Whitney v. State, 40091

• Citation: 132 So.2d 599
• Decision Date: 06 September 1961
• Docket Number: No. 40091,40091
• Parties: Dennis Manford WHITNEY, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 599

132 So.2d 599

Dennis Manford WHITNEY, Appellant, v. STATE of Florida, Appellee.

No. 40091.

Supreme Court of Florida.

Sept. 6, 1961.

Mitchell M. Goldman and Edward P. Swan, Miami, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

THORNAL, Justice.

Appellant Whitney, seeks reversal of a judgment of conviction and sentence to death based upon a jury verdict finding him guilty of murder in the first degree, without a mercy recommendation.

Numerous alleged procedural errors are assigned to support reversal.

The principal facts establishing the unlawful homicide are revealed by a stipulation entered into between the State and signed by the accused with approving endorsements of his two court-appointed attorneys and his two married sisters.

On February 29, 1960, Dennis Whitney, then seventeen years of age, while in the act of robbing a filling station killed one Keeler. Whitney entered the station armed with a .22 caliber pistol. He first shot Keeler, the attendant, through the face. The man fell but the wound was not fatal. He then methodically fired a second slug into the back of the head of the fallen man. Whitney then robbed the cash register of some $120. When apprehended on March 5, 1960, Whitney freely confessed. All of the foregoing is revealed by the stipulation mentioned at the outset. The record shows that the father of the boy was notified of his predicament and the date of trial, as required by Section 932.38, Florida Statutes, F.S.A. So far as this record reveals the father, who apparently resides in California, has demonstrated no interest in his son's difficulties. The boy's mother is dead. The two sisters, however, did appear and, as stated above, approved the stipulation. The principal defense was based upon insanity. After hearing the testimony of two court-appointed psychiatrists the trial judge ruled the appellant to be sane and legally capable of standing trial. The evidence which was submitted to a jury, consisted of the stipulation, the testimony of a police officer who identified pictures of the scene of the crime, a playback of the recorded confession and the brief testimony of the defendant himself. He described his early family life which he assigned as the springboard of his criminal career. The jury found him guilty, with no recommendation of mercy. The trial judge prescribed the supreme penalty. We are now requested to reverse the judgment of conviction.

There is no doubt whatever about homicide, and the criminal agency which produced it. This appeal presents to us primarily, questions regarding the correctness of the conclusion of the trial judge in evaluating the testimony of the psychiatrists and various alleged procedural errors which it is contended resulted in a denial of due process. We will dispose of each of them.

Appellant contends that the trial judge should have sustained his motion to quash the indictment because he was not accorded an opportuntiy to challenge the grand jury, a privilege which he asserts was his under Section 905.05, Florida Statutes, F.S.A. That section simply provides that after the grand jurors have been impanelled and sworn no objections to the grand jury shall be raised by plea or otherwise. The swearing of the grand jury, according to the statute, shall be conclusive evidence of competency as to defendants who knew, or had reasonable ground to believe, that a case in which they were involved would be investigated by the grand jury at the time it was impanelled and sworn.

Actually, the motion to quash does not allege any deprivation of a right to challenge the grand jury prior to or at the time it was 'impanelled.' The motion asserts that 'at the time said indictment was rendered and prior thereto at the time when the grand jury was considering the evidence in this case' the defendant Whitney was in jail and was not permitted to challenge the panel. Aside from this technical deficiency the motion to quash was properly denied for the simple reason that the defendant failed to show that he had requested the right to be present when the grand jurors were impanelled and that his request had been denied. 24 Am.Jur., Grand Jury, page 855, Section 31; State v. Warner, 165 Mo. 399, 65 S.W. 584; People v. Romero, 18 Cal. 89, 90; State v. Bobbst, 269 Mo. 214, 190 S.W. 257.

Furthermore, the motion failed to allege that there were any grounds whatsoever to challenge the grand jury or any member thereof. This Court has held that if there are grounds for challenge, and the accused has not been accorded the opportunity to do so, then he may do so by proper pleading after the indictment is filed, notwithstanding Section 905.05, supra. State v. Lewis, 152 Fla. 178, 11 So.2d 337.

Appellant next contends that the trial judge was not supported in his conclusion regarding the sanity of the accused of alleged conflicts between the testimony of the two court-appointed psychiatrists. It is true that one of the doctors stated that his examination of Whitney suggested certain features of a psychotic or a schizophrenic. However, they were both of the conviction that the accused well understood the nature of his act, that he had no difficulty whatever distinguishing between right and wrong and that he was fully able to cooperate with his attorney in the conduct of the trial. We deem it unnecessary to become involved in any of the present-day discussions regarding the...