Petition for Writ of Certiorari — Brandy Bain Jennings, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

Supreme Court briefJun 14, 2023

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IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════════════

BRANDY BAIN JENNINGS,

Petitioner,

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

═════════════════════════════════

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

═════════════════════════════════

VOLUME II of II

═════════════════════════════════

CAPITAL CASE

═════════════════════════════════

PAUL KALIL

Fla. Bar No. 174114

Assistant CCRC–South

kalilp@ccsr.state.fl.us

*Counsel of Record

June 14, 2023

Capital Collateral Regional Counsel – South

110 S.E. 6th Street, Suite 701

Fort Lauderdale, Florida 33301

Tel. (954) 713-1284

INDEX TO APPENDICES

VOLUME I of II

Appendix A

Eleventh Circuit Court of Appeals Opinion affirming the denial

of habeas corpus relief, Jennings v. Sec'y, Fla. Dep't of Corr.,

55 F.4th 1277 (11th Cir. Dec. 13, 2022)

Appendix B

Eleventh Circuit Court of Appeals Order Denying

Rehearing/Rehearing En Banc

Appendix C

United States District Court, Southern District of Florida, Order

Denying Petition for Writ of Habeas Corpus

Appendix D

Florida Supreme Court opinion affirming the denial of

postconviction relief, Jennings v. State,

123 So. 3d 1101 (Fla. 2013)

VOLUME II of II

Appendix E

Circuit Court Final Order Denying Motion for Postconviction

Relief (Jan. 31, 2011)

Appendix F

Florida Supreme Court Opinion on Direct Appeal,

Jennings v. State, 718 So. 2d 144 (Fla. 1998)

APPENDIX E

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

Opinion

KeyC te Ye ow F ag Negat ve Treatment

D st ngu shed by M dd eton v. State, F a., October 22, 20 5

718 So.2d 144

Supreme Court of Florida.

Brandy Bain JENNINGS, Appellant,

STATE of Florida, Appellee.

No. 89550.

Sept. 10, 1998.

Defendant was convicted in the Circuit

Court, Collier County, William L.

Blackwell, J., of robbery and murder.

Defendant appealed. The Supreme Court

held that: (1) defendant was not entitled to

suppression of statements even if detective's

response to request for counsel was

inadequate; (2) evidence supported finding

of avoid arrest aggravator; (3) evidence

supported finding of cold, calculated, and

premeditated (CCP) aggravator; and (4)

death sentences were not impermissibly

disparate from co-defendant's sentences of

life imprisonment.

Affirmed.

Attorneys and Law Firms

*145 James Marion Moorman, Public

Defender, and Robert F. Moeller, Assistant

Public Defender, Tenth Judicial Circuit,

Bartow, for Appellant.

Robert A. Butterworth, Attorney General,

and Carol M. Dittmar, Assistant Attorney

General, Tampa, for Appellee.

PER CURIAM.

Brandy Bain Jennings was convicted of

robbing the Cracker Barrel Restaurant in

Naples, Florida, and of murdering three

restaurant employees in the process. He

received three separate death sentences,

one for each of the murders, and was

sentenced to fifteen years' imprisonment

for the robbery. Jennings now appeals

his convictions and sentences. We have

jurisdiction. See Art. V, § 3(b)(1), Fla. Const.

For the reasons expressed herein, we affirm

Jennings' convictions and sentences. 1

Dorothy Siddle, Vicki Smith, and Jason

Wiggins, all of whom worked at the Cracker

Barrel Restaurant in Naples, were killed

during an early morning robbery of the

restaurant on November 15, 1995. Upon

arriving on the scene, police found the bodies

of all three victims lying in pools of blood on

the freezer floor with their throats slashed.

Victim Siddle's hands were bound behind

her back with electrical tape; Smith and

Wiggins both had electrical tape around

their respective left wrists, but the tape

appeared to have come loose from their right

wrists.

Police also found bloody shoe prints leading

from the freezer, through the kitchen, and

into the office, blood spots in and around

the kitchen sink, and an opened office safe

surrounded by plastic containers and cash.

Outside, leading away from the back of the

restaurant, police found scattered bills and

coins, shoe tracks, a Buck knife, 2 a Buck

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

*146 knife case, a pair of blood-stained

gloves, and a Daisy air pistol.

Jennings (age twenty-six) and Jason Graves

(age eighteen), both of whom had previously

worked at the Cracker Barrel and knew

the victims, were apprehended and jailed

approximately three weeks later in Las

Vegas, Nevada, where Jennings ultimately

made lengthy statements to Florida law

enforcement personnel. In a taped interview,

Jennings blamed the murders on Graves,

but admitted his (Jennings') involvement in

planning and, after several aborted attempts,

actually perpetrating the robbery with

Graves. Jennings acknowledged wearing

gloves during the robbery and using his

Buck knife in taping the victims' hands, but

claimed that, after doing so, he must have

set the Buck knife down somewhere and

did not remember seeing it again. Jennings

further stated that he saw the dead bodies

in the freezer and that his foot slipped in

some blood, but that he did not remember

falling, getting blood on his clothes or hands,

or washing his hands in the kitchen sink.

