Peel v. State

• Decision Date: 22 May 1963
• Docket Number: No. 2711,2711
• Citation: 154 So.2d 910
• Parties: Joseph A. PEEL, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 910

154 So.2d 910

Joseph A. PEEL, Jr., Appellant, v. STATE of Florida, Appellee.

No. 2711.

District Court of Appeal of Florida, Second District.

May 22, 1963.

Rehearing Denied July 8, 1963.

Harry W. Fogle, of Fogle, Wilson & Shingler, St. Petersburg, for appellant.

Richard W. Ervin, Atty. Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., Lakeland, Phil D. O'Connell, State Atty., West Palm Beach, Eugene P. Spellman, Miami, for appellee.

OGILVIE, CLAUDE, Associate Judge.

This appeal involves one of two cases brought against Joseph A. Peel, Jr. by reason of his alleged participation in the murders of Judge Curtis E. Chillingworth and wife Marjorie M. Chillingworth in Palm Beach County on June 15, 1955. On his indictment as accessory before the fact of first degree murder of Marjorie M. Chillingworth, the defendant was convicted after entering a plea of nolo contendere and was sentenced to life imprisonment which was affirmed by this court. Peel v. State, Fla.App.1963, 150 So.2d 281.

In the instant case Joseph A. Peel, Jr. was indicted in Palm Beach County, tried in St. Lucie County after change of venue granted, and was convicted with recommendation of mercy of the crime of accessory before the fact to first degree murder of Judge Curtis E. Chillingworth. Specifically the indictment, filed November 23, 1960, charged that Floyd A. Holzapfel effected the death of Curtis E. Chillingworth by drowning him in Palm Beach County, Florida on June 15, 1955 and that, at divers times between May 1st, 1955 and June 15, 1955, defendant Joseph A. Peel, Jr. unlawfully counseled, hired, procured and commanded the said Floyd A. Holzapfel to do and commit the aforesaid felony. The defendant's conviction under said indictment is the subject of this appeal. There are 51 assignments of error, but by written brief and oral argument the defendant raises 11 questions to be determined on appeal.

We pause here to note that the able attorney who represents the appellant in this appeal, did not represent him in the trial below.

Defendant's motion for bill of particulars was granted with respect to the names and addresses of all the witnesses which the State would call to testify in proof of the allegations contained in the indictment; but the motion was denied with respect to requests for 'the specific dates between May 1, 1955 and June 15, 1955, when appellant counseled, hired, procured and commanded Holzapfel to murder Judge Chillingworth'; 'the hours of the day on the dates which appellant counseled, etc., Holzapfel'; 'the place of counseling, etc.' 'the particular way or manner appellant counseled * * * the murder'; 'the place and time of the actual murder'; 'by what means the victim was actually murdered'; and for specification of 'facts showing that the murder was not the separate individual act of the principal, Holzapfel'.

An examination of the testimony and evidence presented at the trial clearly discloses that defendant Peel was thoroughly informed of the charge against him contained in the indictment. We agree with appellant that '* * * the rule of law in Florida is that a bill of particulars is never required in a criminal case in Florida except in exceptional cases where the denial of same constitutes an abuse of judicial discretion * * *'. A comparison and consideration of the cases cited by the State and defense leads to the conclusion that no abuse of judicial discretion and no reversible error are to be found in the trial court's partial denial of the motion for a bill of particulars.

Two of the cases cited by defendant on this point, Thomas v. State, 1917, 74 Fla. 200, 76 So. 780 and Winslow v. State, Fla.1949, 45 So.2d 339, are not applicable here because of the element of surprise occurring in those cases in the difference between the probata and the allegata--the State's proof of the date of the crime differing from the date alleged in the information. In the third case, Findley v. State, 1936, 124 Fla. 447, 168 So. 544, the information charged the accused with burglary of a storehouse of a certain corporation, and it was held reversible error to deny a bill of particulars specifying which of several storehouses owned by said corporation was the situs of the crime.

