Petition — RAYMOND T STONE v. FLORIDA (Nos. 80/81 CD, 79-6862)

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

"al RECEIVED

JUN 2 7 1980

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79- L¥G 2

RAYMOND R. STONE,

Petitioner,

THE STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

PHILIP J. PADOVANO

Post Office Box 527

Tallahassee, Florida 32302

(904) 224-2821

ATTORNEY FOR PETITIONER

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

STATEMENT OF THE CASE

A. The Motion to Suppress

B. The Trial

C. Sentencing

De.

The Direct Appeal

REASONS FOR GRANTING THE WRIT

II.

II!

IV.

THE FLORIDA SUPREME COURT, IN

AFFIRMING THE IMPOSITION OF THE

SENTENCE OF DEATH IN THE PRESENT

CASE HAS ADOPTED SUCH A BROAD AND

VAGUE CONSTRUCTION OF THE TERM

"ESPECIALLY HEINOUS, ATROCIOUS AND

CRUEL" AS TO VIOLATE THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

THE APPLICATION OF THE AGGRAVATING

CIRCUMSTANCE RELATING TO MURDERS

COMMITTED "BY A PERSON UNDER SEN-

TENCE OF IMPRISONMENT", TO SUPPORT

THE IMPOSITION OF THE DEATH PENAL-

TY UNDER THE FACTS OF THIS CASE,

CONSTITUTES A VIOLATION OF PETI-

TIONER'S RIGHTS UNDER THE EIGHTH

AND FOURTEENTH AMENDMENTS OF THE

UNITED STATES CONSTITUTION.

THE IMPOSITION OF THE SENTENCE OF

DEATH IN THIS CASE UPON THE GROUND

THAT IT IS "PRESUMED TO BE THE PRO-

PER SENTENCE" IS TANTAMOUNT TO A

MANDATORY DEATH SENTENCE AND

THEREFORE VIOLATIVE OF THE EIGHTH

AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

PETITIONER'S PRE-TRIAL STATEMENT TO

THE POLICE WAS OBTAINED IN VIOLATION

OF HIS RIGHTS UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

CONCLUSION

TABLE OF AUTHORITIES

Cases

Brown v. State, 381 So.2d 690 (1980)

Clewis v. Texas, 386 U.S. 707 (1967)

Cooper v. State, 336 So.2d 1133 (Fla. 1976)

Fleming v. State, 374 So.2d 954 (Fla. 1979)

Ford v. State, 374 So.2d 496 (Fla. 1979)

Furman v. Georgia, 408 U.S. 238 (1972)

Gibson v. State, 351 So.2d 948 (Fla. 1977)

Godfrey v. Georgia, ¥.s. , 48 L.LW. 3542

May 19, 1980

Gregg v. Georgia, 428 U.S. 153 (1976)

Halliwell v. State, 323 So.2d 557 (Fla. 1975)

Hargrave v. State, 366 So.2d 1 (Fla. 1978)

Harvard v. State, 375 So.2d 833 (Fla. 1978)

Holmes v. State, 374 So.2d 944 (Fla. 1979)

Kampf v. State, 371 So.2d 1007 (Fla. 1979)

Lewis v. State, 377 So.2d 640 (Fla. 1979)

Lockett v. Ohio, 438 U.S. 586 (1978)

Miranda v. Arizona, 384 U.S. 436 (1966)

Proffitt v. Florida, 428 U.S. 242 (1976)

Raulerson v. State, 358 So.2d 826 (Fla. 1978)

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

pRoberts v. Louisianna, 428 U.S. 325 (1976)

State v. Dixon, 283 So.2d 1 (Fla. 1973)

Stone v. State, 378 So.2d 765 (Fla. 1980)

Stone v. Wainwright, 478 F.ed 390 (5th Cir.1973)

Swan v. State, 322 So.2d 485 (Fla. 1975) ,

Wainwright v. Stone, 414 U.S. 21 (Fla. 1973)

Woodson v. North Carolina, 428 U.S. 280 (1976)

-ii-

18,22,23

19,20

17,18

16,17

24,25

26,27

passim.

24,25

passim.

13,21,25,26

24,25

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const., Fifth Amendment passim.

U.S. Const., Eighth Amendment passim.

U.S. Const., Fourteenth Amendment passim.

28 U.S.C. § 1257 (3) 2

Fla. R. Crim. P. 3.130(b) (1) 27

Fla. Stat. Ann. 775.082 24

Fla. Stat. Ann. 921.141 (5) passim.

Fla. Stat. Ann. 921.141 (1) 12

Fla. Stat. §782.04 (1) 22

Fla. Stat. § 794.01(1) 22

-iii-

os Gem

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1979

No.

RAYMOND R. STONE,

Petitioner,

Vv.

THE STATE OF FLORIDA,

eee ee ee ee ee

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

Petitioner, Raymond R. Stone, respectfully prays that

a writ of certiorari issue to review the judgment and

Opinion of the Supreme Court of Florida entered in these

proceedings on November 1, 1979.

OPINIONS BELOW

The opinion of the Florida Supreme Court on the direct

appeal of the Petitioner's conviction and sentence which

. is reported as Stone v. State, 378 So.2d 765 (Fla. 1980)

is attached as Appendix A.

JURISDICTION

The judgment of the Supreme Court of Florida was en-

tered on November 1, 1979. A timely Motion for Rehearing

was denied on January 31, 1980. An Application for Ex-

tension of Time in which to file the Petition for Writ of

Certiorari was timely filed in this Court and on April 1l,

1980, Mr. Justice Powell granted an Extension of Time until

June 29, 1980 for the filing of the Peition. Jurisdic-

tion of this Court is invoked under 28 U.S.C. §1257(3)

Petitioner having asserted below and asserting here a

deprivation of rights secured by the Constitution of the

United States.

QUESTIONS PRESENTED

1. Whether the Florida Supreme Court, in affirming

the imposition of the sentence of death in the present

case has adopted such a broad and vague construction of

the term “especially heinous, atrocious and cruel" as to

violate the Eighth and Fourteenth Amendments to the

United States Constitution.

2. Whether the application of the aggravating cir-

cumstance relating to murders committed by "a person un-

der sentence of imprisonment" to support the imposition

of the death penalty under the facts of this case consti-

tutes a violation of Petitioner's rights under the Eighth

and Fourteenth Amendments to the United States Constituion.

3. Whether the imposition of the sentence of death

in this case upon the ground that it is “presumed to be

the proper sentence" is tantamount to a mandatory death

sentence and therefore violative of the Eighth and Four-

teenth Amendments to the United States Constitution.

4. Whether the Petitioner's Pre-trial statement to

the police was obtained in violation of his rights under

the Fifth and Fourteenth Amendments to the United States

Constitution.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fifth Amendment:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or mine

naval forces or in the militia, when in actual

service in time of war or public danger; nor

shall any person be subject for the same offense

twice be put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be

a witness against himself, nor be deprived of

life, liberty or property, without due process

of law; nor shall private property be taken for

public use, without just compensation.

United States Constitution, Eighth Amendment:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

United States Constitution, Fourteenth Amendment,

Section 1:

nate

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty or property, without

due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Fla. Stat. Ann. 921.141 Sentence of death or life

imprisonment for capital

felonies; further proceedings

to determine sentence

(1) Separate proceedings on issue of penalty.-

Upon conviction or adjudication of guilt of a de-

fendant of a capital felony, the court shall conduct

a separate sentencing proceeding to determine whether

the defendant should be sentenced to death or life

imprisonment as authorized by §775.082. The proceeding

shall be conducted by the trial judge before the trial

jury as soon as practicable. If, through impossibility

or inability, the trial jury is unable to:reconvene for

a hearing on the issue of penalty, having determined

the guilt of the accused, the trial judge may summon

a special juror or jurors as provided in Chapter 913

to determine the issue of the imposition of the penal-

ty. If the trial jury has been waived, or if the de-

fendant pleaded guilty, the sentencing proceeding

shall be conducted before a jury impaneled for that

purpose, unless waived by the defendant. In the pro- .-,

ceeding, evidence may be presented as to any matter

that the couct deems relevant to svuntence, and shall

include matters relating to any of the aggravating or

mitigating circumstances enumerated in subsections (5)

and (6). Any such evidence which the court deems to

have probative value may be received, regardless of

its admissibility under the exclusionary rules of

evidence, provided the defendant is accorded a fair

opportunity to rebut any hearsay statements. However,

this subsection shall not be construed to authorize

the introduction of any evidence secured in

violation of the constitutions of the United

States or of the State of Florida. The state and

the defendant or his counsel shall be permitted

to present argument for or against sentence of

death.

(2) Advisory sentence by the jury. - After

hearing all the evidence, the jury shall deliberate

and render an advisory sentence to the court, based

upon the following matters:

(a) Whether sufficient aggravating circumstances

exist as enumerated in subsection (5);

(b) Whether sufficient mitigating circumstances

exist as enumerated in subsection (6), which outweigh

the aggravating circumstances found to exist; and

the defendant should be sentenced to life imprisonment

or death.

(3) Findings in support of sentence of death. -

Notwithstanding the recommendation of a majcrity of

the jury, the court, after weighing the aggravating

and mitigating circumstances shall enter a sentence

of life imprisonment or death, but if the court im-

poses a sentence of death, it shall set forth in writing

its findings upon which the sentence of death is based

as to the facts:

(a) That sufficient aggravating circumstances

exist as enumerated in subsection (5) and

(b) That there are insufficient mitigating cir-

cumstances, as enumerated in subsection (6), to out-

weigh the aggravating circumstances. In each case

in which the court imposes the death sentence, the

determination of the court shall be supported by

specific written findings of fact based upon the cir-

cumstances in subsections (5) and (6) and upon the re-

cords of the trial and the sentencing proceedings.

If the court does not make the findings requiring the

death sentence, the court shall impose sentence of

life imprisonment in accordance with s. 775.082.

(4) Review of judgment and sentence. - The

judgment of conviction and sentence of death shall

be subject to automatic review by the Supreme Court

of Florida within sixty (60) days after certification

by the sentencing court of the entire record, unless

the time is extended for an additional period not to

exceed thirty (30) days by the Supreme Court for good

cause shown. Such review by the Supreme Court shall

have priority over all other cases and shall be heard

in accordance with rules promulgated by the Supreme

Court.

(5) Aggravating circumstances. - Aggravating

circumstances shall be limited to the following:

(a) The capital felony was committed by a per-

son under sentence of imprisonment.

(b) The defendant was previously convicted of

another capital felony or of a felony involving the

use or threat of violence to the person.

risk of death to many persons.

(ad) The capital felony was committed while the

defendant was engaged, or was an accomplice, in the

commission of, or an attempt to commit, or flight

after committing or attempting to commit, any robbery,

rape, arson, burglary, kidnapping, or aircraft piracy

or the unlawful throwing, placing, or discharging of

a destructive device or bomb.

(e) The capital felony was committed for the

purpose of avoiding or preventing a lawful arrest

or effecting an escape from custody.

(f) The capital felony was committed for pe-

cuniary gain.

(g) The capital felony was committed to disrupt

or hinder the lawful exercise of any governmental func-

tion or the enforcement of laws.

(h) The capital felony was especially heinous,

atrocious, or cruel.

(6) Mitigating circumstances. - Mitigating

circumstan‘es shall be the following;

(a) The defendant has no significant history

of prior criminal activity.

(b) The capital felony was committed while the

defendant was under the influence of extreme mental

Or emotional disturbance. ,

dant's conduct or consented to the act.

(d) The defendant was an accomplice in the capi-

tal felony committed by another person and his parti-

cipation was relatively minor.

(e) The defendant acted under extreme duress or

under the substantial domination of another person.

