JAMES HAWTHORNE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Hawthorne appeals his conviction for first-degree murder and armed robbery, receiving consecutive life sentences. The Florida District Court of Appeal affirms the conviction, rejecting challenges to juror qualification, prosecutorial conduct, and the admissibility of business records evidence.
The trial court did not abuse its discretion in retaining juror Grant, as he demonstrated willingness to base his verdict solely on trial evidence despite initial irritation. Prosecutorial remarks, though somewhat intemperate, did not constitute reversible error when viewed in context. The trial court properly admitted business records testimony under Florida's hearsay exception for regularly conducted business activity, as the records were made at or near the time of the events and met statutory requirements.
[1] A trial court's ruling on a challenge for cause of a prospective juror will not be set aside unless error is manifest.
[2] A prospective juror's statement that they will do their best to overlook delays and serve fairly is sufficient to overcome concerns about irritation affecting their impar…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the true test to be applied should be not whether the juror will yield his opinion, bias or prejudice to the evidence, but should be that whether he is free of such opinion, prejudice or bias or, whether he is infected by opinion, bias or prejudice, he will, nevertheless, be able to put such completely out of his mind and base his verdict only upon evidence given at the trial.”
Establishes the controlling legal standard for determining juror bias and fitness to serve, requiring the juror to be able to disregard bias rather than be free from it.
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Join FLexlaw to unlock all legal intelligenceHawthorne was convicted of first-degree murder and armed robbery. He presented an alibi defense claiming he was in Kokoma, Indiana on April 7, 1978, w…
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McCORD, Judge.
This is an appeal from a judgment and sentence finding appellant guilty of first-degree murder and armed robbery and sentencing him to two consecutive life imprisonment terms. We affirm.
Appellant first contends that the trial judge abused his discretion when he denied appellant’s challenge of juror Tha-deus Grant for cause. The court ruled at the outset that the voir dire examination would be by individual examination of each prospective juror. Grant was the first jur-or called to the box, and after his examination, the attorneys announced their acceptance of him. He was then excused and was not called back to the jury box until approximately 10:00 the next morning, during which time other prospective jurors were examined until a complete jury had been selected. The court then inquired of the jurors as to whether any of them had become so irritated with the delays imposed during the voir dire examination that they could not render a fair verdict in the case. Mr. Grant expressed some irritation and attributed it to defense counsel although he had previously answered “no” to a question by the court as to whether or not he was upset by the delay and would hold this against the court or the parties. At a later point on a question by the court as to whether he was irritated enough that it might influence him in the case, he replied: “It’s hard to say, Judge.” After further questions and answers relative to the delay, however, Mr. Grant stated that if he was retained on the jury, “I will do my duty the best I can.” Thereafter, he was asked the following question:
Q Do you have any reason to believe in your mind that you would not be a fair juror?
A No. I have decided many times what will happen to people.
Then defense counsel asked the following question: “Mr. Grant, one last question. Will you do your best to overlook the delay and take the case?” To which Mr. Grant responded: “I said that.” Defense counsel then asked him to repeat his answer and he said: “I’ll do my best.”
The Supreme Court in Singer v. State, 109 So. 2d 7 (Fla.1959), stated the test in such cases as follows:
We think the true test to be applied should be not whether the juror will yield his opinion, bias or prejudice to the evidence, but should be that whether he is free of such opinion, prejudice or bias or, whether he is infected by opinion, bias or prejudice, he will, nevertheless, be able to put such completely out of his mind and base his verdict only upon evidence given at the trial.
Whether or not a prospective juror will be dismissed for cause is a mixed question of law and fact within the discretion of the trial judge, and his ruling will not be set aside unless error is manifest. Singer v. State, supra. Here, the trial court observed Mr. Grant and his demeanor during the course of the examination and evidently concluded that Grant would not let any irritation which he had developed toward defense counsel influence him in rendering his verdict. We find no abuse of discretion.
