ELMER FUTCH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Futch was convicted of third-degree murder (a lesser charge than second-degree murder) after a bar room homicide. He appealed arguing he was denied a fair trial because his cross-examination of a hospital-bound witness was unduly restricted, but the appellate court found the record showed full and complete cross-examination and affirmed the conviction.
The defendant was not denied a fair trial or due process. The record demonstrates the cross-examination was full and complete, with no objection or limitation imposed by the trial court, and no motion was made by counsel despite an invitation from the judge to raise any prejudicial concerns.
“The record fails to support, and in fact refutes that contention. The direct testimony of the witness comprises four pages in the record. The cross-examination consumes eleven pages.”
Establishes that the defendant had substantial cross-examination opportunity, undermining his claim of undue restriction.
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Join FLexlaw to unlock all legal intelligenceA homicide occurred in a bar room. By trial, two of the state's material witnesses were unavailable and a third was hospitalized. The trial judge, jur…
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This is an appeal by the defendant below from a conviction of third degree murder, as a lesser degree of the offense of second degree murder with which he was charged by information.
The homicide had occurred in a bar room. By the time of the trial two of the state’s material witnesses had become unavailable. A third material witness was in a hospital, too ill to attend the trial in the courthouse. The judge, jury, defendant and counsel proceeded to the hospital, and that witness’s testimony was taken there.
The appellant does not claim error resulted because the testimony of the witness was taken in the hospital, but contends he was denied a fair trial and due process in that under the circumstances he was unduly curtailed and restricted in cross-examination of the witness.
*757The record fails to support, and in fact refutes that contention. The direct testimony of the witness comprises four pages in the record. The cross-examination consumes eleven pages. No objection was made at the trial by counsel for defendant as to being restricted in length or scope of cross-examination, and the record does not reveal that counsel was so restricted.
As reported, the cross-examination appears to have been full and complete, and it shows no request by counsel for the defendant to proceed further. For example, in concluding the cross-examination, defendant’s counsel stated: “All right. Fine. Thank you very kindly, Mr. Hughes.” Whereupon the trial judge asked, “Anything further?” to which there was no response. Additionally, prior to the examination of the witness in the hospital the trial judge had informed counsel, “If it appears that there is any prejudice that attaches to it I will entertain the appropriate motion at that time.” No motion was made by counsel based on that invitation, and after return to the courthouse the trial was resumed without objection.
No reversible error having been made to appear, the judgment is affirmed.
(concurring).
I concur fully in the decision reached. I think that it should be more forcefully pointed out that the appellant argued only that the removal of the trial from the court room to the hospital room infringed his right to cross examine the witness. He thereby waived any other points regarding the removal by failing to argue them. But if the record had shown that prejudicial error had resulted from such informality of procedure, it would in my opinion have been fundamental error. In support of this view see § 918.05, Fla.Stat., F.S.A.; Garcia v. State, 34 Fla. 311, 16 So. 223 (1894); State v. Burford, 136 W.Va. 472, 67 S.E.2d 855, 862 (1951); cases cited in Annot., 48 A.L.R. 1516, 1529 (1926); cases cited in Annot., 18 A.L.R.3d 572, 585 (1968); 53 Am.Jur., Trial, § 449.
PEARSON, Judge
(concurring).
I concur fully in the decision reached. I think that it should be more forcefully pointed out that the appellant argued only that the removal of the trial from the court room to the hospital room infringed his right to cross examine the witness. He thereby waived any other points regarding the removal by failing to argue them. But if the record had shown that prejudicial error had resulted from such informality of procedure, it would in my opinion have been fundamental error. In support of this view see § 918.05, Fla.Stat., F.S.A.; Garcia v. State, 34 Fla. 311, 16 So. 223 (1894); State v. Burford, 136 W.Va. 472, 67 S.E. 2d 855, 862 (1951); cases cited in Annot., 48 A.L.R. 1516, 1529 (1926); cases cited in Annot., 18 A.L.R.3d 572, 585 (1968); 53 Am.Jur., Trial, § 449.