(£) The capacity of the defendant to appreciate

the criminality of his conduct or to conform his con-

duct to the requirements of law was substantially im-

paired.

(g, The age of the defendant at the time of the

crime.

HOW THE FEDERAL QUESTIONS

WERE RAISED AND DECIDED BELOW

1. The issue of whether the aggravating circumstance

relating to murders which are “particularly heinous, atro-

cious and cruel" can be constitutionally applied to the Pe-

titioner under the facts of this case was raised by argument

in the Florida Supreme Court and decided adversely to Peti-

tioner by that Court.

2. The issue of whether the aggravating circumstance

relating to murders which are committed “by a person under

sentence of imprisonment" can be constitutionally applied

to Petitioner under the facts of this case was raised by ar~

gument in the Florida Supreme Court and decided adversely to

Petitioner by that Court.

3. The issue of whether the imposition of a sentence

of death upon the ground that it is "presumed to be the pro-

per sentence" is tantamount to a mandatory death sentence and

therefore violative of Petitioner's constitutional rights

arose by the decision of the Florida Supreme Court.

4. The issue of whether Petitioner's pre-trial state-

ment to the police was obtained in violation of his rights

under the Fifth and Fourteenth Amendments was raised in a

Motion to Suppress the statement filed in the Circuit Court

for Union County, Florida. The Circuit Court denied the

Motion and the Florida Supreme Court affirmed the judgment.

STATEMENT OF THE CASE

On July 11, 1975, a Circuit Court jury in Union County,

Florida found the Petitioner, RAYMOND R. STONE, guilty as

charged of the premeditated murder of one Jacqueline Joanne

Smith. R-20.! The Trial Judge, accepting a Recommendation

of death made by the same jury, R-21, adjudicated the Pe-

titioner guilty and sentenced him to die in the electric

chair. R-22. Both the conviction and sentence were affirmed

on Direct Appeal to the Florida Supreme Court on January 31,

1980 in the judgment sought to be reviewed by this Petition.

(Appendix A) Stone v. State, 378 So.2d 765 (Fla. 1980).

A. The Motion to Suppress

Petitioner made a formal tape-recorded statement on

September 16, 1974, admitting his involvement in the offense

to John Whitehead, the Sheriff of Union County and Agent Joe

Eubehler-of the Florida Department of Law Enforcement. MS-4,

Tr-692. Counsel for the Petitioner moved to suppress the

Statement R-14-18 on the ground that it was obtained in vio-

1 in this Petition "R" is a reference to the one volume re-

cord of the pleadings and orders, "Tr." is a reference to the

five volume trial transcript, "MS" is a reference to the tran-

script of the Motion to Suppress Hearing, "Pen.Tr." is a refer-

ence to the transcript of the penalty trial, and "S" ‘s a re-

ference to the sentencing transcript. ‘

-6-,

lation of Petitioner's Fifth Amendment rights. A pre-

trial Evidentiary Hearing was held upon the Motion on June

27, 1975. MS-1-166.

‘Petitioner was called as a Witness on his own behalf and

testified that he is thirty six years old and that he has

a third grade education. MS-3. He explained that he was

involved in an automobile accident in Missiouri and that the

police officers there arrested him on August 31, 1974 when

they learned of a detainer lodged against him for an unrelated

Florida offense. MS-4,20.

Wayne C. Scott, a corrections officer with the Florida

Department of Offender Rehabilitation, met Petitioner in

Missouri on September 5, 1974 and together they flew to

Tallahassee, Florida. MS-60. Petitioner was told that he

was being taken to the Lake Butler Reception and Medical

Center for further medical treatment. MS-6. He was also

told that he was a suspect in a murder case but no details

were furnished him. MS-28. Petitioner attempted to obtain

an Attorney's address from Officer Scott, who had taken poss-

ession of his personal belongings, but Scott did not turn

over the address. MS-5,8,29-32,63,64. The two arrived in

Tallahassee and Petitioner was taken to the Leon County Jail

where he remained for the next five or six days. He was not

taken before a commiting magistrate during this period of

time. MS-5, Thereafter, on September 10, 1974, Officer

Scott took Petitioner to the Lake Butler Reception and Medi-

cal Center.

On several occasions during the day of September 10,

Petitioner was questioned by Sheriff Whitehead and Agent

Eubehler. He testifed that he again requested the telephone

number of his attorney and that the officers, once again,

failed to provide it. MS-10. He said that he officors

explained that he did not need an attorney as he was not yet

charged with an offense. MS-14,15.

At approximately 4:30 a.m. on September 16, 1974, Agent _

Eubehler and Sheriff Whitehead woke the Petitioner up and

advised him that they were going to Orlando. He requested

an attorney once again but the officers replied that it

was too early in the morning. MS-12,42. Later that morn-

ing he was told that he was being taken to Orlando for a lie

detector test pursuant to a court order. MS-12,13,47. He

again asked for the telephone number of his attorney and

was told that it would be given to him on the way back.

MS-13,43.

After Petitioner arrived in Orlando, Charles Moniack, a

Special agent with the Florida Department of Law Enforcement,

gave Petitioner a polygraph examintion. MS-15. Afterwards,

Moniack told Petitioner, in his opinion, Petitioner was

guilty of the murder of Jacqueline Smith. According to

Petitioner's testimony, Sheriff Whitehead then told him that

they had enough evidence to put him in the electric chair

but that if he cooperated, the officers would speak on his be-

half to the State Attorney. MS-16,17,48. Although Petitioner

was not advised of his rights at this time, MS-18-20, he made

a statement admitting his involvement in the offense. MS-17.

An hour later a tape recording of the confession was made

and another recorded statement was made on September 18,

1974. MS-18,23. Petitioner was finally allowed to call the

attorney on the way back to the prison from Orlando after he

had already made the confession. MS~-20,21,53.

Agent Wayne Scott testified when he arrived in Missouri

to take Petitioner into custody, he was told that Petitioner

was a possible suspect in a murder case and that he should

seize all of his personal belongings as evidence. MS-61l. oa Se

On the way back to Florida, Petitioner twice asked the Agent

for a business card that bore the name of an attorney. MS-

63. When he returned, Scott informed Sheriff Whitehead

and Agent Eubehler concerning Petitioner's request to ob-

tain the name and telephone number of his attorney. MS-

64,69.

Sheriff Whitehead confirmed the fact that the poly-

graph test was administered to Petitioner on the morning

of September 16, 1974, MS-80, but he said that Petitioner

had indicated that he wanted to take the test MS-100.

The Sheriff conceded that the Petitioner had asked to call

an attorney but explained that the call was supposed to '

have been about the automobile accidént in Missouri. MS-

85. He was not concerned about arresting Petitioner at

that time as he was already in custody on the other charge.

MS-97.

Agent Eubehler confirmed Petitioner's testimony that

the polygraph examiner told him in the presence of the off-

icers that he thought he was guilty of the murder. Eubehler

said that he advised Petitioner of his rights on many occa-

sions during the day but that he apparentiy did not do so

immediately prior to the confession which was immediately

following the confrontation by the polygraph examiner. MS-

118. His testimony concerning Petitioner's request for an

attorney was essentially the same as that of Sheriff

Whitehead. MS-120.

At the close of. the testimony, the Trial Court Judge

entertained arguments and found by the greater weight of

the evidence “that the confession was freely and voluntarily

made." MS-154. Accordingly, the Motion to Suppress was de-

nied.* MS-165,

B. The Trial

Petitioner was employed as a farm laborer in May of 1974

by the victim's husband, Marvin Smith. Tr. 239. From the

time he was hired until the time of the commission of the

offense on September 23, 1974, he lived on the premises,

Tr-241, and assisted Smith in the harvesting of a small

tobacco field. r-239-241.

At 2:30 a.m. on the morning of October 23, Marvin

Smith woke up and discovered that his wife, Jacqueline, who

was due home from her job at approximately 12:30 a.m., had

not returned from work. Tr.25l He got out of bed wa

drove his truck down to her place of employment, but he was

unable to locate her 1974 green Ford automobile, Tre - 252, -or

to otherwise ascertain her whereabouts.

Later that morning at approximately 7:00 a.m. another

farm worker came by to tell Smith that he had seen the green

Ford parked unattended in a nearby field. Tr-368,376. Law

enforcement officers were called to the scene and found a

broken key chain on the floorboard of the car, Tr- 404,

and scuff marks on the ground nearby. Tr-402. Petitioner

did not return to work and was apparently last seen on the

morning of August 23, attempting to purchase gasoline. Tr-36

On September 1, 1974, two men traveling down the Santa

Fe River by canoe discovered the torso of a body approxi-

mately one half mile from a bridge near the south bank of

the river Tr-433,434,441. They immediately contacted the

Union County Sheriff, Tr-436, who came out to the river with

an ambulance driver to retrieve the body. Tr-419,421,422.

A diving team was dispatched to the scene and one of the

divers located a human skull approximately 150 yards from the

bridge. Tr-473,476,478. Police officers also removed a

dark red stain, later identified as human blood from the

bridge. Tr-448,449.

The medical examiner compared a surgical scar and X-rays

made during the autopsy, to the medical records of the sus-

pected victim and testified that he believed the body to be

that of Jacqueline Smith. Tr-596. His examination of the

-10-

skull led him to believe that trauma to the skull bone

occurred near or at the time of death. Tr-603,604. He

identified three injuries to the skull, any one of which

would have been sufficient to cause death. Tr-605.

The State established the Petitioner's involvement in

the offense by introducing into evidence the tape recorded

Statement he made to Sheriff Whitehead and Agent Joe

Eubehler on September 16, 1974. Tr-692. The statement

serves as the only explanation as to how the offense was ac-

tually committed.

Petitioner told the officers that he had been smoking

marijuana and drinking a considerable amount of beer on the

evening of August 22, 1974, when Jacqueline Smith pulled up

in the green Ford alongside his vehicle. MTr-692-727. She

apparently decided to join him for a while and proceeded to

park her car where her husband would not be able to find it.

Tr-724. She walked back to Petitioner's car and the two

drove out to the bridge over the Santa Fe River. MTr-727.

As she was getting out of the car, Petitioner grabbed a

hatchet which he had placed in the back seat, Tr-722, and

Struck her on the head. She fell to the ground and Petitioner

picked her up and dumped her over the bridge. Tr-728. He

got back into the car and proceeded to a truck stop to

attempt to get more marijuana. Tr-732. Petitioner told

the officers that when the effect of the beer and marijuana

began to wear off, he realized that he was in trouble. Tr-

732. He explained that he did not plan on killing Jacqueline

Smith, but that he had just "lost his head” at the time.

Tr-750. .

Petitioner did not testify in his own behalf at Trial.

Following closing arguments by the parties, Tr-909-981,

and the Court's instructions on the law, Tr-982-1010, the

Jury returned a verdict, Tr-1012, finding Petitioner guilty

“lle

as charged of premeditated murder in the first degree.

C. Sentencing

The penalty portion of the bifurcated trial was

held before the same jury on July 11, 1975, seven days af-

ter the guilty verdict, Pen.Tr. 1-82. The parties were

permitted to introduce evidence in aggravation and mitiga-

tion in accordance with the procedures set forth in Fla.

Stat. Ann. 921.141(1).

The State introduced a document demonstrating that Pe-

titioner was sentenced to serve ten years imprisonment for

robbery in 1963. Pen.Tr. 419. The Prosecution also intro-

duced a document indicating that in 1970, Petitioner was con-

victed and sentenced to. serve a term of years for having

committed a "crime against nature". Pen.Tr. 4,15,19. Fi-

nally, a document referred to as a “retake order" was intro-

duced for the purpose of demonstrating that a judgment of an

intermediate appeals court vacating Petitioner's sodomy con-

viction had been reversed prior to the commission of the in-

Stant offense. Pen.Tr. 5,20.

