Petition — Darden v. Florida

—_——- =

——r © ere ~~ —— ~—.

Ri, Sa Willd

SEP 15 15/0

CFFICE C- Te. CLERK

W6-53 82

It THE SUPRENSE SOURT, 0S.

SUPREME COURT OF The Unit: > STATES

October Term, 1976

NO. 15-

aan ——

WILLYé JASP&R DARDEN,

Petitioner

-

STATE OF FLOKIDA,;

Respondent.

PETITION fOR WAIT OF CEReTiIOF.

TO THE SUPREWE COURs OF PLOe.T oS

ree 2808 arc s.crem . +e te TANEAAS ETS HSS HT —- -— em mera ere = ~ =—s et tar -cme

Geotfirey “4. “2301s

Robert S. Davle

916 “Whira Avsité

New Yock, New Yocs Lue ié

Sarold H. moore

2058 Main Sireec

Sarasota, Florida 33577

Attorneys for Pecitior-c

Nickersca, KRramcr, Lowencteia,

Nessen, Kamin & Soil

919 Third Avenue

New York, New York 10022

Of Counsel

——

, i]

|

Table of Contents Table of Contents (continued)

Page Page

Citation to the opinions below . -«e«-e+«e#e#*%*«ee#e## #* # # 1 III - THE COURT SHOULD GRANT CERTIORARI TO CON-

Jurisdicti SIDER WHETHER THE EXCLUSION FOR CAUS: OF

ee +60 8 O28 8 8 oe ee ee ie t FIVE VENIREMEN BECAUSE OF THEIR EXPRESSED

i a " ATTITUDES TOWARD THE DEATH PENALTY VIOLA-

Quest ons presente . . . 7 . . - . . . a . . . . . + 7 - TED PETITION=R'S RIGHTS UNDER THE FOUR-

TEENTH ENDMzNT TO THE NSTITUTION. - «© © «© * 40

Constitutional provisions invelved ...e+«-e«eeeeee8 * 3 AMEND: nin CONS UT

Stat >? A. The test of exclusion applied by the on ¢

atement o ae oe a ee ae oe oe ee ek 3 court below did not meet the minimum

P standards required by the Constitution

(a) The events and proceedings below in brief. . -« >» 3 as construed in Withezspoon v. Tllinois ...«- 41

(b) The facts pertinent to the identification issue. . 6 B. Exclusion from the jury that decided peti-

(c) the fed 1 ti tioner's guilt of five veniremen having

- oa ~ are ey —_ conscientious scruples against the death

eae aes oennes ee oe ee Fe, ee ee 10 | penalty violated petitioner's rights un-

: der the Due Process and Equal Protection

Reasons for granting the writ. .-++++*-*-*** ee * * i2 Clauses of the Fourteenth Amendment to |

I =< THE COURT SHOULD GRANT CERTIORARI TO CONSI- | the Constitution of the United States - ++ «= - 46

DER WHETHER THE CLOSING ARGUMENTS OF THE | Conclusion 49

PROSECUTION WERE SO INFLAMMATORY THAT THEY cee Oe ee ee, We eee or sear

EPRIV PET NEX FAL: i -

ean ay nny en pn eng ng | Appendix A: Darden v. State, 329 So. 2d 287 (Fla. 1976)

none oor-wese asp iey |

UNITED STATES CONSTITUTION . . . . . . . + . . . « 12 | Appendix B: The prosecutio.u's summation to the jvry

A. The state improperly attempted to

try petitioner for "offenses" of , ,

the State Division of Corrections. - +++ + = * 12 Authorities cited

B. The stece sought to prejudice the jurors | ie :

by aprealing improperly to Snake etme 16 Berger v. United States, 295 U.S. 78 (1935) «+ +++» 12

c The state improperly placed the prose- Boulden v. Holman, 394 U.S. 478 (1969). - + +2«+-**ee 8 42,44,45 |

a7 & ee ' . . . e °

cutors® credibility 2m 28008 ee e eo 8 8 8° 18 Fowers v. Coiner, 309 F. Supp. 1064 (S.D. W. Va. 1970). 20

D. McDaniel's summation also included 2

other forms of improper ar i 20 Boykin v. Alabama, 395 U.S. 238 (1969). «©» «e+ es © © * 24

II - THE COURT SHOULD GRANT CERTIORARI TO CONSI Brathwaite v. Manson, 527 F. 2d 363 (2d Cir. 1975),

~iNs - - 9A 36

DER WHETHER EITHER THE ADMISSION IN EVIDENCE cert gee 48 L. Bd, 22 262 (May 3, 1976, 99. 26.90.35

OF A WANTONLY AND NEEDLESSLY SUGGESTIVE PRE~ | ; ae wanes FOR Ane Oe ee eee er eee

TRIAL IDENTIFICATION OR OF - EX=

anne a on on te ae emg nl Bruce v. Estelle, 483 F. 24 1031 (5th Cir. 1973)... - 16,26

MISS = Er I E} . :

pinnae greg oe ee. . 27 Carter v. Greene County Jury Commission, 396 U.S. 320 (1970) 48

Chambers v. Mississippi, 410 U.S. 284 (1973). -« «© « « 26

. ii

Authorities cited (continued)

Page

Chapman v. California, 386 U.S. 18 (1967). « « « «© « « 25

Coleman v. Alabama, 377 U.S. 129 (1964). . « « « « « « 24

Cooper v. Wainwright, 308 So. 2d 182 (Fla. Ct. App. 1975) 24

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) .12,20,22,23,24,26

Darden v. State, 329 so. 2d 287 (Fla. 1976). « © e© © © 25

Eberucart v. Georgia, No. 74-5174 (writ of

certiorari filed August 19, 1974). -« « «© «© «+ «© «© «© «© » 45

Estes v. Texas, 381 U.S. S32 (1965). « «© © e ee © © © 26

Foster v. California, 394 U.S. 440 (1969)... + + «+s 31

Grant v. State, 194 So. 2d 612 (Fla. a ae a ae 24

Harper v. Virginia Board of Elections, 383 U.S. 665 (1966) 47

Izvin v. Dowd, 366 U.S. 717 (1961) « - - + s+ + © © ©» 25

Jamette v. North Carolina, No. 73-6877 (writ of

certiorari filed June 1l, 1974). « «© «© © © «© © © © « 45

Kelly v. Stone, 514 F. 2d 18 (9th Cir. 1975) . « « « 017,18,24,26;

Kimbrough v. Cox, 444 F. 2d 8 (4th Cir. 1971). « © @ « 28 |

LeMadline v. State, 303 So. 24 17 (Fla. 1974). « «+ « 40

Manning v. Jarnican, 501 F. 2d 408 (6th Cir. 1974) .. 21,26

Marion v. Beto, 434 F. 2d 29 (5th Cir. 1970) . .- + «+ 42

Mason v. United States, 414 F. 2d 1176 (D.C. Cir. 1969) 28

Mathis v. New Jersey, and companion cases,

403 U.S. 346-48 (1971) . . 2 + © © © we @ we we ew we ew ow 42

Maxwell v. Bishov, 398 U.S. 262 (1970) . ~ «© « «© «© « « 42,44

Neil v. Biggers, 409 U.S. 188 (1972)... - 28,29,30,32,33,34,35:

Noell v. North Carolina, No. 73-6876 (writ of

certiorari filed June ll, 1975). ..+«++«-e-e«eeee 45

Authorities cited (continued)

Page

Perry v- Mulligan, 399 F. Supp. 1285 (D. N.J. 1975) . . 14,26

Powell v. Alabama, 287 U.S. 45 (1932) - - +++ ees 25

Reid v. Covert, 984 U.S. 1 (1987) «© e ee eo eo eo oO 8 25

Rudd v. Florida, 477 F. 2a 805 (5th Cir. 1973). + «+ >» 29

Sacher v. United States, 343 U.S. 1 (1952). - «© © « » 23

Sanchell v. Parratt, 530 F. 2d 286 (8th Cir. 1976). .29,31,34,38

Sanchez v. Heggie, 531 F. 2d 964 (10th Cir. 1976) . - 18,26

Sheppard v. Maxwell, 384 U.S. 333 (1966). - «- «+ © « » 26

Simmons v. United States, 390 U.S. 377 (1968) 28,29,30,32,36,37

Skinner v. Oklahoma, 316 U.S. 535 (1942). «© «© ee © @ 47

Smith v. Coiner, 473 F. 2a 877 (4th Cir.), cert.

a-nied sub nom. Wallace v. Smith, 414 u.S. 1115 (1973) 29,32

Smith v. Texas, 311 U.S. 128 (1540) a - oe ar es 46,48

Smith v. Whisman, 431 F. 2d 1051 (5th Cir. 1970). . - 44

State v. Jones, 204 So. 2d 515 (Fla. 1967). -+-+«s-s 24

Stovall v. Denno, 388 U.S. 293 (1967) «.+« « © © » 27,28,29,31,32

Taylor v. Lovisiana, 419 U.S. 522 (1975). «© e eee @ 46,48

Taylor v. State, 294 So. 2d 648 (Fla. 1974) - + +s -s 40

wurner v. Louisiana, 379 U.S. 466 (1965). . ++ +-+- 25

United States v. Dailey, 524 F. 2d 911 (8th Cir. 1975) 31

United States v. Fernandez, 450 F. 2a 638 (2d Cir. 1972) 28

United States v. Fowler, 439 F. 24 133 (9th Cir. 1971) 28

United States ex rel. Haynes Vv. McKendrick,

461 FP. 24 152 (24 Cis. 1973). ~ 2-22 ee 2 8 e 8 © * 17,26

United States ex rel. Kirby v. Sturges, 510 F. 2d 397 “a

(7th Cir.), cert. denied, 421 “ 1016 (1975). -« « -

iv

Authorities cited (continued)

Page

Whitney v. California, 274 U.S. 357 (1927). ew ee eo eo © 24

Wilson v. State, 294 So. 24 327 (Fla. 1974) «. «© «© © « e 24

Witherspoon v. Illincis, 391 U.S. 510 (1968) 40,41,42,43,44,45,46,4&

Workman v. Cardweil, 471 F. 2d 909 (6th Cir. 1972),

cert. denied, 412 U.S. 992 C3073) «eo ee tees ee 8 29

Young v. Ancerson, 513 F. 2a 1969 (10th Cir. 1975)... - 18

BRA Ae VE

SEP 15 1976

OFFICE OF THE CLERK

IN THE SUPREME COUNT, US.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 76-

WILLIE JASPER DARDEN,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner prays that a writ of certiorari issue

to review the judgment of the Supreme Court of Florida en-

tered February 18, 1976 affirming his conviction for first-

degree murder and other crimes and sentencing him to death.

Citation to the opinions below

The majority and dissenting opinions of the Supreme

Court of Florida are reported at 329 Su.2d 287 (Fla. 1976), and

are set out in Appendix A hereto.

