
    Leon McGEE, Appellant, v. STATE of Florida, Appellee. Jerome WILLIAMS, Appellant, v. STATE of Florida, Appellee. James FAISON, Appellant, v. STATE of Florida, Appellee.
    Nos. 72-844, 72-845 and 72-950.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1974.
    Rehearing Denied Dec. 31, 1974, in Nos. 72-844 and 72-845.
    James A. Gardner, Public Defender, and W. Daniel Kearney, Asst. Public Defender, Bradenton, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard C. Booth, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellants, defendants in the trial court, were charged in a four-count indictment with certain criminal offenses, hereinafter to be set forth. Each of the appellants, McGee, Williams and Faison, were charged in Count 1 with rape and in Count 2 with robbery. McGee and Faison were charged in Count 3 with murder and in Count 4 with conspiracy to commit robbery. The alleged offenses were committed on separate dates and perpetrated upon different victims (the rape and robbery being committed on the same night with the robbery of the husband having been completed, and subsequently, and at another place, the wife of the robbery victim was raped). The appellants were represented by the public defender. Each pled not guilty to the offenses charged.

On the day of trial, the public defender filed a motion to elect on behalf of all of the accused. The trial court denied the said motion. The case proceeded to trial before a jury against all of the appellants. At the conclusion of all the evidence, and after both sides announced that they had rested their case, the public defender timely filed a motion for directed verdict of acquittal in behalf of all defendants. The trial court granted the said motion in favor of appellant Faison as to Counts 1 and 2. There was not one shred of evidence connecting Faison with the rape and robbery. The said motion was denied as to the remaining defendants.

The jury returned its verdict of not guilty in behalf of appellants, McGee and Faison, as to the murder charged in Count 3. However, each was convicted of the charge of conspiracy to commit robbery alleged in Count 4. The trial court adjudicated the appellants guilty and sentence was imposed as follows:

For the offense of rape and robbery, McGee and Williams were sentenced to serve two consecutive life sentences in the state penitentiary.

For the offense of conspiracy to commit robbery, McGee was sentenced to serve 15 years in the state penitentiary, the sentence to run consecutively to that imposed against him for the rape and robbery.

Faison was sentenced to serve 10 years in the state penitentiary for his participation in the conspiracy charge.

Each of the appellants filed timely appeals.

We have reviewed the record, consisting of approximately 600 pages of testimony; read the briefs of the parties; oral argument was waived. The record shows that the evidence offered in support of the state’s case was convincing and overwhelming against the appellants, McGee and Williams, as to Counts 1 and 2, proving that they were guilty as charged therein. Likewise, there is sufficient, competent evidence of the essential elements of the offense charged in Count 4, i. e., the conspiracy to commit robbery against McGee and Faison, and shows beyond any reasonable doubt that the appellants are guilty as charged and the jury correctly so found. See Glasser v. United States, (1941) 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

We have reviewed the points raised on appeal, and, after due consideration, believe they are without merit. The only question that causes us concern is whether Faison received a fair and impartial trial. The public defender in his brief filed on behalf of appellant, Faison, contends that he was found guilty by association. If the record substantiated this assertion we would, of course, without any hesitation, reverse his conviction, judgment and sentence. We are of the view that this contention raised in behalf of appellant, Fai-son, is not well founded. As stated previously, the trial court granted the motion for directed verdict of acquittal as to Counts 1 and 2 in favor of Faison. The jury found that Faison was not guilty of the murder charged in Count 3. The jury did determine, however, that he was guilty of the conspiracy to commit robbery in Count 4. It is crystal clear from an examination of the verdicts returned by the jury that it was most discerning and painstaking in its deliberations. We pause to .add that the jury could very well have found Faison guilty of murder charged in Count 3 on the basis of the testimony adduced in support thereof by the state. It was the prerogative of the jury in exercising its traditional role of trier of the facts to determine, based on the evidence before it, that Fai-son was guilty of conspiracy to commit robbery. The conviction is based both on direct and circumstantial evidence and was sufficient to support the verdict of guilty.

We have read the instructions closely and believe that they were proper and thorough and we do not find that the jury was confused, misled, or influenced by erroneous considerations which were prejudicial to the rights of the appellants. Upon inquiry from the trial court, neither counsel requested additional jury instructions. Our jury system is based upon the assumption that juries will endeavor to follow the court’s instructions. The Supreme Court of the United States in the case of Fairmount Glass Works v. Cub Fork Coal Company (1932) 287 U.S. 474, p. 485, 53 S.Ct. 252, p. 255, 77 L.Ed. 439, stated:

Appellate courts should be slow to impute to juries a disregard of their duties, and to trial courts a want of diligence or perspicacity in appraising the jury’s conduct.

The record demonstrates that the trial judge very carefully and most impartially conducted the trial and the appellants were accorded a fair trial and their constitutional guarantee of due process was protected and safeguarded. As the Supreme Court of the United States has held, the defendant is entitled to a fair trial, not a perfect one.