Petitioner Stone took the witness stand on his our be-

half and stated that he was thiry six years old and had a

third grade education. Pen.Tr. 6. He outlined a life of

confinement in prisons and mental hospitals dating back to

a time when he was fiirst placed in a juvenile correctional

institution at the age of twelve. Pen.Tr. 6-11. He told

the Jury that he had not been in contact with his father

or his brothers or sisters since 1955. Pen.Tr. 10,11.

Following the presentation of thiS evidence, Counsel

made arauments to the jury. Pen.Tr. 11-56. Petitioner's :

attorney objected to the State's argument that the Petitioner

was "under sentence of imprisonment" at the time of the co-

mission of the offense. Pen.Tr. 66. The basis of the ob-

=-12-

a aR I

: ‘* a

— . . . ice

bea , sates

jection was that although an appeals court decision vacating

the judgment and sentence had been reversed and the ori-

ginal sentence rcinstated, Petitioner was not actually re-

committed until after the commission of the homicide, and

was not therefore "serving" the sentence. Pen.Tr.66. The

objection was overruled. Pen.T.i. 68.

The Trial Judge instructed the jury on the law relating

to the aggravatine and mitigating circumstances, Pen.Tr.

56-63, after which a majority of the jury recommended that

the Petitioner be sentenced to death. Pen.Tr. 78.

On October 1, 1975, the Trial Court accepted the Jury's

recommendation and sentenced the Petitioner to death. S-18.

The Court found as aggravating circumstances: (1) that the

crime was committed while the Defendant was under a sentence

of imprisonment, (2) that the Defendant was previously convic-

ted of a felony involving the use or threat of violence and

(3) that the murder was especially heinous, atrocious and

cruel. S-15. The Trial Judge further found that there

(were] “insufficient mitigating circumstances to outweigh the

aggravating circumstances". S-17.

D. The Direct Appeal

Petitioner's judgment and sentence were affirmed on

November 1, 1979, in a Direct Appeal to the Florida Supreme

Court. (Appendix A), Store v. State 378 So.2d 765 (Dla

1980). A timely Petition for Rehearing was denied on

January 31, 1980.

The Court, in affirming the conviction, rejected Peti-

tioner's contention that the confession was admitted into ‘

evidence in violation of his Fifth and Sixth Amendment

rights. The sentence of death was affirmed upon a holding

that the Trial Judge properly found each of the three aggra-

vating circumstances enumerated in his Order, and that in

-13-

the absence of any mitigating circumstances, “death is

presumed to be the proper sentence." 378 So.2d at 772.

REASONS FOR GRANTING THE WRIT

ONE

THE FLORIDA SUPREME COURT, IN AFFIRMING

THE IMPOSITION OF THE SENTENCE OF DEATH

IN THE PRESENT CASE HAS ADOPTED SUCH A

BROAD AND VAGUE CONSTRUCTION OF THE TERM

"ESPECIALLY HEINOUS, ATROCIOUS AND CRUEL"

AS TO VIOLATE THE EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUION,

This case presents a question that is ripe for deter-

Mination after this Court's decision in Godfrey v. Georgia,

—_.:;U-S. __, 48 L.W. 3542 (May 19, 1980). In that case,

the Court granted certiorari to determine wether the Georgia

aggravating circumstance relating to murders which are

"outrageously or wantonly vile, horrible or inhuman..."

was unconstitutionally applied by the Georgia Supreme Court.

Although that aggravating circumstance was upheld or its

face in Gregg v. Georgia, 428 U.S. 153 at 201 (1976) in view

of the then exist:ing Georgia decisions limiting its applica-

tion, a plurality of the Court in Godfrey determined that

the imposition of the death penalty in that case constituted

a departure from the constitutimally permissible narrowing

construction previously placed upon the law by the Georgia

Courts. The constitutional problems involved in the appli-

cation of an essentially subjective aggravating circumstance

Such as the one considered in Godfrey are even more acute in

Florida. oe

This Court upheld the term “especially heinous, atro-

cious and cruel", contained in Fla. Stat. Ann. §921.141(5) (h)

in Proffitt v. Florida, 428 U.S. 242 (1976) against a challenge

of vagueness and overbreadth, but only because the few

existing decisions of the Florida Supreme Court cured

-~14-

whatever constitutional defects may have existed in the

term by construction. Id at 254. Petitioner respectfully

submits that the application of the subsection 5(h) aggrava-

ting circumstance in this case was unconstitutional in viola-

tion of his Eighth and Fourteenth Amendment Rights, first

because the facts of the case cannot constitutionally support

én application of the circunstance; and secondly, because the

construction placed upon the term by the Florida Supreme

Court in all of the death penalty cases decided in the nearly

four years since Proffitt has rendered the meaning of the

term vague and overbroad.

Consideration of the first argument must begin with the

Florida Supreme Court's definition of the term "especially

heinous, atrocious and cruel." The phrase was initially

defined in State v. Dixon, 283 So.2d 1 (Fla. 1973) as follows:

"...it is our interpretation that heinous means

extremely wicked or shockingly evil; that atrocious

means outrageously wicked and vile; and that, cruel

means designed to inflict a high degree of pain

with utter indifference to, or even enjoyment of, the

suffering of others. What is intended to be included

are those capital crimes where the actual commission

acts as to set the crime apart from the norm of capi-

tal felonies - the conscienceless or pitiless crime

which is unnecessarily torturous to the victim." id

at 9.

It would seem from the definition made by the Court that the

aggravating circumstance could not apply in a case such as

this one where the victim, who was unaware of impending

death, died instantly as a result of the wound inflicted

by the Petitioner. Indeed, the Supreme Court of Florida has

held the aggravating circumstances to be inapplicable in

cases where the victim died quickly as a result of a fatal

injury and does not otherwise suffer physical or psychologi-

cal pain prior to the time of death, see Cooper v. State, 336.

So.2d 1133 (Fla. 1976), Kempf v. State, 371 So.2d 300°: (fta,.

1979), and Fleming v. State, 374 So.2d 954 (Fla. 1979).

Nothing in the record of these proceedings, however,

could be fairly read to support a finding that the Petitioner

-15-

“Te ee

had a "(design] to inflict a high degree of pain" or that

the murder was “unnecessarily torturous to the victim". The

Petitioner's confession, relied upon the State as the prin-

cipal evidence of his involvement in the offense, indicates

that he struck the victim on the head with the blunt end

of a hatchet at a time when she was apparently unaware of her

fate. Tr-727. The Medical Examiner testified that his exam-

ination of the skull indicated the presence of a trauma re-

Sulting from a severe blow to the head, sufficient to cause

the death of the victim. Tr-604,605.

While the condition of the corpse after approximately

one week in the Santa Fe River is unpleasant to say the

least, the Florida Courts have squarely held that events

occurring subsequent ts the death of the victim cannot be

used to support a finding that the murder was "especially

heinous, atrocious and cruel". See Halliwell v. State, 323

So.2d 557 (Fla. 1975). Since there was no evidence in this

case that the victim suffered physically or psychologically

prior to the time of death, it cannot be said that the murder

was “especially heinous, atrocious and cruel” .

For these reasons, it is clear that the decision of the

Florida Supreme Court sought to be reviewed by this Petition

constitutes an impermissible departure from the narrow con-

struction of the term "especially heinous, atrocious and

cruel” originally approved by this Court in Proffitt v.

Florida, supra. Assuming the application of subsection 5 (h)

can be valid under some circumstances, as was recognized by

the Court in Proffitt, it cannot be applied consistently with

the Eighth and Fourteenth Amendments under the facts of this

case. es

The second branch of the argument, i.e. that the Florida

Supreme Court has rendered the term “especially heinous, atro-

cious and cruel" vague and overbroad by the various and di-

verse constructions placed upon it in the four years since

-16-

Proffitt, presents a problem which is deserving of this

Court's attention. A resolution of the constitutional

issue by this Court would not only have significance to the

individual fate of the Petitioner, but it would have a broad

impact upon a widespread constitutional deficiency in the

administration of the death penalty in Florida.

Before this Court decided Proffitt v. Florida supra,

the Florida Supreme Court placed a narrow construction on

the term "especially heinous, atrocious and cruel" and was

extremely selective in its application. The Court rejected

the application of the aggravating circumstance even in

cases which seemed to contain the elements of the defini-

tion stated in Dixon v. State, supra. For example, in Swan

Vv. State, 322 So.2d 485 (Fla. 1975), where the Defendant en-

tered the victim's home, beat her, bruising her body severely,

and tied her up with bed sheets in such a way that death

would result from choking or strangulation, all of which ul-

timately did cause her death, the Court held that the aggra-

vating circumstance was not proven. Similarly, the Court re-

jected the aggravating circumstance in Halliwell v. State,

323 So.2d 557 (Fla. 1975) where the Defendant beat the victim

with a nineteen inch breaker bar until he sustained fatal

injuries to the brain and then mutilated his body by dis-

membering it with a saw and fishing knife.

The State Court decisions in the intervening years

Since Proffitt, however, clearly indicate that the definition

has been expanded. For example, in Gibson v. State, 351 So.

2d 948 (Fla. 1977), where the Only evidence pertaining to

the death was that the Defendant shot the victim three times,

the Court held that the aggravating circumstance applied.

Likewise, in Harvard v. State, 375 So.2d 833 (Fla. 1978), a

death caused instantly by a single shotgun blast to the neck

was characterized as “especially heinous, atrocious and cruel"

Part of the original definition of "especially heinous,

=) Ja

ey Di

atrocious and cruel" contained in State v. Dixon, supra

was; that conduct which is "unnecessarily torturous to the

victim". Now it appears from the decisions of the Florida

Supreme Court that a murder can be "heinous" if the killing

itself was not necessary. See Hargrave v. State, 366 So.2da

1 (Fla. 1978) and Ford v. State, 374 So.2d 496 (Fla. 1979).

Thus it appears ihai the Court has substituted the lack of

justification for the offense, an element which would appear

to exist in any murder case resulting in a conviction, for

the requirement that death be inflicted in such a manner that

it is cruel to the victim.

Another aspect of the Florida Supreme Court's post

Proffitt construction of subsection 5(h) is the tendency

on the part of the Court to find the existence of the aggra-

vating circumstance on facts which are necessary to prove the

offense. This type of duplication clearly occurred in

Raulerson v. State. 358 So.2d 826 (Fla. 1978) where the

Court found that the homicide was particularly heinous, atro-

cious and cruel because it was committed in a cold and cal-

culated fashion”. It is difficult indeed to determine what

that language adds to the premeditation required to prove

the murder in the first instance.

An examination of all of the post Proffitt Court deci-

Sions reveals that there is absolutely no discernable pattern

to the manner in which the subsection 5(h) aggravating cir-

cumstance is applied. Even the cases which appear to raise

identical questions are disposed of inconsistently with each

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

rejected a subsection 5(h) finding by the lower Court in a

case where the defendant shot the victim's son who was

apparently left to watch his father die, on the ground that

it can only apply to acts committed against the victim of the

homicide. However, in Gibson v. State, 351 So.2d 948, (Fla.

1977), the Court held that the murder of the victim was par-

~18-

ticularly heinous, atrocious and cruel because the defen-

dant had also shot another person who was left lying in

the gutter. The attempt to reconcile these decisions de-

monstrates the validity of the often stated criticism of

subsection 5(h) that it could be applied to any case.

The argument that subsection 5(h) has been used as a

"catch-all" aggravating circumstance to cover a multitude

of situations is demonstrated most effectively by an exam

ination of the frequency with which it has been used. Since

Proffitt there have been fifty murder cases decided in the

Supreme Court of Florida wherein the Court actually reached

the issue of sentencing. In forty three of these cases,

the judgment and sentence of death in the Trial Court was

based in wholeor in part upon a finding that the murder was

“especially heinous, atrocious and cruel". ?

