Wright (b. 31 May
1940) was convicted on September 20, 1969 in Lee County, Florida of
first degree murder in the sexual assault, murder and mutilation of
8-year-old Camellia Jo Hand.
Born in Siloam
Spring, Arkansas, he amassed a record of incarceration for crimes of
petty thievery, breaking and entering, and indecent assault. In
1968, he moved to Ocoee, Florida.
On April 10, 1969, he abducted,
assaulted, murdered and mutilated Camellia Jo Hand as she made her
way to school.
Sentenced to life
in prison, Wright, professing himself a "changed man" in an
interview with Central Florida author Samuel Roen in 1994, lobbied
the Florida Department of Corrections for parole regularly, citing
his model prison record and successful therapy in overcoming his
Department of Corrections advises that Wright was transferred to the
Kansas Department of Corrections under the Interstate Corrections
Compact on November 8, 1996, and remains in custody. Wright is
eligible for parole review in 2008.
DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
KENNETH RAY WRIGHT, APPELLANT,
STATE OF FLORIDA, APPELLEE.
July 7, 1971
Cohen and Edward J. Hanlon, Jr. & Partners, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr.,
Asst. Atty. Gen., Lakeland, for appellee.
PIERCE, Chief Judge.
Appellant Kenneth Ray Wright appeals to this Court from a judgment of
conviction pursuant to an adverse jury verdict entered against him of
first degree murder with recommendation of mercy and a sentence to
Wright was indicted in Orange
County but venue was later changed to Lee County where in due course
trial was held before a jury, culminating in the result aforesaid.
Numerous motions, documents, and other pre-trial pleadings were filed
and numerous hearings held, both in the Orange County Circuit Court
before removal and later in the Lee County Circuit Court after removal.
At the trial voluminous testimony was taken. The State's case was
built upon circumstantial evidence, and it is obvious from the cold
record certified here that deep, intense feeling was engendered on the
ultimate issue of guilt or innocence.
Camellia Jo Hand, aged 8 years, disappeared on Thursday, April 10th,
1969, between 7 A.M. and 8:30 A.M. while walking from her home to
school, and was presumably kidnapped and murdered. Two days later, on
Saturday afternoon, April 12th, her body was discovered and dug up
from a shallow grave not far from where she disappeared, clad only in
shoes and socks. Assorted items of clothing and other articles had
been buried with her. Numerous stab wounds, abrasions, wounds and
fractures were found on her body, and there was some evidence of a
sexual molestation. The cause of the death was a brain hemorrhage from
blows to the head from a blunt instrument. The body of her pet dog,
who was following her to school, was found a short distance away from
where her body was buried.
It would serve no useful
purpose to discuss the evidence as a whole that was adduced at the
trial, and indeed it might, in view of our disposition of the appeal
here, be unwise and detrimental. Only so much of the evidence as
pertains to the points dispositive of this appeal will be alluded to.
A total of seventy-seven assignments of error were filed
notwithstanding the many admonitions of the Supreme Court in previous
cases against such a multiplicity of assignments. The record discloses
two trial errors, each of which was prejudicial to a fair trial and
which require reversal of the judgment appealed. They are (1)
admission into evidence of three colored photographs, and (2) failure
of the trial Court to define for the jury the essential elements of
all the felonies involved in the charge of felony-murder. We pretermit
discussion of the remaining assignments of error, none of which we
find reversible. We will discuss the two crucial points of reversal
(1) The Prejudicial Color Photographs.
Several photographs, 8 in number, and all in color, were admitted in
evidence over objection. Three of the photographs, identified as
State's Exhibits Nos. 26, 27 and 28, were grossly inflammatory and
unnecessary to explain or elucidate any portion of the State's case,
and therefore were erroneously admitted.
26 depicts the nude body of the victim at the gravesite but in a
different position than when her body was found. When first discovered
she was on her stomach with her head and body bent over and facing
downward, and there is an unobjectionable picture to show this.