Jurisdiction

The judgment of the supreme Court of Florida was

entered on February 18, 1976. That court denied petitioner's

application for rehearing on April 19, 1976. On May 14, 1976,

Mr. Justice Powell granted a stay of execution of the death

sentence imposed on petitioner and on July 8, 1976 the same

Justice granted petitioner's request for an extension of

time to file a petition for certiorari to September 16,

1976.

Petitioner asserted below and acserts here the

deprivation of rights secured to him by the Congtitut‘on

of the United States; hence, jurisdiction of this Court

is invoked under 28 U.S.C. §1257(3).

Questions presented

l. Was petitioner's right to a fair trial denied

to him by the prosecution's flagrantly prejudicial and

inflanmatory summation to the jury, when the misconduct

was (i) repeated and persistent, (ii) intentional, (iii)

unremedied by a curative instruction from the court, not-

withstanding defense counsel's objection, (iv) unprovoked

by defense counsel, and (v) of probable importance in per-

suading the jury to convict and to recommend imposi*ion

of a death sentence upon evidence of guilt that was far

from overwhelming?

2. Was petitioner deprived of a federal con-

stitutional right by testimony on the state's direct case

of a one-on-one identification that occurred at a prelimi-

nary hearing, when this earlier identification had been

both wantonly and needlessly suggestive?

3. Was petitioner deprived of rights accorded

him by the Constitution by reason of two in-court identi-

fications, both of which may have been the product of im-

permisslbly and needlessly suggestive pretrial identifica-

tions?

4. Were petitioner's constitutional rights in-

fringed by the exclusion for cause of five veniremen who

acknowledged that to vote in favor of the imposition of

the death penalty upon pecritioner would violate their

moral and religious principles?

Constitutional provisions involved

This case presents issues under the Sixth and

Fourteenth Amendments to the Constitution of the United

States.

Statement of the case

(a) The events and proceed-

ings below in brief rr

In the early evening of September 8, 1973 Carl's

furniture store in Lakeland, Florida was held up, one of

its owners, Carl Turman, was shot and killed as he entered

through a back door, and Phillip Arnold, a sixteen year

old boy who lived nearby, was shot and wounded as he sought

to give aid to Nr. Turman (R. 203-09, 211-12, 430-38).* At

about the same time as these occurrances, the petitioner, on

weekend furlousa from a Florida prison, lost control of his

girlfiriera'’s car as he drove toward her house in Jampa and

struck a telephone pole adjacent to the highway (R. 331-32,

574-77, 600). The accident took place a little over three

miles from Carl's furniture store (R. 508, 539).

Fiererences are to the pages of the cecord on appeal to

the Florida Supreme Court.

A few hours thereafter petitioner was arrested

; ; ; failed in this effort had obtained a ride to Tampa 2. 577-7

at the home of his girlfriend and later the same night was sooo , . pa (: 9,

: 330-31, 334-35, 340-41). Petitioner denied having bewn at the

charged with the murder of Mr. Turman, the attempted murder |

furniture store or haviny anything whatever to do with the

of Mr. Arnold, and the robbery that accompanied these

crimes with which he was charged (R. 592-93, 598-99).

shootings (R. 586).

; Petitioner's recitation of the events of the evening

Following a change of venue to rural Citcus County

; ; of September 8 was reither implausible ia itself nor, apart

(R. 138), Mr. Darden was tried for first degree murder and the

' rae | £rom the identification testimony of Mrs. Turman and Air.

other, lesser crimes in mid-January, 1974. The principal evi-

; ae arrold, was it ia direct conflict with the state's ev .dence.

dence proferred by the state was two-fold: the identification

of petitioner by Mrs. Turman and Mr. Arnold (R. 224-26, 492), : In sum, at the close of the evidence, the p-osecu-

both of whom had furnished descriptions of the assailant tion's case for conviction was a doubtful one aad depen-

ded, in large measure, upon the jury's acceptance of che

petitioner, and testimony from a deputy sheriff who, on the cay

}

immediately after the crime that bore little resemblance to |

| identification testimony of the state's two principal wit-

following the crime, had found a .38 calibre pistol in a nesses. With this uncertainty, the summations to the jury

ditch thirty-some feet from the highway and about an equal | tock on particular importance.

distance from the place of Darden's automobile accident the

; ; Pune first of the two prosecutors to sua up for the

evening before (R. 503-04, 511). The pistol was shown at trial

——

most pact confined himself <o the evidence (R. 738-.5); the

- ee + oe oe

—— ——

to be of the same calibre as the murder weapon and to have nad

second, Mr. McDaniel, largely ignored the eviagence anu devoted

four bullets fired from it, but was not connected to “he crime

; ; ; aaa his address to what was surely a calculated effort tc arouse

by ballistic or other evidence of a more definitive character.

the jurors’ passions and to distract them from the proper

(R. 357-58, 514, 517-22).

performance of their task (R. 749-81). Thus, within less than

Petitioner testified at length on his own behalf thirty-five traxscript pages, McDaniel time and time again

(R. 571-659) and told how his automobile had skidded from the focused upon the Florida pivision of Corrections as taat

| highway in wet weather as he hastened back to Tampa from "unknown defendant” who, through the weekend furlougr, had

Lakeland to meet his girlfriend and attend a wedding later on turned petitioner loose “on the public” (R. 749-52, 133-54,

in the the evening (R. 574-76). Both he and witnesses called 164-65, 766, 782); repeatedly expressed his wish that petitioner

by the state explained that, with the aid of a passing motorist, had "blown his [own] face off" (R. 158-59, 774, 775, 779);

he had sought unsuccessfully but with seeming equanimity to | asserted his own opinion as to petitioner's credibility,

locate a wrecker to take the disabled auto in tow and, having | explaining to the jury that, were ne in the defendant's position,

he also would have “lie([d) until my teeth fell out" (2. 7553

i -§-

see R. 748, 769, 770, 777-78); branded Darden an animal who

belonged “at the other end of [a] ... leash” (R. 750) and made

numerous other flagrantly inflammatory and irrelevant remarks.*

Following the summations, the jury brought in a

verdict of guilty on all counts and, in the second half of

the bifurcated triai, recommended imposition of a death

sentence, a recommendation embraced by the trial judce.

On appeal, the Supreme Court of Plorida affirmed

petitioner's conviction and sentence by a five to two vote,

the dissenters urging that, by reason of the prosecution's

misconduct in summation, Mr. Darden was entitled *o 2 new trial,

both as a matter of state law and under the commanc of the Due

Process Clause of the Fourteenth Amendment to the Constitution.

(b) The facts pertinent to

the identification issues

As we have said, the identification testimony of

Mrs. Turman and of Mr. Arnold was central to the prosecu-

tion's case. We describe below how the in-court identifi-

cations by both witnesses had been preceded by needlessly

and impermissibiy suggestive pretrial identifications, one of

which was, in addition, conducted in tue absence of petitioner's

counsel. We also point out how Mrs. Turman was permitted

to describe on the state's direct case her initial one-to-

one identification of the defendant at a preliminary hearing.

ad The full text of the prosecutors’ summations are set

out in Appendix B to this petition. The principal imoro-

prieties in the summations are quoted in point I of our

argument (pp. 12-26, infra).

According to Mrs. Turman, she was alone in the

furniture store just prior to closing time on the evering of the

crime (R. 200-01). A heavy~-set black man had come in osten-

sibly to look for used furniture for some apartments (R. 203-04).

After examining a variety of furniture and appliances, the cus-

tomer appeared to leave the store, only to return in «= moment's

time, pistol in hand, demanding the money in the cash register

(R. 205-07, 244-45). Mrs. Turman testified that, as she and the

robber moved toward the back of the store, her husbanc entered

through the rear door and was shot down in his tracks as she

cried out a warning (R. 207-08).

A threatened sexual assault followed but, a:imost

immediately, Philip Arnold, who lived just a few hous¢cs

away from the furniture store, pushed open the back door,

saw the prostrate Mr. Turman, and squatted down to give

aid to him (R. 210-13, 430-35). Within a few seconds. however,

the assailant moved toward Mr. Arnold, shot him in ite mouth as

he looked up from his squatting position, and shot his. again in

the neck as he turnea to flee (R. 212-13, 435-37). A third

bullet struck Mr. Arnold from the rear as he ran toward his

home and the gunman hastened out of the store behind Lim

(R. 437-38).

All told, according to Mrs. furman, she was in the

presence of the robber for perhaps ten minutes, while Mr.

Arnold testified that he saw the gunman for no more tian

twenty or twenty-five seconds, during a portion of which his

attention was focused upon the body of Mr. Turman (R. 230, 245,

495-97).

-=————-

—_

eee eee eee el OOOO eeeEeEOOEeEeEEEEOEOEOeEeEEEEEEEEEEEEEEEEEEEEEEOEOEOEOEee

Within an hour or two of the crime, Mrs. Turman

described the attacker to a deputy sheriff as a heavy-

set, clean-shaven black man with a fat face and of her own

height -- five foot, six inches -- wearing a dark colored

pullover sports shirt (R. 226-27, 237-39). When askec by the

deputy whether she would be able to identify the criminal upon

sight, she repliec, "I would try, I would try; I might --

I don't know" (R. 239).

In contrast to this description the trial testi-

mony showed that petitioner was five feet, ten or eleven inches

tall and weighed around 170 to 175 pounds (R. 596). Moreover,

one of the state's witnesses, a motorist who had stopped at the

scene of the auto accident that occurred, according to tne

prosecution's theory, when petitioner was fleeing the scene of

the crime, testified that Darden was wearing a white or greyish

shirt that buttoned down the front and that he had a moustache

(R. 311, 313, 318-20).

In view of these contradictions, the unfair cir-

cumstances of Mrs. Turman's pretrial identification of

petitioner are particularly significant. Although, as we

have noted, petitioner was arrested and charged with Mr.

Turman's murder and the other crimes within a half-dozen hours

of the event, the authorities did not request Mrs. Turman to

identify Darden in a line-up or in any other fashion until

some four days later (R. 586, 226, 216). The identification

that then occurred ‘took place during Mrs. Turman's testimony

at a preliminary hearing, as petitioner sat with his counsel

at the defense table -- apparently the only back man among

the few people in the courtroom (R. 257-62).

i

Thereafter, Mrs. Turman was permitted once again

to identify petitioner at his trial. To buttress this

identification, the prosecution also brouyht out, on cirect

examination, the ecrlier identification that she had made.

The prosecution questioned Mrs. Turman thus:

"Q. Do you remember when the funeral [of Mr.

Turman] was?

A. Yes, sir, September 13th, on a Wednesday.

Q. You say you saw Mr. Darden the day after?

A. Yes, sir.

Q. Where was that?

A. At the preliminary hearing.

@. Did you have any trouble identifying him

on that date?

A. I did not.

Q. And again, you're absolutely positive?

A. Yes, sir." (R. 225-26).

In contrast to Mrs. Turman, Mr. Arnold did not tell

the jury of his pretrial identification of petitioner (R. 488).

Nonetheless, the credibility of his in-court idenitfica-

tion was also marred by a wantonly and needlessy suggestive

photo identification not long after the crime.

