Brumbley v. State

453 So. 2d 381
CourtSupreme Court of Florida
DecidedJune 14, 1984
Docket56006
StatusPublished
Cited by24 cases

This text of 453 So. 2d 381 (Brumbley v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brumbley v. State, 453 So. 2d 381 (Fla. 1984).

Opinion

453 So.2d 381 (1984)

Fred Lyman BRUMBLEY, Appellant,
v.
STATE of Florida, Appellee.

No. 56006.

Supreme Court of Florida.

June 14, 1984.
Rehearing Denied August 22, 1984.

*382 Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

*383 Jim Smith, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for appellee.

BOYD, Justice.

Fred Lyman Brumbley brings this appeal from the judgment of the Circuit Court, Third Judicial Circuit, in Taylor County, adjudicating him guilty of first-degree murder and sentencing him to death. This Court has jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and remand for reconsideration of sentence.

The murder victim was Robert Clifton Rogers, who left his home in Thomasville, Georgia on the morning of July 20, 1976, and went to work in Tallahassee, Florida. He left his place of employment that afternoon but did not return to his home that day, nor did he ever return home or to his place of employment. In February, 1977, the skeletal remains of the deceased were discovered near a wayside park on U.S. Highway 98 in Taylor County, Florida, several miles west of Perry. The body was identified by testimony matching the dentures recovered at the scene with a chipped piece of denture supplied by the wife of the deceased. A fracture in a bone among the skeletal remains corresponded to a fracture revealed by the medical history of the deceased. A ring found among the skeletal remains was identified at trial by a friend who had given the ring to the deceased.

The state presented the testimony of Russell Lamar Smith. Smith testified that on the afternoon of July 20, 1976, he and appellant were hitchhiking in the Tallahassee area and were offered a ride by Rogers. Rogers was driving a 1969 Chevrolet Caprice, blue with a white top. According to Smith's testimony, appellant got in the front seat and Smith got in the rear. Appellant displayed a pistol to Rogers and from that point on, appellant and Smith told Rogers where they wanted him to go.

Soon after the initial abduction, Smith took over operating the car while Rogers and appellant sat in the rear seat. Smith drove to an area south of Tallahassee where they went down a country lane and got out of the car. At this point Smith left Rogers and appellant, who was still holding the pistol, and took Rogers' car to Woodville to purchase beer and gasoline. Smith then returned for the other two men, and they began driving again. Smith testified that as he drove he was trying to "think things out" pertaining to the situation that he, appellant, and their captive were in.

Eventually Smith drove the car down another dirt road to a clearing where the three men got out of the car to drink beer and "talk things over." Smith and appellant told Rogers to go and sit down a short distance away from them so that they could discuss the problem of what to do with him. Then, with appellant still holding the gun, they robbed Rogers of his wallet, money, watch, ring, and belt.

The three men then got back in the car and traveled east on highway 98 toward Perry. They stopped at a roadside park west of Perry, the same one where the skeletal remains of the deceased were later found. Smith testified that Rogers at this point wanted to go to the bathroom but was too nervous to do so. The three men then climbed over a fence at the back of the wayside park and walked into the woods where again they sat down and talked. At trial Smith testified that at this point he took the gun and asked appellant to take the car and get more beer. When appellant returned, Smith got in the car and said, "Let's go." Rogers at this time was still beyond the fence, in the woods. When appellant asked Smith where Rogers was, Smith told him that Rogers had run away into the woods. Then, Smith testified, he and appellant departed the area in Rogers' car. At this point in Smith's testimony, the prosecuting attorney asked to address the court out of the hearing of the jury.

Smith was testifying as the state expected him to up until the point when he said that appellant had left the wayside park for the purpose of getting more beer. Based upon Smith's pre-trial statements to law enforcement officers and prosecuting attorneys *384 and in a defense deposition, the state expected him to testify that appellant shot Rogers behind the roadside park. So, the state asked that Smith be called as a witness by the court, arguing that because of the surprise change of testimony, the state no longer wanted to vouch for Smith's credibility and wanted to be able to lead, cross-examine and impeach him. The court granted the request.

After being assured of use immunity by the state's counsel, Smith testified as the court's witness, saying that during appellant's absence he, Smith, shot Rogers. Smith said that when appellant returned, Smith got in the car and they left, and that he told appellant that Rogers had escaped. Thus, according to Smith's direct testimony appellant knew nothing about the murder. The state, over the defendant's objection, then proceeded to impeach Smith by confronting him with his pre-trial statements to the effect that appellant had shot Rogers and asking him whether he remembered making the prior statements. In each instance Smith acknowledged that he had made the statements.

Appellant argues that it was improper to call Smith as the court's witness and that it was improper to allow the state to impeach him by quoting from his pre-trial statements. Appellant also argues that without the improper use of the prior inconsistent statements as substantive evidence, there was insufficient evidence to support the verdict of guilt of murder in the first degree and that his motions for judgment of acquittal should therefore have been granted.

In addition to the evidence already mentioned, there was also testimony that during the period of July 23 to July 27, 1976, appellant and Smith were seen in possession of a 1969 blue and white Chevrolet automobile which the jury could have concluded was the one belonging to Rogers. The search of a motel room in Gainesville, Florida on July 27, 1976, at which time appellant and Smith were occupying the room, produced a .38 caliber revolver. A bullet found in the sand directly beneath the skeletal remains of the deceased, it was proved, could have been fired from the gun found in the motel room.

It is within the discretion of the court to call a witness as a court's witness on motion of a party on the ground that the witness has become uncooperative, McCloud v. State, 335 So.2d 257 (Fla. 1976), or because the moving party does not wish to vouch for the credibility of the witness, Enmund v. State, 399 So.2d 1362 (Fla. 1981), reversed on other grounds, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), or because the party previously calling the witness has been surprised at trial by the testimony given, Lowe v. State, 130 Fla. 835, 178 So. 872 (1937). Appellant argues, however, that what transpired at trial was improper and unfair. Appellant relies upon cases holding that it is improper to allow impeachment by prior inconsistent statements to be presented to the jury as substantive evidence. We conclude that what these authorities say is that a witness may not be impeached by prior inconsistent statements merely because the witness failed to provide the testimony the party calling him desired or expected.

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453 So. 2d 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brumbley-v-state-fla-1984.