Jennings also stated that the Daisy air pistol

belonged to Graves, and directed police to a

canal where he and Graves had thrown other

evidence of the crime.

In an untaped interview the next day,

during which he was confronted with

inconsistencies in his story and the evidence

against him, Jennings stated, “I think I could

have been the killer. In my mind I think I

could have killed them, but in my heart I

don't think I could have.”

At trial, the taped interview was played for

the jury, and one of the officers testified

regarding Jennings' untaped statements

made the next day. The items ultimately

recovered from the canal were also entered

into evidence. 4

The medical examiner, who performed

autopsies on the victims, testified that they

died from “sharp force injuries” to the

neck caused by “a sharp-bladed instrument

with a very strong blade,” like the Buck

knife found at the crime scene. A forensic

serologist testified that traces of blood were

found on the Buck knife, the Buck knife

case, the area around the sink, and one of

the gloves recovered from the crime scene,

but in an amount insufficient for further

analysis. An impressions expert testified that

Jennings' tennis shoes recovered from the

canal matched the bloody shoe prints inside

the restaurant as well as some of the shoe

prints from the outside tracks leading away

from the restaurant.

The State also presented testimony

concerning previous statements made by

Jennings regarding robbery and witness

elimination in general. Specifically, Angela

Chainey, who had been a friend of Jennings',

testified that about two years before the

crimes Jennings said that if he ever needed

any money he could always rob someplace

or somebody. Chainey further testified that

when she responded, “That's stupid. You

could get caught,” Jennings replied, while

making a motion across his throat, “Not if

you don't leave any witnesses.” On crossexamination, Chainey further testified that

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

Jennings had “made statements similar to

that several times.”

and that in this regard Jennings once said of

Siddle that “one day she would get hers.”

The State also presented testimony

concerning previous statements made by

Jennings regarding his dislike of victim

Siddle. Specifically, Bob Evans, one of the

managers at Cracker Barrel, testified that

Jennings perceived Siddle to be holding him

back at work and that, just after Jennings

quit, he said about Siddle, “I hate her. I even

hate the sound of her voice.” Donna Howell,

who also worked at Cracker Barrel, similarly

testified that she was aware of Jennings'

animosity and dislike of Siddle, and that

Jennings had once said about Siddle, “I can't

*147 stand the bitch. I can't stand the sound

of her voice.”

The defense presented further character

evidence from several of Jennings' friends

that he was good with children, got

along with everybody, and was basically

a nonviolent, big-brother type who was

happy-go-lucky, fun-loving, playful, laid

back, and likeable. Jennings' mother testified

that her son never met his father and that

she raised Jennings herself. She claimed that

Jennings had been a straight-A student, but

quit school to take care of her when she

became sick.

The jury found Jennings guilty as charged.

In the penalty phase, the defense presented

mitigation evidence, including general

character testimony from witness Mary

Hamler, who testified on direct examination

that she had lived with Jennings for two

and one-half years. She also testified that

Jennings had gotten along well with her

children during that time, and that he cried

when they (Jennings and Hamler) broke up.

On cross-examination, the State elicited

testimony from Hamler that there was

another side to Jennings' character and that

Jennings once said that if he ever committed

a robbery, he would not be stupid enough

to stick around, but would go north. Hamler

further testified on cross-examination that

Jennings was angry at Cracker Barrel in

general, and Siddle in particular, for “jerking

him around” and holding him back at work,

The jury recommended death by a vote of

ten to two as to each of the murders. In

its sentencing order, the trial court found

three aggravators: (1) that the murders were

committed during a robbery; (2) that they

were committed to avoid arrest; and (3) that

they were cold, calculated, and premeditated

(CCP).

The trial court found only one statutory

mitigator: that Jennings had no significant

history of prior criminal activity (some

weight). The trial court explicitly found that

two urged statutory mitigators did not exist:

that Jennings was an accomplice in a capital

felony committed by another and that his

participation was relatively minor; and that

Jennings acted under extreme duress or

under the substantial domination of another

person. The trial court also found eight

nonstatutory mitigators: (1) that Jennings

had a deprived childhood (some weight); (2)

that accomplice Graves was not sentenced

to death (some weight); (3) that Jennings

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

cooperated with police (substantial weight);

(4) that he had a good employment history

(little weight); (5) that he had a loving

relationship with his mother (little weight);

(6) that he had positive personality traits

enabling the formation of strong, caring

relationships (some weight); (7) that he had

the capacity to care for and be mutually

loved by children (some weight); and (8) that

he exhibited exemplary courtroom behavior

(little weight).

