Straight v. State, 52460

• Decision Date: 19 March 1981
• Docket Number: No. 52460,52460
• Parties: Ronald J. STRAIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 903

397 So.2d 903

Ronald J. STRAIGHT, Appellant, v. STATE of Florida, Appellee.

No. 52460.

Supreme Court of Florida.

March 19, 1981.

Rehearing Denied June 2, 1981.

H. Randolph Fallin, Jacksonville, for appellant.

Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Fourth Judicial Circuit, in and for Duval County. Appellant Ronald J. Straight was convicted of murder in the first degree and sentenced to death. We have jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Const. We have given careful consideration to each of the appellant's stated grounds of appeal, as the discussion to follow will show. We have reviewed the entire record of the proceedings below in order to determine whether the jury's verdict of guilt was supported by competent, substantial evidence. We have also reviewed the sentencing proceeding to determine whether the sentence of death is appropriate to this case under the law. § 921.141(4), Fla.Stat. (1975). We affirm the conviction and the sentence.

The evidence at trial showed that at the time of the crime the appellant and Timothy Charles Palmes were living in an apartment also occupied by Jane Albert and her seven-year-old daughter, Stephanie. Mrs. Albert was employed by James Stone at his furniture store. On the day of the crime, in accordance with a plan conceived by Jane Albert, Palmes, and the appellant, James Stone was lured to the apartment. When Stone left the store to go to the apartment, Albert telephoned Palmes and Straight to tell them that Stone was on his way.

When Stone arrived at the apartment, the seven-year-old Stephanie, on instructions from Palmes and Straight, admitted him and directed him to one of the bedrooms. There Palmes and Straight bound him with wire and placed him in a large box they had constructed in the apartment. They tormented him with hammer blows and stabbings for approximately half an hour before he died from the knife wounds. Then they sealed the box, removed it to a truck, and dumped it in the St. Johns River.

The next day appellant, Palmes, Albert, and Stephanie left Florida taking Stone's car, his credit cards, money from his wallet, and several days' cash receipts from the furniture store. They were arrested in California. Straight fled as police officers approached him and attempted to avoid arrest by firing at the officers.

Mrs. Albert was given immunity and testified at trial as a witness for the state.

Palmes and Straight were jointly indicted for murder in the first degree. Their trials were severed; Palmes was tried first and convicted. Among the items of evidence introduced against him was his confession. There was news media coverage of the fact that he made a confession and also of his later retraction and his repudiation of the confession at trial.

Appellant presents five points on appeal of his conviction. Among them is the argument that the court failed to adequately instruct the jury on the limited use they could make of appellant's prior convictions, which were brought out on his cross-examination, and that this failure was reversible error. He argues that after eliciting the fact of the six convictions on cross-examination of appellant, the prosecutor subsequently commented on them. Thus, he argues, the judge had a duty to instruct the jury that the evidence of prior convictions could only be used in evaluating the defendant's credibility and for no other purpose. We decline to discuss the merits of this argument because the defense attorney at trial did not object to the instruction on credibility or ask for a different or additional one. "An appellate court must confine itself to a review of only those questions which were before the trial court and upon which a ruling adverse to the appealing party was made." State v. Barber, 301 So.2d 7, 9 (Fla.1974). In order to secure appellate review of jury instructions, the defendant must make known to the court what charges he wants the court to give or not give and his grounds therefor. See Williams v. State, 285 So.2d 13 (Fla.1973); Fla.R.Crim.P. 3.390(d).

Appellant's remaining arguments are: (1) that the court should have granted a change of venue; (2) that the court should have excluded from the evidence certain photographs said to be gruesome and inflammatory; (3) that the court erred in admitting into evidence the depositions of two California police officers which established that appellant resisted arrest there with deadly force; and (4) that the court should have granted a mistrial when on cross-examination of the appellant the state's counsel asked a question, other than permitted impeachment, about unrelated criminal activity.

Appellant contends that the denial of his motion for change of venue deprived him of a fair trial because of widespread publicity. The record shows that the case received considerable media attention and that knowledge of the murder was widespread. Four-fifths of the prospective jurors, and eight of the twelve jurors who served on the jury, had some prior knowledge of the case. The crucial consideration, however, is not knowledge, but whether such knowledge rendered the jurors prejudiced.

A motion for change of venue is a matter addressed to the sound discretion of the trial court, and the trial court's decision will generally be upheld if there is no showing of a palpable abuse of discretion. Johnson v. State, 351 So.2d 10 (Fla.1977); McNealy v. State, 17 Fla. 198 (1879).

The motion for a change of venue based on widespread prejudicial publicity called for a determination by the trial court of

whether the general state of mind of the inhabitants of the community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.

Manning v. State, 378 So.2d 274, 276 (Fla.1979); Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979); Kelley v. State, 212 So.2d 27 (Fla. 2d DCA 1968).

Appellant argues that the news media coverage of his codefendant's confession brings this case within the rule of Oliver v. State, 250 So.2d 888, 890 (Fla.1971), in which this Court said that in general, "when a 'confession' is featured in news media coverage of a prosecution, ... a change of venue motion should be granted whenever requested...." It is not clear in the instant case, however, that the confession of Palmes implicated both himself and his co-defendant, as was the case in Oliver. Oliver dealt with a crime committed during a period of racial unrest. The victim was white and the defendants were black. The community in question was a relatively small one. Compare Dobbert v. State, 328 So.2d 433 (Fla.1976) aff'd, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) with Manning v. State, 378 So.2d 274 (Fla.1979). The circumstances here are different.

Furthermore, the general rule stated in Oliver has been restricted and refined. In Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978), the appellant argued that the rule of Oliver required a change of venue because of publicity surrounding his confession. The Court distinguished Oliver, and pointed out that Hoy's retraction of his confession was covered with equal prominence in the newspaper and that none of the jurors had actually read the articles in question. We hold that Oliver does not require reversal in the present case.

The trial judge here presided over a long and painstaking voir dire procedure. The record shows that prospective jurors exhibiting even a hint of prejudice were excused. The court granted the appellant extra peremptory challenges and defense counsel did not use them all. The court did not abuse its discretion in denying the motion for change of venue.

Appellant next argues that the court erred in admitting a number of photographs over the objection that they were not relevant to any material issues in the case. In support of this contention at trial, the appellant stated his willingness to stipulate to several factual matters which he argued were the only facts the photographs were relevant to prove. Among the photographs objected to were several depicting the victim's body which was recovered from the river after twenty days. The pictures showed the wounds inflicted on the deceased and were quite gruesome because of decomposition. The basic test of admissibility of photographs, however, is not necessity, but relevance. Bauldree v. State, 284 So.2d 196 (Fla.1973). Photographs can be relevant to a material issue either independently or by corroborating other evidence. State v. Wright, 265 So.2d 361 (Fla.1972).

Relevancy is to be determined in the normal manner, that is, without regard to any special characterization of the proffered evidence. Under this conception, the issues of "whether cumulative," or "whether photographed away from the scene," are routine issues basic to a determination of relevancy, and not issues arising from any "exceptional nature" of the proffered evidence.

Id. at 362.

In Young v. State, 234 So.2d 341 (Fla.1970), the Court had for consideration the contention that gruesome photographs denied the appellant a fair trial. Forty-five photographs in all were admitted, including twenty-five showing the partially decomposed body of the victim. The victim had drowned. The Court said:

The fact that the photographs are offensive to our senses and might tend to inflame the jury is insufficient by itself to constitute reversible error, but the admission of such photographs, particularly in large numbers must have some relevancy, either independently or as corroborative of other evidence.

Several of the photographs were unquestionably...