Petition — CARL E. SHRINER v. FLORIDA (No. 80-5605)
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80-5605 RECEIVED
OCT 27 1980
OFFICt OF THE CLERK
SUPREME COURT OF THE UNITED REN COURT, U.S.
IN THE
OCTOBER TERM, 1980
CARL ELSON SHRINER,
Petitioner,
@-y,~
STATE OF FLORIDA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF FLORIDA
E. THOMAS BOYLE, P.C.
Attorney for Petitioner
CARL ELSON SHRINER
Office & P.O. Address
| 202 East Main Street
Smithtown, New York 11787
E. THOMAS BOYLE
of Counsel
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
No. 80-
CARL ELSON SHRINER,
Petitioner,
=V.<
STATE OF FLORIDA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF FLORIDA
To: THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES AND
THE ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME COURT
Petitioner CARL ELSON SHRINER respectfully requests
that a writ of certiorari issue to review the order of the
Supreme Court of the State of Florida, which affirmed the
judgment of the Circuit Court of Florida, Eighth Judicial District,
for Alachua County, dated April 29, 1977, and sentence to death,
pursuant to Florida Statutes Sections 921.141 and 775.082.
QUESTIONS PRESENTED
: Whether the state "scrupulously honored" petitioner's
Fifth Amendment right to cut-off questioning, where, after
approximately eight hours of interrogation, petitioner re-
quested no further questioning and the interrogation merely
stopped for a “minute or two" and then resumed without any
additional Miranda warnings or waiver?
y Whether the imposition of the death penalty, based
on consideration of non-statutory aggravating circum-
stances and the exclusion of non-statutory mitigating
circumstances is arbitrary and capricious as applied
herein and constitutes a violation of the Eighth and
Fourteenth amendment ban on cruel and unusual punish-
ment?
3. Whether taking petitioner into custody for question-
ing because his appearance was similar to the description
and composite police sketches of a robbery suspect vio-
lates Dunaway v. New York, 442 U.S. 200 (1979)?
4. Whether under the "totality of the circumstances"
herein the confession should have been surpressed
pursuant to the due process clause of the Fourteenth
amendment?
TABLE OF CONTENTS
Questions Presented ea a a 1
Table of Cases ok ae ce 3
Opinion Below Sle ie ae 4
Jurisdiction o¢ es oe 4
Statute Involved rae Uy tae vie 4
Statement of the Case nT Oe a ae 5
Reasons for Granting Writ
Point I eee ae 29
Point II + wee oe 38
Point III ay ter ae ae 49
Point IV le ee ae oe 53
Conclusion ae oe te ae 56
TABLE OF CASES
In re Angler, 19 Ohio St. 2d 70, 249 N.E.2d
808 (1969) Ae Eo eer
Beck v. Ohio, 379 U.S. 89 (1964) bi eee
Brewer v. Williams, 430 U.S. 387 (1977) ...
Brinegar v. United States, 338 U.S. 160 (i949)
Brown v. Illinois, 422 U.S. 590 (1975) ....
Burgett v. Texas, 389 U.S. 109 (1967) ....
Chambers v. Florida, 309 U.S. 227, (1940) ..
Cooper v. State, 336 So.2d 1133 (Fla. 1976)
(per curiam) cert. denied 431 U.S. 925 (1977)
Cope v. Campell, 175 Ohio St. 465, 196 N.E.2d
457 (1964) ae NE a
Davis v. Mississippi, 394 U.S. 723 (1969) ..
Dobbert v. Florida, 432 U.S. 282 (1977) ...
Dunaway v. New York, 442 U.S. 200 (1979)...
Elledge v. State, 346 So.2d 998 (Fla. 1977) .
Furman v. Georgia, 408 U.S. 238 (1972) eee
In re Gault, 387 U.S. 1 (1967) oe
Gerstein v. Pugh, 420 U. S. 103 (1975) ee
Henry v. United States, 361 U.S. 98 (1950) ..
Ivan V. v. New York, 407 U.S. 203 (1951) i hig
Johnson v. Zerbst, 304 U.. 458 (1938) bie Se
Lockett v. Ohio, 438 U.S. 586 (1978) oe et
Michigan v. Mosley, 423 U.S. 96 (1975) Be Va
Miranda v. Arizona, 384 U.S. 436 (1966) ...
