BILLY RAY OLIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Ray Oliver was convicted of first-degree murder for setting fire to a building and killing Travis Earl Crow III. The Florida District Court of Appeal affirmed his conviction, rejecting challenges to the change of venue denial, jury selection procedures, admission of confessions, and impeachment of a witness.
The court affirmed the conviction on all grounds: (1) change of venue was properly denied because jurors may have preconceived notions if they can set them aside and base verdicts on trial evidence; (2) Oliver failed to demonstrate systematic exclusion of his race from juries; (3) corpus delicti was adequately proved and confessions were voluntarily made after Miranda warnings; and (4) while the impeachment procedure was erroneous as a matter of law, it constituted harmless error given the overwhelming evidence of guilt.
[1] Extensive pretrial publicity does not automatically require a change of venue if the jury selection process can ensure impartiality.
[2] A juror's impartiality is presumed unless they cannot lay aside any preconceived notions and render a verdict based solely on the evidence presented in court.
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Join FLexlaw to unlock all legal intelligence“It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”
Establishes the standard for determining impartiality of jurors despite pretrial publicity; jurors need not be ignorant of facts but must be able to set aside preconceptions.
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Join FLexlaw to unlock all legal intelligenceOliver was charged with first-degree murder by arson. The case received extensive newspaper coverage before and during trial. The state introduced Oli…
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Appellant seeks review of a judgment of conviction and sentence based upon a jury verdict finding him guilty of murder in the first degree by effecting the death of one Travis Earl Crow, III, by willfully and maliciously setting fire to and burning the building then and there occupied by the victim.
By the first of his ten points on appeal appellant challenges the correctness of the trial court’s order denying his motion for a change of venue. In support of his position appellant invites attention to the extensive newspaper coverage the case received both before and during the trial. He contends that all such news stories were prejudicially adverse to him, as a result of which public opinion was so molded against *639him that he was denied the opportunity of a fair trial. It is precisely because of the possibility of prejudice resulting from pretrial publicity that extensive voir dire examination of prospective jurors is permitted and challenges granted to the end that those harboring preconceived fixed opinions concerning a defendant’s guilt or innocence may be rejected from the trial jury and not permitted to serve.
Appellant’s argument is predicated upon the theoretical assumption that every prospective juror summoned for duty in the case had become inexorably prejudiced by pretrial publicity appearing in the local newspaper despite sworn statements to the contrary made by such jurors on voir dire examination. The target of appellant’s position appears to be more of a condemnation of the constitutional guarantees of trial by jury and freedom of the press than an abuse of discretion by the trial court in denying his motion for a change of venue. There is no evidence in the record which impels the conclusion that the minds of prospective jurors to be summoned in the case would necessarily have been so influenced by pretrial publicity or the general atmosphere prevailing in the community as to render a fair trial impossible or impropable. The process of selecting the jury was concluded in a reasonably short period of time in view of the gravity of the offense with which appellant was charged. No complaint has been made that the number of peremptory challenges allowed appellant was insufficient to enable him to excuse from the venire all prospective jurors thought by him to be biased or prejudiced against him.
In the case of Singer v. State1 the Supreme Court of Florida said:
“In this case, as in most of those cited above, one of the grounds of the motion for change in venue was that newspaper publicity had inflamed the minds of the public against the accused. As pointed out in those and other cases such publicity has been held to not necessarily require a change of venue, since, in this day of extended distribution of news, a sensational crime incurs great publicity not only in the county in which it occurred but throughout most, if not all, of the State. In such cases it would be difficult to find a county in which the residents thereof had not heard or read of the crime and formed opinions thereon. See Shockley v. United States, 9 Cir., 1948, 166 F.2d 704, 709, certiorari denied 334 U.S. 850, 68 S.Ct. 1502, 92 L.Ed. 1773.”
Even though the factual and noninflammatory media coverage of the pretrial proceedings which occurred in the case sub judice may have created incriminatory impressions in the minds of some readers who would later be called to serve on the jury, this possibility would not per se have required that the venue of the trial be'changed to another location. In commenting upon just such a not infrequent development, the Supreme Court of the United States in the case of Irvin v. Dowd2 said:
“It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in *640court. Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 21, 22, 31 L.Ed. 80; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138; Reynolds v. United States [98 U.S. 145, 25 L.Ed. 244] supra.”
Appellant having failed to demonstrate an abuse of discretion in the trial court’s denial of his motion for change of venue, his contention in this regard must be rejected.
