Thomas v. State
| Decision Date | 16 July 1981 |
| Docket Number | No. 51927,51927 |
| Citation | 403 So.2d 371 |
| Parties | Daniel Morris THOMAS, Appellant, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Larry Mark Polsky, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.
Appellant, Daniel Morris Thomas, was convicted of seven felony charges based upon a single, although somewhat extended, criminal episode. One of the convictions is for murder in the first degree, for which crime the trial court sentenced appellant to death. This Court has jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Const.
Appellant presents six points on appeal. We find that two of these points the limitation on the number of peremptory challenges and the trial court's refusal to excuse for cause a juror who admittedly could The evidence, in brief, showed that appellant and another man broke into a house near DeLand while the occupants were out. Upon the return of the family, the two men shot and killed the husband, kidnapped and raped the wife, finally binding her wrists and ankles and throwing her into the St. Johns River from a bridge. Fortunately, the wife, although seriously injured, survived and testified at the highly publicized trial.
not follow the statutory capital sentencing requirements require reversal of the convictions and a new trial.
At a pretrial conference on May 18, 1977, the record indicates that defense counsel and the state stipulated to a total of sixty-six peremptory challenges for each side, which was a figure suggested by the state as the required number under the rules of criminal procedure. As a result of this stipulation, the appellant agreed not to move for severance of the consolidated offenses. The total number of peremptory challenges agreed to represented ten challenges for the capital felony and for each life felony and six for a second-degree felony. This number is not legally required by Florida Rule of Criminal Procedure 3.350, which provides that if the indictment contains two or more counts, the defendant is allowed the number of challenges permissible in a single case "but in the interest of justice the judge may use his judicial discretion ... to grant additional challenges ...." See Johnson v. State, 222 So.2d 191 (Fla.1969). However, the stipulation was accepted by the then-presiding judge. The transcript of the pretrial conference shows the following exchange:
MR. POLSKY (defense attorney): Very good, Your Honor.
Next, Your Honor, we'd bring up the matter of peremptory challenges for this trial.
I believe, Your Honor, that this cause would require, and the notoriety of this case, which Mr. Bevis himself characterizes as perhaps the most notorious case in Volusia County history, and the pre-trial publicity, the magnitude of the pre-trial publicity, would require a greater than statutorily warranted amount of peremptory challenges in this case, Your Honor, and I would ask on behalf of the defendant, Daniel Thomas, that the defense be allowed 50 peremptory challenges.
Transcript of Proceedings, Record on Appeal, vol. III, at 8-10 (emphasis ours).
At trial a different judge presided instead of the judge who had presided at the pre-trial conference. When the jury venire had been sworn and the selection of the jury was about to begin, the following exchange took place:
In any event, due to the extensive pretrial publicity of this cause I believe sixteen is a highly unfair number of peremptory challenges for me to have and especially since venue change has been denied by Judge Durden.
Transcript of Proceedings, Record on Appeal, vol. V, at 12-13.
Sixteen peremptory challenges would have been proper if the state had not concluded that sixty-six was the correct number and stipulated to that number; the record indicates the appellant would have been satisfied with fifty. Moreover, the record is also clear that appellant stipulated to the consolidation of cases in return for the stipulated sixty-six challenges. It is irrelevant whether appellant would have succeeded in any attempt to oppose consolidation of cases. Under these circumstances, where the state induces a waiver of appellant's right to oppose consolidation by agreeing to a specific number of additional peremptory challenges, the subsequent reduction of the number of challenges on this record was reversible error and clearly prejudicial.
The record establishes without question that the limitation of sixteen peremptory challenges actually prejudiced appellant, since he was unable to peremptorily challenge venireman Lionel Roberts, who was seated on the jury and became its foreman. Appellant moved four times to excuse Roberts for cause, and while three of the attempts stem from exchanges that merely show Roberts as a likely target for a peremptory challenge, the following exchange reveals error in not excusing for cause:
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