The fact that subsection 5(h) is only one of eight

aggravating factors” and it .ppears to have been used to

support approximately eighty six percent of the lower Court

judgments imposing the death penalty, should be alarming

in view of the fact that the aggravating circumstance is de-

signed to represent the exception and not the rule. As Mr.

Justice White noted in Furman v. Georgia, 408 U.S. at 313, a

capital sentencing scheme must provide a "meaningful basis

for distinguishing the few cases in which {the penalty] is

imposed from the many cases in which it is not". Although

. The cases are listed in the Table attached as Appendix B.

; In 1979, the Florida Legislature added a ninth aggravating

circumstance which is as follows: The capital felony was a

homicide and was committed in a cold, calculated, and pre-

meditated manner without any pretense of moral or legal

justification. Fla. Stat. Ann. 921.141(5) (i).

-19-

the Florida Supreme Court said in Lewis v. State, 377 So.

2d 640 (J979), that the aggravating circumstance under re-

view should only be used in cases wherein the murder is es-

pecially heinous, the facts demonstrate that it has been

used in an overwhelming percentage of the cases.

The final constitutional deficiency in the application

of subsection 5(h) is found in the Florida Court's failure

to explain, in many cases, why the circumstance applies or

does not apply. In Holmes v. State, 374 So.2d 944 (1979),

the Trial Court failed to explain the reason for its subsec-

tion 5(h) finding. The Florida Supreme Court affirmed the

judgment without giving its own analysis of the application

and held that a finding in support of the death penalty need

not be mace according eo any prescribed form. Likewise,

in Brown v. State, 381 So.2d 690 (1980), the Court affirmed

a finding that the murder was "particularly heinous, atro-

cious and cruel" without explaining its reason for doing so.

Ironically, the Court in Brown made the following observation

in affirming its finding that the aggravating circumstance

applied:

"...given the imprecision of the criteria set

forth in our capital punishment statute, we must

test for reasoned judgment in the sentencing pro-

cess rather than mechanical tabulation to arrive

at a net sum.” id at 696.

The refusal to explain the reason for applying or not

applying an aggravating circumstance on the ground that the

law is “imprecise” and therefore the Court should made a

"reasoned judgment" perpetuates the constitutional deficiency

identified in Furman v. Georgia supra..

For each of the foregoing reasons, the Petitioner re-

spectfully submits that the Florida Supreme Court, in affirn-

ing the imposition of the sentence of death in the present

case has adopted such a broad and vague construction of the

term “especially heinous, atrocious and cruel” as to violate

his rights under the Eighth and Fourteenth Amendments.

-20-

» ot Lae « i le:

ss |

TWO

THE APPLICATION OF THE AGGRAVATING

CIRCUMSTANCE RELATING TO MURDERS

COMMITTED “BY A PERSON UNDER SEN-

TENCE OF IMPRISONMENT", TO SUPPORT

THE IMPOSITION OF THE DEATH PENAL-

TY UNDER THE FACTS OF THIS CASE,

CONSTITUTES A VIOLATION OF PETI-

TIONER'S RIGHTS UNDER THE EIGHTH

AND FOURTEENTH AMENDMENTS OF THE

UNITED STATES CONSTITUION.

The finding of the Trial Court that the murder was

committed "by a person under sentence of imprisonment", S-

15, was affirmed by the Florida Supreme Court, (Appendix A)

Stone v. State, 378 so.2d 765 (Fla. 1980), in the judgment

sought to be reviewed by this Petition. For the reasons

which follow, Petitioner respectfully submits that the Florida

Court improperly applied this aggravating circumstance in

violation of his Eighth and Fourteenth Amendment rights.

Petitioner's conviction for a “crime against nature"

which gave rise to the "sentence of imprisonment" referred

to by the Trial Judge was vacated in a Federal Habeas Corpus

proceeding. See Stone v. Wainwright 478 F.2d 390 (Sth Cir.

1973). While Petitioner was at liberty, this Court reversed

the decision of the Fifth Circuit Court of Appeals.

Wainwright v. Stone, 414 U.S. 21 (1973). It is conceded

that the reinstatement of the conviction resulting from this

Court's decision occurred prior to the commission of the in-.

stant offense, but there is no evidence in the record to in-

dicate that Petitioner was ever recommitted or that he was

even aware of the fact that the conviction and sentence had

been reinstated. Under these facts it cannot be said that

Petitioner was “under sentence of imprisonment".

The aggravating circumstance referred to in Fla. Stat.

Ann. 921.141(5) (a) obviously refers to those persons who

have committed a capital felony while serving "a sentence of

imprisonment". This common sense interpretation of the sta-

tute, although rejected by the Florida Supreme Court below,

is supported by its earlier decision in State v. Dixon,

283 So.2d 1 (Fla. 1973), the first case to define the aggra-

vating and mitigating circunstances contained in the

Florida capital Penalty statute. The following language

of Dixon indicates that the term "under sentence of impri-

sonment” refers to prisoners:

",..The aggravating circumstances of Fla. Stat.

§921.1416)S.S.A., actually define those crimes, when

read in junction with Fla. Stat. §782.04(1) and 794.01

(1), FSA-to which the death penalty is applicable

in the absence of mitigating circumstances. As such -

they must be proved beyond a reasonable doubt before

being considered by Judge or Jury.

Considered in that vein, Fla.Stat. 921.141(6),

subsections (a) and (b) FSA. prescribe the death

penalty for a capital felony committed by a prisoner

or by one previously convicted of a capital felony.

These conditions present two situations wherein the

death penalty has been determinee by the Legislature

to be applicable absent overriding mitigating fac-

tors..." id at 9 (emphasis supplied)

It could hardly be argued that a man who is released from

prison pursuant to a Court Order vacating his conviction

is a “prisoner". Nor can it be said that he is a “prisoner”

because the Order is later reversed by a higher Court. In

this case, there is no evidence that Petitioner was serving

the sentence either in actual custody or on parole, that he

was an escapee, that he was a fugitive, or that he was even

aware of the fact that he would ultimately be recommitted.

The application of the subsection 5(a) aggravating cir-

cumstance by the Florida Supreme Court is not only inconsis-

tent with the Dixon definition of the statute, but it cannot

be squared with the Court's more recent ruling in Ford v.

State, 374 So.2d 496 (Fla. 1979). In that case, the Trial

Judge found that although the Defendant was "not imprisoned"

he was on probation for a felony offense and therefore “under

sentence of imprisonment", Ford at 500,501. The Florida

Supreme Court without explanation held that the Trial Judge

was incorrect in his application of the aggravating circum-

stance.

The Florida Court's application of the subsection 5 (a)

aggravating circumstance under the facts of this case, not

only contravenes the plain meaning of the law, but it is in-

consistent with the definition of the law contained in Dixon

and its application in Ford. The death penalty surely cannot

be applied consistently with the Eighth and Fourteenth Amend-

ments, if the application to the facts upon which it depends

varies from one case to the next.

Petitioner respectfully submits that the Court should

grant Certiorari to correct the unconstitutional application

of the aggravating circumstance contained in Fla. Stat. Ann.

§921.141(5) (a), which purports to justify the imposition of

the sentence of death in this case.

THREE

THE IMPOSITION OF THE SENTENCE

OF DEATH IN THIS CASE UPON THE

GROUND THAT IT IS "PRESUMED TO

BE THE PROPER SENTENCE” IS TAN-

TAMOUNT TO A MANDATORY DEATH SEN-

TENCE AND THEREFORE VIOLATIVE OF

THE EIGHTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES CONSTI-

TUTION.

The Supreme Court approved the finding of each of the

aggravating circumstances made by the Trial Court and affirmed

the sentence of death on the following conclusion:

",...Inasmuch as the Trial Court found these

other aggravating circumstances, and no mitigating

circumstances, death is presumed to be the proper

sentence. State v. Dixon, 283 So.2d 1 (Fla. 1973).

Petitioner respectfully submits that thé imposition of

the death penalty on the ground that it is “presumed”

to be the proper sentence is contrary to the Florida

Capital Sentencing statute, and constitutes a form of man-

datory death sentencing previously disapproved by this Court.

The Florida Capital penalty statute held constitutional

by this Court in Proffitt v. Florida, supra. does not con-

tain any presumption as to the proper sentence. Fla. Stat. Ann.

921.141. The general penalty statute, Fla. Stat. Ann.

775.082 provides however,

"Penalties

(1) A person who has been convicted of a capital

felony shall be punished by life imprisonment

and shall be required to serve no less than 25

years before becoming eligible for parole unless

the proceedings held to determine sentence accord-

ing to the procedure set forth in s.921.141 results

in findings by the court that such person shall be

punished by death..." (emphasis supplied)

Thus the presumption from the sentencing statute is for

a sentence of life, not death. Moreover, upon a finding of

one or more aggravating circumstances, death may be a proper

sentence but not the proper sentence. Lockett v. Ohio,

438 U.S. 586 (1978). The judicicially created presumption

of death stated in Dixon and actually employed in this case

conflicts directly with the decision of this Court in Woodson

v. North Carolina, 428 U.S. 280(1976) prohibiting mandatory

death sentences.

The unrebutted presumption which caused the imposition

of the death penalty in this case upon the finding of an

aggravating circumstance, is no different from the previously

disapproved procedure of incorporating the aggravating circum-

stance into the elements of proof of the offense and pro-

viding for a mandatory death sentence. Roberts v. Louisianna

428 U.S. 325 (1976). In either case the sentence inevitably

results merely from proof of homicide containing certain

elements of aggravation.

It could be argued that the Supreme Court of Florida

does not have to follow its own presumption in a given case,

and therefore the presumption does not result in a sentence

which is truly mandatory. The force of that argument dissa-

pates, however, in a case such as this one, where the court

by its own opinion mechanically applied the presumption to

affirm the sentence of death. The Florida courts have not

indicated in any respect that they are empowered to disire ord

~24=

the presumption, or to exercise the discretion not to

follow it in a case where no statutory mitigating circum-

stances have been shown.

Petitioner believes that the judicially created "pre-

sumption" that death is the proper sentence violates the

Eighth and Fourteenth Amendments. The automatic application

of the death penalty is, under any circumstance, contrary

to Woodson, Roberts, and Lockett, and every constitutional

principle this Court has labored to establish in the years

since Furman v. Georgia. The issue is one which cannot be

fully developed within the scope of this Petition, but should

be fully briefed by the parties, and given plenary considera-

tion by this Court.

FOUR

PETITIONER'S PRE-TRIAL STATEMENT

TO THE POLICE WAS OBTAINED IN

VIOLATION OF HIS RICHTS UNDEP. THE

FIFTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

The statement made by the Petitioner, a man with a

third grade education and a demonstrated history of mental

illness, was given to the police sixteen days after he was

4 It is conceded in the deci-

initially taken into custody.

sion of the Florida Supreme Court below that during this

period of time, he made several requests to talk to a lawyer,

Stone v. State, 378 So.2d at 169.° Despite the fact that

Petitioner was taken into custody in Missouri on August

31, 1974 MS-4, The incriminating tape recorded statement in-

troduced at trial was given on September 16, 1974. MS-80-83,

111-114, Tr-692

° The fact that Petitioner had made a request to see an attorney

at various times during the sixteen day period, was confirmed

by each of the three police officers who testifed at the pre-

trial Motion to Suppress, MS-63,64,85,120. Both of the officers

involved in the actual taking of the statement have conceded

that he was not actually provided with the opportunity to call

his attorney until after the statement was tape recorded. MS-

85,86,120.