Exhibit No. 26 shows her body facing in an upright position but with
her head pulled up and back, showing the face and upper part of her
body from the front.
Exhibit No. 27 was taken at the
morgue after removal of the body from the grave and shows a deep stab
wound on the left top side of the head, another wound in the left
chest, and other lacerations in the abdominal area.
Exhibit No. 28, also taken at the morgue, shows Camellia Jo laid out
on her right side in a horizontal position, taken from the rear,
showing several stab wounds in the back and a deep, gashing type wound
in her upper buttocks.
All three of these color
photos were frightful and shocking. The question here is, were they
proper to be admitted? And we hasten to observe that, in making that
determination, we are not trying to second-guess the trial Judge
because we are not dealing with a factual question. There is no
dispute as to the condition of the body when found or the location or
extent of the wounds. We are dealing only with a question of law as to
whether or not, under all the admitted facts and circumstances present
in the case, gauged by the applicable legal principles involved, it
was proper to admit these pictures in evidence. We do not think so and
in allowing them we think the trial Court was in error to a reversal.
In Albritton v. State, Fla.App.1969,
221 So.2d 192, this Court endeavored to lay down
the basic ground rules governing the admission of such pictorial
evidence according to our understanding of the existing case law.
Albritton involved the death of a sixteen months old girl child named
Stacie, a stepdaughter of the defendant Albritton. He was tried and
convicted of second degree murder. The State contended at trial that
Stacie's death resulted from persistent and brutal beatings and other
physical abuse administered to the child by Albritton during the short
period of time her mother was living with him. Numerous witnesses for
the State gave eye witness accounts of such ill-treatment. Albritton's
defense, and he so testified, supported by the child's mother whom he
had married in the interim, was that Stacie got the bruises, burns and
lacerations on her body from various other sources, such as falling
from a truck at a "Quarter Horse Show", an inadvertent contact with a
"heated hair dryer belonging to her mother, picking up a lighted
cigarette, falling from a dining room shelf, etc. There was thus a
factual issue directly involved, the resolution of which would guide
the jury's verdict as to guilt or innocence. This Court in Albritton,
after briefly summarizing the evidence bearing upon the conflicting
contentions of the parties, said (text
221 So.2d at 195):
setting of testimonial conflict between the numerous State witnesses
on the one hand and Albritton and his wife Michele on the other, the
admissibility of the photographs of the child taken in the hospital
comes into clear focus. And it is in such posture of evidence that the
propriety of admission of the photographs must be judged.
The fact that the photos were inflammatory and such as would arouse to
passion is not alone sufficient to warrant their refusal in evidence.
Gragg v. State, Fla.App.1965,
177 So.2d 59; Cullaro v. State, Fla.App.1957,
97 So.2d 40; Pleas v. State, Fla.1966,
184 So.2d 647; Calloway v. State, Fla.1966,
189 So.2d 617. But where admittedly gruesome and
reasonably calculated to inflame the minds of the jurors, they can
only be admissible by a showing the of the prosecution that, not only
are the pictures relevant, but also that they are demonstrably
material in reconciling or tending to reconcile, some disputed fact in
evidence directly pertinent to the charge being tried. [Cases cited.]
If the wounds, bruises and burns on her body, as she lay in the
hospital just before her death, were many and aggravated, such as
would result from beatings and other physical mistreatment at the
hands of Albritton, the charge of second degree murder was made out.
If, on the other hand, the bruises, etc., were relatively minor and
slight, such as might result from a fall week before from a truck, or
an indoor fall from some wall shelving or burns from a hair dryer,
essentially accidental in nature, the charge would not be made out.
The location, extent, degree, and severity of the bruises and burns
would have a direct bearing in resolving the issue."
