State v. Tillett

• Decision Date: 08 May 1959
• Docket Number: No. 549,549
• Parties: STATE of Florida, Appellant, v. Boone D. TILLETT, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 716

111 So.2d 716

STATE of Florida, Appellant, v. Boone D. TILLETT, Jr., Appellee.

No. 549.

District Court of Appeal of Florida, Second District.

May 8, 1959.

Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellant.

Boone D. Tillett, Jr., Lake Wales, in pro. per.

KANNER, Chief Judge.

This cause is here on appeal and also on a petition for writ of certiorari taken by the State of Florida, the state having employed these two methods of approach. The primary question is the same under both proceedings and they were consolidated for briefing and argument. The controversy can be determined through the appeal as lodged. Therefore, it is unnecessary in this opinion to deal with the petition for writ of certiorari, but this petition will otherwise be resolved.

The trial court granted a motion of the appellee that testimony taken before the Polk County Grand Jury for the spring, 1956, term be made available to him, at the same time denying motions by the appellant, State of Florida, to strike and to dismiss appellee's motion.

The appellant seeks reversal of this order of the court upon the proposition that, under appellee's motion, the testimony sought is for use in establishing a basis for civil actions for libel and slander and for conspiracy to libel and slander against persons who testified as witnesses before the grand jury, contending that no action can lie for defamatory words of a witness uttered in the due course of a judicial proceeding. Also the appellant has attacked the procedure followed, asserting that the relief sought was through an unverified motion which was insufficient, that appellant was deprived of an opportunity to file an answer and offer evidence to refute the motion, and further, that the order entered was without evidentiary support.

Appellee's motion for use of the testimony grew out of a presentment filed by the grand jury which contained, in part, certain statements relating to him. This portion of the presentment concerning appellee was, upon a sworn motion by him in another proceeding, ordered expunged by the circuit court which received it from the grand jury

Appellee's motion for the use of the grand jury testimony reads:

'Comes further Boone D. Tillett, Jr., petitioner in the above styled cause, and respectifully shows unto the Court:

'1. That this court has heretofore, namely, on June 22, 1956, upon motion of petitioner, ordered expunged from the records of this court the portions of the so-called 'presentment' of the captioned Grand Jury which impugned the actions and motives of petitioner, for the reason that the same were not within the scope of authority of the Grand Jury as a matter of law; that said order did not touch upon the truth of falsity of the so-called findings of the Grand Jury.

'2. That, notwithstanding the fact that portions of the said 'presentment' excoriating petitioner have been expunged from public records, prior to its expunction said 'presentment' was widely published verbatim in newspapers about the State of Florida, much news and editorial comment was published concerning it, and its contents became the source of much verbal conversation and comment throughout the County of Polk and State of Florida; that as a result of such publication and dissemination of said 'presentment' the petitioner's reputation as a man of honesty and integrity, both as an individual citizen and as a public servant, has been unjustly tarnished and he has been held up to public scorn and ridicule without an opportunity to anywise rebut the charges and allegations of facts and conclusions contained in said 'presentment'.

'3. That all of the allegations and conclusions of said 'presentment' were and are entirely false and untrue, with no basis in truth, as petitioner is prepared to prove, and, upon information and belief, were based upon false and perjured testimony given before the Grand Jury.

'4. That by public utterances outside of the Grand Jury room, one Harry E. King has charged petitioner with extortion and blackmail, and conducting a calculated campaign to destroy King personally and politically through threats, false charges, attempted trickery and demands for money; that none of these charges are true in fact and constitute a libel and slander against petitioner; that, upon information and belief, petitioner verily believes that the same said charges, and testimony tending to support the same, were given under oath before the Grand Jury by King and others in privy with him and conspiring with him in libelling and slandering petitioner and attempting to secure his indictment and/or public discredit; that any such testimony as may have been given to the Grand Jury is perjured and false.