Investigator Cunningham of the State

Attorney's Office testified that upon arriving

in Las Vegas the next day, he did not attempt

to talk to Jennings because he was advised

that Jennings did not want to talk. However,

Investigator Cunningham testified that the

next day he and Detective Rose went to the

jail to talk to Graves (not Jennings) and,

*148 after doing so, they saw Jennings at

the booking desk as they were exiting the

building.

After evaluating the aggravators and

mitigators, the trial court sentenced Jennings

to death for each murder. The trial court

also sentenced Jennings to fifteen years'

imprisonment for the robbery. Jennings now

appeals his convictions and sentences.

Investigator Cunningham further testified

that it was Jennings who spoke first

by asking Investigator Cunningham and

Detective Rose if his mother had contacted

them. Investigator Cunningham responded

that she had not, whereupon Jennings said

that he had talked to his mother, who

advised Jennings to talk to the police, and

that, based on that conversation, he wanted

to do so. Investigator Cunningham testified

that he then advised Jennings of his Miranda

rights and held an unrecorded initial

conversation with Jennings, immediately

after which Jennings consented to a taped

interview.

Denial of Motion to Suppress

Jennings filed a pretrial motion to suppress

the statements he made to Florida law

enforcement personnel while in custody

in Las Vegas. He urged that the

statements had been obtained in violation

of his constitutional rights against selfincrimination. See U.S. Const. amend. V;

art. I, § 9, Fla. Const.

At the suppression hearing, Detective Rose

of the Collier County Sheriff's Office

testified that Jennings was initially advised

of his Miranda 5 rights and signed a

waiver thereof, but that during questioning

Jennings invoked his right to counsel.

Detective Rose testified that he thereafter

ceased questioning Jennings.

Investigator Cunningham and Detective

Rose prepared to again advise Jennings

of his Miranda rights during the taped

interview, whereupon Jennings stated,

“Well, if you want me to save you the

trouble, I understand all my rights fully.”

Detective Rose nevertheless again advised

Jennings of his Miranda rights, which

Jennings orally waived, and the taped

interview ensued.

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

Investigator Cunningham testified that the

next day Jennings was again orally advised

of his Miranda rights, and then executed a

written waiver of those rights. Upon being

confronted with inconsistencies in his story

and the evidence against him, Jennings made

the incriminating statement that he thought

he could be the killer.

“an accused, ... having expressed his desire

to deal with the police only through counsel,

is not subject to further interrogation by

the authorities until counsel has been made

available to him, unless the accused himself

initiates further communication, exchanges,

or conversations with the police.” (Emphasis

added). This Court has likewise held that

[1] The trial court ultimately denied

Jennings' suppression motion, finding that

“the contact between the Defendant and

these two representatives of the State

was voluntarily initiated on the part of

the Defendant and that he knowing[ly],

intelligently, and voluntarily waived” his

Miranda rights. Jennings now argues,

however, that any waiver of his Miranda

rights on the day of the taped interview

could not have been knowing, intelligent,

and voluntary because when he invoked

his right to counsel the previous day,

Detective Rose simply offered to get him

[o]nce a suspect has

requested the help of a

lawyer, no state agent can

reinitiate interrogation on

any offense throughout the

period of custody unless the

lawyer is present, although

the suspect is free to

volunteer a statement to

police on his or her own

initiative at any time on any

subject in the absence of

counsel.

a Las Vegas telephone book. 6 Jennings

asserts that Detective Rose's response was

inadequate.

We need not reach the question of whether

Detective Rose's response to Jennings'

request for counsel was inadequate as a

matter of constitutional principle. 7 In this

case, the evidence is undisputed that the

police ceased questioning Jennings when he

invoked his *149 right to counsel, and that

it was Jennings who reinitiated contact with

police.

In Edwards v. Arizona, 451 U.S. 477, 484

85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981),

the United States Supreme Court held that

Traylor v. State, 596 So.2d 957, 966

(Fla.1992) (footnote omitted) (emphasis

added); see also Davis v. State, 698 So.2d

1182, 1189 (Fla.1997), cert. denied, 522 U.S.

1127, 118 S.Ct. 1076, 140 L.Ed.2d 134

(1998).

This Court applied the reasoning of Edwards

Stein v. State, 632

and Traylor in

So.2d 1361 (Fla.1994). The defendant in

Stein was arrested for two murders and

signed a waiver-of-rights form. See id.

at 1363. The defendant then asked to

speak to an attorney, and the questioning

was terminated. See id. However, one

of the investigators made a comment to

the defendant that God would forgive

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

communication with the

investigators and that

the motion to suppress

was properly denied. At

the suppression hearing,

[the defendant] himself

admitted that the brief

conversation about God

had no effect on his

decision to talk to the

investigators.

him for what he had done. See id. The

defendant was then left alone in the

interview room and several minutes later,

but before the defendant had seen an

attorney, the defendant initiated contact

with the investigators by knocking on the

door and stating, “I want to talk about part

of it.” Id. at 1364. The police then had the

defendant execute a second waiver-of-rights

form, on which a notation was made that

the defendant had initiated the conversation.

