Edward R. Kirkland, Orlando, for appellant.
Earl Faircloth, Atty. Gen., and J. Christian Meffert, Asst. Atty. Gen., for appellee.
Appellant directly appeals a first degree murder conviction without recommendation of mercy for the slaying of Vivian June Ritter, secretary to the Public Defender in Leesburg, Lake County, Florida. Article V, Section 4(2), Florida Constitution, F.S.A.
Briefly stated, the facts are these. On April 22, 1968, the deceased drove her 1965 white Chevrolet to work at the Public Defender's office. In the early afternoon of that day, it was discovered that the deceased was missing from the office, and certain evidence indicated an abrupt departure. A search for her whereabouts proved fruitless. On April 27, 1968, the badly decomposed body of the deceased was discovered several miles away from Leesburg.
Numerous witnesses gave testimony at trial which directly or indirectly linked the appellant with the crime. Some of these witnesses knew the appellant well. A taxi driver said he dropped off appellant a half-block from the Public Defender's office on the morning of April 22. Shortly thereafter an insurance agent, who knew the deceased personally, testified that as he was passing the office in his car, he saw the deceased and the appellant enter into the Ritter car by themselves. Around noontime the Ritter car passed through an orange grove on a narrow, sand road. The car resembled one which workers in the grove were expecting. Their supervisor walked over to the road to meet it. As the car came closer, the supervisor observed it closely and realized that it was not the one which the workers were expecting. The car passed at moderate speed not more than three feet from the supervisor. At trial the supervisor testified that she saw the deceased and the appellant alone in the car. Within an hour the grove workers heard shots. Other witnesses testified that they saw appellant driving alone later in the day in a white Chevrolet. Appellant's mother testified that she picked up appellant several miles from Leesburg and that appellant left a white Chevrolet when she entered her mother's car. Appellant's landlady testified that she once gave appellant a .22 caliber revolver which appellant never returned to her. Ballistic tests established that the deceased had been killed with a .22 caliber revolver.
Police officials testified that, after appellant voluntarily presented herself to the police, she led them to an envelope which
had been secreted under a bath tub in the house where appellant was staying. The envelope contained personal effects of the deceased and an unsigned letter addressed to the Public Defender. The letter stated in effect that Mrs. Ritter would be murdered unless three unspecified persons were released from custody. The officials testified that appellant told them that she had been given this letter by certain other persons, whom she could not identify, for her delivery to the Public Defender, and that she thought the police would want to know about it.
Police officials also testified that appellant admitted being at the Public Defender's office on April 22, but that she claimed that she was forced by unidentified persons who were already there to get into the Ritter car along with the deceased. The officials testified that appellant said that she was eventually released unharmed and that the letter was subsequently delivered to her.
It was theorized by the prosecution in closing argument that the appellant was dissatisfied with the convictions of two of her children who had been unsuccessfully defended by the deceased's employer, and that this dissatisfaction led to the abduction of the deceased and her eventual murder by appellant acting alone. Closing argument of the defense went to the sufficiency of the evidence and to the question of whether the prosecution had proved its case beyond a reasonable doubt. The jury returned a guilty verdict and mercy was not recommended.
Appellant has raised several points on appeal and we have considered them all. The only points warranting discussion are those involving appellant's offer to stipulate as to the identity of the corpse thought to be that of the deceased and the cause of death. We think it necessary to make certain preliminary comments before briefly disposing of these points.
A stipulation is a voluntary agreement between opposing counsel concerning the disposition of some relevant point so as to obviate the need for proof or to narrow the range of litigable issues. The beneficial aspects of stipulations in terms of conserving time, money and effort are universally recognized. But it is also recognized that stipulations may be employed as tactical devices by a party who seeks to reduce the effect of his opponent's procession of evidence. In criminal trials defendants frequently seek to stipulate as to the existence of certain evidence in an attempt to obviate what Wigmore has referred to as 'the legitimate Moral force' of such evidence. Wigmore, Evidence, § 2591 (3rd Ed. 1940). We have encountered this use of stipulations before. See Whitney v. Cochran, 152 So.2d 727 (Fla.1963).
In such cases a criminal defendant will often proffer a stipulation which the prosecution refuses to accept. In some jurisdictions the courts view such an offer as an admission which becomes a matter of record and which serves to obviate any further need of presentation of evidence by the prosecution regarding the subject matter of the stipulation. However, most jurisdictions take the position that an offer to stipulate remains merely an offer unless accepted by the prosecution. As an example of the latter position, we offer the following excerpt from People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968) at 221:
'Counsel for the defendant says that he was willing to stipulate to the identity of the girls and to the fact that they had met their deaths by criminal means. However, the defendant pleaded not guilty and the State had the right to prove every element of the crime charged and was not obligated to rely on the defendant's stipulation. (People v. Botulinski,392 Ill. 212, 64 N.E.2d 486.) As stated in People v. Scheck,356 Ill. 56, 62, 190 N.E. 108, 111, 91 A.L.R. 1472: 'It has never ...