Appellant next contends that the prosecutor’s conduct during closing argument resulted in prejudice to him and constituted reversible error. The remarks made by the prosecutor relative to defense counsel appear to have been an overreaction to critical remarks made by the defense counsel in his opening argument. Looking at the record as a whole, we do not find that the remarks constitute reversible error. Appellant next contends that the trial court erred in allowing witness Ne-chetsky to testify from certain records. Appellant put on an alibi defense testifying that he was in Kokoma, Indiana, at the time of the robbery on April 7, 1978; that he had departed from Mobile, Alabama, early in the morning on April 4, 1978, on a Trailways bus to Indianapolis, Indiana, thereafter taking a local busline to Koko-ma. In rebuttal of appellant’s alibi, the State called as a witness Mr. Nechetsky, manager of the Mobile, Alabama, Trailways bus terminal, who had been employed by Trailways for approximately 27 years prior to the trial. Nechetsky testified that he kept a daily record of every ticket sold in the terminal showing the destination and ticket number; that this record was made in the regular course of business on the morning following the day the tickets were sold. He testified from these records that no Trailways bus ticket had been sold during the month of April to any person for passage from Mobile, Alabama, to Indianapolis, Indiana. Appellant’s counsel objected to Nechetsky’s testimony from the report and requested that the original tickets, carbons of those tickets or stubs of those tickets be produced so that he could check the accuracy of the reports. He also objected to Nechetsky’s testimony on the ground that the record was not made at or near the time of the act, condition or event.
Nechetsky testified that the audit stubs (ticket stubs) from which his record is made are destroyed after a period of time and that he did not know whether or not the ones covering the period in question were then in existence; that if a salesman that issued a ticket threw away the ticket carbon and the audit stub, he would find it to be missing in his audit of tickets for that day from the ticket sequence numbers. The trial court ruled that the testimony was admissible, under the Florida rules of evidence. The pertinent portion of the Florida Evidence Code, § 90.803, Florida Statutes (1979), states as follows:
Hearsay exceptions; availability of de-clara nt immaterial. — The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(1) * * *
(2) * * *
(3) * * *
(4) * * *
(5) * * *
(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.—
(a) A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
**
We find the trial court did not err in its ruling. The record fits the above statute. Contrary to appellant’s objection, witness Netchetsky’s testimony shows that the record was made at or near of the time of the act, condition, or event.
We have considered appellant’s remaining point and find it to be without merit.
MILLS, C. J., and THOMPSON, J., concur.
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State v. Williams, 465 So. 2d 1229 (Fla. 1985)…or and has the unique ability to make an assessment of the individual’s candor and the probable certainty of his answers to critical questions presented to him. This is why a trial court has broad discretion regarding juror bias, Hawthorne v. State, 399 So. 2d 1088 (Fla. 1st DCA 1981), and his or her finding will not be disturbed “unless error is manifest.” Singer v. State, 109 So. 2d 7, 22 (Fla.1959). We have reviewed the transcript of record and we conclude that no error was present on the part of the trial…
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Irby v. State, 436 So. 2d 1047 (Fla. 1st DCA 1983)…ired because a juror is placed in a potentially compromising situation (see Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)), and a trial court has broad discretion regarding determinations of juror bias. See Hawthorne v. State, 399 So. 2d 1088 (Fla. 1st DCA 1981). We conclude, however, that the circumstances of the present case raise both an appearance and a substantial probability of inherent juror bias, in a trial for an alleged offense against a person in the course of employment invol…
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Plair v. State, 453 So. 2d 917 (Fla. 1st DCA 1984)…nse counsel challenged Grantham for cause. The trial court denied the challenge and Grantham sat as a member of the jury. We recognize appellant has the burden of showing manifest error in the denial of a challenge for cause. Hawthorne v. State, 399 So. 2d 1088 (Fla. 1st DCA 1981). That burden, however, may be overcome in a proper case. See Singer v. State, 109 So. 2d 7 (Fla.1959); Leon v. State, 396 So. 2d 203 (Fla. 3d DCA 1981). Despite other statements made by Grant-ham on voir dire to the effect t…
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- Singer v. State, 109 So. 2d 7 (Fla. 1959)