WESTBROOK
v.
STATE
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The Florida Supreme Court reversed a second-degree murder conviction, finding that the trial court erred in denying the appellant's motion for a severance and new trial, especially given the meager evidence against him.
Yes, the trial court erred in denying the motion for severance and a new trial. The evidence against the appellant was meager and inconclusive, and the jury may have been improperly influenced by being tried jointly with Johnson.
“The appellant's motion for a severance and separate trial was denied by the trial judge, as was his motion for new trial which included the denial-of such motion as one of the grounds therefor.”
Establishes the procedural posture and the motions denied by the trial court.
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Join FLexlaw to unlock all legal intelligenceThe appellant was tried jointly with another defendant, Johnson, for murder. The appellant was convicted of second-degree murder, while Johnson was co…
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ROBERTS, Justice.
The appellant was tried jointly with one Primus Johnson for the murder of one James Blaine and was convicted of murder in the second degree. Johnson was convicted of murder in the first degree, with a recommendation of mercy, and has not appealed from the judgment of conviction. The appellant’s motion for a severance and separate trial was denied by the trial judge, as was his motion for new trial which included the denial-of such motion as one of the grounds therefor. The appellant here contends that it was error to force him to go to trial jointly with the defendant Johnson and that the. evidence was insufficient to support his conviction of murder in the second degree.
The evidence-adduced against the appellant was, indeed, meager and inconclusive, and the jury may-well have been influenced in its verdict against him by the fact that he was tried jointly with Johnson. While the denial of the motion for severance, standing alone, might not be reversible error, when considered in connection with the meager evidence against this defendant, we think that the ends of justice will be best served by awarding a new trial to the appellant, and that the trial judge erred in refusing to do so.
Accordingly, the judgment appealed from is reversed and,the cause remanded for a new trial.
HOBSON, C. J., and MATHEWS and DREW, JJ., concur. TERRELL, THOMAS and SEBRING, JJ., dissent.
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Reddick v. State, 190 So. 2d 340 (Fla. 2d DCA 1966)…y here. Cautionary instructions to the jury will not cure an otherwise erroneous denial of severance. Everitt v. United States, C. A.Fla.1960, 281 F. 2d 429. See also Bryan v. State, 1930, 100 Fla. 779, 130 So. 35, and Westbrook v. State, Fla.1953, 64 So. 2d 320, where the Florida Supreme Court reversed both cases because of improper denial of motions for severance. In Suarez, et als. v. State, 1928, 95 Fla. 42, 115 So. 519, a case personally familiar to the writer, three defendants, Emelio Suarez, Benigno…1 / 2
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Dove v. State, 287 So. 2d 384 (Fla. 1st DCA 1973)…the motion constituted an abuse of discertion. Manson v. State, 88 So. 2d 272 (Fla.1956). The appellant argued it was error because the evidence against the other defendant was strong and that against appellant was meager, citing Westbrook v. State, 64 So. 2d 320 (Fla.1953). Here the evidence of the commission of the offense was equally strong against both defendants. The evidence which the appellant referred to as being strong against Hunter and meager against him was that relating to identification. Based…
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Rowe v. State, 250 So. 2d 920 (Fla. 2d DCA 1971)…uld reverse as to Rowe so that he may be retried without the prejudicial inadmissible testimony of Mullinnix’ flight. . Gelis v. State, Fla.App.2d 1968, 215 So. 2d 86; Reddick v. State, Fla.App.2d 1966, 190 So. 2d 340; Westbrook v. State, Fla.1953, 64 So. 2d 320; Suarez v. State, Fla.1928, 95 Fla. 42, 115 So. 519. . Cason v. State, Fla.App.2d 1968, 211 So. 2d 604; Sylvia v. State, Fla.App.3rd 1968, 210 So. 2d 286. See also State v. Stubbs, Fla.1970, 239 So. 2d 241, and Harrington v. California, 395 U.S. 25…