# Petition — Darden v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1643%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 704 ## Text —_——- = ——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 =» 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 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 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-: : ‘ 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 ! ~ 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 - 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, ‘ 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 ~ + 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 +) - 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,. . 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