-25-

Clete deeneaniinn Ak

Petitioner was not at any time taken before a committing

magistrate, and despite the officer's admission that he

failed to repeat the six day old Miranda Warnings® prior

to the time the statement was given, the Florida Court heid

that there was no violation of the Fifth Amendment. For

the reasons which follow, it is respectfully submitted that

the Florida Court committed a serious constitutional error

which should be corrected by this Court.

The Supreme Court of Florida reasoned that there was no

violation of Petitioner's Miranda Rights because it appeared

to the officers that the request for counsel was made for

some purpose other than the subject of their interrogation.

Stone v. State, 378 So.2d at 769. This unprecedented deci-

Sion finds no support in the federal decisions interpreting

the Fifth Amendment and appears to be contrary to the prin-

ciples set forth by this Court in the Miranda decision.

The Court specifically held in Miranda v. Arizona, 384

U.S. 436 (1966), that the authorities must terminate heir

interrogation if the accused indicates his desire to speak

with an attorney. No part of the decision can be fairly

read to allow the police to make judgments about the reason

for the request or to disregard the request when they are

of the opinion that it does not relate to the investigation.

On the contrary, the Court noted in Miranda:

",...The Defendant may waive effectuation

of these rights provided the waiver is made

voluntarily, knowingly, and intelligently.

If, however, he indicates in any manner and at

any stage of the process that he wishes to

consult with an attorney before speaking,

there can be no questioning..." 384 U.S. at

444,445 (emphasis supplied). ;

While the failure to allow Petitioner to call his

6 Petitioner was advised of his rights several times during

questioning which occurred on September 10, 1974. MS=-118 but

the warnings were not repeated before the incriminating state-

ment given on September 16, 1974. MS~118

-26-

attorney could alone substantiate a claim that the state-

ment was given in violation of the Fifth Amendment, it

appears in this case, that the statement is inadmissible

as well for the reason that Petitioner was never taken be-

fore a committing magistrate. The Florida Rules of Criminal

Procedure clearly provide that "every arrested person

shall be taken before a judicial officer within twenty four

hours of his arrest." Fla. R. Crim. P. 3.130(b)(1). And

it is now well settled that the failure to adhere to a State

rule requiring that the accused be taken before a magistrate

can constitute a violation of his Federal Constitutional

rights. Clewis v. Texas, 386 U.S, 707 (1967).

The apparent reason for the failure to provide Petitioner

with a first appearance hearing in accordance with the

State rule was that he was arrested upon a recommittment

Order for an unrelated offense. The record is clear, how-

ever, that Petitioner was the prime suspect in the homicide

at the time he was arrested. Sheriff Whitehead told local

law enforcement officers to be on the lookout for the

Petitioner just hours after the disappearance of the victim.

MS-77. Agent Scott, who traveled to Missouri to take custody

of the Petitioner, was advised to gather all of his personal

belongings for use in the homicide investigation. MS-61.

Finally, it appears that the questioning sessions which

occurred throughout most of the day on September 10, 1974

dealt exclusively with the investigation of the offense.

MS-7-12. Under the circumstances, the fact that the Defen-

dant was technically arrested on an unrelated warrant

cannot operate to relieve the authorities of their respon-

Sibility to provide a first appearance hearing. To do so

would be in contravention of the very purpose of the state

procedural rule and the decision of this Court in Miranda

v. Arizona, supra, which prompted its adoption.

@27=

This case also presents a serious question as to

whether the Miranda warnings were actually given at the

required time. The officers no doubt gave Petitioner his

Miranda warnings on several occagSions during the question-

ing sessions which occured on September 10, 1974, MS~118.

but in each of these interviews, Petitioner denied any in-

volvement in the offense. MS-80. Although it appears from

the decision of the Supreme Court below that Petitioner was

advised of his rights "on the afternoon of September 16,",

378 So.2d at 769, it is clear from the record that he had

already made his incriminating statement at that time. The

fact that Petitioner was not advised of his rights prior to

the time he gave the statement is established by the follow-

ing testimony of Agent Eubehler:

Q: Alright, now getting back to that same cru-

cial time period, that is before you went

on the spool tape or the tape that was in

the room in which Mr. Stone agreed to go on

tape. Was there a time period in which Mr.

Stone made a statement implicating guilt

and knowledge of the death of Jacqueline

Joanne Smith. Something to the effect of

"alright, I did it," or "alright, [ killed

her."?

A. Yes. Shortly after Agent Moniack left

within just minutes, he said, "alright,

I killed her."

Q. Well, was there anything leading up to that?

A. Oh, yes, we talked to him.

Q. About how long before he made that state-

ment?

A. I would. say a couple of minutes.

Q. Alright. Prior to his making that statement

from the time Mr. Moniack left, up until that

time, was he at any time either orally given

his miranda rights and warnings and did he

make a waiver or did anyone have him sign any

written rights or waiver?

A. Well, let me go back. I advised him on multi-

ple occasions on the tenth. I was present

that morning when he was advised of his rights

and a short time earlier when I went back in

after the polygraph. I then did not advise him

of his rights. No, sir. MS-I12,1I3,I1I7-118.

The tape recorded statement made about an hour later

indicates that the officers advised Petitioner of his rights

~~ ° » ew ae aerree

but at that time he had already confessed to the police

officers in an interrogation which by their own admission

failed to comply with Miranda.

The decision of the Supreme Court of Florida strains

to resolve each of the foregoing arguments against Petitioner

to reach the conclusion that the statement was admissible.

An application of the most fundamental Fifth Amendment prin-

ciples, however, leads inescapably to the conclusion that

the statement was taken in violation of Petitioner's consti-

tutional rights and should not, therefore, have been used

against him.

CONCLUSION

For all the reasons state above, Petitioner respectfully

requests that this Court grant a Writ of Certiorari to the

Supreme Court of Florida.

Respectfully submitted,

ee, Oe ae

PHILIP J. PADOVANO

Post Office Box 527

Tallahassee, Florida 32302

(904) 224-2821

ATTORNEY FOR PETITIONER

-29-

-_—- --- —

—-

er ee ae ee ee ee Oe

STONE v. STATE Fla. 765

Cite as, Pla, 378 Soo 765

~ Raymond KR. STONE, Appellant,

’.

STATE of Florida, Appellee.

No, 44275.

Supreme Court of Florida

Nov, 1, 1979

Rehearing Denied Jan, 31, 1980

Defendant was convicted of murder in

the first degree, and from the judgment of

the Circuit Court, in ant for Union County,

John J. Crews, J, the defendant appealed

The Supreme Court, Adkins, J., held Ghat:

(1) the record including case in selecting:

jury was evidence Chat change of venue was

not required; (2) denial of motion that each

prospective juror be examined indis tually

with others absent was not an abuse of

diseretion; (8) a request for counsel for

unrelated purpose iy not sufficient to re.

quire interrogation to cease under Miran-

da; (4) defendant's confession was freely

and voluntarily made and there were no

Miranda violations; (5) evidence of pieces

of bone, blood samples, and expert testimo-

ny relating to exhibits was properly admit.

ted; (6) the taped confessions played to

jury did not deny due peowess of 4 fair trial

on theory that they were played before

State had established corpus celicti; and (7)

under the revond, sentence of death was

proper,

Affirmed.

1. Criminal Law 2 1044,.1(1), 1045

Defendant's failure to file a motion for

change of venue during: trial precluded ap

pellate review since appellate court must

confine itself to review of only those ques:

tions which were before the trial court and

upon which a ruling adverse to defendant

wus mide

2. Criminal Law @ 108(1)

The defendant hay constitutional ryght

to trinl where the offense oecurred and oa

change of verue granted without an appre

priate motion or the consent of defendant is

of doubtful validity.

3. Criminal Law &134(1)

Where record in) murder prosecution

disclosed that of 37 prospective jurors only

two were excused because they had formed

an opinion, and 2b prospective jurom: indi-

cated that they had heard something about

the case, there had been news coverage, but

there was no indication that any of the

coverage was prejudicial, the ease in seleet-

ing Che jury was evidence Uhat a change of

venue wits not required

4. Jury © 191(13)

Denial of motion that each prospective

juror te examined individually with the

others absent “so that those who had specif-

ic knowledge of the crime would not con-

taminule the others’ minds” was not un

abuse of diseretion

5. Arrent 70

Where defendant, while in Missouri,

was mivived that he was a suspect in a

murder case, and when defendant was

brought to Florida under a detainer related

w an entirely different offense, although he

was a suspect, he had not been charged

with commission of any homicide nor had he

boon arrested for any new offense, it was

not necessary to Lake him before a “booking

officer” or a magistrate 33 West's F.S.A,.

Rules of Criminal Procedure, rule 3.111(c).

6. Criminal Law o412.2(4)

A request for counsel for an unrelated

purpose is net sufficient lo require interre-

gation to cease under Miranda

7. Criminal Law oe 1141.12

The ruling of trial judge that confes-

sion was freely and voluaturily made comes

to the Supreme Court with the same pre-

sumption of correctness which attends jury

verchets nod final judyinents, the Supreme

Court is net oat liberty to substitute its

views of the credibility or weight of con-

flictinge evidence for that of trial judge and

hin ruling sheukd mot lychtly be set aside

it hee

4b coe~APPENDIX A

ee el

Pit gs Se

te » ’ oe

awe * rr v6

«=

’

xs¥

At ar

arly -

apt”

766 Fla.

& Criminal Law @517.2(3)

Defendant's confession of murder was

not obtained in violation of Mirunda under

record indicating that defendant had been

given Miranda warnings on no less than six

different occasions and defendant confessed

only after he flunked a lie detector test

which he voluntarily took.

9. Criminal Law @=404(4), 486

In murder prosecution wherein the

State atumpted to demonstrate that de-

fendant’s statements as to how he struck

the victim and what he did with the body

were consistent with the evidence, the

headless lorso, identified as the victim, was

found one fourth of a mile west of the

bridge described in defendant's statement,

the skull was found 150 to 200 yards west

of the bridye, and skull was consistent not

only with a white female of the victim's age

but it showed trauma exactly where de-

fendant acinitted striking the victim, the

pieces of bone, blood samples, and expert

testimony relating to such exhibits were

properly admitted

10. Criminal Law @334(1)

Any fact relevant lo prove a fact in

insue iv adinissible into evidence unless its

wdimiositiliy is precluded by some spocific

rule of evidence.

ll. Homicide @=22K(1)

The corpus delicti in homicite cases

consists of three elements: the fact of

death, the criminal agency of another per-

son as the crsuse thereof, and the identity of

the deceased,

12. Criminal Law @517.3(2)

Befcre a confession should be received

in evidence, there must be some indepen-

dent proof of the corpus delicti, cither di-

rect or circumstantial,

13. Criminal Law @517.3(3)

Corpus delicti need not be proved be-

yond reasonable doubt as busis for admit-

ting confession in evidence, but it is enough

if evidence tends to show that crime was

committal and only question is whether the

evidence of corpus delicti is prima facie

sufficient

fe ft 1QPh Deore

Ste Sa ee

378 SOUTHERN REPORTER, 2d SERIES

14. Constitutional Law @=266.1(1)

Criminal Law 632)

Defendant charged with murder was”

not denied due process of law and a fair

trial on ground that taped confessions were

played to the jury before the Stave haul

established the corpus delicti of the crime,

where fact of death was conceded and iden-

tity of deceased was demonstrated by most

available evidence, considering the decom-

position of the buy, the body was the right

size, color, and sex, examination of the body

disclosed a laminectomy scar similar to op-

eration the victim had undergone, and also

a congenital abnormality of the 12th rib of

the corpse correspondent to abnormality ap-

pearing in X ray of the victim, and evidence

of foul play was sufficient to show that

death was caused by criminal agency of

another. U.S.C.A.Const. Amend. 14.