On September 11, 1973 -- subsequent to the appoint-

ment of counsel for petitioner -- two sheriff's deputies visited

Mr. Arnold in the hospital, where he was recovering from his

bullet wounds (R. 473-75, 446). According to Mr. Arnold's testi-

mony, elicited out of the presence of the jury, he had, by this

time, already read newspaper stories about the crime which

almost certainly recounted the arrest of a suspect and his

identity (R. 457-59).

The deputies, Mr. Arnold recalled, had shown him six

photographs and asked whether he could identify his assailant

from among them (R. 447-48, 475). Four he immediately rejected

out of hand, for “they didn't look anything at all like him"

(R. 449, 457). From the two remaining photographs Mr. Arnold

selected that of petitioner (R. 449-50). The testimory dis-

closed, however, that nis ability to make this choice was less

than startling, for the picture of petitioner bore the name

“parden" and the date of his arrest, "9-9-73," facts of which

Mr. Acnold was almost assurediy already aware (R. 453, 476-77).

Not long atter this tainted identification, peti-

tioner asked that Mr. Arnold be asked to identify him in

a croperly couducted lineup, but the prosecuting authori-

ties refused the request .(R. 486, 591).

(c) How the federal guestions

were raised and decided below

I. In connection with the selection of the jury,

petiticner's counsel repeatedly excepted to the irial court's

/Guestioning of the veniremen and to its exclusion for cause

of five prospective jurors on account of their conscientious

scruples against the death penalty (R. 16-20, 44-46, i07,

109-10, 165). Petitioner assigned these rulings as error on

appeal and the issue was extensively briefed (assignments of

error ll and 12). ‘The Florida Supreme Court rejected this

claim, sub silenti., in affirming petitioner's conviction and

sentence.

II. At the preliminary hearing described earlier,

petitioner's counsel strenuously objected to Mrs. Turman's

testimony pursuant to the identification procedure utilized by

the prosecution (R. 218-19). At trial, after hearings out of

the presence of the jury concerning the state's proposed iden-

tification testimony, petitioner's attorneys objected to the

court's culings permitting such testimony (R. 214-22, 443-88).

-10-

On appeal, petitioner's counsel assigned as error the admission

in evidence of the in-court identifications by Mrs. Turman and

Mr. Arnold and test imony by Mrs. Turman of the preliminary

hearing identification of the defendant (assignments of error

1, 2, 3, 4, 25 and 26). Although the issue was extensively

briefed, the Floriaa Supreme Court rejected petitioner's

claim without a mention in its opinion.

III. Petitioner's counsel objected to only one portion

of the irrelevant and inflammatory remarks of the prosecution

during summation (R. 779-80). However, this objection --

rejected out of hand by the trial court -- called into ques-

tion the propriety of an entire series of the prosecutor's

remarks. On appeal, petitioner assigned as error the many

improprieties committed by the prosecution during summation

(assignments of error 33 and 34). The issue was briefed

at length and the Supreme Court of Florida rejected peti-

tioner's claim after full discussion in its opinion.

“lle

Reasons for granting the writ

I

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WZETHER THE CLOSING ARGU-

MENTS Of THE PROSECUTION WERE SO

INFLAMMATORY THAT THEY DEPRIVED PETI-

TIONER OF A FAIR TRIAL IN VIOLATION

OF THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

(i)

The record below presents important issues concern-

ing the limits imposed on closing arguments by prosecutors in

state court criminal jury trials by the fair trial requirement

incorporated in the Due Process Clause of the Fourteenth Amendment

to the United States Constitution.

The trial court, despite objection by petitioner's

counsel, permitted the prosecutors* to argue persistently

concerning irrelevant matters in a manner calculated to inflame

the passions of the jurors and to prevent them from considering

petitioner's guilt or innocence in a detached and impartial

fashion. The Court should grant certiorari to consider whether

the affirmance of petitioner's conviction by a divided vote of

the court below was inconsistent with the principles recognized

in the Court's decision in Donnelly v.- DeChristoforo, 416 U.S.

78 (1935).

United States, 295 U.S.

637 (1974). Cf. Berger v.

A. The State Improperly Attempted

To Try Petitioner For "Offenses"

Of The State Division of Corrections

Prosecutor McDaniel, the second of the state's

attorneys to sum up to the jury, argued repeatedly and at

*The state civiaed its closing argument between two prosecu-

tors, Mr. White and Mr. McDaniel.

@12-

length that the jurors should consider not only whether peti-

tioner was guilty of the crimes charged in the indictment, but

also should convict him of first degree aurder, because the

state Division of Corrections, which had allowed petitioner

to leave prison on a weekend furlough, could not be trusted to

keep him in prison unde: any other circumstance. "As far as I

am concerned," McDaniel began, “there should be another Defendant

in this courtroom ... and that iu the division of corrections,

the prisons" (R. 749). He continued:

"Bs far as I am concerned this

animal was on the public for one reason.

Because the division of corrections

turned him loose, lets iim out, lets

him out on the public. Can't we expect

them to stay in a prison when they go

there? Can't we expect them to stay

locked up once they go there? Do we

know that they're going to be out on the

public with guns, drinking?” (R. 749-50)

* * .

"I wish that person or »versons responsible

for him being on the public was in the

doorway instead of [the murder victim].

I pray that the person responsible for it

would have been i-. that doorway and any

other person responsible for it, I wish

that he had been the one shot in the

mouth. I wisn that he had been the one

shot in the neck, instead of [Phillip

Arnold, one of the state's witnesses].

Yes, there is another Defendant, but I re-

gret tnat I know of no charges to place

upon aim, except the public condemnation

of them, condemn them." (R. 750-51)

* * *

"Mr. Turman is dead because that unknown

€efendant we don't have in the courtroom

allowed it. He is criminally negligent

for allowing it.” (R. 752)

* 7 *

"There is one person on trial, not the

Polk County Sheriff's office, not the

Hillsborough Sheriff's office, but he

and his keepers, the Division of Correc~

tions." (R. 764-65)

-l]3-

Mr. McDaniel's last words to the jury repeated this

theme: “I cannot help but wish that the Division of Corrections

was sitting in the chai: with him. Thank you" (R. 782).*

These comments bore no rational relationship to the

Se

question whether petiticner was guilty of the crimes with which

he was charged, the only offenses for which the state had a

right to try him. As a district court recently said in granting

a writ of habeas corpus to a state prisoner on precisely this

ground when "the state sought to try not only {the defendant]

but all police corruption in Newark," Perry v. Mulligan, 399

Ferry

F.Supp. 1285, 1290 (D. N.J. 1975):

those

"A defendant is entitled to be tried only on

matters appearing within the four corners of

indictment. It is the responsibility of the prosecu-

tor to refrain from appeals to passion or to prejudice,

and to restrict his comments to matters within the

record and legitimately in issue.” 399 F.Supp. at

1289.

the

The trial court ir the case at bar allowse che prose-

cution repeatedly to stray far from these limitations. It

permitted the state to argue to the jury that petitioner should

be punished for offenses supposedly committed by the Florida

Division of Corzections ~- offenses not charged in the

indictment and as to which no evidence had been presented.

‘cDaniel engaged in closely related misconduct in

urging during the guilt-determining stage of the bifurcated

trial that the jury recommend imposition of the death penalty

upon petitioner. The prosecutor's remarks were nothing less

*See also R. 766: “He's even got a driver's license. Why

in the world does -- what in the worlée is a State prisoner

doing with a driver's license? I wonder if the public is

paying for it."

-14-

than a warning to the jury that the only way to assure that

petitioner would not, before long, be free from jail was to

recommend a death sentence, and that che jurors should, for

that reason, find him guilty of first degree murder rather than

of any of the lesser offenses upon whict. they were charged.

"That's the only way that I know that he ic

not going to get out on the public. It's the

only wa: I know. It's the only way I can be

sure of it. It's the only way that anybody

can be sure of it now, because the people tat

turned him loose -- this man served his time

and if this man served his time as the Court

hes sentenced him, that's fine. If he's

rehabilitated, fire. But let him go home

on furloughs, weekend passes ~-- not home,

strike that, excuse me -- go over with his

girlfriend for the weekend, go shoot pcol for

the weekend, go sell his guns, or gun, for “he

weekend, go consume drink in the bars over the

weekend.” (R. 753-54)

This inflammatory line of argument drew the jury's

attention to an issue not material to the determination of

petitioner's guilt. Implicit in it was the contention that,

were petitioner convicted of anything less than ficsc degree

murder and were he not pet to death, he would serve only a

short sentence or woule be given furloughs and let "out on

the public" again. Not only was this argument inflammatory and

irrelevant to the issue of petitioner's guilt or innocence,

but nothing in the record described the rights afforaed by

law or by the Florida Division of Corrections to those serving

sentences for offenses other than first degree murder. The

prosecution nonetheless made this a centra! issue in summation

and asked the jury to accept its factual premise on .ts authority.

|

alone.

Such an argument contributed nothing of legitimate

concern to the jurors and could have had no effect other than to

arouse their preiudices and distract them from their obligations.

It thus encouraged violation of the rule that verdicts must be

based upon the evidence and — joe appeals to emotion.

5

-15-

In Bruce Vv. Estelle, 483 F.2d 1031 (Sth Cir. 1973),

"1 wish [Mr. Turman) had had a shotgun

the Court of Appeals ordered the district court to grant a in his hand when he walked in the back

door and blown his tace off. I wish that

writ of habeas corpus because of a similas improper prosecu- I could see him [petitioner] s.tting here

with no face, blown away Dy - shotgun,

torial summation. The Court held an earlier state con 2etency but he dian't.... I wish someone had

' walked in the back door and blown his

proceeding constitutionally defective in substantial part head off at that point.” (R. 758-59)

because of the “highly inflammatory and prejudicial cciments McDaniel retur:.ed to this theme when he described the |

of the state counsel's closing arguments to the jury." 483 P. five times that the murder weapon had been fired. te explained

24 at 1039. Counsel had argued, incorrectly, that if the that this left one bullet in the chamber. "(Darden] didn't get

|

jury were to find that petitioner had been ‘usane at the time a chance to use it. I wish he had tsed it on himself" (R. 774; |

of his trial he could not now be retriea. “‘Iif you want him see also R. 775). He made a similar comment when he descr ibed |

walking the streets of your county, you go ahead and let him petitioner's automobile accident: "s wish he had been killed in

out; find him insane at the time of his trial and you will the accident, but he wasn't. Again, we are unlucky that time” :

have effectively let him out of prison. That's what you are (R. 775). Finally, while discussing the claim that petitioner

pens in your decision in this trial.'" Id. at 1040. The had changed his appearance between the date of the crime and |

|

j language of the Court of Appeals in that case is full: that of the trial, McDaniel gratuitously commented that

applicable here. "(t]he only thing he hasn't done that I know of is cut his

"Such emotional, erroneous and prejudicial chroat" (R. 779).

comments have no place in a dispassionate

resolution of the question whether [petitiorer]

was competent i:. 1965 to stand trial. It should requ-se no citation to authoz.-y to establich |

j

These comments most probably infected the that the repetition o- this theme grossly exceeded the limits

whole decision-making process of the jury. ,

State coinsel knew that [petitioner] could of permissible argument. The quoted statements were nothing

be retried and his assertion to the jury

that he could .ot was erroneous. Such more than a calculated attempt by the prosecution to transmit

irrelevant diatribes cannot be countenanced."

