Smith v. State

• Decision Date: 12 August 1970
• Docket Number: Nos. 68--355,68--393,s. 68--355
• Citation: 239 So.2d 284
• Parties: Cecil Edward SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 284

239 So.2d 284

Cecil Edward SMITH, Appellant, v. STATE of Florida, Appellee.

Nos. 68--355, 68--393.

District Court of Appeal of Florida, Second District.

Aug. 12, 1970.

Rehearing Denied Sept. 17, 1970.

Walter R. Talley, Public Defender, Bradenton, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

, Judge.

'I was this forenoon with Mr. secretary at his office, and helped to hinder a man of his pardon, who is condemned for a rape. The under-secretary was willing to save him, upon an old notion that a woman cannot be ravished: but I told the secretary, he could not pardon him without a favourable report from the judge; besides, he was a fiddler, and consequently a rogue, and deserved hanging for something else; and so he shall swing.'

'Jonathan Swift: 1 Journal to Stella 319--320 (July 25, 1711) (ed. Williams 1948)

Cecil Edward Smith is a Bad Guy convicted of rape on the uncorroborated testimony of a Good Girl.

He has served time in three prisons for four felonies. His stomach, his chest, both arms and both legs are tattooed. ¹ His lawyer addressed him as 'Boy,' though the time is long since past when any man is 'Boy' in an American courtroom.

She was a school teacher, in her middle twenties, a virgin. A witness testified, without the slightest contradiction, to her spotless reputation. She testified that she had never seen Smith before, although he had worked on her septic tank.

The complainant's testimony is all that supports the verdict, but it covers every element of the crime. She says that after one in the morning she heard a noise and awoke to find Smith entering through her kitchen window. She tried to leave through the door, but was restrained. Once, momentarily, she turned the light on, but he turned it off. He threatened her with death or serious bodily harm, which under our precedents suffices to show that the act was forcible. ² Even while he was asleep within her apartment or was in the bathroom she feared him and for this reason did not telephone the police.

When we compare her testimony with the requirements of Florida law we learn that even without corroboration her testimony is 'sufficient.' Our new standard jury instructions provide, for example:

'Force: The act must be accomplished by force. Sexual penetration is not rape unless the female has resisted to the extent of her ability under the circumstances and has used all reasonable effort on her part to prevent the accomplishment of the act. However, if by words, acts or both the female is placed in fear of death or great bodily harm if she resists and she fails to resist solely by reason of such fear, the force necessary to accomplish the penetration is sufficient. Unless overcome by fear the resistance must continue until the actual penetration is accomplished.'

'Want of consent: The act must be done against the will and without the consent of the female. If consent be voluntarily given at any time before the penetration, the crime of rape has not been committed. But consent produced by fear of death or great bodily harm is not a voluntary consent and if the female yields to the doing of the act only by reason of such fear the act is done against her will and without her consent.'

'Proof: If the testimony of the female is not supported by other evidence her testimony should be rigidly examined, especially as it related to the nature and extent of the force used and as it related to the question of whether or not consent was ever finally given. However, the testimony of the female, even though uncorroborated, is sufficient upon which to base a conviction if you are convinced by it of the defendant's guilt beyond a reasonable doubt. Before you can convict the accused, you must be satisfied beyond a reasonable doubt that the alleged rape was forcible and against the will of the female since these are essential elements of the crime.'

'Outcry Report: In weighing the evidence, and particularly the testimony of the female alleged to have been raped, you may take into consideration the evidence as to whether or not the female (made any outcry or call for help at the time of the alleged rape or was prevented by fear from doing so) (made a prompt report of the alleged rape to the person or persons to whom a female situated as she was would naturally make such a report.)'

