Carter v. State

332 So. 2d 120
District Court of Appeal of Florida·Decided June 10, 1976·No. 75-487·Published·Cited by 7 cases

Opinion

332 So.2d 120 (1976)

Calvin CARTER, Appellant,
v.
STATE of Florida, Appellee.

No. 75-487.

District Court of Appeal of Florida, Second District.

May 19, 1976.
Amended on Rehearing June 10, 1976.

*121 Lester W. Jennings, Okeechobee, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

The parties will be referred to as in the trial court. Defendant, Calvin Carter, timely appeals an adverse judgment and sentence rendered upon a jury verdict finding him guilty of rape. He was sentenced to serve 50 years in the state penitentiary. The facts adduced in evidence at the trial are as follows:

The victim and her husband lived in a trailer in Moore Haven, next to her inlaws. At approximately one o'clock in the morning of April 23, 1974, a telephone call was received by the victim's father-in-law, who operated a wrecker service business. The victim's husband listened to this conversation on an extension line. The caller advised that he had a tractor-trailer loaded with watermelons stuck on Highway 80 and gave directions on how to get there. There was also a brief discussion regarding cost. It was customary for two men to go out together on the night calls. Thereafter, the victim's husband went to join his father and the victim locked the trailer door and returned to bed. Both men left in the wrecker and proceeded to Highway 80 where they drove up and down the road looking for the alleged stranded vehicle, but were unable to find it. In the interim, while the men were looking for the truck, an assailant severed the victim's telephone lines, broke out a jalousie window on the trailer door, cut a small hole in the screen next to the lock and gained his entrance to *122 the trailer. The victim was asleep on her stomach. She was awakened by her assailant, who was armed with a knife. The sexual act was completed in such a manner that the victim was unable to see the assailant's face. She did subsequently identify him by voice identification. The defendant's voice was also identified by other witnesses who testified for the state.

We state that in view of the record, the victim was attacked and raped by force and against her will as she testified. It is submitted that there is ample evidence, both direct and circumstantial, to support the judgment of conviction; however, we do mention that the evidence was not overwhelming.

Nevertheless, what has caused us to deliberate and study this case for what may be regarded as an inordinate period of time is the acceptance and recognition of our responsibility and duty to determine, upon review of the complete record, whether the defendant received a fair and impartial trial by his peers. It has been said that the most despicable wretch that walks the face of the earth is entitled to a fair trial — a defendant charged with the reprehensible and heinous crime of rape is no exception. After tedious review of the voluminous record we conclude that the defendant was denied his right and opportunity of a fair and impartial trial as prescribed by the Constitutions of Florida and the United States.

We shall now proceed to discuss certain of the alleged errors raised by defendant on this appeal. Initially, we consider the point of whether the trial court erred, as defendant contends it did, in allowing Mr. Herndon to serve as a member of the jury. During the voir dire examination, the following colloquy took place between the court and Mr. Herndon:

THE COURT: Take Seat Number 5, Mr. Herndon. You know some of these people, Mr. Herndon. Which ones do you know the best?
MR. HERNDON: I know all the county officers. I know [the victim's husband and father-in-law] I know Brother Brown down there, the pastor of the Assembly of God in Clewiston, and I believe that is Mrs. Brown. Well, I know those names there.
THE COURT: And I think you are well acquainted with one of the officers of the court here too, aren't you?[1]
MR. HERNDON: Yes, sir.
THE COURT: The fact that you know these people, would it cloud your judgment to the point where you could not make a free and independent fair and impartial judgment here?
MR. HERNDON: Well, Judge, I have talked personally with some of the people who are directly interested in the case. I have heard their side of it. I have heard other street talk.
THE COURT: Do you feel then that you would have acquired a fixed opinion on this thing?
MR. HERNDON: Well, as far as circumstantial evidence, yes, sir, I think so.
THE COURT: You have?
MR. HERNDON: Yes, sir.

The court dismissed Mr. Herndon from the panel with the following remark:

THE COURT: I am going to accept Mr. Herndon as my strike, so that will give you another strike.

The state objected to the court excusing Mr. Herndon. The objection was merely noted, however, the ruling was not changed *123 and the court nevertheless permitted Mr. Herndon to be sworn in as a member of the jury and he later was even elected its foreman.

It is true that the record does not show that counsel for defendant challenged Mr. Herndon for cause. However, the record does disclose that the defendant had one peremptory challenge that was not exercised. We are aware of the case of Withers v. State, Fla. 1958, 104 So.2d 725, wherein it was held to be necessary for a defendant to exhaust his peremptory challenges before asserting as reversible error that the trial judge denied a challenge for cause; further, that challenges to be effective must be timely exercised. See Ex parte Sullivan, 1944, 155 Fla. 111, 19 So.2d 611. Notwithstanding, under the particular circumstances here, and in light of other errors hereinafter discussed, the seating of this juror deprived the defendant of the right to have his cause tried fairly before an impartial jury.

The court here quickly realized, after having heard Mr. Herndon state that he had formed an opinion as to circumstantial evidence, that he could not serve as a fair and impartial juror. The court's ruling was eminently correct. Mr. Herndon should have been excused. The state's argument that had the court stricken Mr. Herndon, as it indicated, it would, in effect, give defendant an additional peremptory challenge is untenable. The striking of Mr. Herndon was for cause and defendant has unlimited challenges in this regard. The seating of Mr. Herndon as a member of the jury constituted error. In the case of Farese v. United States, 5th Cir.1970), 428 F.2d 178, the court held:

The Sixth Amendment guarantees that the accused shall enjoy the right to a trial by an impartial jury and shall be confronted with the witnesses and evidence against him. Certainly the definition of impartiality is not a static concept, but can be defined only in relation to specific facts and circumstances. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). The most general interpretation of a fair trial is that it be conducted before unprejudiced jurors under the superintendence of a judge who instructs them as to the law and advises them as to the facts... .

[428 F.2d, page 179-180].

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