Ibic. its hatred of petitioner to the jurore and to make that hatred

a factor in their decision-making. See United States ex rel.

B. The State Sought To Prejudice

the Jurors By Appealing Improperly Haynes Vv. McKendrick, 481 F.2d 152 (2nd Cir. 1973). Compare

To Their Emotions |

Kelly v. Stone, 514 F.2d 18, 19 (9th Cir. 1975) (reversing 2

———— or

McDaniel's repeated exziession during summation of denial of habeas corpus relief, inter alia, on the basis of the

the wish that petitioner had been maimed or killed further following portion of a district attorney's closing argument: ,

contributed to the denial of Darden's constitutional right **Because maybe the next time it won't be a little black girl |

to a fair trial. The prosecutor repeatedly made comments like from the other side of the tracks; maybe it will be somebody !

the following: ; that you know; maybe it will be somebody that I know. And

maybe the next time he'll use the knife’").

-16-

—————

-17-

C. The State Improperly Placed

The Prosecutors’ Personal

Credibility In Issue

Both prosecutors also engaged in blatantly improper

argument by placing in issue their own credibility anc that of

their office. Mr. White, who spoke first, was responsible for

the most flagrant example of this. He concluded his argument

to the jury with tre following wo-ds:

x. eee as convinced as I

now I am standing before you tod

ne Willie Jasper Darden ts a ei

murderer, that he murdered Mr. Turm

° an

that he robbed Mrs. Turman, and that ‘

he shot to kill Phillip Arnoid. I

will be convinced of that the rest

of my life." (R. 748)

This statement was, of course, improper. Compare Kelly

v. Stone, supra, where the court characterized as "a highiy

improper expression of personal opinion" the following, less

explicit comment: "'If you can't find the defendant guilty on

the facts that I have presented to you, I feel like I just

might as well, you know, close up shop and go home

P.2d at 19.

-** §14

Were this the only instance of prosecutcrial

misconduct, however, and had it promptly been corrected by the

trial judge, perhaps petitioner's right to a fair trial might

not have been imperiled. E.g., Sanchez v. Heggie, 531 F.2d 964

(10th Cir. 1976): Young v. Anderson, 513 F.2d 1969 (lOth Cir.

1975).

B

ut as we have already shown, this comment was neither

the onl j

Miy sort of wrongdoing by the prosecutors in the course of

Summaticn nor was it even the only instance in which the

ros igi

p ecutors added the weight of their own opinions to the trial

testimony.

Mr. McDaniel, for example, repeatedly offered the jury

his opinion that petitioner was not a man worthy of belief

-18-

—— te eee ee ee

_—_——-

———_$ - >

Since petitioner's defense consisted largely of his own alibi

testimony, the prejudice from such remar«s is manifest.

McDaniel's remarks included the following:

a. Petitioner testified that he had asked

for a lie detector test. In disussing that test :mony

McDaniel said: “I don't belicve anything he says

(R. 770).

b. Petitioner testified that his alibi was

the truth. McDaniel attacked this testimony in <he

following way: “Well, let me tell you something: if I

am ever over in that chair over there, facing life or

death, life imprisonment or death, I guarantee you *

will lie until my teeth fall out” (R. 755).

Cc. Petitioner testified that he remembered

the precise times of several events that occurred during

the day of the murder. These statements were a crucial

part of his testimony for, if true, they established

that he could not have been in the Turman furniture

store at the time of the crime. McDaniel’s response:

"I couldn't even tell you right now what day I put a

witness on the stand this week. If I thought about it,

maybe I could remember oe” (R. 769).

d. Petitioner testified that he stopped at

a service station after his automobile accident, seeking

assistance. McDaniel recounted that testimony and said:

"That's what he says. I don't know that he stopped at

I guarantee you he was not going back to the

(R. 777-78).

Aany-«-«e-

scene of the accident until he had gotten home”

-19-

ono <=

e. In addition to telling the jury that he

thought petitioner a liar, McDani 30 Ss

’ el also suggestca ina The inarticulate premise was, of course, that all defendants

thinly veiled way that he knew ot ot.ner instances where are guilty

petitioner had suot people: “Darden doezn't like people

who move after he sioots chem in the mouth" (kK. 761). McDaniel committed a similar error when he discussed

The prosecutor, in tie mind of the jurv, is in a 25s)- petitioner's statement that he would take a lie detector test

!

7 : ae

tion to know if defendant has a history o. vio....t crime, if his attorney were present. McDaniel said:

"Well, only an incompetert lawyer would allow

cf. Docnellv v. DeCh-istoforo, supra; ; S et ¢€42

: +>4 ve ; Dra; 416 U.S. at cle, Darden to take a lie detector test. And thet

. and the su _ Rites risoner, with those convictions on his

: gsestion that he does have such knowlecze is haw ty tt that." (R. 770).

Clearay inconsistent with a defendant’: «ight to ve

| ied only on the acmissible evidence actually oresented. In a like vein, McDaniel attempted to shift the

Bowers v. Coiner, 309 F.Supp. 1064, 107i-72 (S.D. W.Va. state's burden of proof to the defense. When defense counsel

1$70) (prosecutor discussed a gun that had not been Maloney objected to McDaniel's repeated articulation of the

aémitted in evidence). wish that petitioner had been killed, he asked the Court to

instruct McDaniel "to stick with what little evidence he has"

J A6DJeiiel’‘s Summation Aiso Inaclud

| i AL facluded 3

’ Sabet Gene of tmeseene Atm (R. 779). McDaniel answered: “You don't have any evidence

ycurself, Mr. Maloney” (R. 780). The trial court, instead of

McDan.el's closi aroun = sitaineda rame )

Sing argument also contained raumerous reprimanding McDaniel and instructing the jury to ignore the

4, Other instances of impror:. argument which, pers -p- om

: gum ulch, pers pe w.sen alone remark, merely said "All right, gentlemen. Proceed with your

i; ana surely when taken «ogether with thoce «alread iscusse

tf sLreacy discussed, argument. Objection will be overruled. Go ahead, sir” (R.

jjmuiiified petitione:'s right tc a fair trial. Suwe o- edcdaniel's 780)

: .

comments, for exaaple, *2zaded to interfere with petit:oner's

Finally, throughout his argument McDaniel repeatedly

right to the :ffective assistance of coursel by commerting in a

va i+} ' t

deprecatory way on his exercise of that right. Indeec, McDaniel referred to aspects of petitioner's conduct while on weekend

began his argument by telling the jury in effect that it should turlough from prison that were entirely unrelated to the

{; ey no attention to the argument of defense ccunsel tiat would offenses with which he was charged. Suggestive references to

follow %ccause all defense lawv-r: always made the sare arguments: petitioner's relationship with his gisifriens end other comments

"Now [defense counsel) and I am positive, of like character could have had no other effect than to imply

and I assure you and I , thet

| (defcase pond, ane will oe aie bak Ghunke to the jury that petitioner was a “bad man” and therefore

eriff's Oftice: he will try the Polk uaA-Y

, Sheriff's Office; and he oh 14, “en = —* | probably committed the offenses charged in the indictment.

i! he will tiy Mr. white. 7 yuarantee trut i :

, Cf. Manning v. Jarnigan, 501 F.2d 408, 412 (6th Cir. i974).

7 because he has notes I gave him many years

| ago." (R. 749).

| oa | -21-

——— —

(ii)

As the foregoing excerpts show, the decision of

the court below was manifestly inconsistent with Donnelly v.

DeChristoforo, supra. There the Court set forth the criteria

to be employed in determining whether improper agrument by a

prosecutor amounts to a deprivation of the right to a fair

trial and entitles a defendant to a reversal of his convic-

tion. The factors identified in DeChristoforo incluce the

following: 1) the length and frequency of the prejudicial

statements in proportion to the total length of che summation

and their likely impact on the jury; 2) whether the statements

were intentional and, if so, whether they were provoked by

remarks of defense counsel; and 3) whether the trial judge

promptly took appropriate corrective steps and, if so, the

likeiy effectiveness of those steps.

In DeChristofore the court found that the re-

marks challenged, though improper, had not deprived DeChristo-

foro of a fair trial. The statements at issue were only "a few

brief sentences in the prosecutor's long ..-. closing argument

which might cr might not suggest to a jury that the respondent

had unsuccessfuily sought to bargain for a lesser charge." 416

U.S. at 647.

In the case at bar, in contrast, the record shows

clearly that the prosecutur's improper remarks were neither

isolated nor ambiguous. McDaniel's inflammatory and irrelevant

comments took up more of his closing argument than did his

consideration of the evidence.

inadvertently and ambiguously, that he knew petitioner had

admitted his guilt. Instead, he attempted, intentionally

@22-

McDaniel did not merely sugsest, |

f

and repeatedly, to poison the atmosphere of the trial and

deprive petitioner of his right to an objective, impastial

jury.

In DeChristoforo this Court cencluded that -he

prosecutor's misconduct was not intentional, principa:ily

because the challenged remark was isolated and ambiguous

and could easily have slipped out in the heat of argument.

“(A] court should not lightly infer that a prosecutor intends

an ambiguous remark to have its most damaging meaning or that

a jury, sitting through lengthy exhortation, will draw that

Meaning from the plethora of less damaging interpreta-ions."

416 U.S. at 647.

McDaniel's remarks, in contrast, could only have been

intentional, his lip service to the canons of ethics notwith-

standing (R. 752). He repeated the improper themes over and

over again. There can likewise be no doubt that the jury under-

stood the prosecutor's mearing -- his remarks could only have

been taken as encouragement to reach a decision on peci-

tioner's guilt based on conduct of the Division of Corrections

and in an atmosphere charged with hatred.* Moreover, the

record is clear thet the defense attorn.ys did nothirgj that

might have “provex2d" the prosecutors. Indeed, we sudDmit that

nothing they could have saia would ever excuse conduct like

that of the prosecution during summation in the case at bar.

In DeChristoforo the prosecutor's remark, “am-

biguous" and “but one moment in an extended trial,“ "was

Compare the famous dictum of Mr. Juscice Frankfurter,

dissenting in Sacher v. United States, 343 U.S. 1, 38

(1952): “A criminal trial, it has well been said, should

have the atmosphere of the operating room."

-23-

=

=—_

followed by specific disapproving instructions." 416 U.S. at

645. The trial court in the case at bar, instead of idmonishing

the jary that the prosecutor's remarks were improper und directing

the jury to ignore tuem, overruled petitioner's objec-ion without

comment (R. 779-80).* Instead cf correcting the pros:cutor's

misconduct, the Court allowed the jury to believe McD. niel's

argument was proper and worthy of consideration.