Accordingly, the convictions, judgments and sentences are

Affirmed.

HOBSON, Acting C. J., concurs.

MANN, J. (Ret.) dissents with opinion.

MANN, Judge (Ret.)

(dissenting).

There are four errors in this record. I will not labor them but they seem so glaring to me that each of them needs to be mentioned. First of all the prosecutor charged in the same information three distinguishable crimes, two robberies and a brutal murder, committed on three different dates at three different places, contrary to the clear requirements of Rule 3.150 CrPR:

“(a) Joinder of Offenses. Two or more offenses which are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, whether felonies or misdemeanors, or both, ar.e based on the same act or transaction or on two or more connected acts or transactions.
“(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information upon which they are to be tried:
(1) when each defendant is charged with accountability for each offense charged;
(2) when each defendant is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy ; or
(3) when, even if conspiracy is not charged and all defendants are not charged in each county, it is alleged that the several offenses charged were part of a common scheme or plan.
Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.”

Under the circumstances the defendants’ motion for severance of offenses under Rule 3.152(a) ought to have been granted.

Secondly, as to Williams and Faison, severance of defendants under Rule 3.-152(b) ought certainly be granted because one of these defendants was not present at the first robbery and the other was not present at the second, a fact conceded by the prosecution at the close of the case, resulting in directed verdicts for them as to these charges.’

The prejudice to McGee lies solely in the failure to obey Rule 3.152(a). There was a clear insufficiency of evidence on the murder charge which resulted in a verdict of acquittal, but which had the effect of saddling McGee with the defense of two robbery charges while the jury was confronted with evidence of the brutal slaying of a service station operator.

The third error resulted from the failure to provide independent counsel for reach of these three defendants. Here again, if this were the only error, I would think it harmless as to McGee but as to Williams and Faison it was crucial. One witness and the Public Defender himself confused Williams with Faison and stated erroneously before the jury that one man was involved when in fact it was the other. Our Supreme Court has made it clear that the position of this court taken in Dunbar v. State, Fla.App.2d, 1963, 214 So.2d 52, is the correct one. Dunbar v. State, Fla.1969, 220 So.2d 366; see also State v. Youngblood, Fla. 1968, 217 So.2d 98; Belton v. State, Fla.1968, 217 So.2d 97.

The fourth error is more subtle, but I think it is sufficient to warrant mention, although it is not argued. These defendants have a right to have the prosecution refrain from prejudicial comment on their failure to testify. Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed. 2d 106. In his voir dire examination of the jury one of the most experienced prosecutors in the nation persistently asked jurors if they would respect the presumption of innocence and recognize the defendant’s right not to testify. This was done in such a way as to remind one of the old story in which the first mate of a vessel became incensed when he read in the log a notation by the Captain that “The First Mate was drunk today,” whereupon at the end of his watch the First Mate wrote in the log “The Captain was sober today.” This tendency on the part of the prosecutor, repeated, incidentally, at final argument is an insidious violation of the rule of Griffin and I think the Public Defender in the Fifth Circuit should strenuously object.

There is such an accumulation of error in this case that I cannot assent to its af-firmance. 
      
      . “(a) Severance of offenses.
      
      (1) In case two or more offenses are improperly charged in a single indictment or information, the defendant shall have a right to a severance of the charges upon timely motion thereof.
      (2) In case two or more charges of re-related offenses are joined in a single indictment or information, the court nevertheless shall grant a severance of charges on motion of the State or of a defendant.
      (i) before trial upon a showing that such severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense, or
      (ii> during trial, only with defendant’s consent, upon a showing that such severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.”
     
      
      . “(b) Severance of defendants.
      
      (1) On motion of the State or a defendant, the court shall order a severance of defendants and separate trials:
      (i) before trial, upon a showing that such order is necessary to protect a defendant’s right to a speedy trial, or is appropriate to promote a fair determination of the guilt or innocence of one or more defendants ; or
      (ii) during trial, only with defendant’s consent and upon a showing that such order is necessary to achieve a fair determination of tlie guilt or innocence of one or more defendants.
      (2) If a defendant moves for a severance .of defendants on the ground that an oral or written statement of a co-defendant makes reference to him but is not admissible against him, the court shall determine whether the State will offer evidence of the statement at the trial. If the State intends to offer the statement in evidence, the court shall order the State to submit its evidence of such statement for consideration by the court and counsel for defendants and if the court determines that such statement is not admissible against the moving defendant, it shall require the State to elect one of the following courses:
      (i) a joint trial at which evidence of the statement will not be admitted;
      (ii) a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of such evidence with deletions will not prejudice the moving defendant; or
      (iii)severance of the moving defendant.
      (3) Failure to prove grounds for joinder of defendants.
      In eases where, at the close of the State’s case or at the close of all of the evidence, the evidence is not sufficient to support a finding that allegations on which the joinder of a defendant is based have been proved, the court shall, on motion of that defendant, grant a severance unless the court finds that severance is unnecessary to achieve a fair determination of that defendant’s guilt or innocence.”
     