15. Homicide 354

Where defendant was first taken into

custody in Missouri after the United States

Supreme Court had ruled that he had been

improperly discharged by a federal district

court from a sodomy conviction, defendant

was detained by Missourd authorities at re-

quest of the state of Florida, and he was

returned to Florida for purpose of serving

such sentence, prosecuting attorney proper-

ly argued that defendant charged with

munier was u person “under sentence of

imprisonment,” and trial judge properly

found as an agyravatiny circumstances that

the crime was committed ‘while the de-

fendant was under sentence of imprison-

ment,” despite contention that he was not

under sentence of imprisonment at time of

the homicide because he had been released

by a federal court order. West's F.S.A

§ 921.141(5).

16. Homicide #354

Where trial judge in sentencing de-

fendant for murder found aggravating cir-

cumstances that at time of the crime de-

fendant had been previously convicted of

more than one felony involving the use or

threat of violence to some person, and that

the murder was especially heinous, atro-

cious and cruel, inasmuch as trial court

found those other aggravating circumstanc-

es and no mitigating circumstances, death

was presumed to be the proper sentence.

West's F.S.A. § 921.141(5).

17. Homicide e354

Defendant's claim that his use of beer

and marijuana should have been considered

in mitigation in prosecution for murder in

the first degree was negated by testimony

of witnesses who saw defendant at various

times shortly after the homicide, and on

each occasion, he scemed normal, not intoxi-

cated, and his behavior in cleaning up the

blood after the homicide, preparing to flee

and leaving the arva, demonstrated his

Awareness that his action was wrong, and

he even discussed the fact that he was in

trouble and the advisability of running

away shortly after the killing.

18. Criminal Law e=aa4

The jury's recommendation of death

upon conviction of first-<dJegree murder is

entitled to great weight.

19. Criminal Law > 1134(1)

Even though defendant confeased to

murder in the first degree and even though

he expressly desired to be executed, the

Supreme Court nevertheless examined the

record to be sure that the imposition of

death sentence complied with all of the

Standards set by the Constitution, the legis-

lature and the court.

20. Homicide @= 354

Where defendant charged with murder

in the first degree knew that he had been

hospitalized and testified before the jury to

that effect, there was nothing in record

from which trial court could conclude that a

mental examination would be appropriate,

although defendant testified as to his use of

heer and marijuana prior to the homicide,

there were many witnesses who saw him at

various times shortly after the homicide and

on cach occasion he seemed normal and not

intoxicated, and reports furnished trial

Judge prior to sentencing included a psychi-

utric examination made in 1955 when de-

fondant was 16 years of age from all of

which trial judge found that capacity of

defendant to appreciate criminality of his

STONE v. STATE Fla.

Cite a, Fla, 378 Set Tes

appropriate,

Public Defenders, Tallahassee, for appel-

lant.

Musgrove, Asst. Atty. Gen., Tallahassee, for

appellee.

adjudging defendant guilty of murder in

the first degree and a sentence of death.

‘line Smith, reported for work at a General

Electric plant. Her hours were from 3:30 p.

m. until midnight. She did not return from

work and, after searching for her, Marvin

Smith, her husband, notified police authori-

ties. Later in the morning her automobile

was found parked in a field near her home.

victim's husband in May 1974 to assist in

the farming of his tobacco crop. At the

time of the homicide defendant was staying

with the Smiths in their home.

in the Santa Fe River approximately one-

fourth mile west of a bridge.

region and the head were missing, as well

as the left upper extremity. The hand and

right upper extremity were also missing.

Dr. L. F. Beamer, a pathologiat, identified

the torso ns being that of the vietim by

Virtue of a laminectomy sear and an abnor-

mality of the twelfth rib.

The defendant was involved in an acci-

dent in Missouri when a truck collided with

the rvar of his vehicle.

hospitalized and, while in the hospital, Mis.

soun police officials arrested him on August

31, 1974.

against him heeause the state won an fp

Peal relating to an earlier criminal convic-

tion for soalomy and Florida officials wished |

to return him for the purpose of serving the

767

conduct or to conform his conduct to the

requirements of the law waa not substan-

tially impaired, so that death sentence was

—_—__—

David J. Busch and Louis G. Carres, Asst.

Jim Smith, Atty. Gen., and Charles W.

ADKINS, Justice.

This is « direct appeal from # judgment

On August 22, 1974, the victim, Jacque-

The defendant had been employed by the

On September 1, 1974, a body was found

The neck

Defenlant was

Florida had lodged a detainer

remainder of his sentence

cies AIL

s ’ = : -

Views? Web (3

x ( the Lore

“% avait: z

pcos 10 i os

5 re 5 og . 5

768 Fils.

A Florida officer met defendant in Mis

souri on September 4, 1974, and returned

him tw Florida. He was taken to Leon

County Jail, then to the Lake Butler Kecep-

tion and Medical Center for further inedical

treatment. This medical center is a part of

the prison system of Florida.

Defendant was informe! thut he was a

suspect in a murder case. Eventually de

fendant confessed, an indictment was re-

turned, and, upon trial, defendant was

found guilty of murder in the first degree.

The sentence hearing resulted in a recom.

mendaution of death and the trial judge im-

posed the death sentence. This appeal re-

sulted

Defendant says that the court should

have grantal a change of venue on its own

motion. Union County, the place of the

homicide, was a small county in which two

of the state's major penal institutions are

located. Defendant contends that the jury

venire was prejudiced because the privon

system is the major source of revenue, di-

rectly or indirectly, for the residents of the

county.

{1} During the trial, defendant did not

file a motion for change of venue, This

precludes appellate review, as the appellate

court must confine itswlf to review of only

those questions which were before the trial

court and upon which a ruling adverse to

the defendant was made. State v. Barber,

W1 So.2d 7 (Fla.1974).

[2] Also, there is no provision by rule or

statute for the court to change venue on its

own motion. The defendant has the consti-

tutional right to a trial where the offense

occurred and a change of venue granted

without an appropriate motion or the con-

sent of the defendant is of doubtful validi-

ty. North v. State, 65 So.&1 77 (Fila.1952),

aff'd North v. Florida, 346 U.S. 932, 74 S.Ct.

376, 98 L.Ed. 423 (1954). See also Ward v.

State, 328 So.&i 260 (Fla. Ist DCA 1976).

{3} The record discloses that of thirty-

seven prospective jurors only two were ex-

cused because they had formed an opinion.

Twenty-three prospective jurors indicated

that they had heard something about the

378 KOUTHERN REPORTER, 2¢ SERIES

case, There had been wews coverage, but

there is no indication that any of the cover-

age was prejudicial. The ease in selecting

the jury is further evidence that a change

of venue was not required. See Gavin v.

State, 259 Sod S44 (Fla3dd DCA 1972).

{4} During the voir dire examination,

defense counse! requested that each pro-

spective juror be examined individually

with the others absent, “so that those who

had specific knowledge of the crime would

not contaminate the others’ minds.” The

trial court did not commit reversible error

in denying this motion. Such a request is

addressed to the discretion of the court and

the record fails to show an abuse of discre-

tion. Branch v. State, 212 So.&d 29 (Fla.&d

DCA 1968).

Defendant next contends that his confes-

sion was obtained in violation of Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Edi.2d 694 (1966).

At a hearing on the motion to suppreas, it

appeared from the testimony that defend-

ant was first taken into custody in Missouri

under the authority of a detainer lodged

pursuant to section 941.45, Florida Statutes

(1973). Defendant's conviction in another

case had been affirmed on direct appeal.

Stone v. State, 245 So.2d 91 (Fla. Ist DCA

1971), cert. den. 267 So.2d 329 (Fla.1972).

Defendant then sought and received re-

lief in a federal district court and the Unit-

ed States Court of Appeals, Fifth District.

Stone v. Wainwright, 478 F.2d 390 (5th Cir.

1973), The United States Supreme Court

reversed Che Fifth Circuit Court of Appeals.

Wainwright v. Stone, 414 U.S. 21, 94 S.Ct

190, 38 L.Esl.2d 179 (1973). It was sulme-

quent to this holding that defendant's cus-

tody was sought by the prison officials of

Florida.

The automobile accident in Missouri trig-

gered a routine identification check and a

Florida official was sent to Missouri to take

custody of the defendant.

{5} Defendant, while in Missouri, was

mivised that he was a suspect in a murder

vase. When defendant was first taken to

ts | =< | 2 =

STONE v. STATE Fla. 769

Cite as, Pla, 378 Sata 763

the Leon County Jail (where he was held

for five or six days until his admission to

the Lake Butler Reception and Medical

Center), he contends that he should have

been taken before « booking officer as re-

quired by rule 211M), Florida Rules of

Criminal Procedure. Defenlant was

brought to Florida under a detainer related

to an entirely different offense. Although

he was 4 suspect, he had not twen charged

with the commission of any homicide nor

hud he been arrested for uny new offense.

Therefore, it was not necessary to Lake him

before a “booking offioer” or a magistrate.

Defendant was given Miranda warnings

on no less than six different occasions. At

11:05 a. m, September 10th, he was first

given the warnings. At this time, he

waived his rights and did not ask for an

attorney. He was again given the warn-

ings at 1:40 p. m. on the same day, and once

aguin defendant waived his rights and did

not ask for an attorney.

On September 16th, the defendant volun-

tarily took a lie detector test, at which time

his rights were explained! to him again. He

was also warned of his rights on the after-

noon of September 16th On September

1Xth, defendant was x’ 9 Miranda warn-

ims ot 145 pom. and . 40 pom. All of

‘eoy STs were read and reviewed

with him, and he appeared to understand

them

There is evidence that defendant wanted

to get in contact with an attorney during

this period of time. The attorney had of-

fices in Missoun and represented the truck

driver involved in the accident in Missouri

which resulted in the hospit.lization of de-

fendunt Defendant hat reevived the attor-

ney’s card while he was in the Missoun

hospital and indicated that he wished two

Contact the attorney so he could sue for 4

neck injury which he received in the acci-

dent. The recont does not disclose that

defendant requested counsel in connection

with the homicide under investigation. At

first, the defendant apparently was not

worrmd about the munier charge. When

defendant called an attorney after the con-

fession, the call was maile to this Missouri

attorney.

—_

JT Su dd?

”

« ,

tS sae

ro. ° ° ty "7? ie ‘ 4

: ‘ : jad >a .

or OR + ee Py eee

sy.”

Defendant alleged that he was told a

court order required him to take a lie detee-

tor test. It was Necessary LO secure a court

order in order to have the defendant re.

leased from jail, but defendant was told

that he had a choice as to whether wo take

the test or not. The form delineating his

rights, which was explained to him before

he took the test, advised him that he did not

have to take it. Defendant even admitted

that he consented to take the lie detector

test.

(6} A request for counsel for an unrelat-

ed purpose is not sufficient to require inter-

rogation to cease under Mirardas mone

This was the holding in Hill v. State, 429

S.W.20-WBI (Tex App. 1968), where the

——

accuse! indicated ti get

counsel for an unspecified purpose.

The law enforcement officers testified

that defendant did not request consultation

with an attorney before questioning on ci-

ther September 16 or September 18, the

days he admitted his guilt. Even had he

request! consultation with an attorney,

that would not prohibit a subsequent waiv.

er. In Nunez v. State, 227 So.2) 324 (Fla,

4th DCA 1969), the court stated:

Simply stated, the question is whether

an accuse! in custody, having once made

known his «lesire to have the assistance of

counsel, may subsequently voluntarily

waive such right.

We think this question must be answer-

ed in the affirmative, because an necused

in custody is just as much entitled to

waive the constitutional rights outlined in

the Mirania case an he is to insist upon

them.

Just before the polygraph test, the de-

fendant was given adequate Miraada warn-

ings. The examination began at 10:30 a. m

and lasted about one and one-half hours.