See

632 So.2d at 1364. The defendant

thereupon made incriminating statements to

police. See id.

In rejecting arguments that the statements

should have been suppressed, this Court

held:

Clearly, once an accused

asks for counsel, an

accused may not be

subjected

further

interrogation until counsel

has been made available

to the accused, absent

initiation

further

communication with law

enforcement officers by

the accused. Minnick v.

Mississippi, 498 U.S. 146,

111 S.Ct. 486, 112 L.Ed.2d

489 (1990);

Edwards v.

Arizona, 451 U.S. 477, 101

S.Ct. 1880, 68 L.Ed.2d

378 (1981). Under the

circumstances of this case,

however, we find that

[the defendant] voluntarily

initiated

continued

Id.

A determination of the issues of both

the voluntariness of the confession and a

knowing and intelligent waiver of Miranda

rights requires an examination of the totality

of the circumstances. See

Traylor, 596

So.2d at 964. Looking at the totality

of circumstances in the present case, the

trial court found not only that Jennings

knowingly and intelligently waived his

Miranda rights, but also that the “contact

between the Defendant and these two

representatives of the State was voluntarily

initiated on the part of the Defendant.” We

agree with the trial court's findings, which

are unquestionably supported by the record.

Jennings was advised as part of his initial

Miranda warnings of his right to have a

lawyer appointed to represent him before

questioning if he could not afford one. The

record is undisputed that after Jennings said

he wanted a lawyer, Detective Rose ceased

questioning him.

Importantly, the record further confirms

that Jennings' reinitiation of conversation

with Detective Rose and Investigator

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

Cunningham the next day was motivated

not by any misapprehension of this right

or “taint” of the telephone book scenario,

but by an interceding conversation between

Jennings and his mother, wherein she

advised Jennings to talk to the police. During

the taped interview, Jennings acknowledged

that the *150 reason he decided to talk to

police was because his mother advised him

to do so.

knowingly, and intelligently waiving his

Miranda rights. No violation of Miranda or

Jennings' constitutional right against selfincrimination occurred in this case. We

accordingly affirm the trial court's denial

of Jennings' motion to suppress his subject

statements to police.

[2] Moreover, upon Jennings' reinitiation

of conversation with police, he was again

advised of his Miranda rights, including

his right to have a lawyer appointed to

represent him before questioning if he could

not afford one. Thereafter, at the beginning

of the taped interview when Detective Rose

and Investigator Cunningham prepared to

again advise Jennings of his Miranda rights,

Jennings stated that he could save them the

trouble because he understood his rights

fully. Despite this, Detective Rose again

advised Jennings of his Miranda rights,

once again including his right to have a

lawyer appointed to represent him before

Jennings does not challenge the aggravator

that the murders were committed during a

robbery. However, he challenges the two

remaining aggravators: that the murders

were committed to avoid arrest and that they

questioning if he could not afford one. The

record also indicates that, before making his

subsequent untaped statement the next day,

Jennings was again advised of his Miranda

rights and executed a written waiver of same.

In short, the totality of the circumstances

establishes that even if Jennings invoked

his right to counsel, see State v. Owen,

696 So.2d 715 (Fla.), cert. denied, 522 U.S.

1002, 118 S.Ct. 574, 139 L.Ed.2d 413 (1997),

he voluntarily initiated further contact with

the police. He gave the statements he

now seeks to suppress after voluntarily,

The Avoid Arrest Aggravator

were cold, calculated, and premeditated. 9

[3] Jennings argues that the trial court erred

in finding the avoid arrest aggravator. We

disagree.

In finding this aggravator, the trial court

ruled:

The evidence was undisputed that this

defendant and the co-defendant (whose

trial preceded the trial of this case and

who was convicted of the same crimes

as this defendant) were former employees

of the Crackerbarrel [sic] Restaurant. As

such, they were well known to the three

victims. Found in the defendant's truck

when the defendants were arrested in Las

Vegas, Nevada, were two pullover masks,

similar to ski masks. These were not used

in these crimes, nor were they discarded

with the other items of apparel in the

canal. The defendants disdained the use of

masks in these crimes. The use of gloves

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

by the defendants shows further support

for the conclusion that these murders

were committed by the defendant for

the purpose of avoiding or preventing a

lawful arrest. Approximately two years

before these crimes, this defendant, in

discussing a hypothetical robbery, said,

and indicated, by moving his fingers

across his throat, that if he robbed

someone he could not be caught because

he would not leave any witnesses.

While the murder of Dorothy Siddle

was undoubtedly motivated in part by

defendant's dislike for her, the evidence,

including *151 the murders of the

other two victims, makes it manifest

that the dominant motive for these

murders was the elimination of witnesses

in order to avoid prosecution. This

aggravating circumstance was proven

beyond a reasonable doubt.

application of the avoid arrest aggravator to

encompass the murder of a witness to a crime

in addition to law enforcement personnel.

