Wilson v. State, 36677
| Decision Date | 09 July 1969 |
| Docket Number | No. 36677,36677 |
| Citation | 225 So.2d 321 |
| Parties | Willie Pinkney WILSON and Fulton Lewis Terrell Wilson, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Johnson & Marshall, Jacksonville, for appellant.
Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
The appellants, Willie Pinkney Wilson and Fulton Lewis Terrell Wilson, were defendants in the trial court in which they were charged in an indictment with murder in the first degree of one Henry Ashton Bragg. The indictment was returned by the grand jury of Marion County, but pursuant to motion by the defendants a change of venue was granted and the trial was conducted in the Circuit Court of Alachua County. The defendants each pleaded not guilty and were accorded a jury trial resulting in convictions of murder in the first degree without recommendation of mercy. Motions for a new trial were denied and the sentence of death was imposed on each defendant. From the judgments and sentences the defendants have perfected their appeal direct to this Court pursuant to Sec. 4(2), Art. V, Fla.Const., F.S.A., which, among other things, provides: '* * * (a)ppeals from trial courts may be taken directly to the supreme court, as a matter of right, * * * from judgments imposing the death penalty * * *'.
We have considered not only the matters which have been urged in the briefs and argument of counsel but also have carefully examined the record to 'review the evidence to determine if the interests of justice require a new trial' as required by Sec. 924.32(2), Fla.Stat., F.S.A., and also to ascertain if any other fundamental error occurred which would require a reversal or modification.
We have concluded that the judgments and sentences are free from reversible error and affirm the trial court.
The appellants have raised five points which they contend render the judgments defective. In substance they are as follows:
1. Sec. 919.23, Fla.Stat., F.S.A., violates Sec. 4, Decl.Rights, Fla.Const., 1885, F.S.A., in that by delegating to the jury in a capital case the power to fix the penalty as death or life imprisonment the defendants in such cases are denied 'due course of law' as the established role of the jury is solely to determine facts and it is the trial judge's function and prerogative to fix punishment. Nelson v. McMillan, 151 Fla. 847, 10 So.2d 565 is cited in support of this contention;
2. Sec. 919.23, Fla.Stat., F.S.A., is also void as violating the due process clause of the Fourteenth Amendment to the federal constitution because it fails to set up any standards to guide jurors in determining whether or not to recommend mercy in a capital case which controls the punishment as death or life imprisonment.
3. Defendants were denied the right of counsel and other rights in violation of federal constitutional due process when they were taken to a hospital and given blood tests to determine their blood types without being afforded the right of counsel at that time, and in the admission of the results of such tests at the trial;
4. The death penalty is 'cruel and unusual punishment' in violation of the Eighth Amendment as made applicable to the states by the Fourteenth Amendment to the federal constitution.
5. The exclusion of certain veniremen who expressed opposition to the death penalty violated constitutional due process within the rulings of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 776 (1968).
It is significant that no attack is made on the findings by the jury of the guilt of the defendants of the crime of murder in the first degree. It is only the death penalty that is assaulted. The evidence, though entirely circumstantial, is abundantly substantial and convincing that the defendants, acting in concert and in the perpetration of a robbery, bludgeoned to death a filling station attendant, a man in his fifties, in the early hours of March 13, 1967. The record reveals that competent, aggressive and capable counsel was provided the defendants, that the trial was conducted in an orderly manner with great care exercised to comply with the rules of evidence and procedure, that the instructions to the jury were appropriate and complete, and that every reasonable safeguard to due process and fair trial was exercised.
Turning to the above points raised by the defendants they will be discussed in the order above mentioned.
(1)
The attack on Sec. 919.23, Fla.Stat., F.S.A., as violative of the requirement of 'due course of law' required by Sec. 4 of the declaration of rights of the Florida Constitution, prior to the 1968 amendments, is based upon the language used in Nelson v. McMillan, supra, wherein it is stated:
(Emphasis by court).