Myers v. Askew, 338 So.2d 1128
(Fla. App. 4th Dist. 1976) opin
Nardone v. United States, 308 U.S. 338 (1939)
Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979)
cert denied 444 U.S. 981 (1980) or or
-3-
43
49, 50
36, 37
49
52
43,44
53
46
43
52
46
49
40
38,42
42
49
49
43
37
38,45,46
29,30,31,32,34
29,36
44
52
37
Robinson v. California, 370 U.S. 660 (1962) .... 45
Silverthorne Lumber Co. v. United States,
251 U.S. 385 (1929) cae bee
Songer v. State, 365 So.2d 696
(Fla. 1978) (per curiam) Bh ew Sean 46
Spano v. New York, 360 U.S. 315 (1959) Se ee ae 46, 53
State v. Shardell, 107 Ohio App. 338,
153 N.E.2d 510 (1958) 95 Ree tae 43
Tedder v. State, 322 So.2d 908 (1977) es gt ae 46
Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979) 37
United States v. Tucker, 405 U.S. 443 (1972) ... 43, 44
In re Winship, 397 U.S. 358 (1970) gan eee 43
Wolff v. McDonnell, 418 U.S. 539 (1974) arre? wR 43, 44
Wong Sun v. United States, 371 U.S. 471 (1963)... 52
Ybarra v. Illinois, U.S. ’
100 S. Ct. 338 (1979) ine” aah 50
OPINION BELOW
The Supreme Court of tne State of Florida affirmed
the judgment in an opinion rendered on May 22, 1980, Shriner
v. Florida, 1980 - Florida Law Weekly 265, So. 2d (1980).
The opinion is annexed hereto as Appendix "A".
JURISDICTION
The order of the Supreme Court of Florida was
entered on May 22, 1980, and is annexed hereto as Appendix
"A". Timely petition for rehearing was filed. On August
27, 1980, the Florida Supreme Court denied that petition
in an order annexed as Appendix "B". The jurisdiction of
this Court is invoked pursuant to 28 U.S.C. §1257(3).
STATUTES INVOLVED
1. FLA. STAT. ANN §921.141 (West Supp. 1980) (Florida death
Statute). Set forth verbatim at Appendix "D".
2. 1979 Amendments to Section 921.141, Chapter 79-353,
1979 Florida Legislature Session Law (reflecting the
death penalty statute at the time sentence was imposed
herein) - annexed hereto at Appendix "E".
STATEMENT OF THE CASE
I. Overview
The petitioner, CARL ELSON SHRINER, was tried and
convicted in the State of Florida for the capital offense of
first degree murder, a robbery-killing of the night cashier
of a Majik Mart food market, in Gainesville, Florida on October
22, 1976. Petitioner was sentenced to death on April 29, 1977 in
the Alachua County Court.
There were no witnesses to the crime. Two women
sine the State claimed were in the store just before the
robbery-killing were unable to identify the petitioner.
(T445-456)*. A 38 caliber pistol - claimed by the State's
ballistics expert to be the gun which caused death - was
recovered from the house (S46-56)** where petitioner was living
together with others.*** What appeared to be the gun was
depicted in a photo in which Carol Griffis appeared alone
(T623-624) and petitioner in his oral statement stated that
the gun was stolen by someone other than the petitioner and
that it was often kept in Carol's car. (T692). There were
no fingerprints at the scene or on the gun. (T507-620).
The state's most incriminating evidence - and the
sole evidence directly linking petitioner to the killing -
* References preceded by the letter "T" are to pages of the
trial transcript.
** References preceded by the letter "S" are to pages of the
suppression hearing transcript.
*** The police recovered 38 caliber bullets in the room which
petitioner was sharing with his friend, Carol Griffis.
Carol Griffis consented to the search of the room, as
did petitioner. The Rapps consented to the search of
the portion of the house where they lived. The gun was
recovered in the Rapp's children's room. (S46-53).
-5-
was the petitioner's oral statement admitting the killing.
This statement resulted from intensive interrogation conducted
by law enforcement officials from two agencies - the Alachua
County Sheriff's office and the Gainesville Police Department.
These officers - sometimes working in teams of two and three
and sometimes alone - interrogated petitioner between 4:20 p.m.
on October 23, 1976, when he was arrested, and 4:00 a.m. the
following morning - approximately 12 hours - when he was finally
booked on the murder charge herein, and on the armed robbery
approximately 90 minutes later at the Eight Days Inn. Petitioner
had just turned 23 years of age on the date of his arrest.
