Paramore v. State

229 So. 2d 855
CourtSupreme Court of Florida
DecidedSeptember 10, 1969
Docket37178
StatusPublished
Cited by79 cases

This text of 229 So. 2d 855 (Paramore 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
Paramore v. State, 229 So. 2d 855 (Fla. 1969).

Opinion

229 So.2d 855 (1969)

Emmett James PARAMORE, Appellant,
v.
The STATE of Florida, Appellee.

No. 37178.

Supreme Court of Florida.

September 10, 1969.
Rehearing Denied October 10, 1969.

*857 Richard M. Gale, Miami, for appellant.

Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

ADKINS, Justice.

The appellant was convicted of murder in the first degree without recommendation for mercy and has appealed to this Court from the judgment of conviction as authorized by § 4(2), Art. V, Constitution of Florida, F.S.A.

The deceased Stephens, a bakery truck salesman, went into a market in the City of Miami to deliver some bakery goods. While Stephens was inside the market, the appellant and several other individuals entered the back of Stephens' truck, apparently for the purpose of stealing some of the bakery goods within the truck. When Stephens returned to the truck he found the boys and an altercation ensued within the truck. All of the individuals except the appellant escaped and fled the scene. The appellant drew his pistol and, as he aimed it, Stephens begged him not to shoot, saying "please, please." Appellant ignored the pleading of Stephens and shot him.

All of this occurred during business hours and in the presence of five eye-witnesses whose testimony, aside from the usual variations in eye-witness testimony, sustained the above statement of facts.

Appellant first complains because three jurors were excused for cause, contending that this was in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, wherein the United States Supreme Court held a sentence of death could not be carried out if the jury that imposed it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. The decisions of this Court have long been in accord with the holding in the Witherspoon case, supra. See Campbell v. State, Fla., 227 So.2d 873. Opinion Filed June 11, 1969.

Fla. Stat. § 932.20, F.S.A., provides that no person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be allowed to serve as a juror in the trial of any capital case. The statute does not disqualify a person merely because he may have "conscientious scruples against the infliction of capital punishment for murder." To be disqualified to serve as a juror in the trial of a capital case, the "opinions" of the person must be "such as to preclude him from finding any defendant guilty of an offense punishable with death." Savage v. State, 18 Fla. 909 (1882); Boyington v. State, 74 Fla. 258, 76 So. 774 (1917); Olive v. State, 34 Fla. 203, 15 So. 925 (1894); Piccott v. State, 116 So.2d 626 (Fla. 1960); Sims v. State, 184 So.2d 217 (Fla.App.2d Dist. 1966); Campbell v. State, supra. See also 14 F.L.P., Jury, § 156.

In the case sub judice, juror Turner on voir dire examination stated that he *858 had objections to capital punishment and would be unable to return a verdict that carried with it the death penalty. Juror Troy stated "it would be a little hard to bring the death penalty for anybody" and she would be unable to bring a verdict without a recommendation of mercy. Prospective alternate juror Owens said that he had objections to capital punishment and he was "afraid" he would have trouble with a verdict carrying with it the death penalty. The alternate juror who was subsequently selected did not participate in the deliberations.

When the whole examination on voir dire is considered and construed in the light of the above authorities, together with Pitts v. State, 185 So.2d 164 (Fla. 1966), we find nothing wrong with the actions of the trial court in dispensing with the services of these jurors.

There is a second reason for affirming this action of the trial judge. If defendant objects to a prospective juror being excused he should make his objection before the juror is excused. Ellis v. State, 25 Fla. 702, 6 So. 768 (1889). When these three prospective jurors expressed their convictions against the infliction of the death penalty, appellant's attorney made no effort to qualify them for service. Perhaps he did not want them for some other reason. It was not the duty of the trial court to take other steps toward attempting to qualify the veniremen, and the Witherspoon case, supra, should not be construed as imposing this additional duty upon the trial court in the absence of any expression of a desire by defense counsel to keep the prospective jurors. Pittman v. State, 434 S.W.2d 352 (Tex.Cr.App. 1968). See also State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968). The appellant is in no position to complain in the instant case because no objection was interposed, nor did defense counsel attempt to clarify the juror's attitude as it related to his or her ability to decide the issues impartially.

Furthermore, the State had more than enough remaining peremptory challenges available to have removed those prospective jurors had the trial judge declined to do so. See Campbell v. State, supra; State v. Mathis, 52 N.J. 238, 245 A.2d 20; People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968). Although this fact may be considered in sustaining the action of the trial judge, we should hesitate in conjecturing that the prosecutor would have used his peremptory challenges to excuse all such jurors. In Re Anderson, Cal., 73 Cal. Rptr. 21, 447 P.2d 117 (1968).

Appellant objects to the introduction of a video tape confession contending that it was obtained only after a false inducement by the police officer that it would be of benefit to the appellant. Actually, the officer explained that the tape would be used for court purposes and would be an exact statement of what appellant said, so there could be no mistake. This was the purported benefit. Appellant's main concern was that his mother would see the tape on television, but he was assured that it would be used only in court.

A confession of guilt freely and voluntarily made is not rendered inadmissible because it appears to be induced by deception practiced by the officers, Denmark v. State, 95 Fla. 757, 116 So. 757 (1928), or by the accused being told it would be easier on him if he told the truth, Ebert v. State, 140 So.2d 63 (Fla.App.2d Dist. 1962), or by an officer's statement that only by confessing could the defendant escape the death penalty. Milton v. Cochran, 147 So.2d 137 (Fla. 1962). In the case sub judice there was no misrepresentation and the appellant was adequately warned as to his constitutional rights. The voluntariness of the confession was a mixed question of fact and law which was decided first by the trial judge and then by the jury based on the evidence adduced. There was sufficient evidence to support the finding that the confession was freely and voluntarily made and this finding will not be disturbed. *859 Foreman v. State, 213 So.2d 754 (Fla.App. 1st Dist. 1968); Young v. State, 140 So.2d 97, 99 (Fla. 1962).

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229 So. 2d 855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paramore-v-state-fla-1969.