We upheld the introduction of the pictures in evidence in Albritton
but we were particular to point out -
"But let us
pause to emphasize one thing: if the pictures had not had such a
direct bearing upon this most vital issue in the case, in addition to
being merely relevant, we would have no hesitation in reversing the
conviction. This is so because, while the inflammatory character of
pictorial evidence is not sufficient of itself to warrant rejection as
evidence, yet where such exhibits though technically relevant throw no
light in resolving a material issue of fact, it lacks the necessary
evidentiary prerequisite to warrant admission.
think the sound and logical rule for admissibility is that if the
pictorial evidence is not so inflammatory or gruesome as reasonably to
prejudice the minds of the jury, the evidence is admissible provided
it is relevant to any issue. But if such exhibit is so inflammatory
and repulsive as would reasonably produce a prejudicial and
exceedingly harmful effect on an otherwise impartial mind, it would
not be admissible unless it would throw light upon a vital issue in
the case and resolve, or reasonably tend to resolve, a conflict in
evidence upon such vital issue."
Thus we held that
the photographs were properly received in evidence in Albritton under
the carefully charted rules of admissibility set forth. In several
other cases photographs have been held properly admitted using
substantially the same guidelines. Reed v. State, Fla.App.1969,
224 So.2d 364; Furr v. State, Fla.App.1969,
229 So.2d 269; Jackson v. State, Fla.App.1970,
231 So.2d 839; Williams v. State, Fla.1969,
228 So.2d 377; Blake v. State, Fla.1963,
156 So.2d 511; Brooks v. State, Fla.1960,
117 So.2d 482 and Lindberg v. State, 1938,
134 Fla. 786,
184 So. 662. But as stated by the Supreme Court
in Blake, quoting from Lindberg, the Courts are particular to point
out that "*** in a homicide case photographs should serve to
illustrate, explain or clarify any issue or conflict in the evidence
and if they do not do this, they should be disallowed"; also in Brooks,
"photographs of the type involved here should be received in evidence
with great caution and should not be permitted unless they prove or
tend to prove some material issue in the trial of the cause". And in
several cases the Courts have held the introduction of such
photographs to be reversible error. Dyken v. State, Fla.1956,
89 So.2d 866; Reddish v. State, Fla.1964,
167 So.2d 858; Young v. State, Fla.1970,
234 So.2d 341, and Saxon v. State, Fla.App.1969,
225 So.2d 925.
rationale of Albritton and the other cited cases to the admitted facts
in the instant case, we are of the view that while the photographic
Exhibits 26, 27 and 28 may have been technically relevant they were so
inflammatory and gruesome in character and so totally devoid of any "direct
bearing upon the most vital issue in the case" as to warrant their
rejection as evidence.
What was "the most vital
issue in the case?" It was not the location or extent of the multiple
stab wounds or the skull crushing blow to the head, or the sadistic
ripping open of the vital organs of the body, or the horrifying burial
face down of the nude body. We repeat again - what was the real
factual issue in the case, the one upon which the jury's verdict must
perforce have rested? It is to be put simply: Was Kenneth Ray Wright
the person who murdered Camellia Jo Hand? Did the evidence
sufficiently identify Wright as the murderer?
hereinbefore mentioned, the case of the prosecution consisted solely
of circumstantial evidence. The State sought to prove Wright's guilt
by facts and circumstances so conclusive that they would not only be
consistent with guilt but inconsistent with innocence and would
exclude any reasonable hypothesis except that of guilt. To carry such
burden, the State relied upon a partial, smudged print of a left index
finger on a razor blade found lying several feet from the gravesite on
top of the ground, also a many colored skirt found near the body the
source of which, at least as evidence against Wright, was to some
extent shrouded in doubt.