However, this Court cautioned that

the mere fact of a death

is not enough to invoke

this factor when the victim

is not a law enforcement

official. Proof of the

requisite intent to avoid

arrest and detection must

be very strong in these

cases.

Id. at 22; see also Gore v. State, 706 So.2d

1328, 1334 (Fla.1997).

In Riley, the defendant and an accomplice

entered the business where the defendant

worked for the purpose of robbing it. See

366 So.2d at 20. They then threatened

the defendant's three present coworkers with

[4] [5] The avoid arrest aggravator focuses pistols, forced them to lie on the floor, bound

on the motivation for the crimes. See and gagged them, and then shot them in

Stein, 632 So.2d at 1366. As this Court the head. See id. In light of the fact that

stated in Consalvo v. State, “the evidence the victims knew the defendant and were

[supporting the avoid arrest aggravator] immobilized and rendered helpless, coupled

must prove that the sole or dominant motive with one of the perpetrator's expressed

for the killing was to eliminate a witness,” concern for subsequent identification, this

and “[m]ere speculation on the part of Court found that the record supported only

the state that witness elimination was the one interpretation that the victims were

dominant motive behind a murder cannot killed to avoid identification. See id. at 22.

support the avoid arrest aggravator.” 697

So.2d 805, 819 (Fla.1997), cert. denied, 523

U.S. 1109, 118 S.Ct. 1681, 140 L.Ed.2d 819

(1998).

In Riley v. State, 366 So.2d 19 (Fla.1978),

this Court for the first time broadened the

[6] Here, as in Riley, it is significant that

the victims all knew and could identify their

killer. While this fact alone is insufficient

to prove the avoid arrest aggravator, see

Consalvo, 697 So.2d at 819, there was

further evidence presented that Jennings

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

used gloves, did not use a mask, and stated

that if he ever committed a robbery, he

would not leave any witnesses.

Also, the facts of the present case show that

the victims had been bound. Victim Siddle's

hands were bound behind her back with

electrical tape when her throat was slashed.

While the remaining two victims (Smith and

Wiggins) had freed their hands, no evidence

of their resistance (i.e., defensive wounds

on Jennings, fingernail scrapings from the

victims, etc.) was entered into evidence.

Further, all three victims were confined to

the freezer, and any immediate threat to

Jennings could have been eliminated by

simply closing and securing the freezer door.

Instead, Jennings slashed the throats of all

three victims.

As recognized by the trial court, based

on the evidence in this case there was no

reason to kill at least two of the victims

except to eliminate them as witnesses to

the first murder. See, e.g.,

Willacy v.

State, 696 So.2d 693, 696 (Fla.), cert. denied,

522 U.S. 970, 118 S.Ct. 419, 139 L.Ed.2d

321 (1997); Thompson v. State, 648 So.2d

692, 695 (Fla.1994); Correll v. State, 523

So.2d 562, 568 (Fla.1988). Further, the

manner of killing here (consecutive throat

slashings) was not of a nature that could

be considered reactionary or instinctive

and further supports the finding that the

dominant motive for killing at least two of

the victims was to avoid identification. Cf.

Robertson v. State, 611 So.2d 1228, 1232

(Fla.1993) (finding insufficient evidence to

support avoid arrest aggravator where “[t]he

facts indicate that [the appellant] shot [the

victim] instinctively and without a plan to

eliminate her as a witness”). Accordingly,

we find substantial competent evidence to

support the trial court's finding that, beyond

a reasonable doubt, the dominant motive for

the murders of two of the victims was the

elimination of witnesses in order to avoid

prosecution.

CCP

[7] Jennings next argues that the trial court

erred in finding the CCP aggravator. We

again disagree.

In finding CCP, the trial court explained:

*152 In the space of

approximately ten minutes,

the defendants gained

entry into the Cracker

Barrel Restaurant, forced

Dorothy Siddle to open the

safe, put all three victims on

the floor, taped their hands

behind them, marched

them into the freezer,

cleaned out the safe, cut

the throats of the three

victims, and fled out the

back door when they heard

another employee buzzing

the front door for entry

to work. This approximate

time span was established

by the testimony of an

employee of the security

company whose computer

monitors the opening of

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

the doors at the Cracker

Barrel Restaurant and the

arriving employee who

buzzed the front door.

The murder weapon, a

large Buck folding knife,

was this defendant's. While

he says the co-defendant

must have killed the

victims, it is this defendant

who told a witness two

years earlier that if

he committed a robbery

he wouldn't be caught

because he would leave no

witnesses. This defendant's

dislike for victim, Dorothy

Siddle, was known to

several witnesses who

testified to his bitterness

towards her. These three

murders and the robbery,

occurring with the rapidity

described above, manifest

plan

that

was

carried out with ruthless

Additionally,

efficiency.

this defendant took the

time to walk from the

freezer where the victims

were slain to the lavatory

where, from blood on the

lavatory, it is obvious he

washed himself and the

murder weapon. Traces of

blood were still on the

knife when it was found

although not of sufficient

quantity to specifically

identify the traces. His

bloody footprints trace his

movement and activity.