The prejudicial effect of this ruling was e.pecially

important in 2 trial like peticioner's, since the evicence of

guile was far from overwhelming. Moreover, even if t.e court

had sustained petitioner's objection, reprimanded the prosecutor

and instructed the jury to disregard the improper por-<ions of

his argument -- or even if the Court's general insvcructions on

' the role of argument were read as addressing this que-tiun

(R. 713-14, €53-64) -- we submit that petitioner would still

De entitied to a reversal of his conviction. Dcnnell v.

DeChristoforo, supra, 416 U.S. at 644. Compare Kelly v. Stone,

514 F.2d 18, 19 (9th Cir. 1975). In the absence of au.y simul-

-— -+- Oe

WWe recognize, of course, chat petitioner's trial ccou:.sel

objected only once to the many improper remarks in t.e

course of McDanicl’s summction. Howeve-, both the nmjority

and dissenting opiniors ia the Florida Supreme Court con-

sidered the propriety of the summation on the merits and

at length e714 such consideration is eutficient to pe-mit

this Court to grant certiorari and pass on the issue.

E.g., Boykin v. Alabema, 395 U.S. 238 (1969); Coleman v.

Ai eboas 377 U.S. 129 (1964); Whitney v. California, 274

~S. 357 (1927).

Moreover, notwithstanding its afterthought reference to

State v. Jones, 204 So. 24 515 (Fla. 1967), consideration of

the merits by the court belcw as consistent with usial

Florida practice. E.c., wiisor v. State, 294 So. 2a 327,

329 (Fla. 1974) ("Sucn absence (of objection] will not

suffice [to bar appellate review] where the comments or

repeated references are so prejudicial to the dezendunt

that neither rebuke nor retraction may entirely dest-oy

their influence in attaining a fair trial."); Grant °.

State, 194 So. 2d vl2 (Fla. 1907); Coo%ver Vv. Wainwr’ (ht,

308 So. 2d 182, 185 (Pla. Ct. App. 1975).

-24¢=

— me oe ee

ad

—_

val

ie

J

y 7

ow *=2@ OO

~~ 6 eee eee ee

—- «-

+

’

"

t

‘

’

dy

be

‘4g 4" hee B® 4 :*

¥ , ? veg S ° wr. Ae ;

‘tamegous Brgembde ‘at correction Wt) ene ort, the impac. on the

; x

jus wise os ‘presumed substant tel. ct. Sreoman v. Ca. fornia,

, ‘oe,

386 U.S. 16-1967). a If . ‘ Se

ie ;

‘ ‘Be ’ °

’ Significantly, even the majority opinion in che court

a -

; beac that McD: nict*.s -argumeacs were imp: oper and

‘ rT ‘ ?

that the “language used by

- _ .© Ped

po3s.cl? been reversible error ti it had been used rec araing a

obs eva ‘he prosecucor wovid have

less, heinous set of crimes." Darden v. Stzte, 329 So. 2d 287,

239, (Fle. 1976). Terning logic on its head, <he court cor.cluded,

hovever, that in licht of the nacuce of che crime McDeriel's

aT sd

oeated improprieties were ‘fair comment* on the evic 2nce Ibid.

;

i

®

Even if the retiarks ha€ been commencs on thc evidence

Lyne ‘court below would have peen wrong -- the due proccss clause

- e . d ‘

Cuma BOLe, Ret less,” when biter ts: at stake than it does when

'

a q >: : ‘

tiereevornst availabiec pene: “v icitncerceration for a term cf

“ ‘ap

.~ +, Reid v. Cover ts p54 U. S. 15: 05 (1957) (.arlan, J.,

powell ve Alabenss abn 8. 45, 71 (1932°. But

wails att of “me papiel' S comacn sy! ‘aad nothing to do with the

evidence; they were inf iSieg reotorig/hthet did” dow tend to

: .

*- 9 ‘ ? a.”

maka morc or less likely any save, in *T eaude at the tricl.

Y , : . a » ao

» fad : = % .

s ohne 4

2 : ‘ .* "

: * (222) oe

. . Mew. : ons

_. Phe impartiality of ithe jury in a criminal case

i

B.g., Turner v.

is fundamental to due process at’ law:

LouizictAi*37s U.S. 466 (2305). , eae famdant is entit.ed to

er

an imparcvial, “indifferent” jury, "regardless of the :einous-

7% mr os

ness ef tne crime charged, the~appe'rent gtilt of the ~ffenaer

or the station in life which he occupies."

irvinv. Ewa, 366

ees: oF 5 east oa BEST COPY AVAILABLE

4 q ay : : Ree ih

; “39, ‘2 5f

* ‘% are +

i

!

U.S. 717,. 722 (1961). See also, Chambers v. Mississippi, 410

U.S. 284 (1973); Shepnard v. Maxwell, 364 U.S. 333 (1966). The

prosecution's actions in the case at bar destroyed the atmosphere

necessary for the jury to conduct its deliberations ‘airly and

! ~< ,

-

r impartially, cf. sstes v. Texas, 381 U.S. 532, 540 (1905), and

deprived ‘petitioner of that right.

Although this Court~has directly eddressed the issue

of stace prosecutorial misconduct auring closing argument only

in DeChristoforo, the problem is a frequently recurring one

in both state and -- upon habeas corpus ~~ in feceral courts.

See, e.S., Sanchez v. Heggie, 531 F.2d 964 (10th Cir. 1976);

Kelly v. Stone, 514 F.2d 18 (9th Cir. 1975); Mannins v.

ee

sernicen, 301 7.24 408 (6th Cir. 1974); Bruce v. Estelle, 483

?,2d 1031 (Sth Cir. 1963); Unized States er r2l. Haynes v.

ackenérick, 481 Fs2d.152 (26 Cir. 1973); Perry v. Mulligan, 399

F.Supp. 1285 (D. N.J. 1975). Further guidance from this Court

concerning the application of the fair trial requirement to

prosecutorial summation is, therefore, warranted both to assist

lower courts in taeir review of state convictions and to assist

prosecutors in shaping their conduct to proper constitutional

limitations.

t

\

For all of the foregoing reasons, the Court should

grant certiorari and reverse.

\ ‘

II

THE COJRT SHOULD GRANT CERTIORARI TO CONSI-

DER WHI'THER EITHER THE AOMISSION IN EVIDENCS

Or A WANTONLY AND NEEDLESSLY SUGGESTIVE PRE-

TRIAL INDENTIFICATION OR OF TWO IN-COURT ID=N-

TIFICATIOnS OF PETITIONER SUBSEQUENT TO IM-

PERMISSIBLY SUGGESTIVE PRETRIAL IDENTIFICA-

TIONS DEPRIVED HIM OF DUE PROCESS OF LAW.

(i)

The record below preser.ts an important constitu-

tional question concerning the standards applicable in passing

on the admissibility in a state court criminal trial of testi-

mony of an impermissibly suggestive pretrial identification.

In the present case the trial court permitted Mrs. Turmar, a

witness to her husband's murder, to testify during the prose-

cution's direct case that she had identified petitioner at a

preliminary hearing some five days after the crime. indis- |

putably, this testimony was important to the prosecution, for

it tended to validate Mrs. Turman's in-court identification

of the defendant and, as we have said, the identification

of petitioner was the linchpin of the state's case.

We show below that the circumstances of the iden-

tification of petitioner at the preliminary hearing were

"unnecessarily suggestive and conducive to irreparable mis-

taken identification." Stovall v. Denno, 388 U.S. 293, 302

(1967). Thus, the record here presents an issue identical

to that presently pending before the Court in Brathwaite Vv.

Manson, 527 F. 2d 363 (2d Cir. 3975), cert. granted, 48 L.

Ed. 2d 202 (May 3, 1976, No. 75-871). That question is

whether a conviction secured in part through testimony of

a wantonly and unnecessarily suggestive pretrial identifica-

tion is, without more, subject to reversal, if both the

identification and trial post-dated Stovall v. Denno, supra.

Ri one 27

a

—

sd

A : . a”

, , unnecessary su stive ne c F| v

Prior to the Court's decision in Neil v. Biggers, emasesy engee Tae St aisidentification,

409 U.S. 188 (1972), there was little reason to doubt that or whether the state may invoke ‘the less stringent Simnons

rule and reguire the defendant to demonstrate the likelihood

"except in cases of harmless error, a conviction secured as

7

the result of admitting an identification obtained by impermis- of irreparetie misidentification. *409.-U.S. at 198-99. Justice

Powell | ‘resolved the probléadin Biggers oy noting that the

sibly suggestive and unnecessary measures could not stand."

Brathwaite v. Manson, supra, 527 7.24 at 367. See, @.@., justification for a ‘bel. se" ifthe. of exclusion is deterrence of

rr police am, prosecution procedures, a goal whica

|

\.

p

United States v. Fernandez, 456 F.2d 638, 641-42 (2c Cir.

e eoule not be neuuad on the ‘facts. of the Bigcers case because

= Caen

1972); Kimbrough v. Cox, 444 F.2d 8 (4th Cir. 1971); United

States v. Fowler, 439 F.2d 133 (9th Cir. 1971); Mason v. United the challenged identification oreceded the Stovall decision.

Biazers therefore left open the Guestion of the prover standard

States, 414 F.2d 1176 (D.C. Cir. 1969). If this-be the rule

_—

4 =

to be applied in cases like the one at Dar, where both the

today, reversal of petitioner's conviction is cleariy required.

-

wee ee eee

identification and the triai occurred after the decision in

‘ - ’ ‘ . ; ; o*

. ' te 2 - / ,

Mr. Justice Powell's opinion in Biggers created Stovall.., °. —s

.

a .

Courts of Appeat are in-consi-ct on this important

doubt about the appropriate standard to be applied cn these

_— <a oe > Sa ee re ee +

——— a ee

facts by emphasizing that it is "the likelihood of misidenti-

. . . : . ne. ae z . h aa G ; a

fication which violates a defendant's right to due process." ‘: questo. Secens, reuse om Bygate Sircuits have bessees

this issue in pe titioner.' 3 favor .* ‘The Fifth and sixth

409 U.S. at i198. "“[T}he primary evil to be avoided is ‘a very if

‘

. f - .

u- Circaits appear co have adcored the same rule.** be Seventh |

‘

substantial likelihood of irreparable misidentification.'" — bs |

Cireuit seems.to. have rulea the other way. wee |

~~ ar . ao : om -<

«

Ibid.- (quoting from Simmons v. United States, 390 U.S. 377, 384 t,

If the Court shoula decide aaah setitioner on the -

(1968)). As Judge Friendly wrote in Brathwaite v. Manson,

>

SURES: | | f£oregoing’issue, “he record here nonetheless presents 2 further

aan ens el meet ee a guestion: whet* er, on the facts, the cizcumscances of Mrs.

interced the 'very substantial likelihood — Turman! s prelimine-y-hearing identification of ‘petitioner

of misidentification' test to appiy to

show-up or photographic identifications

that were impermissibly and unnecessarily , “ x, oo , a

suggestive as well as to later out of- * Bratawaite Vv. Aaason, 527 F.2d 363. (24 Cir. 1975), cert.

court or in-court identifications." 527 grenzed, <2 L.Sc.26 202 (May, 3,.1976,-No. 75- -871); Smita v.