But be that as it may, the
photographs in question did not prove, or tend to prove, the identity
of defendant Wright as being the perpetrator of the crime. The
indictment charged first degree murder both by premeditation and in
commission of a felony. The bald facts aliunde the challenged pictures
showed conclusively an unlawful homicide under either charge. But
whether there was 1 or 100 stab wounds on the body, or 1 or 100 bone-crushing
blows on the head, or 1 or 100 cuts and gashes in other vital portions
of the body, it would not prove that the hand that wielded such stab
wounds, cuts and blows was that of Wright. However, the prejudicial
gruesomeness of the pictures would remain indelibly in the minds of
Dr. Thomas E. Hegert, the official
Orange County Medical Examiner for the past 14 years, testified that
in his examination and report concerning the homicide he used other
means such as charts "rather than pictures" to explain his findings
and examinations; that as to "the location of the wounds and the
dimensions of the wounds, I would better explain by my diagrams".
Asked if the pictures were "necessary for you to explain your findings
to the jury?" he replied, "No they are not necessary".
We hold that the admission of the photographs in question was
(2) Failure of the Court to
Charge the Jury upon the Essential Elements of the Felonies which
Might Have Been Involved. F.S.
Section 782.04 F.S.A. defines first degree murder
"The unlawful killing of a human being, when
perpetrated from a premeditated design to effect the death of the
person killed * * * or when committed in the perpetration of or in the
attempt to perpetrate any arson, rape, robbery, burglary, abominable
and detestable crime against nature or kidnapping, * * *"
It will be observed that it is divided into two
classifications, first, when perpetrated from a premeditated design to
effect the death of the person killed, commonly called "premeditated
murder", and second, when committed in the perpetration or the attempt
to perpetrate any of the named felonies, arson, rape, robbery,
burglary, etc., commonly known as "felony-murder". The indictment here
charged first degree murder under both classifications, viz: "from a
premeditated design to effect the death of Camellia Jo Hand" and also
"by striking her on the head with a blunt instrument".
We are not here concerned with the premeditation
feature. We are concerned only with the felony-murder feature. After
all the evidence was in and the usual conferences held between the
Court and respective counsel concerning the jury instructions to be
given or refused, defense counsel called to the attention of the Court
that, as to the felony-murder part of the indictment, the instructions
should define the ingredients contained in the felonies involved.
However, the Court failed or refused to charge the jury the various
elements going to make up these substantive felony offenses. As to
such offenses, the jury was instructed merely in terms of the statute,
except as to rape and a brief reference to one isolated phase of crime
question is whether it is incumbent upon the trial Court, upon request
in a felony-murder prosecution, to charge the jury upon the specific
ingredients making up each permissible felony under the evidence. The
State argues that the trial Court's charge to the jury was sufficient.
Defense counsel contend that the elements of each possible felony
permissible of conviction under the evidence should have been given
the jury. We agree with the latter contention and hold that the
failure to so charge was reversible error.
The principle involved here is well established. Corpus
Juris Secundum and Florida Jurisprudence, are specific on the point,
supported by a whole compendium of cases. In 41 C.J.S. Homicide ? 361,
beginning on page 137, it is said that -
"Where a homicide is perpetrated in the commission of
another offense, and is for that reason murder, * * * an instruction
defining the law applicable to such a state of facts may and should be
given. An instruction as to a collateral offense should properly
define and explain the other offense involved, * * *".
In 16 Florida Jurisprudence, ? 175, beginning on page
518, the text writer says:
the grade or degree of culpable homicide is dependent on the evidence,
it is the duty of the trial court to instruct the jury on the grade of
homicide * * *, of which the defendant may be found guilty.