In the State's citation of Craig v. State, 1928, 95 Fla. 374, 116 So. 272, we find closer analogy to the case at bar. The Florida Supreme Court in that case summarized the verbiage of the indictment as follows:

'The Plaintiff in error was indicted for embezzlement of $162.22 of the goods and chattels of The Atlantic Coast Line Railroad Company. The money was described as 'currency of the United States of America, a better description of which is to the grand jurors unknown.' The date of the commission of the offense was alleged as being on the 26th day of November, 1925, in Volusia County, Fla., 'and on divers other days and dates after said date and before the filing of this indictment.' The indictment was filed November 17, 1926.' (emphasis supplied)

In disposing of appellant's argument that the trial court committed reversible error in denying his motion for bill of particulars, the Court announced the following rules:

'* * * If the indictment is sufficiently full in its allegations of fact constituting the crime charged to enable a person to plead to it, the greater part of the reason for allowing particulars does not exist. * * *

'* * * The application was not so much for a bill of particulars as for a detailed statement of the evidence by which the State proposed to prove its case.

* * *

* * *

'* * * If the defendant was advised of the nature and cause of the accusation against him and had notice of the dates on which the acts constituting the offense were committed, there was no necessity for a bill of particulars. All of this information was given in the indictment. * * *' (emphasis supplied.)

Furthermore, inasmuch as appellant failed to indicate how he was harmed in his defense by the trial court's partial denial of his motion for bill of particulars, he is in no position to complain to this Court. Jarrell v. State, 1939, 135 Fla. 736, 185 So. 873, 879.

The next two points presented by appellant in his brief and on oral argument concern his right to discovery and inspection and his request to copy certain pretrial tape recordings secretly made by investigating law-enforcement officers under the direction and supervision of the State Attorney--some tapes recording the voice of defendant Peel and other tapes recording the voice of the principal Holzapfel, each respectively with third persons who later testified at the trial. During December, 1960 and January, 1961 defendant Peel filed several such motions for discovery, inspection and copying. Each of these were denied, except with respect to witnesses the State would call at the trial, on the ground that the appellant had not up to that time shown that he was entitled to the tape-recordings. The court expressly provided that should it subsequently appear that appellant was entitled to such discovery, etc., the court would then entertain appellant's motions to that effect.

March 7 through March 30, 1961 trial was had. During the course of the trial, on March 13, 1961, appellant again moved for leave to inspect and copy the aforesaid tape recordings. Arguments on the motion were heard by the court and the tape recordings were played outside the presence of the jury. The court ruled that it would hear the tapes in the presence of counsel and would determine the materiality and the relevancy of anything on the tapes in question to the issue being tried. Some four and a fraction days of the trial were consumed in hearing the tape recordings played, all outside the presence of the jury. During this period there was much confusion and argument of counsel, at the conclusion of which the court ruled that the recordings were inadmissible in evidence. Neither the State nor the defense offered any part of the tape recordings in evidence, and at no time during any of the proceedings below did the appellant or the State use or request any tape recording for impeachment purposes. The defendant failed to properly object to the procedure he complains of as to discovery pertaining to the tape recordings and he failed to demonstrate how any of the rulings or procedures in the trial court injuriously affected his substantial rights. Fla.Stat. § 924.33 F.S.A. All parties whose conversations appeared on the several tapes were under subpoena as witnesses and in attendance at the trial. Furthermore, from the extensive record covering these tapes, it appears that the appellant was not entitled to their production either under Fla.Stat. § 909.18, F.S.A. or under a subpoena duces tecum.

Fla.Stat. § 909.18, supra, provides that when a crime has been committed and the evidence of the State relates to certain enumerated items of tangible personalty, the trial court may order that the prosecution furnish said items for inspection, copying or photographing by the accused. However, the purview of this section is limited. In Williams v. State, 1940, 143 Fla. 826, 197 So. 562, the Supreme Court of Florida held that the accused was not entitled to the inspection of his own written confession. Subsequently the Supreme Court held, in McAden v. State, 1945, 155 Fla. 523, 21 So.2d 33, 35, that an accused is not entitled to examine the transcript of the testimony of prosecuting witnesses made prior to trial where not given before a grand jury or committing magistrate. Furthermore, in the recent case of Raulerson v. State, Fla.1958, 102 So.2d 281, 283, the Supreme Court reaffirmed its position in Williams v. State and McAden v. State, supra, and in Ezzell v. State, Fla.1956, 88 So.2d 280, 281.

In view of the above pronouncements it cannot be said that the appellant was entitled to inspect, copy, etc., the said tape recordings, which could not be considered substantive evidence but were clearly the...