The question of corroboration is settled in Florida: it is unnecessary. Doyle v. State, 1897, 39 Fla. 155, 22 So. 272. If the offense had occurred in New York corroboration would be required by statute, ³ as it is in several other states. ⁴ In Illinois, ⁵ for example, an appellate court would probably reverse with mandate for discharge for failure of the record to disclose corroboration, a result reached in several states on common law principles. ⁶

But the Results in Florida appeals are not markedly different despite the divergence of doctrine. Johnson v. State, Fla.App.1960, 118 So.2d 806; Chaffin v. State, Fla.App.1967, 204 So.2d 22. Other courts, bound as we are by the doctrine that corroboration is unnecessary, find it necessary under the special circumstances of the case. ⁷ These cases reach the right result on excessively circular reasoning. It makes no sense to say that corroboration is unnecessary except where the complainant's testimony is uncorroborated. And much injustice would result from affirmance where the words of the complainant are all that supports conviction and undisputed evidence in the record casts doubt on them.

The Bad Guy must be judged by the same principles which apply to the Good Guy's conviction of a bad act, regardless how much more likely it is that a Bad Guy will be disbelieved by a jury, and regardless how less likely that a Good Guy would be accused, and if accused charged, ⁸ and if charged, convicted.

It is the classical assumption that the jury's binary verdict follows the digital deliberative process, but life teaches that the mind functions in the binary mode prior to deliberation. The traditional task of appellate judges is to determine whether the evidence in the record could, viewed most favorably to the verdict, support conviction. Yet there are more cases than we could count in which convictions have been reversed for new trials on account of 'insufficiency' of evidence, and we find that the opinions in these cases do not satisfactorily articulate the principles on which appellate review proceeds. We are facing, then, a challenge to our presuppositions which has troubled me for many months.

The delay in decision of this case is one for which the writer of this opinion is solely responsible. I confess that my first study of the record and briefs and reading of the cases cited resulted in my concurrence with my brother Pierce. But that concurrence robbed me of sleep, and I withdrew it. Since then I have sought--and still seek--certainty about legal doctrine which explains and confirms my view that this conviction cannot be affirmed. While judicial insomnia is a fair indicator of an unsound concurrence it is of no help in articulating disagreement intelligently. Logic does not govern all human decision-making. Digital deliberation is an ongoing mental process, and the mind is not at rest until it issues in determination, which is often--perhaps usually--binary. The deliberative process is bypassed in our daily lives by habit (our preferences in dress or clothing) or intuition (we exclude some from our circle of friends or employees upon observing some single factor) or prejudice. Whether the consequence of this exclusion of deliberation is benign depends on circumstances: any man is entitled to eat oatmeal for breakfast, and whether he does so out of habit or as a consequence of deliberation is not anyone else's business. But judges face a dilemma: we must allow juries to determine facts and we must assume, if the record proves the assumption reasonable, that the verdict issues from deliberation and not from prejudgment.

The polarity of human thought is nothing new. Life is full of evidence of the binary mode in human thought. We spent our Saturday afternoons as children watching a lone hero in a white hat, on a white horse, ridding a community of a gang of villains in black hats, on black horses. We played cops and robbers, and cowboys and Indians. One of our hymns asks: 'Are ye able to remember, when a thief lifts up his eyes, that his pardoned soul is worthy of a place in Paradise?' ⁹ The mind wants to differentiate clearly, to make strong distinctions, to feel secure in either the end product of thought or the processes which precede--and sometimes exclude--thought. But the human mind differentiates act from actor with great difficulty.

On what principle, then, can we evaluate the binary decision which follows a trial like this one in which the testimony of the prosecutrix, taken in isolation, covers every element of the crime of rape, although study of the record suggests strongly the possibility that the verdict was reached before, or in spite of, deliberation, and perhaps without consciousness that it was inadequately affected by it?

We venture two propositions that we think are supported by ample precedent although not expressed in these terms. Judges have for decades spoken of 'insufficiency' of evidence without differentiating between the case in which evidence of one or more elements of the offense is absent ¹⁰ and the case in which the elements are 'proved' (i.e., testified to or shown by some evidence) but so inconclusively as to justify the granting of a new trial. ¹¹ The failure to articulate this distinction has resulted in our speaking indiscriminately of 'insufficiency' of evidence, with the result that we have failed to develop sound doctrine to guide judges in measuring the adequacy of a particular record.

Our first proposition is that there are two types of 'insufficiency' and they ought to be differentiated. Fundament...