The defendant admitted

that he and the codefendant had attempted

to commit the robbery

on several prior occasions

shortly before November

15, 1996[sic], the date of

these crimes, and during

these aborted attempts they

had actually prevailed on

victim, Dorothy Siddle, to

call a towing service for

defendant's truck.... This

aggravating circumstance

was proven beyond a

reasonable doubt.

This Court has recognized that, in order

to prove the CCP aggravator, the State

must prove beyond a reasonable doubt each

of four elements: (1) the murder was the

product of cool and calm reflection and not

an act prompted by emotional frenzy, panic,

or a fit of rage (cold); (2) the defendant

had a careful plan or prearranged design to

commit the murder before the fatal incident

(calculated); (3) the defendant exhibited

heightened premeditation (premeditated);

and (4) the defendant had no pretense of

moral or legal justification. See Walls v.

State, 641 So.2d 381, 387 88 (Fla.1994).

All four elements are established here. As

found by the trial court, the most salient

fact of these murders is the ruthless efficiency

with which the murders were carried out in

conjunction with the robbery. The methodic

succession of events cited in the trial court's

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

order supports a conclusion that the murders

were not committed in an “emotional frenzy,

a *153 weapon, lack of resistance or

provocation, and the appearance of a killing

panic or a fit of rage.”

carried out as a matter of course.” Bell

v. State, 699 So.2d 674, 677 (Fla.1997),

cert. denied, 522 U.S. 1123, 118 S.Ct.

1067, 140 L.Ed.2d 127 (1998). All of these

circumstances are present here.

Id. at 387.

The scenario of events supports the elements

of a calculated plan and heightened

premeditation. We begin with witness

Chainey's testimony that, approximately

two years before these crimes, Jennings

made general statements and gestures to the

effect that if he ever needed any money,

he would simply rob someplace or someone

and eliminate any witnesses by slitting their

throats. Moreover, Jennings admitted to

several aborted robbery attempts of the

Cracker Barrel in close proximity to the

actual crimes that he ultimately committed

there.

[8] Evidence of a plan to commit a crime

other than murder (such as, in this case,

robbery) is in and of itself insufficient to

support CCP. See, e.g., Castro v. State,

644 So.2d 987, 991 (Fla.1994). However, the

execution-style murders, combined with the

advance procurement of the murder weapon,

the previously expressed dislike for victim

Siddle, and the previously expressed intent

not to leave any victims if robbery were

committed are all additional factors that

support the elements of a calculated plan

and heightened premeditation. The evidence

here does not suggest a “robbery gone bad.”

Cf.

Rogers v. State, 511 So.2d 526, 533

(Fla.1987); Hansbrough v. State, 509 So.2d

1081, 1086 (Fla.1987).

“Cold, calculated, premeditated murder can

be indicated by the circumstances showing

such facts as advance procurement of

Finally, Jennings makes no argument of

moral or legal justification for the killing.

Here, just as this Court found under

analogous facts in

there was

Walls, 641 So.2d at 388,

evidence,

much

less a colorable claim,

establishing a pretense

moral

legal

justification.... [T]here is no

construction of the facts

that would support even

a fragmentary claim of

excuse or justification, or

of a defense to homicide,

because the victim here was

prostrate and helpless when

[the appellant] returned to

kill her.

Thus, we find that substantial competent

evidence supports the trial court's finding

of CCP. In so finding, we reject Jennings'

argument that the trial court impermissibly

doubled the CCP and avoid arrest

aggravators in his case. “So long as each

aggravator is supported by ... distinct facts,

we hold that no impermissible doubling

of [these] aggravating factors [occurs].”

Stein, 632 So.2d at 1366. In the present

case, although both aggravators share

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

certain facts, they are each also supported

by facts distinct from the other and are

supported by different aspects of the crime.

For example, the avoid arrest aggravator is

supported by the distinct fact that the victims

knew Jennings and that Jennings made prior

statements concerning witness elimination.

The CCP aggravator is supported by distinct

facts regarding the method of execution

(including the ruthless efficiency), and

the previously expressed animosity toward

victim Siddle. We find no impermissible

doubling here.

Disparate Sentence

[9] [10] Jennings' accomplice, eighteenyear-old Jason Graves, was also convicted

of the murders but was sentenced to life

imprisonment for each of the murders.

Jennings now argues that his death sentences

are impermissibly disparate from Graves'

sentences of life imprisonment. While the

death penalty is disproportionate where a

less culpable defendant receives death and

a more culpable defendant receives life,

see

Hazen v. State, 700 So.2d 1207,

1211 14 (Fla.1997), disparate treatment of

codefendants is permissible in situations

where a particular defendant is more

culpable. See Larzelere v. State, 676 So.2d

394, 406 07 (Fla.), cert. denied, 519 U.S.