Within minutes after learning he flunked

the test, defendant confessed

{7,8} The ruling of the trial judge that

the confession was freely and voluntarily

made comes to this Court with the same

Presumption of correctness which attends

— eee ee oe .

770 Fla.

Jury verdicts and final judgments. We are

not at liberty to substitute our views of the

credib‘lity or weight of conflicting evidence

for that of the trial judge and his ruling

should not lightly be set aside. Stanford v.

State, 110 So.2d 1 (Fla.1959). We hold that

the statements were freely and voluntarily

made and there were no Miranda violations.

{9} Lefendant says he was denied due

process of law and a fair trial because the

trial court allowed into evidence pieces of

bone, blood samples, and expert testimony

relating to the exhibits. He contends that

the evidence was not sufficiently tied to the

offense and was produced solely for the

purpose of prejudicing the jury.

The lengthy taped statement of the de

fendant contained the following:

She walked around and gut in on the

passenger side and she did go around

behind my car like that to get in. And

she wasn't excited or nervous or none of

that. And neither was I at the time but I

was drinking that beer and smokin that

manjuana and, uh, she said, you know,

where we going. I said yeah, but you

ain't going to like it. And she said, ‘Well,

I'm sure that you made up your mind

that you are going to meet me," she said,

‘Everyone else meets me when I ask ‘em

to.” Now she did not mention no names

or none of that and I said, well, just like I

told you, I said, but you ain't going to like

it. So I drove down,.1 turned left down

on Highway 18 and went down to this

other road and turned right. There's a

big long bridge there and it's a new black

top paved road.

So I went down that road there

and T stopped in the middle of the bridge.

I shut my lights off and | yot out. The

light did not come on in my car, you

know, because Thad a blowed fuse and I

had wrapped it with tinfoil but my radio

weralda't even play. So, I yet out and I

walk wround the car like this and T had

the hatchet behind me like this. [opened

the dove for her, see, okay, she started to

cet out and I hit her in the head with the

378 SOUTHERN REPORTER, 2d SERIES

hatchet. Not the sharp point now, but

the back of the hatchet.

She fell down. And I had, had trouble

gettin’ over the bridge. And the way |

dumped her over the bridge, I had to gel

her feet up there first, you know, and

keep inch up like that till I got her over

the bridye.

she had on a pair of shorts and

I don't know if it was a blouse or a

sweater. Now, that's all I can say but as

far an anything else she did not have

nothing, there was nothin’ in my car that

belonged to her.

The state attempted to demonstrate that

defendant's statements as to how he struck

the victim and what he did with the body

were consistent with the evidence. The

headless torso, identified as the victim, was

found one-fourth of a mile west of the

bridge describud in defendant's statement.

The skull was found 150-200 yards west of

the bridge. Not only was the skull consist-

ent with a white female of the victim's age,

but it showed trauma exactly where de-

fondant admitted striking the victim.

On the day the body was found (nine

days after the homicide), a spot was foun

within the section of railing where defend-

ant said he threw the body into the river.

This spot was removed and a serologist was

unable to determine the blood group factor

Also admitted into evidence was a blood

sample secured from articles that had been

in defendant's automobile. The defendant

led the way to the discovery of this bloc!

sample. These pieces of hone, blood sam-

ples, and expert testimory relating to such

exhibits’ were properly admitted ao +i

denee.

{10} It is a fundamental principle of evi-

dence that any fact relevant to prove u fact

in issue is mi missible into evidence unless its

admissibility is precluded by some specific

rule of evidence. State vy. Wadsworth, 210

So.2d 4 (Fla.1968); Williams v. State, 110

So.2d 64 (Fla. 1959).

“4s A any #3

Fant 2. qe

STONE v. STATE Fla. 77}

Cle as, Fla, 378 $0.34 703

The condition of the skull corroborated

the statement of the defendant, in that

there was evidence of a trauma. In the

opinion of an expert “an appreciably lange

amount of force” caused the trauma “at or

near the time of death.” The skull was

admissible as being relevant in proving the

manner in which the homicide was commit-

ted. See Larmon y. State, 81 Fla. 553, 88

So. 471 (1921), where the skull of the de

ceased was held admissible to show the

course of the bullet.

The evidence of the blood stains and the

testimony of experts met the test of rele-

vancy and such evidence was properly ad-

mitted. Defendant's objections went pri-

marily to the weight to be given to such

evidence. This was for the jury, and the

jury was fully apprised on the limitations of

the probative value of such evidence.

Defendant next contends that the taped

confessions were played to the jury before

the state had established the corpus delicti

of the erime aud he was thereby denied due

process oF law and a fair trial.

(11) The corpus delicti in homicide cases

consists of three clements: the fact of

death, the criminal agency of another per-

sun as the cause thereof, and the identity of

the deceased, Lee vy. State, 96 Fla. 59, 117

So. 6%) (192k),

(12,13) The Ruidelines in determining

whether the corpus delicti was adequately

proves! prior to the admission of the confes-

sion in the evidence are set forth in Frazier

v. State, 107 So.2d 16, 26 (Fla.1958), as

follows:

It iy true that before a confession should

ew received in evidence there must be

some independent proof of the corpus de-

licti. Parrish y. State, 1925, 90 Pla. 25,

105 So. 130; Keir vy. State, 1943, 152 Fla.

389, 11 So.2d 886. There should at least

be seme additional substay tial evidence,

cither direct or circumstantial. Tucker v.

State, 1912, 64 Fla. 518, 59 So. 941. The

corpus delicti need not be proved beyond

& reasonable doubt, but it is enough if the

evidence tends to show that the crime

was committed. Mcklveen vy. State, Fla.

° ae

“ 4 ea RE BY, | .

1954, 72 So 2d 785; Graham . State,

1943, 153 Fla, 807, 16 So.2d 59. The only

question is whether the evidence of the

corpus delicti is prima facie sufficient to

authorize the admission of the confession.

Nickels y. State, 1925, 90 Fla. 659, 106 So.

479, supra; Graham y. State, supra. See

Annotation: 45 A.L.R2d 1316 (1954).

[14] The fact of the death was conceded

and the itentity of the decease! was dem-

onstrated by the moat available evidence,

considering the decomposition of the body.

See Trowell v. State, 228 So.2d 506 (Fla. Ist

DCA 1973). The body was the right size,

color, and sex. Examination of the body

disclosed! a laminectomy sear similar to an

Operation the victim had undergone. Also,

& congenital alnormality of the 12th rib of

the corpse corresponded to an abnormality

appearing in an X-ray of the victim. The

doctor identified the hody of the deceased

to a reasonable medical certainty. Also,

there wns proof that the shorts on the body

were those of the victim

The prouf was more than adequate to

show the criminal agency of another. The

element need not be established beyond a

reasonable doubt for the purpose of admit.

Wag a confession,

The victim “punched out” from work at

midnight and, under ordinary circumstance.

es, Would have arrived home ow-haif hour

later, She always returned home iminedi-

ately after work and the recon! clearly

shows that she WAS a youd, hard-working

woman. There is no evidence indicating or

implying that she would enter the waters of

the river in the middle of the night, naked

from the waist up, and with her shorts and

underpants partially removed. There were

scuffle marks around her car. A broken

key chain was found on the floorboard.

The evidence of foul play was sufficient to

show that her death was caused by the

criminal agency of another. A sufficient

predicate was laid for the introduction of

the Laped confession into evidence.

{15} During the sentencing procedure,

the prosecuting attorney argued that de

fendant was a person “under sentence of

imprisonment.” The trial judge found as

——.

Pe "

‘ 8

sae Cee ees nin, ia

Se nies ae SL TR Cree -

: Tne me

o e. %

“ ‘

Sw ‘ “4 : :

ai ‘ ‘4! “ »

ofits Pee

‘

dé.

+ al

<0 ee

ee eee em yg

a ad

ek Seal

—-

-_—-—- @ Se OD

772 ~=«O#F ila.

an aggravating circumstance that the crime

was committed “while the defendant was

under sentence of imprisonment.” § 921.-

141(5Ma), Fla.Stat. (1973).

Defendant was first taken into custody in

Missouri after the United States Supreme

Court ruled that he had been improperly

discharged by a federal district court from

a sodomy conviction. Defendant was de-

tained by the Missouri authorities at the

request of the state of Florida, and he was

returned to Florida for the purpose of serv-

ing this sentence. Defendant says ‘hat he

was not under sentence of imprisonment at

the Time OF the homicide Because he had

been released by a federal court order. The

state contends Chat the legislature intended

to cover persons under sentence of impris-

onment, whether released by reason of bail,

probation, parole, mandatory conditional re-

lease OF Otherwise.

The sole purpose of the federal proceed-

ings in habeas corpus was to determine the

legality of the restraint on liberty. Fast v.

Wainwright, 310 F.Supp. 404 at 405 (So.

Dist.Fla.1970), aff'd 439 F.2d 1162 (5th Cir

1971). As long as the proceedings in fuler-

al court were pending, defendant was under

sentence of imprisonment, and would re-

main so until the federal proceedings were

conclu a - « fi-

nal determination was that defendant be

returned to custody

116] The trial jure. also found the fol-

lowing aggravating circumstances

B. At the time of the crime for

which he is to be sentenced, the Defend-

ant had been previously convicted of

more than one felony involving the use or

threat of violence to some person. C. The

murder of Jacqueline Smith by the De-

fendant, Raymond R. Stone, was especial-

ly heinous, atrocious and cruel. D. The

Court does not consiler the remaining

aggravating circumstances enumerated in

Section 921.141(5), Florida Statutes, ap-

plicable to the Defendant.

Inasmuch as the trial court hd these

other aggravating circumstances, and no

mitigating cireumstances, death is pre-

sumed to be the proper sentence. State v.

Dixon, 283 So.2d 1 (Fila.1973).

378 SOUTHERN REPORTER, 2d SERIES

{17} Defendant's claim that his use of

beer and marijuana should have been con-

sidered in mitigation is negated by the tes- .

timony of witnesses who saw him at various

times shortly after the homicide. On each

occasion, he sceme! normal, not intoxicated.

His behavior in cleaning up the blood after

the homicide, preparing to flee and leaving

the area, demonstrate his awarencss that

his action was wrong. He even discussed

the fact that he was in trouble and the

advisability of running away shortly after

the killing.

Defendant said that the victim parked

her own car and joined him voluntarily,

apparently for a dalliance. He prepared for

the meeting by hiding a hatchet behind his

back. He backhanded the victim at one

point, making her nose bleed, then struck

her several times over the head with the

blunt side-of the hatchet. To assure that

she would have no chance of recovery, he

threw her body into the river from a bridge.

{18} Defendant relies upon Swan v

State, 322 So.2d 485 (Fla. 1975) to reduce the

sentence to life imprisonment. In Swan,

the defendant administered a severe beat-

ing to the victim before she died and this

Court reversed a sentence of death. Swan

involved a 19-year-old bey engaged in a

burglary or robbery. The defendant Stone

was 36. There was no indication that Swan

usal a deadly weapon. Stone used one

Swan's victim lived for a week while Stone

inflicted a beating sufficient to kill. _The

previous recon! of Stone was more serous

than that of Swan. Swan's jury recom-

mended mercy while Stone's recommended

death and the jury recommendation is enti-

tig to great weight. Tedder v. State, 322

So.2d 908 (Fla.1975).

Also distinguishable is Halliwell v. State,

323 So.2d 557 (Fla.1975) where this Court

reversed the death sentence imposed upon a

defendant who had been convicted of mur-

dering his paramour's husband. He beat

the victim to death with an iron bar and

dismembered the body after death. The

victim in Halliwell had bragged about beat-

st hin use of

we been con.

il by the tes.

im ul various

k= =On each

t intoxicated.