F.2d at 368 (footnote omitted). | : Coiner, 473 F.2d 877, 320-8) ihth Cir.), cert. Gen. Su2 Nom

Wallecev. Smith, 414 U.S. 5225 (1973); Sancneii Vv. Parrats,

Nir. Justice Powell also observed, however, that it was -.530 P.26 286, 5, 294: (8ti cis: 1976).

unclear from the pre-B iggers opinions of the Court whether the | #8 Rugé ,. Plori (a. 477 7.24 303, 809 (5th cir. 1973); Workman

; ~~ SFardwet cli 2.24 909, 910 (6th: Cir. 1972), cert. denise,

- Stovall standard is to be applied, thus requiring exclusion of 412 U.S. 932 (1973). . ; a ee

o-*

att ex rel. Kirdyv we Sturges, 510 F.2d 397 (7th

identification Seeteneny once a defendant has demonstrated t** United St

F cg Cir.) (der scevens, J-), cere. seniea, 421 U.S. 1016.,

- SP epee Pant (1975) (Dovgias, Jer dissenting). a

. . —_— . ‘ i¢ ‘ . ©@s. cap

-28- : . aa of } “A ° / ?

P ae | -29- \ p

' oi ' 4

2 Py AS

~ ‘ ‘ . -/ ‘

“Ete

~~ s = | 1 - }

created “a very substantial likelihood of irreparable misidenti- ss | Q: Is this the man that shot your husben:i?

N €ication* requiring a reversal under Simmons v. United States, ‘a wae eee” Ce.

supra, 390 U.S. at 384. 4 . | , Plainly, the procedures foliewed at the preliminary

_ a an hearing were ".mMpermissibly Suggestive” within the meaning of

‘A... The Biggers problem in the case at bar arises from Stove... As the Court there said

. —_—_——— ec ’

_——

-——— —-— <.

' ~~

in ich ~ onducted Mre. . , ;

the way in which the s ate c [t]he practice of showing suspects eitete

to persons for the purpose or identification,

Turman's initial _.

>

‘ i

! it.vner. Mr. Turman was killea on September ~~. ,

a ee er ae oo Ree. 0" part cf a lineup, has been w: ely

. a ne -

| ls, oy Five cays later, on September 13, 1973, 2. preliminary ; € 386 .U.S. at 302 (footnote omicted).

; I eeroes va Ci. Foster v. Cali‘ -

heic Se durman was the ealy witness. Tveti= -—-—--~ I | Catifornia, 394 U.S. 440, “43 (1969). Indeed, the

| hearing was heic; «¢

‘ . exalbition of a single sussec+ on 4

'! tioner, who°was seated.with his attorney et the defense table, - — “spect to a witness is "the most

guggestive and, therefore, the most objectionable method cf

‘

ia: Gi ee

~<a

ti was apparen tly the only black person in the courtroom, and cer- Be it

i Pretrial icentification." Unsitece s+ ;

: ‘ . . a ~ A - +. the rel Stéete c- - - a

\j tainly, the only black zerson. at the counsel table (R. 257-62).* | ——.. Unitec étes v. Cailey, 324 F.24

. ' :

tt ‘ | 911, $14 (8th Cir. 1575). -vhe- i i

|| Atter a few preliminary questions oy the Srosecutor, the court | oe e- inherent Gerect tn such a

' | Procedure is, of course, that the s+ ee -

t intoccugtes -ent the following colloguy took place: i , tnae the state in effec: haz said co

i a , | the witness: “We have capturec » inten?

i "THE COURT Ask her to identify. , | Capturea the crimina:. Here he is.

il ¥: MR. mans .tSa : sj Don't VOU agree?" Com ac oe

“ YY “s a 4 - ° 4 ~e Fost r e 7. |S 75 @ oa j

iI prosecutor): Yes, sir. - P er v. Calitsrnia, supra, 294 1

_o - - 2 : ~ > +

Q: _Can you see this man sitting sere: | USS. at 443 ("in ef . a a .

i ue ig SORRY | ( effect, tne police repeatedly said to the

[the pubilc , , witness, ‘This is the man'") (‘smphasis + oer

GefenGcerj;: Your eonor, i an going to objec if —= / \sM@phasis ia original).

; to. that type ox icentification. ! | )

. . THE COUNT: “em not. Sit aown. ;, Sn the « ao. ee |

‘ ¥uR. HILL: Jzége <-- -" tf “a ase &é= bar, the inherent suggestiveness cf the

i! THE COURT: Net under these circumstances, Mr. i state's ta Sa aaa “+ |

' Hi"l. rs ctic was éscravated by| the Court's poiasec introduc- :

a a a _ | ° g

iH MR. HILL: Judce, even as a defense attorney, } tion to the -2 "As}

i agp P ' I 290- procecure Ask her tan A

| that shows no respect in court, much _—" ( n to identify"), which demon-

_ Yess for the Court, and I ---- r Pure : ¢

sess .0OFr tae our ’ ‘] st ated to Mre Turman .

> +) - a) if she a ~~ in

| Tas COURT: I appreciate —— (i ’ id not already now, tnrat sne

F MR. KILL: Ané the objection, I want on the |} Wes expectec co id .

| { record. | , "i entify petitioner, and by the prosecutor's |

| 1+ SHE COURT: i‘ appreciate ~that. It's on the leadina Questions ("Cc , .

r ‘ = = . “— + ~ an ie) s > _ . = {

‘record. This woman hes had a ( you see this man sitting here?"; "Is

traumatic experience ana she ---~ } this the man that sh :,

ot yo d2?").* =

MR. HILL: . Judge, i appreciate that:- I still i your ausband?").* Even Mrs. Turman, on |

‘ 7 have an obligation to my client. rf |

THE COURT: I appreciate that. Now, if you want i SWe scate’s choice ny a eee

- to be hel in —e you paraon me. ‘ process of charging petitioner with the murder a gs ae — |

° rf : tooo weS murGer Of Mer ALSsoanc

we Alris.it, go ahea tf as the for zum “Or Mrs. Turman's confrontation with the suspect "

: , —_-- i should itself have oeen sufficient to Cail Mrs. Turman' |

ye Pree oe new ettention to the expectat - tS. .Usmhan

‘) ny : " é Td fe . - ion oz ever on

ff * At triai tne court aeniea 2 mation to sup2ress, accepting - | that she wouie identi zy petitioner ' ~e. oe gg eed |

i) for purposes of deciéing the motion that eo as ! Suora, 530 F.2d at 294. - enelh v. Parrett, |

the only black in the coom at the time of the ide ntification {| —= = ,

I} (R. 222). ; pe si ne F = » .

1 al | ae | — ;

f ; im \ =

: . ¢ a ! ee in .

| : - -30- os ee ae ~ . ,

HT ‘ > i. . lj ee ee *. =31-

: , o »* a“ | * = — ——

a Fe

| » Se al

it ; ‘ \

—_——

missibliy suggestive as to give rise to a very substantial

- ‘nation at txial, acknowledged that the prosecutor's . om y=

cross-examinati : likelihood of irreparable misidentification." Simmons v.

questions directed her attention to petitioner:

United States, supra, 390 U.S. at 384.

ae,

*Q: But he cid in some way through the

record of what was asked in the answers | | | |

that were given indicate this man here? | In section A of this point we described the respects

A: I would say yes.

+

—-

* in which Mrs. Turman's pretrial confrontation with petitioner |

Q: Mrs. Turnan, just a couple of ques~ cag : | |

tions. At that preliminary hearing was impermissibly and unrccessarily suggestive. In Neii v.

that Mr. McDaniel and I both have 2 — |

peen talking about, in your mind wao Biggers, supra, the Court descrived the factors to se examined

there any question who Mr. Mars was a ; at

referring to when ae asked the ques~ in determining whet..ec such an identification "give[s] rise

tion, 'Is that the man that killed cae

your husband?' to a very substantial likelihood of irreparable misidentifica-'

A: No, there was no doubt in my mind. es :

Q: As to who he was referring to? tion,” Simmons v. United States, 390 U.S. 377, 384 (1968):

A: Right." (R. 262, 265). ——

“As indicated by our cases, the factors tc be

considered in evaluatine the likelincod ot

misidentification include the opportun-ty of

the witness to view the criminal at the t:me |

|

It is clear, also, that the suggestiveness of the pro-

iti into custody, of the crime, the witness’ cegree of atten=:on

was wholly unnecessary. Petitioner was taken in me, th : gre f attention,

= ‘ ' the accuracy of the witness’ prior cescri” tion

within a few hours of the crime, and there was surely ample | of the criminal, the level of certainty ¢ a0n-

strated by the witness at the conrrontetion, anc }

the length of time between tne crime and the

j j liminary

rtunity between his arrest and the day of the pre | °

eee ‘ confrontation.” Neil v. Biggers, supra, 499

hearing to conduct a lineup consistent with petitioner's | U.S. at 199-200.

constitutional rights. Certainly, the state has come forward | See Simmons v. United States, suore, 390 U.S. at 382-86.

with no suggestion of a reason for its failure *v Gao so. compere 3 Applying the Biggers standarec to the facts of the c*se at sar |

Smith v. Coiner, 473 7.2d 877, 881 (4th Cir.), cert. denied { presents the substantial cuestion whether the court dDelow erred

sub nom. Wallace v. Smith, 414 U.S. 1115 (1973). in finding that the circumstances of the preliminar: hearing

were so impermissibly suggestive as to require the exclusion at

We submit that, in view of these facts, the Court ey _

” : trial of testimcay as to this identification. If such a |

should grant cerciorari and hear and decide this case in {

finding were appropriate, then the at-trial identification of

junction with Manson v. Brathwaite, supra. 3 ,

ee petitioner would itself, of course, also have to be excluded

—-

B. If the Court concludes that Neil v. Biggers, from evidence.

The first factor identified in Biggers was the

supra, requires the application vf the more lenient Simmons |

test to testimony concerning a post-Stovall identification, |

witness' opportunity to ooserve. In the case at bar Mrs.

hould nevertheless grant certiorari, for the recora | wi .

ae Coase ae Turman testified that her husband's murderer was in her pre-

presents the question whetner, even absent a per se rule, MiSs. . Pe '

sence for approximately ten minutes. The more significant

- . n ; - a

Turman's pretrial confrontation with defendant was "so imper . . ;

P . question, however, is what she did with the opportunity or, as

-32- . .the Court phrased it in Biggers, her “degree of attention.”

