Pitts v. State

Decision Date03 February 1975
Docket NumberNos. T--146 and T--147,s. T--146 and T--147
Citation307 So.2d 473
PartiesFreddie Lee PITTS and Wilbert Lee, Appellants, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Phillip A. Hubbart, Irwin J. Block, Miami, Maurice Rosen, N. Miami Beach, Jack Greenberg, Michael Meltsner, and James A. Nabrit, III, New York City, for appellants.

Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.

BOYER, Judge.

Appellants, who were convicted by a jury of murder in the first degree, here urge twelve separate points for reversal based upon 39 assignments of error relating to a record on appeal consisting of 22 volumes exclusive of depositions and exhibits, and comprising 4,436 pages.

This case has a long history. During the night of July 31, 1963, the Mo-Jo Gas Station in Port St. Joe, Florida, was robbed and the two attendants, Jesse Burkett and Grover Floyd, were abducted and killed. On August 15, 1963, appellants were indicted by the Gulf County Grand Jury on the charges of murdering the gas station attendants. On August 28, 1963, the trial judge sentenced them to death on their tendered pleas of guilty. The Supreme Court of Florida affirmed. (Lee v. State, Sup.Ct.Fla.1964, 166 So.2d 131)

The first post-conviction collateral attack against said convictions was denied by the trial judge and affirmed on appeal. (Lee v. State, Fla.App.1st 1966, 188 So.2d 872, cert. den., 386 U.S. 983, 87 S.Ct. 1292, 18 L.Ed.2d 234 (1967))

A second post-conviction collateral attack against those convictions was granted in the lower court, reversed on appeal to this Court (State v. Pitts, Fla.App.1st 1970, 241 So.2d 399) and again reversed by the Florida Supreme Court on confession of error by the State (Pitts v. State, Sup.Ct.Fla.1971, 247 So.2d 53). On remand a new trial was ordered by this Court. (State v. Pitts, Fla.App.1st 1971, 249 So.2d 47)

On September 15, 1971, the trial court dismissed the original 1963 grand jury indictments against appellants on the ground that they had been indicted by a grand jury from which members of the black race had been systematically excluded.

On October 20, 1971, the Gulf County Grand Jury reindicted appellants on the original first degree murder charges. On December 15, 1971, the trial court dismissed On January 4, 1972, the Jackson County Grand Jury indicted the defendants on the original first degree murder charges. The appellants entered pleas of not guilty and the case proceeded to trial, resulting in verdicts of guilty as charged. On March 15, 1972, the trial court sentenced appellants to death, which sentences were subsequently changed to life imprisonment. (See In re Baker, Sup.Ct.Fla.1972, 267 So.2d 331)

said indictments on the ground that the grand jury was illegally constituted (one of the jurors had previously been convicted of a felony and had not been restored to his civil rights) and transferred the venue to Jackson County, Florida.

Timely motion for new trial was denied and this appeal followed.

Appellants claim in their first point that the verdicts rendered by the jury are contrary to the manifest weight of the evidence, urging reversal and discharge of appellants. Nothing will be here accomplished by summarizing the 4,436 pages of the record on appeal. Suffice to say that our examination reveals ample credible evidence to support the jury's verdicts. We therefore find appellants' first point to be without merit.

Appellants next urge that one of the members of the petit jury was not a duly qualified elector of the county as required by F.S. 40.01(1), thereby invalidating the verdict returned by the jury. Appellants make no claim of any prejudice and no assertion that the impartiality of the jury was in any manner affected. The facts, as related to this point, are remarkably similar to those in Leach v. State, Sup.Ct.Fla.1961, 132 So.2d 329. Relying on that case, we find appellants' second point to be without merit. In the Leach case our Supreme Court said:

'* * * For example, if after the trial it should develop that a juror was closely related by blood to deceased and had announced his conviction regarding the guilt of the accused and had misrepresented his position when examined, such a disqualification would enter into the very fundamentals of the trial itself. This is not so with reference to the failure of the juror to be a registered voter. The appellants make no contention that they were not fairly heard with an unprejudiced mind by the jurors in question. Their position offers no ground for reversal. Ex parte Sullivan, 155 Fla. 111, 19 So.2d 611; Burns v. State, 89 Fla. 353, 104 So. 447; Section 913.04, Florida Statutes, F.S.A.; 31 Am.Jur. 'Jury' Sections 154--156.' (132 So.3d at page 333) (See also Slaughter v. State, Sup.Ct.Fla.1974, 301 So.2d 762)