The defense argued that the gun belonged to Carol
Griffis, with whom he was living, and that petitioner had con-
fessed to protect her from prosecution.* (1T759,770-771). The
defense called no witnesses.
II. Petitioner's Arrest and Interrogation
Prior to trial the defense moved to suppress the
petitioner's incriminating statement and other incriminating
evidence** on the ground that it resulted from an arrest without
probable cause and that the prolonged and otherwise unlawful
interrogation violated petitioner's rights under the Fifth, Sixth
and Fourteenth Amendments to the United States Constitution. The
Court conducted a pre-trial hearing on the motion and denied the
motion in all respects. (S23-24, 63, 144).
* This defense was supported by the fact that prior to 2:00 a.m.
on the morning of interrogation, petitioner had maintained
that he had stayed in the car while John Rapp and Carol Griffis
entered the Majik Mart at the time of the robbery-killing.
** The bullets found in a leather pouch pursuant to petitioner's
consent to search and a diagram of the homicide scene drawn
by petitioner.
A. The Arrest
The arresting officer, Deputy William Denson, of the
Alachua County Sheriff's Department, testified that prior to
going on duty on October 23, 1976, he was provided a bulletin
containing two composite sketches and a physical description*
of a white male sought as a suspect in connection with two
recent robberies and a robbery-killing. (S5).
The two composite drawings were made up by the police
(S13-14) based on the information from the victims of two robberies;
one at the Eight Days Inn and the other at a market at 39th Avenue
in Gainesville. (S13)**.
While on patrol duty at approximately 4:15 p.m. that
afternoon, Deputy Denson stopped the car in which petitioner was
a passenger for the sole reason that petitioner bore a "striking
resemblance" to the suspect described in the bulletin. (S87).
Petitioner was directed out of the car, informed by
Denson that the reason for the stop was because petitioner fit
the description in the bulletin and given the Miranda warnings.
* The bulletin described the suspect as being a “white male,
5'8" to 5'10" tall", “approximately 150 pounds, with dark
hair, collar length and flips on the end", "in...mid-
twenties, pockmarks..." "pale or fair complexion and sharp
facial features" and "a short trimmed goatee". (S13-14).
Dress was described as "blue pullover and blue jeans." (S14).
** Petitioner was not convicted of either offense. Evidence
as to the Eight Days Inn robbery was admitted at the trial
on the issue of identification. This offense allegedly
occurred 90 minutes after the Majik Mart robbery-killing
with the same gun. Eye-witness identification of petitioner
as well as petitioner's confession to the Eight Days Inn
robbery were admitted into evidence over defense objection.
(T398).
At trial one of the women inside Majik Mart immediately prior
to the robbery-killing stated that she was not pleased with
the composite that the police had put together. (T456).
@Jo
Denson proceeded to conduct a field interview which consisted
of questioning the petitioner with respect to his name, address,
occupation* and social security number. (S8, 16, 1557).
Petitioner was cooperative, unevasive and responded to all
questions. (T561). He identified himself and produced a valid
Florida driver's license that showed his present address in
Gainesville. (S16,17).
Petitioner's dress did not match the description, nor
was he pockmarked and he appeared to Denson to weigh about
165 pounds. (S18, 19).
After consulation with two other law enforcement
persons who responded to the stop, it was decided to take
petitioner to the station "for interrogation". (S9). Petitioner
was given no option. (S10). A frisk revealed no weapons. (S19).
Petitioner was handcuffed, informed that he was being taken into
custody "for questioning" (S10)**,placed in the rear of the
patrol car and transported to the Sheriff's office. (S9). The
driver of the car, John Rapp, was informed that he could follow
them to the station and "if we were finished shortly, that he
couid give Mr. Shriner a ride back..." (S9). Upon arrival at
the Sheriff's station house Denson turned the prisoner over to
two investigators for questioning. (S17).
The trial court found that petitioner's resemblance
to the composite and the physical description in the bulletin
constituted probable cause for arrest and that the arrest
* When asked about his occupation, petitioner stated that he
was unemployed. Denson asked what petitioner normally did
for a living - to which petitioner responded that he had
just been released from prison in connection with an armed
robbery in Miami. (S8-9).
** At trial Denson testified that "he would have to accompany
me to our station for an interview..." (1T558).
occurred when petitioner was cuffed and taken into custody and
placed in the patrol car at about 4:20 p.m. (823-24).
B. Interrogation
l. Alachua County Sheriff's Office Interrogation -
4:30 P.M. to 7:30 P.M.
