serve as a juror in the trial of a capital case, the 'opinions' of the person must be 'such as to preclude him from finding any defendant guilty of an offense punishable with death.' Savage v. State, 18 Fla. 909 (1882); Boyington v. State, 74 Fla. 258, 76 So. 774 (1917); Olive v. State, 34 Fla. 203, 15 So. 925 (1894); Piccott v. State, 116 So.2d 626 (Fla.1960); Sims v. State, 184 So.2d 217 (Fla.App.2d Dist.1966); Campbell v. State, Supra. See also 14 F.L.P., Jury, § 156.

In the case sub judice, juror Turner on voir dire examination stated that he had objections to capital punishment and would be unable to return a verdict that carried with it the death penalty. Juror Troy stated 'it would be a little hard to bring the death penalty for anybody' and she would be unable to bring a verdict without a recommendation of mercy. Prospective Alternate juror Owens said that he had objections to capital punishment and he was 'afraid' he would have trouble with a verdict carrying with it the death penalty. The alternate juror who was subsequently selected did not participate in the deliberations.

When the whole examination on voir dire is considered and construed in the light of the above authorities, together with Pitts v. State, 185 So.2d 164 (Fla.1966), we find nothing wrong with the actions of the trial court in dispensing with the services of these jurors.

There is a second reason for affirming this action of the trial judge. If defendant objects to a prospective juror being excused he should make his objection before the juror is excused. Ellis v. State, 25 Fla. 702, 6 So. 768 (1889). When these three prospective jurors expressed their convictions against the infliction of the death penalty, appellant's attorney made no effort to qualify them for service. Perhaps he did not want them for some other reason. It was not the duty of the trial court to take other steps toward attempting to qualify the veniremen, and the Witherspoon case, Supra, should not be construed as imposing this additional duty upon the trial court in the absence of any expression of a desire by defense counsel to keep the prospective jurors. Pittman v. State, 434 S.W.2d 352 (Tex.Cr.App.1968). See also State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968). The appellant is in no position to complain in the instant case because no objection was interposed, nor did defense counsel attempt to clarify the juror's attitude as it related to his or her ability to decide the issues impartially.

Furthermore, the State had more than enough remaining peremptory challenges available to have removed those prospective jurors had the trial judge declined to do so. See Campbell v. State, Supra; State v. Mathis, 52 N.J. 238, 245 A.2d 20; People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968). Although this fact may be considered in sustaining the action of the trial judge, we should hesitate in conjecturing that the prosecutor would have used his peremptory challenges to excuse all such jurors. In Re Anderson, Cal., 73 Cal.Rptr. 21, 447 P.2d 117 (1968).

Appellant objects to the introduction of a video tape confession contending that it was obtained only after a false inducement by the police officer that it would be of benefit to the appellant. Actually, the officer explained that the tape would be used for court purposes and would be an exact statement of what appellant said, so there could be no mistake. This was the purported benefit. Appellant's main concern was that his mother would see the tape on television, but he was assured that it would be used only in court.

A confession of guilt freely and voluntarily made is not rendered inadmissible because it appears to be induced by deception practiced by the officers, Denmark v. State, 95 Fla. 757, 116 So. 757 (1928), or by the accused being told it would be easier on him if he told the truth, Ebert v. State, 140 So.2d 63 (Fla.App.2d Dist.1962), or by an officer's statement that only by confessing could the defendant escape the death penalty. Milton v. Cochran, 147 So.2d 137 (Fla.1962). In the case sub judice there was no misrepresentation and the appellant was adequately warned as to his constitutional rights. The voluntariness of the confession was a mixed question of fact and law which was decided first by the trial judge and then by the jury based on the evidence adduced. There was sufficient evidence to support the finding that the confession was freely and voluntarily made and this finding will not be disturbed. Foreman v. State, 213 So.2d 754 (Fla.App.1st Dist.1968); Young v. State, 140 So.2d 97, 99 (Fla.1962).

Another ground asserted by appellant for excluding the video tape confession is the failure of the State to establish a continuity of possession of the 'easily alterable tape.' It appears from the evidence that the video tape was an accurate reproduction of the entire interview between the officer and the appellant. This being shown, it was not necessary for the State to prove a continuity of possession in order to have the video tape admitted into evidence. The rule governing admissibility into evidence of photographs applies with equal force to the admission of motion pictures and video tapes. Grant v. State, 171 So.2d 361 (Fla.1965).

In People v. Hayes, 21 Cal.App.2d 320, 71 P.2d 321 (1937), the California Appellate Court considered the question of whether a defendant's voluntary confession should be produced to the jury through the medium of sound motion pictures. In holding such evidence to be admissible the Court said:

'We are satisfied that it should, and that it stands on the same basis as the presentation in court of a confession through any orthodox mechanical medium, that is, there is a preliminary question to be determined by the trial judge as to whether or not the sound moving picture is an accurate reproduction of that which it is alleged occurred. If after a preliminary examination, the trial judge is satisfied that the sound moving picture reproduces accurately that which has been said and done, and the other requirements relative to the admissibility of a confession are present, i.e., it was freely and voluntarily made without hope of immunity or promise of reward, then, not only should the preliminary foundation and the sound moving picture go to the jury, but, in keeping with the policy of the courts to avail themselves of each and every aid of science for the purpose of ascertaining the truth, such practice is to be commended as of inestimable value to triers of fact in reaching accurate conclusions.

'This particular case well illustrates the advantage to be gained by courts' utilizing modern methods of science in ascertaining facts. The objection is frequently heard in criminal trials that a defendant's confession has not been freely and voluntarily made, he testifying that it was induced either by threats or force or under the hope or promise of immunity or reward, which is denied by witnesses on behalf of the People. When a confession is presented by means of a movie-tone the trial court is enabled to determine more accurately the truth or falsity of such claims and rule accordingly.'

The Hayes case, Supra, has been followed by many other jurisdictions: State v. Perkins, (1947), 355 Mo. 851, 198 S.W.2d 704, 168 A.L.R. 920; People v. Dabb, 32 Cal.2d 491, 197 P.2d 1 (1948); Williams v. State (1951), 93 Okl.Cr. 260, 226 P.2d 989; Ray v. State (1952), 213 Miss. 650, 57 So.2d 469; State v. Spencer (1953), 74 Idaho 173, 258 P.2d 1147; Monroe v....