1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Although Jennings urges equal culpability

with codefendant Graves in the present case,

the trial court resolved this issue against

Jennings in discussing Graves' disparate life

sentence as a mitigating factor:

The co-defendant, Charles

Jason Graves, was tried

on these same charges

two weeks prior to

this defendant, before the

undersigned judge. The

state had entered an

agreement in open court

to waive the death penalty

for Graves in exchange for

his waiver of a motion

for a continuance to allow

more time to adequately

prepare for a trial where

the death penalty was

contemplated. Graves was

eighteen years old at

the time of the crimes.

While Graves admitted to

possessing what could be

best described as a crude,

homemade knife at the

crime scene (it was in

evidence in both trials

as were virtually all the

evidentiary exhibits) the

medical examiner involved

the

autopsies

the victims, Dr. Borges,

testified in this case that

Graves' crude knife was

incapable of the kinds

of wounds inflicted on

the victims; and further

that the large Buck

knife admittedly belonging

to this defendant was

consistent with the mortal

wounds to the victims

particularly the two victims

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

whose spines bore slashing

injuries from the murder

weapon.... [T]he evidence

is overwhelming that this

defendant wielded the knife

in murdering the victims.

There was only one set of

bloody footprints leading

from the freezer and

these belonged to this

defendant as evidenced by

his own admissions and

the testimony of a forensic

expert (Mr. Grimes); the

photographic comparisons

and actual floor mat

removed from the crime

scene by investigators are

inconsistent with any other

possibility. As previously

observed, this defendant

also admitted to the killings

by saying in his mind he

knew he killed the victims

even if his heart *154

could not accept it. This

evidence was all before the

jury in the guilt phase and

the penalty phase. This

court judicially noticed and

instructed the jury during

the evidentiary portion of

the penalty phase that the

co-defendant could only

receive a life sentence for

these crimes. The state's

waiver of the death penalty

as to Graves, whether

for the stated reason of

avoiding a continuance,

or because the evidence

in both these cases was

such that the death penalty

was more problematic in

the co-defendant's case,

nevertheless is found by

this court to be a mitigating

factor.

This thorough analysis by the trial court

indicates that not only was the issue of

the codefendant's life sentence presented to

the jury as a mitigating factor, but also

that the trial court carefully considered

relative culpability. As established in the

record, Graves was only eighteen, whereas

Jennings was twenty-six, at the time of the

murders. The trial judge, who presided at

both trials, concluded independently that

Jennings was the actual killer and thus more

culpable than Graves. Moreover, despite

finding that Jennings was more culpable and

the actual killer, the trial court did consider

and instruct the jury on the fact that the

codefendant received a life sentence as a

result of the State's waiver of the death

penalty as a mitigating factor.

Contrary to Jennings' argument, the fact

that the State argued in Graves' trial that

Graves was the “leader” in the robbery is not

necessarily inconsistent with the argument

(and the trial court's finding) that Jennings

was the actual murderer. As further found by

the trial court below:

The prosecution took

the same position in

both trials

that this

defendant wielded the

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

knife and actually killed

the three victims while

Graves remained outside

the freezer door with the

pellet pistol which closely

resembled a Colt .45 semiautomatic pistol assisting

in the confinement of the

victims to the freezer

because two of the victims

were found with their

hands partially freed from

the electrical tape with

which their hands were

bound behind their backs.

The evidence is consistent

with the position taken by

the state.

We find no abuse of discretion in the trial

court's ruling on this issue. The fact that the

eighteen-year-old codefendant received life

does not prevent the imposition of the death

penalty on Jennings, whom the trial court

found to be the actual killer and to be more

culpable.

Sufficiency of the Evidence/Proportionality

Though not directly raised by Jennings,

we turn now to our required independent

review of the sufficiency of the evidence

as well as the proportionality of Jennings'

death sentences as compared to other cases

where we have affirmed death sentences. See

Terry, 668 So.2d at 965; Porter v. State,

564 So.2d 1060, 1064 (Fla.1990).

We have independently reviewed the

evidence in the present case, see Parker

v. Dugger, 660 So.2d 1386 (Fla.1995),

including Jennings' inculpatory statements

made to law enforcement personnel, his

ownership of the murder weapon, and his

bloody shoe prints leading from the murder

scene. The evidence also includes general

testimony regarding not only Jennings'

dislike of Cracker Barrel and Siddle, but

also his past statements about committing

a robbery and not leaving any witnesses.

We conclude as a matter of law that the

evidence is sufficient to support Jennings'

murder convictions.