73

-33-

ny that once the

we know from Mrs. Turman's testimony

r

1

ray (R.

n covered her face with her hands anc began to pray

eve

id not pa

249) The record also suggests that Mrs. Turman dia pay

‘ jal she did not

close attention before the gun appeared. At tri

’

- . When she

she accompanied him for part of his walk (R- 234-35)

o the crime

s asked questions about what acts not connected t

wa

t remember

the robber performed while in the store, she could no

(R. 235)-

'

s

A third factor ~~ the inaccuracy of Mrs. Turman

first two

prior identification ~~ is closely related to the ~+

petitioner's actual appeara

In addition to answering directly

|

|

nce at the time of his automopilie |

accident (supra, p. 8)- |

is initi iption sug~

the question posed in BiggerS,s this initial descrip

to him.

rman's

In the face of these circumstances, Mrs. Tu

the case at bar utterly failed to mee

i ae : 2

"that the subsequent identification ee it alee

a by fair procedures insula oe

a ae ¥ stion. It must show tha

os including the

j ted by the witness

rtainty demonstra ~ S .

Level icine of the] confrontation’ ine:cet

6, 296 (8th

rratt, 539 F.2d 286,. <7

Sanches 76) (citation and footnote omitted).

-34-

’

|

The state instead elicited the following testimony fr«

Mrs. Turman with respect to the pretrial identification:

"Q: Did you have any trouble identify-

. ing him on that date?

A: " I did not.

Q: And again, you're absolutely

positive?

A: Yes, sir." (R. 226)

The record demonstrates that the pretrial hearing

during which Mrs. Tucman identified petitioner was conducted

in an atmosphere conducive to irreparable misidentification

and that misidentification was, in fact, likely. The record

contains none of the indicia of reliability that the Court

stressed in Biggers where, for example, the witness had estab-

lished a history of reliability by resisting the opportunity to

identify persons other than the defendant in properly conducted

lineups. 409 U.S. at 201. Finally, the record here reveals no

circumstances justifying failure to adhere to a consitutionally

permissible idenitifcation procedure.

(ii)

The record below also presents a substantial constitu-

tional question arising from the identification of petitioner

at trial by the witness Phillip Arnold.

Arnold, as we have described, while still in the

hospital recovering from his bullet wounds, selectec a

photograph of petitioner from among six shown him by sher-

iff's deputies. He was not permitted to testify to that

pretrial identification at the trial, but was allowed to tell

the jury that he recognized petitioner as his assailant. The

evidence is substantial that this in-court identification had

its genesis in the impermissibly suggestive photo spread.

As we have said, when Mr. Arnold was shown the group

of six photographs in the hospital, he immediately rejected

four of them because “they didn't look snvthing at all like him

{petitioner]" (R. 457). Of the two remaining, he chose the

picture of petitioner, so he explained, because the other was

"also younger and wasn't as big” (R. 464). Surely however,

the burden of his task was substantially mitigated by the

presence on petitioser's photo of ‘“is name and the oate of his

arrest,

that he had, OY the time of the photo ineup,

paper stories about the crime and the arrest that had occurred

(R. 453, 457-59, 476-77).*

In Simmons, this Court explained the dangers of

suggestive photographic identifications.

"It must be recognized that improper employ-

ment of photographs by police may sometimes

cause witnesses *° in i liv:

criminals. A witness may have obtained

only a brief glimpse of 4 criminal, oF

may have seen him under poor conditions.

This danger wiii be increased it the pol-:e

display to the witness only the pictu-e OL

a single inéividual who generaily zesembics

the person nc Saw, or if they show him th?

pictuce: ct several nersons emong which

the pnetoaraph O- 2 Single suc% “mAdividua)

recurs or 15 +7 SORE wav empnasized.

The cnance OF misidentirication is also

heightened if the police indicate to the

witness that they have other eviaence that

one 2s: the persons pictured committed the

crime. Regardless of how the initial mis”

identification comes avout, the witness there=

after 1s aot to retain in ais memory cne

Image of tne pnotogcapn rather than oz the

person actually Seen, reaucing the trust=

worthiness ot subsecuer lineup of court~

room identificatici.” 390 U.S. at 363-04

(emphasis Supplied).

“ee

The testimony of deputy sheriff Neil is also significant.

He testified, first, that Arnold identified the photograpa :n

writiag by copying the arrest date (a- 476), and secona, that

only one or two photographs other than petitioner's hac a name

on it (R.- 477)-

-36-

for Mr. Arnold testified out of the hearing of the jury |

already read news~

}

cc nn ence -

LL A AL A

RS ain

ei a OF

ots aca *

Th

e fears the Court expressed in Simmons Gescribe pre

cisel i

y what happened in the case at bar. Arnold had only a bri .

rie

|

oO —- =

pportunity 20 to 25 seconds by his own testimony -- to

that hi . ?

his mind "went blarn«"” for some period after he saw the gun

(R. 436

, 500). We have already shown that of the two photograph

s

that iti ;

petitioner dia not immediately eliminate the police had

emphasized one of them -- petitioner's

These facts all point to the conclusion that

Arnold’ “tri ifi

ld's at-trial identification of petitioner was the result

of ; oe

the suggestive conditions of the pretrial photographic

identifi )

ification. Moreover, just as the state neec not have

e

’

i "

t also need not have done so with Arnold. The state haa

= a , )

f . . .

and they co 130 @

y uld also easily have waited until Arnola was

rele ‘ :

ased from <he hospital and then held a properly conducted

line-up.

The state's attempt to demonstrate that Arnold's trial

identif: , ;

ntification of petitioner was independent of and not tainted

by t i

y the display of photographs he had seen falls far short of

the requirements establishec oy this Court. As the following

- .

‘

rosec 3 OC} i

Pp utor led him through a series of pro forma statements

that

created only the appearance of compliance with the law:

@37-

*"Q: All right, Mr. Arnold, I want you to look

at this man and tell me whether or not

you can identify him from the time

you saw him woen he blasted you in

the face. Can you, chink back to

September 8th, 1973, fo-cet everything

else, forget the hospitei, sorget

everything, September Sth, and right

now?

Yes, sir, that's him.

Do you nave any doubt whatsoever in

your mind?

No, sir, none.

Did the photographs -- are you remember-

ing the photographs?

No.

Wnat are you remembering?

The day I was shot.

Are the photographs aelping you in

any way?

No, sir.

whatsoever to identify him?

No, sir.’

None whatsoever in your mind?

None." (R. 466-67)

oO,

oO,

roror oro,

Given the way in which the photo spread was con

ducted, more must be required of the state than the ritual-

istic testimony of the witness, in response to leading

questions, as to what he remembered. Without some such

showing of independent memory,

"it becomes simply a matter of judicial rhetoric

to say that <ne earlier denial oz due process is

no longer iaZluential in the witness’ ultimate

identification. Due process, under thete circum-

stances, and the test of substantial likeiihood of

irreps-:abie misidentification are more than mere

subtective vools of the judge viewing the facts.

Suca tests necessarily must lend themselves to

objective evaluation and tie assurance neces~

Sary *o overcome the pervasive aangers of mis-

identification.” Sanchell v. Parratt, Supra,

530 F.2d at 290-97.

The state in the case at bar did not offer objectively

verifiable proof that Arnola‘s -<dentification was adequately

insulated from the suggestive display of photographs, and the

record therefore presents the cuestion of the extent of the

showing the state must make to discharge its burden.

-38-

(iii)

The record of petitioner's trial presents substantial

questions concerning the correctness of the decisions of the

courts below to permit the identification testimony of both Mrs.

Turman and Mr. Arnold. The Court should grant certiorari to

consider whether those decisions comply with the constitutional

requirements set forth by this Court in earlier cases.

-39-

-

It!

THE COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER THE EXCLUSION

FOR CAUSE OF FIVE VENIREMEN BDCAUSE

OF THEIR DXPRESSED ATTITUDES TOWARD

THE DEATH PENALTY VIOLATED PETITIONER'S

RIGHTS UNDER THE FOURTEENTH AMENDMENT

TO THE CONSTITUTION

The record below presents important issues -on-~

cerning the constitutionality of excluding persons wno

express general opposition to capital punishment from

service on jucies at both the guilt-determining and penalty-

determining phases of trials conducted under a bifurcated

procedure.

Pursuant to Fla. Stat. Ann. §921.141(3) (1974-

1975 supp.), the sentence in capital cases in Flor.da is

recommended by a majority of the jury, and the trial judge

is empowered to overrule this recommendation and to enter a

sentence of either death or life imprisonment. Although

advisory, the jury's recommendation remains highly important

to a convicted capital Gefendant,* for the Florida Supreme

Court has said thet:

"(b]loth the trial judge, before imposing a

sentence, anc this Court, when reviewing the

protriety of the death sentence, consider as

a zector the advisory opinicn of the senten-

cing tury. in some instances it could be a

critical factor in determining whether or

not the death penalty should be imposed."

LaMadline v. State, 303 So.2d 17, 20 (Fla. 1974). See also

Taylor v. State, 294 So.2d 648 (Fla. 1974). Nevertheless, in

the present case the Flocida Supreme Court rejected without

Whe decision of this Court in Withersooon Vv. Illinois, 391

U.S. 510 (1968), was expressly made applicable to procedures

under which juries “impose OF recommend” the death penaity.

Id. xt 522.

an

_~_a! |

nn i

comment petitioner's claim that the exclusion of five veniremen

from his trial jury on account of scruples against the death

penalty violated the corstitutional requirements of Witherspoon

v. Illinois, 391 U.S. 510 (1968).

A. The Test of Exclusion Applied by the Court

Below Did Not Meet the Minimum Standards

Required by the Constitution, as Construed

in Witherspoon v_ Illinois.

The trial court excluded five prospective jurors

for cause on the basis of their expressed convictions con-

cerning the death penalty (R. 44-46, 107, 109-10, 165).

Petitioner submits that at least two of these exclusions

were patently erroneous under Witherspoon.

Venireman Varney was exluded after the following

colloquy:

"(D]o you hold such conscientious moral

or religious principles in opposition to aa

the death penalty you would be unwilling E

under any circumstances to recommena the

death sentence?

* * *

"MR. VARNEY: Yes, sir.

THE COURT: You feel then, sir, that even

though and I am not saying it will it would

[sic] be purely speculative, in the event tnat

the evidence should be such that under

the law that should be the legal recommen-

dation you would be unwilling to return

such a recommendation because of your con-

scientious beliefs?

MR. VARNEY: I believe I would.

THE COURT: Ali rignt, sir. You will be

excused.” (R. 44-45).

Venireman Murphy was excluded on the basis of an

even more perfunctory exchange:

-4l-

t

“THE COURT: Do ‘vou have any moral or

relicious, conscientious moral or religious

principles in opposition to the death penalty

so strong that you would he unable without

violating your own principles *o vote to

recommend a death penalty regardless of

the facts?

AR. MURPEY: Yes, I have.

THE COURT: All riyht, sir, you will be

excused then.” (R. 165)

Witherspoon »rohibits the exclusion of veniromen

Zor cause on account of conscientious or religious sciupies

| agarast che Geath penalty* except under narrew and carefully

: . . d a

' Gefine. circumstances. Such exclusions are constitut-onaily

permissible only if veniremen make "unmistakably clea:

(2) that they would autcmaticaliy vote against tic im-os: ction

!