In that case the court had for consideration the 'guest statute', Sec. 320.59, Fla.Stat., F.S.A., which limits the liability of the owner or operator of a motor vehicle for injuries incurred by a guest passenger in the vehicle to damage caused by gross negligence or wilful and wanton misconduct in the operation of the vehicle. The statute provides that 'the question or issue of negligence, gross negligence, and willful or wanton misconduct, and the question of proximate cause, and the issue or question of assumed risk, shall in all such cases be solely for the jury'.
The court held that the statute would have to be construed to avoid conflict with the provision of Article II of the state constitution which forbids the legislative department from the 'exercise (of) any powers appertaining to' the judicial department. It was observed that the statute could not interfere with the exercise by the courts of the judicial functions of determining the validity of and in exercising review of the verdict of a jury.
The appellants thus contend that under said Sec. 919.23 considered in connection with Sec. 782.04, Fla.Stat., F.S.A., there is an invalid delegation to the jury of the power to award punishment which is a prerogative of the court. The Nelson v. McMillan case merely holds that the legislature may not invade the powers of the judicial department to prevent the trial court and the proper appellate court from reviewing the validity of the verdict in pursuit of their duty to assure that right and justice is administered by due course of law.
It is within the prerogative of the legislature to define crimes and to prescribe the punishments which may be awarded. See Chapman v. Lake,112 Fla. 746, 151 So. 399. Ordinarily the punishments authorized are within specified limits and discretion is accorded the trial judge to impose such authorized punishment as he deems appropriate. However, the range of penalties and the alternatives are subject to legislative prescription and may be narrow or broad, or be limited to many or few dispositions or even to just one.
Murder in the first degree is defined in Sec. 782.04, Fla.Stat., F.S.A., and the punishment prescribed for it there is death. 1 It is only in Sec. 919.23(2), Fla.Stat., F.S.A., that there is provision for a less harsh exaction for this particular crime. There it is provided that life imprisonment is the sole punishment if a majority of the jury convicting a person of a capital offense shall recommend mercy. Thus, a majority of the jury is given the power to mitigate the awful prescribed consequences of guilt of such a crime to another fixed punishment of great severity but which spares the life of the prisoner. This is not a deviation from the normal role of the jury to determine facts. First a determination must be made of the existence of facts which render the accused guilty of the crime charged. That having been done there is the consideration of the existence of facts which would warrant relieving the accused person of the supreme penalty for his crime, which Sec. 782.04 prescribes, and imposing the more merciful alternative afforded by Sec. 919.23(2). We find there is no conflict in the statute and in Sec. 4, Decl.Rights, Fla.Const., 1885.
(2)
The assault on Sec. 919.23(2), Fla.Stat., F.S.A., as failing to set up standards and guides to be followed by jurors in their consideration of the of recommending mercy is also devoid of merit. Whatever criticism may be made of the absence of such standards, such would not embrace matters prejudicial to the defendant on trial, as each juror is free to vote for mercy for any reason at all. Without this statute there would be only the death penalty prescribed unconditionally in Sec. 782.04, Fla.Stat., F.S.A.
It is also contended that Sec. 919.23, Fla.Stat., F.S.A., is contradictory because in subsection (1) it permits recommendation of mercy by a jury in all cases of conviction but also provides that '(i)n all cases the court shall award the sentence and shall fix the punishment or penalty prescribed by law', and in subsection (2) it is provided that when there is such a recommendation in a capital case the punishment shall be imprisonment for life. These provisions are not contradictory. The court cannot in any case award the sentence and fix the punishment except as 'prescribed by law', and in murder in the first degree the punishment prescribed by law is fixed depending only on whether or not a majority of the jury recommends mercy. There is no contradiction in the two subsections.
(3)
The contention of defendants of deprival of constitutional rights in the taking of blood samples from them and in introducing into evidence the results of tests...
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