Petitioner was questioned by numerous officers from
4:30 p.m., when he arrived at the Alachua Sheriff's office,
until 7:30 p.m. when he was taken to the Gainesville Police
Department for more intensive questioning concerning the
robbery-killing at the Majik Mart. (S113-114). He was
questioned on the Eight Days Inn robbery and Majik Mart
robbery-killing during this period and denied any knowledge
of either event.
During this period at the Sheriff's station house,
petitioner was advised of his Miranda warnings on a single
occasion - at 5:06 p.m. - by Officer McManus. McManus did
not know the reason that petitioner had been brought in for
questioning and, therefore, the Miranda warnings were given -
and a Miranda “waiver" obtained from petitioner - without
advising petitioner of the general nature of the charge about
which the Sheriff's office sought to question him. (8123-124)
(T568-569). McManus testified that he told petitioner at the
time of the written warnings* and the signed “waiver” that he
"was under suspicion of a crime being investigated by another
officer". (T568-569).
Paragraph 3 of the written form states the accused's right
to stop questioning "at anytime":
If you want to answer questions now without an attorney
present you still have the right to stop answering at
anytime, you also have the right to stop answering at
anytime that you wish to talk to a lawyer. (T568-569).
-9-
Another officer, Sgt. Murray, filled in the charge -
"robbery" - when he began questioning petitioner a short time
later. (T571-575). Sgt. Murray informed petitioner that he
was "detained as a possible suspect” in a robbery, referring
to the Eight Days Inn robbery that had occurred the morning
of October 22nd. (1T575). Interrogation ensued. Others
participating in this phase of the interrogation included
Detectives McGilvray and Price of the Gainesville Police
Department. (S115). Although petitioner was allegedly charged
with the Eight Days Inn robbery at the Sheriff's office shortly
after 5:06 p.m., he was not booked at the jail on that charge
until 4:00 a.m. the next morning, after he had confessed to
the Majik Mart robbery-killing and to the Eight Days Inn
robbery. (S123-124).
Petitioner testified at the suppressionhearing that
upon arrival at the Sheriff's office he was placed at a desk
and told to write down everything he had done during the past
four days. (SR5)*. He was told by an officer that if he co-
operated "this whole thing could be settled and I could be on
my way." (SR97). ¥
Petitioner stated that Murray informed him that some-
one was on his way down to identify him** and that once that
was completed, provided that he was not identified, he would
be permitted to leave. (SR8,96,97). No identification was
ever conducted however.
* "SR" refers to pages of the Supplemental Record transcript,
which contains petitioner's testimony at the suppression hearing.
** There was no testimony at trial with respect to an identi-
fication by one of the robbery victims on the date of peti-
titioner's arrest. The only pre-trial identification was a
photo show-up conducted months later.
-10-
2. Gainesville Police Department Interrogation -
7:30 P.M. to 4:00 A.M.
Petitioner was questioned incessantly at the Gaines-
ville Police Department for over eight hours - from his arrival
at approximately 7:30 p.m. until approximately 4:00 a.m. when
he was booked. During the entire period of custodial question-
ing petitioner was provided no food and two cups of coffee.
At the Gainesville Police Department petitioner was
advised of his Miranda warnings on one occasion - at approx-
imately 9:17 p.m. These Miranda warnings, however, were given
solely in the context of advising petitioner of his rights with
respect to submitting to a ploygraph test. The form - which
petitioner signed - states as follows:
Consent To Polygraph-Lie Detector Examination
I have the right to remain silent, cannot
be forced or coerced in any manner to submit
to this test or be required to answer any
questions; that anything I say can be used
in evidence against me in a court of law;
that I have a right to an attorney, either
retained by me or appointed by the Court if
I cannot afford to hire an attorney and I
have the right to talk to such attorney
before saying anything or taking this examination
and further that I have the right to have that
attorney present with me during this examination
or any interview. If I decide to answer questions
now and waive my right to first talk with an
attorney or have my attorney present with me
during questioning, I will have the right to
stop answering at any time until I talk to my
attorney. Being fully aware of and understanding
what my rights are, I knowingly and voluntarily
waive my foregoing rights and hereby consent
and agree to this examination. Absolutely no
threats or promises or inducements of any kind
have been made or offered to me. (S69) (85-86).
The Miranda advices in the polygraph consent form
were intended by the police to apprise the accused of his rights
sOlely with respect to submitting to the polygraph test. Sgt.