« blood after

und leaving

areness that

vn discussed

ible and the

shortly after

etom parked

voluntarily,

prepared for

»t behind his

tim at one

then struck

ad with the

‘ ussure that

recovery, he

om # bridge.

n Swan vy.

« reduce the

In Swan,

“vere beat-

fual and this

teath. Swan

ngaged in a

nunt Stone

n that Swan

« uml one,

while Stone

‘eo kill The

‘nore serious

jury recom.

“commended

stion is enti-

State, 322

sell w State,

this Court

os upon a

text of mur.

{ the beat

eon bar and

wath The

» nbout beat.

STONE v. STATE

Fla. 773

Cite as, Fla, 378 So. 24 783

ing his wife and this triggered Halliwell's

passion and provoked the fatal beating.

Stone had no such excuse. Halliwell had no

criminal record and was a highly decorated

Green Beret. Stone spent moat of his life

in institutions.

In Salvatore v. State, 366 So 2 745 (Fla.

1978), the defendunt, with no significant

criminal history, bludgeoned the victim to

death then disposed of the body by dumping

it at sea. The death sentence was held to

be appropriate. Defendant Stone blud-

geoned the victim to death and disposed of

the body by dumping it in a river. He had

a significant criminal history. Compared

with Salvatore, the death sentence here was

appropriate.

{19} Even though defendant confessed

and even though he expressed a desire to be

executed, this Court has, nevertheless, ex-

amined the record to be sure that the impo-

sition of the death sentence complies with

all of the standards set by the constitution,

the legislature, and the Court. See Goode

v. State, 365 So.2d 381 (Fla.1978).

[20] The sentence recommeniation of

the jury was rendered July 18, 1975. Sen-

tence was imposed on October 1, 1975. On

August 26th and September 2nd, 1975, de-

fendant’s trial counsel forwarded copies of

psychiatric reports to the trial court which

disclosed that defendant was admitted to

the Farmington State Hospital on June 8,

1955, under the alias “Walter Herron.”

The case history of defendant included an

incident which occurred when he was eleven

years of uge. At that time he and two

other boys bound another child and threw

the child into a river where he drowned.

The diagnostic report revealed the follow-

ing:

Sociopathic youth feom a deprived and

depraved environment whose basic trust

in others is so low that the poasibility of

an uneventful adjustment is considered

very doubtful. He is considered to be of

low average intelligence and in good con-

tact with reality; however, his stated and

perhaps fantasizal revenge motives to-

wards individuals and society are so ma-

lignant that he may constitute a grave

re ePL F

” F t

¢ TP rety er

a Rit Ta? Sot ~—

bigeye oes. a

danger to others upon his release from

custody,

The hospitalization occurred between

1955 and 1958 and this remoteness seriously

affects its use as a mitigating factor.

The defendant testified at the sentence

hearing and stated that he had been in

mental institutions at various times until he

was 19 or 20 years of age. He relies upon

Messer v. State, 330 So.2d 137 (Fla.1976)

and Miller vy. State, 8332 So.2d 65 (Fla.1976)

where we ordered new hearings for sen-

tencing purposes because of failure to af-

ford defense counsel an opportunity to

present psychiatric testimony to the jury.

The Court in the case sub judice did not

declure the reports inadmissible. In fact,

the reports had not been received and,

therefore, could not be presented to the

jury. Neither the judge nor defense coun-

sel could be faulted for the absence of the

reports at the jury phase of the sentence

hearing.

Defendant knew he had been hospitalized

and testified before the jury to that effect.

Stewart v. State, 339 So.2d 710 (Fla. DCA

1976), involved @ situation where the de

fermiant did not inform counsel that he had

been found criminally insane while using

another name vatil after his conviction.

Stewart is not applicable for it involved

newly-liscovered evidence while the instant

case dows not.

There is nothing in the record from which

the trial court could conclude that a mental

examination would be appropriate. Al-

though defendant testified as to his use of

beer and marijuana, there were many wit-

nesses who saw him at various times shortly

after the homicide. On each occasion he

seemed] normal, not intoxicated. Aisy,

there is no evidence that defendant could

not distinguish right from wrong. Quite

the contrary, his behavior in cleaning up the

blood, preparing to flee and leave the area,

demonstrates his awareness that his act was

wrong. According to the defendant's state-

ment, he specifically discussed the fact that

he was in trouble and the advisability of

leaving town shortly after the killing.

a) ae ha

ROLLE T ryaegett om arrnindennd igh

; eg

ee ee eee

7174 Fila.

The reports furnished the trial judge pri-

or to sentencing included a psychiatric ex-

amination made in 1955 when defendant

wus sixteen years of aye. At that time “it

was felt that for some reason the patient

was malingering in an effort to get a low

grade, but that nevertheless he was mildly

mentally defective.” Three years later the

staff diagnosis was “sociopathic personality

without mental disease.” On April 15,

1958, he was discharged from the hospital

and transferred to the penitentiary. There

is no evidence of mental illness. From

these reports, his observation of the defend-

ant, and the evidence produced in the case,

the trial judge found that the capacity of

the defendant to appreciate the criminality

of his conduet or to conform his conduct to

the requirements of law was not substan-

tially impaired. In other words, the trial

judge found no mitigating circumstances, so

the death sentence was appropriate.

The defendant's attack upon the constitu-

tionality of the Florida statute providing

for the death penalty is without merit.

Proffitt v. State, 428 U.S. 242, 96 S.Ct. 2960,

49 L.Ed.2d 918 (1976).

We have reviewed the evidence to deter-

mine whether the interest of justice re-

quires a new trial. No reversible error is

made to appear and the evidence does not

reveal that the ends of justice require that

& new trial be awarded. We find that the

judgment and sentence of the trial court in

this cause is in accordance with the justice

of the cause.

Accordingly, the judgment and sentence

of the circuit court are hereby affirmed.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER.

TON and SUNDBERG, JJ., concur.

378 SOUTHERN REPORTER, 2d SERIES

Arthur R. POMPONIO, et al.

Petitioners,

The CLARIDGE OF POMPANO

CONDOMINIUM, INC, ete. et

al., Respondents.

No. 52812,

Supreme Court of Florida.

Nov. 15, 1979.

Rehearing Denied Jan. 30, 1980.

Condominium unit owners brought ac-

tion against developer of condominium and

lessors of recreational lease associated with

the condominium. The Circuit Court, Bro-

ward County, John G. Ferris, J., granted

unit owners’ motion to permit payment of

rents into registry of court and developer

and lessors appealed. The Supreme Court,

England, C. J., held that as applied retroac-

lively, absent a lessor’s express consent to

its incorporation into terms of lease, statute

providing for deposit of rent into registry

of court during litigation involving obliga-

tions under a condominium lease, was inval-

id as an unconstitutional impairment of ot-

ligation of contract, inasmuch as such stat-

ute potentially allowed retention in court of

at least some portion of deposited rent dur-

ing entire term of litigation.

Order reversed and vacated.

Overton, J., concurred Specially and

filed opinion. ;

Adkins, J., concurred in the result only.

Alderman, J., dissented.

1. Constitutional Law e=18

State Supreme Court, when construing

& provision of State Constitution, was not

bound to accept as controlling United

States Supreme Court's interpretation of

the. parallel provision of Federal Constitu-

tion.

2. Constitutional Law @=154(1)

Deposit into court of monies which one

or another contract litigant may withdraw

TABLE OF CASES

~Jst Pecurfitt murder cases Whether the Trial

wherein the death penalty Court found the

was imposed and the Florida aggravating circum-

Supreme Court passed upon stance "particularly

the validity of the sentence heinous, atrocious and

cruel"

Cooper v. State, 336 So.2d 1133 (Fla. 1976) Yes

Meeks v. State, 336 So.2d 1142 (Fla. 1976) No

Provence v. State, 337 So.2d 783 (Fla. 1976) No

Knight v. State, 338 So.2d 201 (Fla. 1976)

Meeks v. State, 339 So.2d 186 (Fla. 1976)

Chambers v. State, 339 So.2d 204 (Fla. 1976)

Funchess v. State, 341 So.2d 762 (Fla. 1976)

Adams v. State, 341 So.2d 765 (Fla. 1976)

Burch v. State, 343 So.2d 831 (Fla. 1977)

Barclay v. State, 343 So.2d 1266 (Fla. 1977)

Elledge v. State, 346 So.2d 998 (Fla. 1977)

Aldridge v. State, 351 So.2d 942 (Fla. 1977)

Gibson v. State, 351 So.2d 948 (Fla. 1977)

Hoy v. State, 353 So.2d 826 (Fla. 1977)

Buckrem v. State, 355 So.2d 111 (Fla. 1978)

Raulerson v. State, 358 So.2d 826 (Fla. 1978)

Jackson v. State, 359 So.2d 1190 (Fla. 1978)

Washington v. State, 362 So.2d 658 (Fla. 1978)

Hargrave v. State, 366 So.2d 1 (Fla. 1978)

Salvatore v. State, 366 So.2d 745 (Fla. 1978)

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

Jackson v. State, 366 So.2d 752 (Fla. 1978)

Smith v. State, 365 So.2d 704 (Fla. 1978)

LeDuc v. State, 365 So.2d 149 (Fla. 1978)

Mikenas v. State, 376 So.2d 606 (Fla 1978)

Menendez v. State, 368 So.2d 1278 (Fla. 1978)

Foster v. State, 369 So.2d 928 (Fla. 1979)

Kampff v. State, 371 So.2d 1007 (Fla. 1979)

Miller v. State, 373 So.2d 882 (Fla. 1979)

Ford v. State, 374 So.2d 496 (Fla. 1979)

APPENDIX B_j.w

Thomas v. State, 374 So.2d 508 (Fla. 1979) Yes

Harvard v. State, 375 So.2d 833 (Fla. 1979) Yes

Holmes v. State, 374 So.2d 944 (Fla. 1979) Yes

Fleming v. State, 374 So.2d 954 (Fla. 1979) Yes

Dobbert v. State, 375 So.2d 1069 (Fla. 1979) Yes

Lucas v. State, 376 So.2d 1149 (Fla. 1979) Yes

Rutledge v. State, 374 So.2d 975 (Fla. 1979) Yes

Lewis v. State, 377 So.2d 640 (Fla. 1979) Yes

Stone v. State, 378 So.2d 765 (Fla. 1979) Yes

Clark v. State, 379 So.2d 97 (Fla. 1979) Yes

Brown v. State, 381 So.2d (Fla. 1980) Yes

Antone v. State, 382 So.2d 1205 (Fla. 1980) Yes

Williams v. State, No. 50,666, 25 Fla. L.W.

Sup. Ct. June 12, 1980 Yes

Shriner v. State, No. 51,749, 22 Fla. L.W.

Sup. Ct. May 30, 1980 No

Downs v. State, No. 53,524, 22 Fla. L.W.

Sup. Ct. May 22, 1980 j No

King v. State, No. 52,185, 20 Fla. L.wW.

Sup. Ct. May 8, 1980 Yes

Magill v. State, No. 51,699, 20 Fla. L.W.

Sup. Ct. May 8, 1980 Yes

Neary v. State, No 51,691, 20 Fla. L.W.

Sup. Ct. May 15, 1980 Yes

Ross v. State, No. 52,929, 25 Fla. L.W.

Sup. Ct. June 12, 1980 Yes

Gafford v. State, No. 48,421, 25 Fla. L.W.

Sup. Ct. June 12, 1980 t Yes

NOTE: Since Proffitt, the Florida Supreme Court has passed upon the

validity of death sentences in 50 murder cases., In 43 of those cases,

the Trial Court imposed the death sentence in whole or in part upon

a finding that the murder was particularly heinous, atrocious and

cruel. Of the sentences in those 43 cases, 28 were affirmed, 10

were reversed, and 5 were remanded for further consideration.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.