In cases involving homicide in the perpetration of, or
in the attempt to perpetrate, any of the felonies named in the statute
defining murder in the first degree it is necessary to charge the jury
on all degrees of unlawful homicide. Where the accused is prosecuted
under an indictment charging murder with premeditated design to effect
death, the trial court should charge on all degrees of unlawful
homicide, regardless of whether the evidence establishes that the
homicide in question was committed from premeditated design to effect
death, or in the perpetration of, or in the attempt to perpetrate, any
of the designated felonies, or as a result of a combination of both
Our Supreme Court in a
long line of cases, has approved the giving of instructions setting
forth the elements of the felonies involved in a felony-murder
prosecution. Lewis v. State, 1927,
93 Fla. 207,
111 So. 628; Leavine v. State, 1933,
109 Fla. 447,
147 So. 897; Goddard v. State, 1940,
143 Fla. 28,
196 So. 596; Campbell v. State, Fla.1969, 291
Ala. 50, 277 So.2d 873; Robles v. State, Fla.1966,
188 So.2d 789; Coppolino v. State, Fla.App.1969,
223 So.2d 68; Bailey v. State, Fla.1969,
224 So.2d 296; and State v. Barnes, Fla.App.1966,
182 So.2d 260.
In Robles the case, as here, was submitted to the jury
on a two-fold theory of premeditated murder and also felony-murder.
The particular felony involved in Robles was burglary, but the same
legal principles apply to other named felonies. We quote from the
Supreme Court's opinion in Robles, beginning on page 793, because it
seems to be conclusive of the point under consideration:
"It is beyond argument that the question whether
appellant was guilty of statutory burglary constituted an essential
part of the theory upon which the jury was instructed to decide
defendant's guilt. * * * We have long held that an indictment for
first degree murder is fatally defective if it fails to charge
premeditation. Denham v. State, 1886,
22 Fla. 664. If premeditation is so vital a part
of the crime of murder in the first degree, it must follow that the
elements of the felony of burglary, which may be proved in lieu of
premeditation, are equally vital and should therefore have been the
subject of instructions to the jury. We are not prepared to say that
the elements of the supporting felony under the felony-murder rule
must be explained to the jury with the same particularity that would
be required if burglary were the primary crime charged. Nevertheless,
we do hold that they must be defined sufficiently to assure the
accused a fair trial of the commission of the secondary crime as well
as the primary one.
present case, the instructions relevant here consisted of the
statutory definition of first degree murder, which includes the felony-murder
rule, and then the following:
'The Court further instructs you that the gravamen of the offense of
statutory burglary is the breaking into and entering of a dwelling
house of another with the intent to commit a felony therein.
'It is not necessary for the State to prove
premeditation where the death of the person killed is committed in the
perpetration of, or in the attempt to perpetrate burglary. So that, if
you find in the evidence, that the defendant killed Gayle Sherry
Sterne while engaged in the commission of burglary, or the attempt to
commit burglary, then the defendant should be adjudged guilty of
murder in the first degree as the result of the perpetration of, or
the attempt to perpetrate burglary.'
If appellant were being tried for burglary, it could
hardly be said that he could have a fair trial under these
instructions. The jury is left to its own devices as to what
constitutes breaking and entering and as to the character of the
felonious intent that is required. As to the precise intent that
appellant was alleged to have, these instructions fail to identify the
felony that he allegedly intended to commit or even to define the term
'felony,' in the abstract. It is true that the court agreed to give
such instructions and the defendant's trial counsel agreed to prepare
same but failed to do so. But this failure of counsel does not relieve
the court of the duty to give all charges necessary to a fair trial of
the issues. We hold that since proof of these elements was necessary
in order to convict appellant under the felony-murder rule, the court
was obligated to instruct the jury concerning them, whether or not
requested to do so. Canada v. State, Fla.App.1962,
139 So.2d 753; Motley v. State, 1945,
155 Fla. 545,
20 So.2d 798; Croft v. State, 1935,
117 Fla. 832,
158 So. 454. * * *
It is equally, if not more, important that the jury be
adequately instructed concerning the essential elements of the crime
charged than it is that the elements be alleged in the indictment or
information. And this is even more true when the burglary or other
secondary crime is involved under the felony-murder rule than when it
is the primary crime charged."
