Patterson v. State

• Decision Date: 19 March 1946
• Parties: PATTERSON v. STATE.
• Court: Florida Supreme Court

25 So.2d 713

157 Fla. 304

PATTERSON v. STATE.

Florida Supreme Court

March 19, 1946

Rehearing Denied May 11, 1946.

Appeal from Circuit Court, Volusia County; George William Jackson, judge.

William W Judge, of Daytona Beach, for appellant.

J. Tom Watson, Atty. Gen., and Reeves Bowen and Cecil T. Farrington Asst. Atty. Gen., for appellee.

SEBRING, Justice.

Wilbur Paul Patterson was placed on trial in the circuit court of Volusia County for the slaying of one Harry Raines, a member of the Daytona Beach Police Force. The jury found the defendant guilty of murder in the first degree without a recommendation of mercy. A motion for new trial was denied and judgment was entered. The defendant has taken an appeal from the judgment.

The first assignment of error argued by the appellant challenges the correctness of a ruling by the trial judge denying a motion for a change of venue. The gist of the claim made by appellant in his motion was that a series of extremely inflammatory articles published in a leading newspaper of Volusia County which reached more than ninety per cent of the adult population of the county had created such a wide and universal prejudice against the defendant as to render a fair trial in the county highly improbable, if not impossible. Attached to the motion were 32 exhibits, consisting of some 50 newspaper articles referred to in the motion, but these exhibits are not in the transcript filed here. The state filed a traverse of the motion, which put in issue the appellant's claim that he could not receive a fair trial in the county where the homicide was committed. Attached to the traverse were the affidavits of 53 citizens residing in different parts of Volusia County, each of which stated, in substance, that the affiant was well acquainted with the inhabitants of that part of the county in which he lived that affiant had never heard any threats made or hostility expressed or displayed against the defendant; and that in his opinion the defendant could receive a fair trial by a fair and impartial jury in Volusia County. Prior to trial the trial judge heard testimony on the motion for change of venue and denied the motion.

When an application is made for removal of the cause it becomes the duty of the trial court to hear the application and either grant or refuse the same after considering the facts set forth therein and the affidavits accompanying it and any other affidavits or counter affidavits that may be filed and after hearing any witness produced by either side. See section 911.05 Florida Statutes 1941, F.S.A. However, an application for a change of venue is addressed to the sound discretion of the trial court and so long as the statute is substantially complied with, a ruling refusing to grant a change of venue will not be disturbed except upon a showing that there has been palpable abuse of discretion. See Jeffcoat v. State, 103 Fla 466, 138 So. 385; Wadsworth v. State, 136 Fla. 134, 186 So. 435. The order denying the change of venue shows that it was made on the affidavits and counter affidavits presented by the parties, and upon additional evidence taken before the court. The 'additional evidence' referred to in the order has not been brought to this court and consequently we are not advised of its substance or cogency. This being the situation, we are unable to say that the trial judge abused his discretion in refusing to enter an order removing the cause to another county, for we must presume, there being nothing to the contrary, that the 'additional evidence' was sufficient, together with the counter affidavits, to authorize the order that was made. Holland v. State, 39 Fla. 178, 22 So. 298; Albritton v. State, 54 Fla. 6, 44 So. 745. Our conclusion in this respect is strengthened by the fact, we think, that a jury free from fixed opinions was procured for the trial of the issue without exhausting available veniremen in Volusia County. See Powell v. State, 131 Fla. 254, 175 So. 213.