; ;, ‘a

gs capitel punishment without regard to any evicence chat

micnt be Geveloped at the trial of the case delfore thi Tt,

ij oF (2) that their attitude toward the death penalty wuld

i s-.veact them from making an impartial decision as to .fe

Gefendant's Guiit." Witherspocn v. Illincis, supra, -91 U.S.

at 522 n.21 (emphasis in criginai). See alse, «cawel v.

Bicheno, 398 U.S. 262, 266 (1970); Boulden v. FPoiman, 94 U.S.

(| 478, 482 (1969); Mathis v. New Jersey, and companion cases,

403 U.S. 946-48 (1571); Marion v. Beto, 434 F.2d 29, 32 (5th

| Circ. 1970).

Mr. Varney's responses to the court's quest.ons

concerning the extent and effect of his views on capi -al

punishment fell far short of the Witherspoon requirements.

wTRS Sentence of death cannot be carried out if the jury that

imposed or recomended it was chosen by exciuaing ver iremen

for cause simply because they voiced general objections to

the death penalty or expressed conscientious or rel: ious

scruples against its iaziiction.” Witherspoon v. Ii .irois,

| supra, 391 U.S. at 522 (footnore omitted).

=42-

~ is ae ee

He said only that "I believe I would” be unwilling to re-

turn a recommendation that the death penalty be inflicted.

This response hardly demonstrated "“unambigucusly,” 391 U.S.

at 516 n.9, or “unmistakably,” 391 U.S. at 522 n.21, ‘that

Mr. Varney would “automatically” have voted against the im-

position of the death penalty and did not even begin to

suggest that his views on capital punishment would have

prevented him from making an impartial decision as to

petitioner's guilt. He expressed only a tentative belief

that he would be unwilling to return a death sentence, a

position that is far less certain than Witherspoon requires

for exclusion. Moreover, he expressed no judgment whatever

concerning the impact of his attitude toward capital

punishment on his consideration of the evidence of ;eti-

tioner's guilt; indeed, the court failed to inquire of him

on this subject. This silence was especially important in

the case at bar, since the court did not explain to Mr.

Varney either his responsibilities as a juror to obey the

court's instructions on the law or the meaning of the

relevant concept of "impartiality."

Mr. Murphy's response to the court's question-

ing was equally uninformative. His response established no

more than that a vote to recommend the death penalty would

violate certain abstract principles. Without explaining its

reasoni#g, the trial court inferred from this that, regard-

less of what the evidence showed, mr. Murphy would never

vote except in accordance with his principles. Seemingly,

the court did not conclude that either Mr. Varney or Mr.

Murphy would be unable to sit impartially on the question

of guilt or innocence.

-43-

The responses of these veniremen are indistinguish-

able in substance from similar expressions of sentiment by

jurors whose exclusion for cause this Court has heretofore

found erroneous. See Witherspoon v. Illinois, supra, 391

U.S. at 515. For example, in’Maxwell v. Cicshop, 398 J.S.

262, 265 (1970) (emphasis omitted), the following co.-oquy

took place:

">. Mr. Adams, do you have any fee®ing

concerning capital punishment that would

prevent you or make you have any feelings

about returning a death sentence if you

felt beyond a reasonable doubt that the

defendant was guilty and that his crime

was so bad as to merit the death sentence?

A. No, I don't believe in capital punishment."

See also, Boulden v. Holman, 394 U.S. 478, 483-84 (1959). The

law is clear. Although "a mere reluctance ... or an abstract

belief against capital punishment is not sufficient grounds for

challenging a juror for cause," Smith v. Whisman, 431 F.2d

1051, 1052 (5th Cir. 1970), Soth Mr. Varney and Mr. Murphy were

excused upon nothing more.

The triel court's questioning was, indeed, calculated

to confuse the prospective jurors as to their duty under the

new Florida statute. Although they were instructed trey they

would have the @ual role of considering guilt and ser.tence

separately, they were not asked whether their scruples would

interfere with the determination of petitioner's guilc under a

procedure in which a guilty verdict does not necessarily entail

the death sentence. They were not advised during voir dire

of the wide range of mitigating circumstances that jurors would

be entitled to recognize in making a recommendation <jgainst

death. See Pla. Stat. Ann. §921.141(7) (1974-1975 suop.). Hac

~44-

_— ~~ ee re

—_— a.

they been properly instructed, the Court might well have found

that their scruples did not disqualify them from sitting on the

jury.

The exclusion of Mr. Murphy and Mr. Varney also

presents the frequently -ecurring guestion* whether 2 disquali-

fying opposition to capital punishment can be made “unmistakasly

clear" as requirec wy Witherspoor v. Illinois, supra, 391 U.S.

' at 522 n.21, in the absence of an instruction by the trial court

that it is the civic duty of each venireman to sit as a juror

and to follow the law of the state if he or sne can. As the

court declared in Boulden v. Holman, supdra, 394 U.S. at 463-84:

"it is entirely possibie that a person who

has ‘a fixed opinion against’ or who cces

not ‘believe in’ capital punisnment mig-t

nevertheless be perfectly able as a juros

to abide by existing law -- to follow con-

scientiously the instructions of a trial

judge ana to consicer fairiy tne impositicn

of the deatn sentence in a particular case.”

A venireman should therefore ce instructed, at the least,

that the law requires nium co “subordinate his perclAal views

to what he ... perceiveis] to be his duty to abice by hes

oath as a juror anc to obey the law of the State,” a«itner-

s200n v. Illino::, suprz, 391 U.S. at 514-15 n.7. Without

such an instruction the statements of Mr. Varney and Mr.

Murphy fall far short of establishing that they were either

unwilling or unable to subordinate their feelings to the

law of Plorida, which the trial court would charge them

to obey.

See, ©.9., Petition for Writ of Certiorari, Zberheart v. Georc:a,

Ro. 74-5174 (filed August 19, 1974) at 65-66. Petition for writ

of Certiorari, Noell v. Nor=n Carolina, No. 73-6876 (filed June

ll, 1974) at 25; eetition for writ Sc Certiorari, Jamette v.

North Carolina, No. 73-6877 (filed June 11, 1974) at I7.~

B. Exclusion from the Jury That Decided

Petitioner's Guilt of Five Veniremen

Having Conscientious Scruples Against the

Death Penalty Violated Petitioner's Rights

Under the Due Process and Equa] Protection

Clauses of the Fourteenth Amendment to

the Constitution of the United States.

Under Florida's fost-Furman capital punishment

statute, the jury first determines a defendant's guilt or

innocence, and at a subsequent, separate proceeding~iiakes a

sentencing recommendation. Putting aside impermissible con-

siderations cf mere convenience,* @ systematic exclusion

of the entire class of death-scrupled jurors at the guilt

phase of a capital trial would be consistent with the con-

stitutional command of a jury “truly representative of the

community," Smith v. Texas, 311 U.S. 128, 130 (1940), only

if such jurors were, for some reason, found to be legiti-

mately disqualified or unfit to sit on questions of guilt or

innocence. Cf. Witherspoon v. Illinois, 391 U.S. 510, 518

(1968).

The only ground for urging such 4 legitimate

disqualification is that the scruples of such jurors might

preclude their finding guilt in a case where another jury

might subsequcntly recommend imposition of the death penalty

and such recommendation might be followed by the trial court.

There is absolutely no evidence, however, to support this

supposition as a fair characterization of the frame of mind

or probable behavior of the excluded veniremen in this case

or of veniremen who oppose the death penalty generally.

Moreover, since a Florida jury's sentencing recommendation

is only advisory, a death-scrupled venireman could properly

*See Taylor v. Louisiana, 419 U.S. 522, 535 (1975).

-46-

———

— +

be instructed that ultimate sentencing responsibility in a

capital case rests upon the trial judge, not the jury.

Since a guilty verdict does not require a death sentence

under Florida law, it 1s surely too sweeping and dogmatic to

assume without inquiry that a juror with sentiments against

| the death penalty would <hereby be unable to follow the law

and to sit as a tair trier of fact on the question of guilt

or innocence.

Neither untested speculation nor approximate

rules of thumb can support the denial of vital constitutional

rights. At stake here is petitioner's right to a fair trial

and, in the final analysis, to the most precious and funda~

mental of human values -- life itself. "“([W)here fundamental

rights and liberties are asserted under the Equal Protection

i Clause, classifications which might invade or restrain them

must be closely scrutinized and carefully confined." Harper

v. Virgina Board of Elections, 263 U.S. 663, 670 (1966). In

Skinner v. Oklahoma, 316 '.S. 535 (1942), the Cou:* struck

down a compulsory sterilization law on equal protection grounds

where the criteria for sterilization arbitrarily included

some individuals and excluded others:

"(WJe are dealing with legislation which

involves one of the the basic civil rights of

man There is no redemption for the

individual whom the law touches. Any ex-

periment which the State conducts is to his

irreparable injury. He is forever deprived

of a basic libert.’ .... [S]trict scrutiny of

the classification which a State makes in

[such] ... a law is essential 316 U.S.

at 541.

Under appropriately "strict scrutiny” a practice

that systematically excludes jurors from trying guilt solely

because of their attitudes toward a possible penalty surely

-47-

raises grave questions that this Court should resolve. Ad- Conclusioa

mittedly, a state could exclude from juries sitting on the

—_— -

- —_——

' ; : Petitioner prays that the petition for a writ of

guilt question ina capital case any person whose attitude

ranted.

toward the death penalty was such that he or she couid not certiorari be g

Respectfylly submitted,

fairly pass on the issue of the guilt of the accused. But v

4 . P

that proposition does not justify the state of Florida's | PK os v

: O:irdgy jm. Kaipu:

assumption that all scrupled persons would function in this Robect/s Davis

; 919 Third Avenue

fashion; nor does it absolve the state from making a pertinent New York, New York 10022

; ' (212) 686-1100

ane practicable inquiry into jurors' fitness before it sweeps

, Harold H. Moore

from juries a significant portion of the community on the

2056 Main Street :

Sarasota, Florida 3357.

theory that it is unfit. Cf. Taylor v. Louisiana, 4)9 U.S.

Attorneys for Petitioner

522, 534-35 (1975); Witherspoon v. Illinois, supra, 391 U.S.

at 520-21.

r Nickerson, Kramer, Lowenstein,

iti Kamin & Soll

This uncritical and unrebuttable presumption that aso entes el

i .¥. 10022

if widely shared and reasonable attitude about capital punish- : New York, N

' Sen Counsel

jment will affect a juror's performance of his civic duty aa

on the guilt issue is conscitutionalily arbitrary. she Court

should therefore grant review here to decide whether any

such untested and unfounded presumption will support the

exclusion of death-scruvled jurors from the guilt-determining

jury, or whetner that wholesale exclusion -- which deprives

the accused of « jury that is “truly representative of the

community,” Smith v. Texas, Supra; see Carter v. Greene

County Jury Commission, 396 U.S. 320, 330 (1970) -- violates

petitioner's right to equal protection and due process.

-49-