Rankin v. State

• Decision Date: 27 June 1962
• Docket Number: No. 31597,31597
• Parties: James RANKIN, John R. Vile, Andrew King and Jose R. Zuniga, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 193

143 So.2d 193

James RANKIN, John R. Vile, Andrew King and Jose R. Zuniga, Appellants, v. The STATE of Florida, Appellee.

No. 31597.

Supreme Court of Florida.

June 27, 1962.

George S. Pierce, Starke, for appellant James Rankin.

Miller Lang, Trenton, for appellant John R. Vile.

William C. Andrews, Gainesville, for appellant Andrew King.

Ira. J. Carter, Jr., Gainesville, for appellant Jose R. Zuniga.

Richard W. Ervin, Atty. Gen., and Bruce R. Jacob, Asst. Atty. Gen., for appellee.

THOMAS, Justice.

The appellants were convicted of committing murder in the first degree by strangling one Calvin A. Cook to death with a cloth rope, and from the eventual judgment of guilt and sentence to death in the electric chair they have appealed to this court.

The death of Calvin A. Cook occurred 28 March 1960 in a steel cell, approximately 8 X 10 feet in dimension, known as the 'cage' and located in the 'flat top', a disciplinary section of the State penitentiary. At the time of the homicide 12 men occupied the cell, Cook, the four appellants and seven other inmates of the prison who were being punished for infractions of the prison rules.

After the victim appeared to be dead, the prison physician was called and confirmed the fact. Then the remaining occupants of the cell were placed in different compartments and statements were taken from them with somewhat varying results, but the description of the crime developed nonetheless.

The first point presented by the appellants is a challenge of the court's denial of a motion for severance by two of the appellants on the familiar ground that testimony with reference to the participation of one defendant would necessarily reflect on the others since the jurors would not be able to isolate the evidence so as to apply it only to the defendant immediately involved. The rule has long been established that such motions are addressed to the sound discretion of the judge and rulings on them will not be disturbed in the absence of a showing of abuse. Manson v. State, Fla., 88 So.2d 272. Considering the facts peculiar to this case, namely the violent death of a person in a small space occupied by him and eleven others, it seems to us there was no violation of the judge's discretion when he held that the guilt or innocence of the four appellants could be determined in one trial. Furthermore, the State draws the attention of the court to the requirement that such motions must be verified by oath if the facts stated in them are to be taken as true. The ones here considered were neither verified nor signed by the makers. Roberson v. State, 40 Fla. 509, 24 So. 474.

Next we consider the charge of the appellants that reversible error was committed by the admission in evidence of five photographs of the dead body of Calvin A. Cook. Three of the pictures were taken after the body had been moved in the small cell; two were made at the morgue. The appellants contend that they served no purpose whatever in proving any element of the charge but were introduced 'only to influence and prejudice the jury.'

We approved in Mardorff v. State, 143 Fla. 64, 196 So. 625, the introduction of a photograph depicting the scene of a murder before the body had been removed and observed that the defendant would not be heard to complain of this method of making clear to the jury the scene which he himself had created. And as late as Cullaro v. State, Fla.App., 97 So.2d 40, we approved this method of enabling the jury more clearly to understand the testimony of the various witnesses. Of course, this procedure may be abused to such extent that reversible error will result but our study of the present record does not convince us that that occurred here.

There was testimony to the effect that the cell where the body was found was so dimly lighted that the doctor who was summoned could not see the discolorations which were later evident in the daylight in the morgue. This condition in itself seems to justify admission of pictures of the body taken after it was moved so that the wounds causing death would be discernible.

The appellants do not convince us that the trial judge committed reversible error when he denied their motion for a view of the death scene. Obviously, as appellants and the State agree, such procedure is designed to aid the jurors in analyzing and applying the evidence. A motion to view is, too, one directed to the discretion of the trial judge. The statute provides the judge may order such a view when in his 'opinion' it is 'proper'. Sec. 918.05, Florida Statutes 1959, F.S.A. It would not be sufficiently difficult for a jury of intelligent persons to envisage the stark appointments of the 'cage' to require a look at the place, even though there was some disparity in the testimony about its size, one witness saying it was approximately 12 X 12 feet, another that it was 8 X 8 X 10.

The question we now reach has novel characteristics. At the request of the State the court called two witnesses, Richard Penney and Allen Jenkins, who, according to witnesses preceding them, had been present at the time of the homicide. We will deal first with Penney. The Assistant State Attorney frankly told the court that it was feared Penney would be hostile and that he had made contradictory statements in his presence. Thereupon the court granted the request and advised the jury that neither the State nor any defendant vouched for the testimony and that counsel for all would be privileged to examine and cross-examine the witness. Whereupon Penney proceeded to declare his ignorance. He did not remember where he was confined the day of the crime; he did not remember Calvin Cook; he only remembered hearing of the death of Cook; he did not remember being in the cell, or cage, with Cook. These were answers to questions by the judge. Replying to a question by the Assistant State Attorney, Penney did not remember going to the 'Interview Room' at the prison. When asked if he made a statement, he told the judge he evidently made one, which he did not remember, then said that if he did make a statement he wished the court to know that he 'would make any statement to get out of the flat top.' After saying he knew the Assistant Superintendent and an employee at the penitentiary named Powell, he was asked if he told them 30 March 1960 about the events in the cage the day Cook died. He did not remember that and he did not remember signing such a statement. He was shown a written instrument and was asked if he signed it. He said the name was his but he did not know whether or not it was his signature.

Then upon the jurors being sent to their room, his examination continued with the monotonous result that the witness could not recall anything of consequence. The Assistant State Attorney read a statement purportedly made by Penney, reduced to...