Sims v. State
| Decision Date | 09 March 1966 |
| Docket Number | No. 6012,6012 |
| Citation | 184 So.2d 217 |
| Parties | Bertha Mae SIMS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack F. White, Jr., and Robert E. Pyle, Asst. Public Defenders, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.
This is an appeal by a defendant from a conviction of second degree murder entered upon a jury verdict. We summarize the four points raised on appeal as follows: 1) Did the court err in excusing, on its own motion, seven prospective jurors in a first degree murder trial on the basis of their conscientious beliefs regarding the death penalty? 2) Did the court err by engaging in rather extensive questioning of one of the State's witnesses? 3) Did the State establish, by sufficient evidence, the elements of the corpus delicti? 4) Should the court have required that certain memoranda referred to by State's witnesses be introduced into evidence rather than allowing them to be used to refresh recollection? These points will be taken up in order.
The appellant was indicted for first degree murder, an offense punishable by death. Fla.Stat., Sec. 782.04, F.S.A. During the voir dire the trial judge explained the consequences of a guilty verdict, and made the following statement:
'THE COURT: You will recall, or you may not know, if you do find the Defendant guilty of first degree murder, you have the right to recommend clemency and if a sufficient number of you recommend this mercy, the death penalty is not inflicted, but if you have the Conscientious belief the death penalty is so bad it ought never be inflicted--' (Emphasis added).
Three prospective jurors affirmatively replied and were excused by the court. Later this colloquy took place.
'* * * It is up to the State to prove the Defendant guilty beyond and to the exclusion of every reasonable doubt, so the mere fact you are sitting on this case does not necessarily mean you will have to find the Defendant guilty without recommendation of mercy, but there is a possibility that the evidence will justify you so finding and that the evidence should justify the finding of guilt of first degree murder without recommendation of mercy, and would any of you hesitate to bring in such a verdict merely because of some philosophical or moral or ethical disbelief in the death penalty?
The final juror excused on this ground stated the following:
'Your Honor, I don't believe God gives me the right to set in judgment of any person's life and I could not render a decision on this one.'
Appellant claims these excusals were improper because the judge acted on his own, before giving the attorneys an opportunity to examine and challenge the jurors, which procedure resulted in a systematic exclusion of a segment of the community from the jury. Appellant argues that the jurors who were eliminated were not legally disqualified and their exclusion as a class violated fundamental rights guaranteed by both the Florida and Federal Constitutions.
'No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be allowed to serve as a juror on the trial of any capital case.' Fla.Stat., Sec. 932.20, F.S.A.
This disqualification is statutory, and it is altogether proper for a trial judge to take the initiative in determining which jurors fail the standard. Cf. Mims v. State, 1900, 42 Fla. 199, 27 So. 865. Moreover, the determination of juror qualifications is a function of the trial judge, whose decisions in this area are largely discretionary. Russom v. State, Fla.App.1958, 105 So.2d 380, 382; Adams v. Elliott, 1937, 128 Fla. 79, 174 So. 731. The Florida Supreme Court set out the general rule applicable here in Piccott v. State, 1959, 116 So.2d 626, 627, appeal dism., cert. den., 364 U.S. 293, 81 S.Ct. 106, 5 L.Ed.2d 83:
In Piccott, supra, a prosecution for rape, the issue was whether the trial judge erred in excusing, upon challenge for cause by the State, nine jurors who had stated opposition to taking life in punishment of crime, but who all had indicated they could render a guilty verdict upon the condition that it be accompanied by a recommendation of mercy. Appellant's contention in Piccott was that a venireman meets the requirements of Fla.Stat., Sec. 932.20, F.S.A., if he asserts that he will, if the evidence warrants, return a guilty verdict in a capital case and that the question whether the venireman would couple a recommendation for mercy with a vote of guilty was immaterial. The Supreme Court rejected this interpretation of the statute, saying:
'We think it clear that the statute must be construed to mean that only those persons who are not, by conscientious scruples, beliefs, convictions, or opinions, based on moral, religious, or other grounds, precluded from Infliction of the death penalty as punishment for crime, shall be considered qualified to serve as jurors on trial of a capital crime.' (Emphasis added). 116 So.2d at 628.
The appellant in the instant case makes much the same argument, by asserting that the trial judge erred by systematically excluding those having conscientious scruples against the death penalty, which scruples may not have been strong enough to prevent them from bringing back the death penalty if required by the law and facts. Appellant relies on Boyington v. State, 1917, 74 Fla. 258, 76 So. 774, in which the Florida Supreme Court held it was not error to deny the defendant's challenge to a venireman who had stated he had 'conscientious scruples' against capital punishment. The Court stated that 'conscientious scruples' were not equivalent to an opinion which would preclude the juror from finding a defendant guilty of a capital offense. Boyington, however, does not stand for the proposition that the trial judge would have erred had he allowed the challenge and dismissed the venireman from the panel, and for this reason we believe that the case is not controlling here.
Additionally, in light of the rationale expressed by the Supreme Court in the more recent Piccott decision, the pronouncements in Boyington do not compel us to reverse in this case. In Piccott we find the following language:
'Voir dire questions should be designed to determine that the venireman is capable of joining in a verdict which will result in taking the life of the accused if the evidence warrants, or, stated another way, that he is free of Conscientious scruples, beliefs, convictions, or opinions which would preclude or prevent his joining in such a verdict, irrespective of the evidence.' (Emphasis added). 116 So.2d at 629.
We do not believe that the jurors excluded by the trial judge in this case were of a mind that they could have brought in a verdict of guilty...
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