Raulerson v. State
| Decision Date | 23 April 1958 |
| Citation | 102 So.2d 281 |
| Parties | James H. RAULERSON and Fritz H. Clark, Appellants, v. The STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
John W. Lee, Jacksonville, for James H. Raulerson.
Carlton L. Welch, Jacksonville, for Fritz H. Clark.
Richard W. Ervin, Atty. Gen., David U. Tumin, Asst. Atty. Gen., and William A. Hallowes, 3rd, State Atty., Duval County, Jacksonville, for appellee.
The appellants, James H. Raulerson and Fritz H. Clark, together with Duane C. Almas and Gerald R. Noe, were indicted for rape. A severance was granted upon the motions of Duane C. Almas and Gerald R. Noe, and upon the trial of the appellants they were found guilty without any recommendation of mercy and were sentenced to death in the electric chair.
After the indictment was returned, 16 December 1955, the appellants and their accomplices having been meanwhile put under arrest, the appellants, 7 February 1956, filed a motion for a continuance containing the statement that they were 'surprised' when the court, on 1 February 1956, granted the motion of Almas for a severance. A similar motion on behalf of Noe had been granted 30 December 1955. Although the severance had been allowed Noe more than a month before, the appellants contended they were hindered in the preparation of their defense because in order to determine the veracity of Noe as well as Almas it would be necessary to investigate the character of these two accomplices 'and other witnesses extensively throught the State of Florida and in other states * * *.' At this time the case had been set for trial 27 February 1956. We assume that the appellants took this position in anticipation that Noe and Almas would testify for the State.
So a period of more than two months was to expire between the filing of the indictment and the holding of the trial; nearly two months were to elapse between the severance as to Noe and the trial; and nearly 30 days between the last severance, granted to Almas, and the trial.
Tlthough the periods were shorter if computed from the time an attorney for one of the appellants was appointed by the court, still the dates themselves seems to belie the claim of even that appellant that he was so surprised by the court's rulings that his defense was jeopardized. There appears to have been abundant time for the appellants to have informed themselves about their accomplices or at least such a lengthy period that the judge cannot be said to have abused his discretion when he denied their motion. Two circumstances greatly weakened, and now weaken, their position. In the trial court they wished not only to have an investigation of their companions but also of all other witnesses in this and other states. The purpose of the request was so inexplicit there is small wonder it did not appeal to the judge.
It is difficult to recognize the original basis for their motion in the present challenge to the judge's ruling. It is argued in this court that the appellants' defense was unfairly affected by failure to grant the motion because no opportunity was given to acquire evidence about the reputation of the prosecutrix for chastity. Although this intention was by implication encompassed in the representation made to the trial court, one reading the motion made then would hardly have anticipated the basis for it presented now.
We do not find that there was a palpable abuse by the trial judge of the discretion he exercised when he denied the motion and such must be made clearly to appear before a denial of a motion for continuance is overturned by this court. Acree v. State, 153 Fla. 561, 15 So.2d 262. It is 'elementary' that a motion for continuance is addressed to the sound discretion of the trial judge. Kitchen v. State, Fla., 89 So.2d 667; Sec. 916.02(2), Florida Statutes 1955, and F.S.A.
Before leaving this subject we must, however, express disagreement with the State's position that the chastity of a prosecuting witness 'is completely irrelevant to the charged crime * * *.' This may not be stated as an absolute rule for when a person charged with rape relies on the defense of consent of the prosecutrix, testimony of her general reputation for chastity is admissible. Nickels v. State, 90 Fla. 659, 106 So. 479.
The appellants claim that error crept into the trial when the judge denied their motion to require the State 'through the State Attorney's Office' to produce for their inspection the transcribed notes of the court reporter recording certain statements made by Almas and Noe, the accomplices who were not on trial. The motion is said to have been based on Sec. 909.18, Florida Statutes 1955, and F.S.A.
Our study of the statute does not bring us to the view that it is authority for the request made by the appellants and we think we have already said so. In Ezzell v. State, Fla., 88 So.2d 280, we alluded to the right of a defendant under the statute to have the State required to produce all its evidence including a transcript of oral confessions and we held that our decisions in Williams v. State, 143 Fla. 826, 197 So. 562, and McAden v. State, 155 Fla. 523, 21 So.2d 33, defeated such an effort. In the latter case it was held that the defendant was not entitled to a transcript of the testimony of State witnesses. We think the rule may be applied to the present situation with the same, if not greater force. Actually the appellants were not primarily seeking a record of the testimony of State witnesses but of statements which, because made by accomplices, would not have been admissible against them even had the accomplices been on trial. Blanco v. State, 150 Fla. 98, 7 So.2d 333. The court reporter, strictly speaking, was not a witness, his name did not appear on the list of witnesses filed by the State and he did not testify at the trial. On the other hand, the names of Almas and Noe did appear and they were, therefore, available for interview by appellants. Mathews v. State, Fla., 44 So.2d 664. Furthermore, during the progress of the trial the State Attorney, after each of these men had testified, tendered to counsel for the appellants the statement each had made and the court in each instance declared a recess, so appellants were given an opporunity to examine the statements in the light of the testimony, presumably so they could chart the course of their cross-examination.
We find no basis for criticism of the judge's treatment of this phase of the case.
Most of appellant-Clark's brief is devoted to a remark of the judge made in the presence of the jury: The words we have italicized are the ones the appellants charge to have been offensive and prejudicial, and violative of our decisions that a judge errs if he comments on the evidence in the presence of the jury. Typical of these decisions are Leavine v. State, 109 Fla. 447, 147 So. 897, and Seward v. State, Fla., 59 So.2d 529. There can be no doubt of this ruling to which we have consistently adhered, and if the statement is taken out of context, isolated and pondered without regard for what prompted it, the appellants' point would appear well taken. We shall consider whether or not, in context, it had a damaging effect on the defense.
In order to understand the occasion for the statement of the judge we should introduce now some of the circumstances surrounding the commission of the crime as they had been developed up to that time by the prosecuting witness and by the witness then testifying. As we have seen four men were charged with the offense. In one count of the indictment all were alleged to have committed it. In each of the other three counts one defendant was averred to have committed it and the other three to have been present aiding and abetting him. The appellants were so charged.
The man who was the victim's escort at the time of the incident was on the witness stand describing the experience. According to his testimony, the two were sitting in a motorcar, which was parked on a lonely road, when they were accosted by the four men who were hooded, masked and armed, some with guns, some with knives, some with both. He detailed the course he and the prosecutrix had taken during several hours prior to the time they stopped on the secluded road. After being there a short while, a car carrying four men stopped nearby and two of the men suddenly appeared at each front door of the witness' car. The doors were opened simultaneously and the witness was commanded to 'get out.' When he obeyed he was told to put his hands on top of the car. While he was in that position he was relieved of his wallet. Money was taken from the wallet and also from his pockets together with a knife and cigarette lighter. During this episode the other two men were giving their attention to the witness' companion.
At gun point the witness wnet to the rear of his car and got into...
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