We next consider appellants' attack upon the jury selection system employed in Jackson County. It is appellants' contention that the jury selection process there utilized violated the principles announced in State v. Silva, Sup.Ct.Fla.1972, 259 So.2d 153, because the process 'arbitrarily' discriminated by exclusion of black persons. However, an examination of the testimony of two of the jury commissioners who were called as witnesses by appellants reveals that the method or system utilized was very similar to that employed in Duval County and approved by us in Mahoney v. State, Fla.App.1st 1974, 300 So.2d 743, except that in Duval County the names are 'pulled' by a computer whereas in Jackson County the work is performed manually. We find that there was sufficient evidence to sustain the trial judge in denying appellants' motion to dismiss the indictments on the ground that members of the black race were systematically excluded, and that the method or system employed was not subject to valid constitutional attack.

Appellants further urge that, based upon statistics, the grand jury which indicted appellants was unconstitutionally composed in that blacks were systematically excluded from the list from which it was drawn. In so urging they rely primarily upon Alexander v. Louisiana, 405 When we compare the facts in the case sub judice to those appearing in Alexander v. Louisiana, supra, we find that the population of Jackson County voters when the master list was prepared was 11,826 whites and 3,101 blacks or approximately 21 percent. The list reflected a composition of 322 whites and 62 blacks which is 16.1% Blacks. Thus, there does not appear the 'gross disparity' sub judice as was condemned in the Alexander case. Further, the record clearly reflects that no practice was employed At the time the instant grand jury was selected or impaneled to designate the race or color of the prospective jurors. It appears therefore that race was not reflected in the selection processes employed in Jackson County at the times relevant to this case and that accordingly composition of the grand jury which indicted appellants does not fail the tests of Alexander v. Louisiana, supra.

U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). In that case the court held that a conviction based upon an indictment returned by an all white jury will be reversed when two factors are present: (1) when a statistical record shows a gross disparity between those blacks eligible to serve and those who actually served and (2) there is employed a system of selection which presents an opportunity for discrimination. There the statistical evidence revealed that in Lafayette Parish, Louisiana the black population of all adults was 21.06 percent (7,373 of 44,986) and that of the 400 persons ultimately selected as prospective grand jurors, only 27 (6.75%) were black and only one (5%) of the twenty persons drawn from the grand jury venire was black, and no black actually served. That which afforded the opportunity for discrimination in Alexander v. Louisiana, supra, was a questionnaire mailed to prospective jurors which, when returned, indicated the race of the individual. Similar practices were found in Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) where different colored cards indicated the race of the person whose names appeared thereon. In Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) a letter was employed after the name of the prospective juror to indicate his or her race.

We next consider the applicability of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), cited by appellants, and find that they can take no solace there. Indeed, the case tends very strongly to support the State in the case sub judice. In the Swain case, a Negro convicted of rape by an all white jury in the Circuit Court of Talladega County, Alabama, appealed from his conviction, asserting that he was denied equal protection of the laws by discriminatory jury selection in three respects: (1) discrimination in the selection of venires, demonstrated by the fact that while 26 percent of the persons eligible for jury duty were Negroes, the venires contained only 10 to 15 percent Negroes; (2) discrimination in the selection of jurors from the veniremen, demonstrated by the facts that the prosecutor used his peremptory strikes to remove all Negro veniremen; and (3) discrimination in the use of the peremptory strike system in Talladega County through the years, perverting its purpose in a scheme to exclude all Negroes from ever serving on petit juries there by the prosecutors striking all Negro veniremen, demonstrated by the fact that no Negro had ever served on a petit jury in Talladega County. The Alabama Supreme Court affirmed the conviction. On certiorari the Supreme Court of the United States affirmed. In an opinion written by Justice White, expressing the views of five members of the court (a majority) it was held that: (1) an accused is not constitutionally entitled to a proportionate number of his race on the jury which tries him, and the under-representation of...

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