Further, based on our review of all of

the aggravating and mitigating factors,

including their nature and quality according

to the specific facts of this case, we find

that the totality of the circumstances justifies

the imposition of the death sentence, see

Porter, 564 So.2d at 1064, and that

this case is proportionate to other cases

where we have upheld the imposition of a

death sentence. See, e.g., Stein (affirming

death sentences where, inter alia, murders

were cold, calculated, and premeditated and

committed during armed robbery to avoid

arrest, and defendant had no significant

history of prior criminal activity); LeCroy

v. State, 533 So.2d 750 (Fla.1988) (affirming

death sentence where, inter alia, murder was

committed during course of armed robbery

to avoid arrest, and defendant had no

significant history of prior criminal activity).

*155 Based on the foregoing analysis of the

issues, we affirm Jennings' convictions and

sentences.

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

It is so ordered.

All Citations

718 So.2d 144, 23 Fla. L. Weekly S459

HARDING, C.J., and OVERTON, SHAW,

KOGAN, WELLS, ANSTEAD and

PARIENTE, JJ., concur.

Footnotes

We do not address Jennings' challenge to his robbery sentence, as it was not preserved below. See generally

Terry

v. State, 668 So.2d 954, 961 (Fla.1996) (citing

Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982)).

According to testimony at trial, a “Buck knife” is a particular brand of very sharp, sturdy knife that has an approximately

four and one-half inch black plastic handle, into which folds the blade of the knife.

According to testimony at trial, a Daisy air pistol is like a pellet gun, but looks almost identical to a Colt .45 semi-automatic

pistol.

The evidence from the canal consisted of: clothes, gloves, socks, and shoes that Jennings said were worn during the

crime; a homemade razor/scraper-blade knife and sheath that Jennings said belonged to Graves; packaging from a Daisy

pellet gun and CO2 cartridges; unused CO2 cartridges and pellets; money bags (one marked “Cracker Barrel”), bank

envelopes, money bands, Cracker Barrel deposit slips, and some cash and coins; personal checks, travelers' checks, and

money orders made out to Cracker Barrel; a clear plastic garbage bag; and rocks to weigh down the bundle of evidence.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Specifically, Detective Rose testified as follows on cross-examination by the defense at the suppression hearing:

Q. What did [Jennings] tell you?

A. He said that he wanted a lawyer or something to that effect.

Q. What was your response to that?

A. I asked him if that's what he wanted.

Q. And did you go any further?

A. Not really.

Q. Any questioning?

A. Not from me, no.

Q. Specifically, did you hand him a phone book and say, “Here is a phone book. Call any lawyer in Las Vegas”?

A. No. I did offer him one though.

Q. Was that your response to providing an attorney for him?

A. Yes.

Q. Just hand him a phone book and say, “call”?

A. No, I asked him if he wanted to see one. I told him I could get him one.

Q. Did you tell him that if he wanted a lawyer, that you would see that he got one if he couldn't afford it?

A. That was explained to him prior, when [another detective] read the Miranda Warnings to him.

Q. So is your testimony that when he asked for a lawyer, you gave him a phone book, a Las Vegas phone book and

said he could contact any lawyer he wanted to?

A. I never gave him a phone book, no.

Q. Okay. You said you could give him one?

A. Certainly.

Q. And that ended your conversation with him?

A. Pretty much, my conversation with Mr. Jennings.

Jennings argues that once he requested counsel, the police had an affirmative duty under

Florida Rule of Criminal

Procedure 3.111(c) to “immediately and effectively place the defendant in communication with the (office of) public

Jennings v. State, 718 So.2d 144 (1998)

23 F a. L. Week y S459

defender of the circuit in which the arrest was made.” To the extent that Jennings did not specifically raise this procedural

argument below, he is precluded from doing so now. See generally

Terry, 668 So.2d at 961. Even assuming otherwise,

rule 3.111(c) is inapplicable to the facts of this case. By its very terms, the rule applies to booking officers' committing

a defendant to custody, not to, as here, interrogating officers' questioning a defendant already in custody.

That Detective Rose and Investigator Cunningham failed to have Jennings execute a written waiver of his Miranda rights

in conjunction with the taped interview is not determinative. As this Court held in

Johnson v. State, 660 So.2d 637,

643 (Fla.1995), noncompliance with the written waiver requirement does not require reversal unless it has resulted in

prejudice or harm to the defendant such that fundamental rights are implicated. No such prejudice or harm exists in the

present case.

Thompson v. State, 595 So.2d 16 (Fla.1992), is misplaced. In Thompson, this

Furthermore, Jennings' reliance on

Court simply held that “the police must somehow communicate to the accused the basic idea of the right to consult

a free attorney before being questioned.” Id. at 17. The record here is clear that Detective Rose and Investigator

Cunningham repeatedly advised Jennings of his right to consult a free attorney before being questioned, both after the

telephone book scenario and before he made the taped and untaped statements at issue.

Jennings raises two evidentiary issues related to the penalty phase: that the trial court erred in admitting masks into

evidence and that the cross-examination of a character witness impermissibly exceeded the scope of direct. We reject

these arguments without elaboration.

End of Document

APPENDIX F

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