'5. That petitioner is preparing civil actions against said Harry E. King and others for libel and slander and for conspiring to libel and slander petitioner in connection with the matters which the Grand Jury had under investigation; that petitioner shows that the 'presentment' of the Grand Jury, though it may have been issued by said Grand Jury in good faith, is itself a part and parcel of the whole of the libellous and slanderous utterances against petitioner, since it was based upon and procured by perjured and false testimony.

'6. That the testimony of H. E. 'Pat' Gordon, James Busbee and Rollie Arnold, before the Grand Jury, touching upon the matters under investigation and involving petitioner, have heretofore been made matters of public record in connection with the respective criminal trials of the above named Gordon, Busbee and Arnold.

'7. Petitioner shows that the reasons for continuing the cloak of secrecy in this matter have long since expired, in fact there are urgent and pressing reasons why the cloak of secrecy should no longer obtain; that unjust and ill-founded accusations against petitioner contained in said 'presentment' have caused petitioner untold damage in his reputation for honesty and fair-dealing and, petitioner having been at the same time a public office-holder in a position of trust and confidence, has caused great public mischief; that, accordingly, the furtherance of Justice requires that the testimony before said Grand Jury be made available to petitioner for the purpose of allowing him to further right a great and grievous wrong done him and the public of this County and State.'

Other than that portion constituting the opinion of the Court, the decretal part of the order on the motion contains this language:

'It Is Therefore Ordered and Adjudged that the motion to strike and motions to dismiss be, and they are hereby denied, and that the motion of the Petitioner be, and it is hereby granted.

'It Is Further Ordered and Adjudged that the Clerk of this Court shall on March 17th, 1958, Unless Superseded, deliver the sealed transcripts of such testimony to Honorable Holland Kelley, Official Court Reporter of this Court, and he shall with due dispatch copy all testimony contained in the transcripts as prayed for in Petitioner's motion concerning and relating to the matters and things set forth in the 'presentment' of Boone D. Tillett, Jr. and all testimony concerning and in anywise pertaining to Boone D. Tillett, Jr. as the same was taken and transcribed before the said 1956 Spring Term of the Polk County Grand Jury.

'It Is Further Ordered and Adjudged that no portion of the transscript which contains opinions, comments or statements by members of the grand jury shall be included in such transcript. * * *'

The trial court's order granting appellee's motion was based upon the 'furtherance of justice' principle. This court on March 14, 1958, ordered that the appeal operate as a supersedeas of the order of the circuit court.

Primarily, it may be observed that the uses for which testimony given before a grand jury can be released are confined within very narrow limits. These uses under the governing statute are for proof of consistency of the testimony given by a witness, for proof of perjury, or for furtherance of justice when permitted by the court. Section 905.27, Florida Statutes, F.S.A., enunciates these allowable purposes:

'905.27 Testimony not to be disclosed; exceptions. No grand juror, prosecuting attorney, or special legal counsel, court reporter, interpreter, or any other person appearing before the grand jury, shall disclose the testimony of a witness examined before the grand jury or other evidence received by it except when required by a court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that of the witness given before the court, or to disclose the testimony given before the grand jury by any person upon a charge against such person for perjury in giving his testimony or upon trial therefor, or when permitted by the court in the furtherance of justice. Any person violating the provisions of this act shall be guilty of a criminal contempt of court, and punished accordingly.'

According to appellee's interpretation, the court granted him the requested portion of the transcript of testimony in the interest of administering justice, for whatever use he might make of it in clearing his name. As may be seen through a perusal of appellee's motion, although certain reasons are given for his desire to have the testimony delivered to him, the principal expressed intended use of it is that of seeking to establish grounds for civil actions against certain grand jury witnesses and others for libel and slander and for conspiracy to libel and slander. This motion reveals that the character of the testimony sought to be released is believed by appellee to be false and perjured and thereby libelous and slanderous. When this kind of testimony has been given in a judicial proceeding and is sought to be used as a basis of an action for damages, the question then arises as to the operation of the rule of privilege.

In this...