On the trial the state produced evidence tending to prove the following facts: Wilbur Paul Patterson, the defendant, was a professional gambler who had been working in various gambling halls in the state of Florida. At the time of the homicide he was sojourning in and around Daytona Beach and Orlando, with the expectation of going to work in the gambling room of the Flamingo Club in Orlando in the near future. For several days prior to January 13, 1945, Patterson and on Dan Smith, a fellow gambler, had been on a drinking spree in Daytona Beach. On the evening of Saturday, January 13, 1945 Patterson and Smith accompanied by a female companion, one Lacey Lee Laney, left Smith's hotel room in or near Daytona Beach with the intention of driving to Orlando. Patterson, the defendant, was driving an Oldsmobile coupe owned by Smith, and the latter with the female, Lacey Lee Laney, were riding as passengers. As the car proceeded southward on the Canal Road in Daytona Beach and approached Volusia Avenue, which runs east and west, defendant observed an automobile parked on the west side of the intersection and headed west. With the exclamation, 'There's a police car,' defendant quickly accelerated the speed of his car until it was traveling 80 or 90 miles an hour and sped on across the intersection. Smith asked defendant to slow the speed of the car, saying, 'What difference if that was a police car?'; to which Patterson, who appeared to be visibly agitated, replied, 'I can't stand to get pinched or arrested.' Smith pressed the inquiry further and asked, 'Why?' Patterson, who by then had apparently regained some composure, responded that he was only kidding.

After the intersection had been passed and the car had been brought down to reasonably normal speed, the parties turned back northward on a street running parallel with the Canal Road, and stopped at a bar for another drink. About dark they left the bar and started down the New Smyrna Road on their way to Orlando, with Patterson still at the wheel. As the coupe reached the southern outskirts of Daytona Beach a car drove up behind them blinking its lights and forcing them to the side of the highway. As the car overtook them from the rear Smith remarked to Patterson that he thought the pursuing car was a police car, and told Patterson to stop, which he did. Police officer Raines, who was driving the car which had overtaken the Smith car, alighted and directed the occupants of the coupe 'to get out of the car.' As Smith alighted from the coupe Officer Raines recognized him and, greeting him by name said 'I have been looking for you or you--,' but the sentence was never completed for at that moment Patterson, who had alighted from the car with gun in hand, shot the police officer three times; and then as the officer lay defenseless in the street pumped two more bullets into his prostrate form, dragged his body to the side of the road, and fled in the coupe, leaving Smith and Lacey Lee Laney behind.

The State's testimony shows that shortly thereafter Patterson came hurriedly into an establishment in Daytona Beach known as Charlie's Grill and Hi Hat Club where he asked a waitress to call the proprietor. When she didn't respond quickly to his demands Patterson shook her by the shoulders, saying 'I just killed a cop, can't you understand, get him get him fast.' From that point on, the evidence is that a hostess working in the club helped Patterson escape by driving him to Jacksonville. From Jacksonville Patterson made his way to Albany and Atlanta, Georgia, to Chicago, to Sioux City, Iowa, and thence to Omaha, Nebraska. At Omaha he was apprehended and arrested by special agents of the Federal Bureau of Investigation seventeen days after the homicide.

The state having closed its case in chief, the defendant then took the witness stand and was examined by his counsel. As to what transpired at the scene of the shooting Patterson testified to being stopped by the deceased and directed to alight; that he did not know that the occupant of the other car was a police officer nor did he have any reason to believe that such was the case because the driver was in civilian clothes and the automobile had nothing about it to indicate that it was a police car. According to Patterson, he thought that the police officer was a member of the 'Mario Gang' with whom he had recently had an altercation and who was out to do him harm; that consequently he became frightened and alighted from the car with his pistol in his hand; that the deceased must have seen the gun in Patterson's hand and reached for his own, whereupon Patterson shot him and fled without knowledge that he had shot an officer of the law.

Upon cross-examination by the state attorney the defendant reiterated his statement that he did not know at the time he was stopped that the deceased was a police officer, but thought that the officer might be a member of the 'Mario Gang'; that there was nothing to indicate that he might be an officer; that Smith had said nothing to indicate that such might be the case; that when he saw the deceased turn back his coat and reach for his gun he shot him; that he did not know that he had shot and killed an officer until he was apprised of the fact in Omaha, Nebraska, seventeen days later; that he had no suspicion at the time he was stopped that he might have been wanted by the police for any crime he might have been suspected of committing; that he bought the pistol with which he killed Officer Raines from a man in Orlando whose name he did not know, and that he purchased it two or three weeks before the homicide.

At this point in the cross-examination two state witnesses, James L. Flood and Homer G. Wiltsie, were brought into the courtroom and Patterson was asked if he knew them. He...