In Coppolino where first degree murder was charged as a
result of deliberate use of drugs or poison, and even though the
defense claimed it was logically impossible for the jury to find
second-degree murder from the evidence and that such instructions as
to second-degree and third-degree murder and manslaughter invited a
compromise verdict, instructions on the latter offenses were held
proper by the Supreme Court regardless of the accusation and the
In Bailey the Supreme
Court held that where the indictment charged first degree murder and
also assault with intent to commit first degree murder, the trial
Court would be in error if it refused to grant the defendant's request
for instructions on third degree murder, notwithstanding the elements
thereof were not included in the specific allegations of the
In Barnes it was
held that an accused charged with an offense divided into degrees is
entitled to have the jury charged as to all degrees of the offense,
notwithstanding there is no evidence presented as to the lesser
degrees of the crime.
felony contains ingredients peculiar to that particular offense, some
by statute, some by common law, and some by both. For instance, the
abominable and detestable crime against nature is composed of both
common law and statutory ingredients. Thus, while F.S. ? 800.01 F.S.A.
statutorily defines the offense in general terms as "whoever commits
the abominable and detestable crime against nature, either with
mankind or with a beast", the crime is also punishable according to
the common law ingredients, as well as by those set forth in the
statute, or by a combination of the two. Ephraim v. State, 1921,
82 Fla. 93,
89 So. 344; Jackson v. State, 1922,
84 Fla. 646,
94 So. 505; Lason v. State, 1943,
152 Fla. 440,
12 So.2d 305; Delaney v. State, Fla.1966,
190 So.2d 578; Swain v. State, Fla.App.1965,
172 So.2d 3; Bivins v. State, Fla.App.1968,
208 So.2d 666. The trial Court here charged in
general terms that crime against nature includes copulation between
human beings per anum, but a detailed, inclusive charge covering all
the ingredients of such offense, as required in Robles, was not given.
The Court made no attempt to set forth the ingredients
of robbery, although the evidence would have warranted a verdict of
guilt of robbery-murder. See F.S. ? 813.011 F.S.A. as to robbery.
Arnold v. State, Fla.1955,
83 So.2d 105; Wilson v. State, 1945,
155 Fla. 511,
20 So.2d 673; Taylor v. State, 1939,
138 Fla. 762,
190 So. 262; Croft v. State, 1935,
117 Fla. 832,
158 So. 454; Wood v. State, 1929,
98 Fla. 703,
124 So. 44; Stephens v. State, 1926,
92 Fla. 43,
109 So. 303; Montsdoca v. State, 1922,
84 Fla. 82,
93 So. 157; 27 A.L.R. 1291; Bailey v. State,
199 So.2d 726; Hand v. State, Fla.1967,
199 So.2d 100; Brown v. State, Fla.App.1966,
191 So.2d 296.
The same as to the felony of kidnapping, which is
statutorily defined in F.S. ? 805.01 F.S.A. as illegally confining or
imprisoning another person within the State, or confining or
inveigling another person, with such intent. Wilkes v. State, Fla.App.1966,
182 So.2d 480; Miller v. State, Fla.App.1970,
233 So.2d 448. Also see 51 C.J.S. Kidnapping ? 1
b., p. 493.
Our holding that
it was error for the trial Court to fail to define the elements of
these possibly-applicable felonies is supported by reason and logic.
If the jury must be instructed that it is first degree murder for a
person to kill another while perpetrating or attempting to perpetrate,
either of several named felonies, then it would seem to be academic
that each of the possible felonies involved should be specifically
dealt with in the charge to the jury, as to the ingredients involved,
the elements, constituents, components, etc. How else would the jury
know that the homicide occurred in the commission of or attempting to
commit the particular felony? The fact that the homicide occurred at
the hands of another person in an unlawful endeavor, however revolting
or homicidal, would not be enough unless all the essential elements of
the particular felonies involved would be given to the jury.
Other errors assigned are either without merit, without
applicability, without reversible prejudice, or not likely to arise in
For the errors
pointed out, the judgment of conviction appealed is
and MANN, JJ., concur.