Appellant next contends that his state and federal constitutional rights were violated by the manner in which the grand and petit juries were selected. Appellant has failed to demonstrate from the record before us that members of his race were systematically excluded from serving on either the grand or petit jury, and the propositions of law urged by him have been decided contrary to his position by the Supreme Court of the United States in the case of Swain v. Alabama.3
Appellant places great emphasis on the contention that the trial court erred in denying his motion to suppress certain admissions and confessions made by him prior to trial, and in permitting such admissions and confessions to be received in evidence over his objection. He argues that initially the confessions were not admissible because there had been no prior proof of the corpus delicti. There is competent evidence in the record from which the jury could have reasonably concluded that the corpus delicti had been adequately proved by the State in accordance with the standards prescribed by our Supreme Court in the case of Schneble v. State.4
Secondarily, appellant earnestly asserts that the totality of the circumstances surrounding the making of the admissions and confessions by him affirmatively establishes that they were not understandingly and voluntarily made after having been fully advised of his constitutional rights against self-incrimination.5 Although con-cededly there is evidence in the record to support appellant’s position on this point, there is likewise competent and substantial evidence to the contrary. The trial court heard testimony and other evidence concerning the admissibility of the confessions and statements offered by the prosecution and concluded they were understandingly and voluntarily made after appellant was fully advised of his constitutional rights. The record supports the court’s ruling in this respect and it would require that we substitute our judgment for that of the trial judge in order to agree that the conclusion he reached was erroneous and constituted prejudicial error. This we are not privileged to do.6
Appellant next contends that the trial court erred by permitting the State to impeach a court witness, one Martha Peterson, by prior inconsistent statements before the witness had given any testimony adverse to the prosecution or in favor of the defendant Colbert. Our examination of the record reveals that at one point in the trial of appellant Colbert the trial court, at the request of the state attorney, called to the witness stand as a court witness one Martha Peterson. The state attorney, by direct examination, established that she was acquainted with appellants Colbert and Billy Ray Oliver. Although questions were propounded to the witness seeking to elicit testimony incriminating appellant Colbert as a participant in the crime with which he was charged, the witness refused to give such testimony. When it became apparent that the witness insisted she knew nothing about appellant Colbert’s participation in the alleged offense, the state attorney announced he wished to try to refresh the wit*641ness’ memory by reading to her questions propounded and sworn answers given by her prior to the trial. Objection to this procedure was made by appellant’s counsel on the ground that the State was attempting to introduce in the record substantive evidence against appellant under the guise of seeking to impeach the witness’ testimony prior to the time the witness had made any statements adverse to the prosecution or in favor of appellant. This objection was overruled and the state attorney was permitted to read to the witness a series of questions asked her at an interview long prior to the trial, and the answers which she purportedly gave at that time. Such answers given in the prior interview incriminated appellant as a participant in the crime and were damaging to his defense.
It is our view that the procedure followed by the prosecution in this case was erroneous as a matter of law and the objection to that procedure should have been sustained by the court.7 We are further of the opinion, however, that in view of the totality of the evidence clearly establishing appellant’s guilt of the offense with which he was charged, the inadmissible evidence introduced by the State under the guise of refreshing the witness’ memory or for the announced purpose of impeachment would not have changed the result of the trial and must therefore be considered harmless error.
We have carefully considered the remaining points on appeal made by appellant but find that they are either not supported by the evidence, not sustained by applicable principles of law, or not sufficiently harmful as to require a reversal of the judgment appealed. The judgment is accordingly affirmed.
JOHNSON, C. J., and WIGGINTON and RAWLS, JJ., concur.
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Morton v. State, 689 So. 2d 259 (Fla. 1997)…witness's memory. Rather, the witness should be shown the statement and asked if it refreshed the witness's recollection. See Auletta v. Fried, 388 So. 2d 1067 (Fla. 4th DCA 1980); Hill v. State, 355 So. 2d 116 (Fla. 4th DCA 1978); Oliver v. State, 239 So. 2d 637 (Fla. 1st DCA 1970), quashed on other grounds, 250 So. 2d 888 (Fla.1971). We also reject the argument that the statements were properly admitted under the past recollection recorded exception to the hearsay rule, section 90.803(5). The State made n…
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Oliver v. State, 250 So. 2d 888 (Fla. 1971)…PER CURIAM. Petitioners seek certiorari review of the decisions rendered in their respective cases by the District Court of Appeal, First District : Oliver v. State of Florida, 239 So. 2d 637 (1971); Colbert v. State of Florida, 239 So. 2d 642 (1971). We have consolidated these causes because they both arise out of the same general factual situation. On April 5, 1968, during a period of racial unrest in Tallahassee, Florida, following t…
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Ira C. Chapman v. State, 302 So. 2d 136 (Fla. 2d DCA 1974)…otation, 67 A.L.R.2d 538 at 555. Unlike the court witness in Rankin v. State, Fla. 1962, 143 So. 2d 193, Hurley gave testimony which, being exculpatory as to the defendant, was detrimental to the state’s case. See, Oliver v. State, Fla.App.1st 1970, 239 So. 2d 637, reversed on other grounds, Fla., 250 So. 2d 888. The state was therefore entitled to use a prior inconsistent statement to impeach the witness under instructions to the jury limiting its use to impeachment purposes only. Sutton v. State, Fla. App.1…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- Swain v. Alabama, 380 U.S. 202 (U.S. 1965)
- Irvin v. Dowd, 366 U.S. 717 (U.S. 1961)
- Holt v. United States, 218 U.S. 245 (U.S. 1910)
- Reynolds v. United States, 98 U.S. 145 (U.S. 1878)
- Singer v. State, 109 So. 2d 7 (Fla. 1959)
- Spies v. Illinois, 123 U.S. 131 (U.S. 1887)
- Rankin v. State, 143 So. 2d 193 (Fla. 1962)
- Brown v. United States, 356 F.2d 230 (10th Cir. 1966)
- Shockley v. United States, 166 F.2d 704 (9th Cir. 1948)