-li-
Blitch, who administered the polygraph test, and was the primary
interrogator thereafter, testified:
Q. Okay. That consent goes to the taking of a
polygraph?
A. This is constitutional rights and is the --
right that he will take the test.
Q. It's his advising of rights concerning the
taking of the test?
A. That's his constitutional rights and that
he'll take the test voluntarily.
Q. And he'll take the test voluntarily. Okay.
Did you ever advise him of his constitutional
rights specifically outside the area of the
polygraph?
A. No. I did not. (S85-86).
This was the last time that petitioner was to
receive the Miranda warnings in any context.
Petitioner testified that early that night at the
police station a "Detective Price" tried to question him about
the murder and that he responded that he did not want to talk
to him and that he wanted an attorney present. (SR92). During
this discussivn the detective stated that he knew that petitioner
had killed "that woman" and was "going to get me the electric
chair".* (SR 92, 99). Petitioner stated that he requested
an attorney several times that night.** (SR92).
* This conversation, according to petitioner, occurred shortly
after petitioner arrived at the Gainesville Police Department.
Detective Price, in rebuttal, denied that he made the state-
ment concerning the electric chair and denied that petitioner
had asked him for an attorney. (S127). He stated that he
saw the petitioner for the first time at 2:30 a.m. (S128).
** Petitioner's direct testimony at the suppression hearing
states:
A. Yes, I had asked to see Carol several times
and I'd asked for an attorney several times too.
[footnote continued on next page]
-]2-
The taped polygraph interview resulted in no incrim-
inating statement.* (S71). The police began intensive question-
ing about the Majik Mart robbery~-murder and the Eight Days Inn
robbery uj.vn completion of the polygraph test. No additional
Miranda warnings were given. The primary interrogators were
Sgt. Blitch and Assistant State Attorney Nilon. All of the inter-
rogation occurred in the polygraph room while petitioner was
cuffed to the chair. (S106). Except to go to the bathroom,
petitioner did not leave that room between 9:00 p.m. and 3:30 a.m.
ffootnote continued from preceeding page]
Q. At what point in time had you asked for an
attorney?
A. Well, after I first got there they had me
sitting out in the center and directly after that
they moved me to one of the little rooms that they
have partitioned off into offices and the detectives
started talking to me and he just told me he was
going to get me the electric chair and all this
and he tried to question me about the murder,
which I told him I didn't want to talk to him, that
I wanted to have an attorney present.
. 8 @
Q. Did this happen at any other time?
A. Well, several times whenever they started talking
to me. They would start talking to me and I
ended ur telling them, you know. that I don't
want to talk to them. Officer Murray, I told him
that several times.
Q. That you didn't want to talk to him?
A. Yes, sir. And then he would stop talking and
; somebody else would come up and start talking
and when I would tell them that I didn't want to
talk, then someone else would come up. (SR92-93).
* The record at the suppression hearing reflects that the police
administered the polygraph test that evening at approximately
9:17 p.m. The record does not reflect the results of the test
nor when the test was completed. (S70). Reference to inter-
cogation in the polygraph room during the first trial resulted
in a mistrial at petitioner's request.
@}3<
The polygraph room was located upstairs in the detective division
!
at the rear of the building in a sound-proofed room approximately
10" x 10'. (S67,68).
3. Petitioner's Efforts to Stop Questioning.
Petitioner told four distinct versions of events during
the period of interrogation between 7:30 p.m. and 4:00 a.m.
(1) Petitioner denied any knowledge of the Majik Mart robbery-
killing and the Eight Days Inn robbery from 4:30 p.m. until
after completion of the polygraph test - sometime between 9:17 p.m.
and 10:15 p.m. (870, 114-115). (2) Thereafter, petitioner
stated that he knew something about the Majik Mart incident and
that "they" did it. He further elaborated that, not knowing at the
time what had happened, he had remained in the car with the windows
up listening to the stereo while "they" entered the Majik Mart on
the morning of the robbery-killing and later returned to the car.
Petitioner stated that he subsequently learned, through the media,
that a robbery-killing occurred there that night. Petitioner re-
fused to state who "they" were. At this time Sgt. Blitch was
questioning petitioner. (S72-74). (3) At 11:30 p.m., still
pursuant to questioning by Sgt. Blitch, petitioner stated that
“they" were John Rapp and Carol Griffis, who resided at the same
address as petitioner. Carol was petitioner's girlfriend with
whom he was sharing a room at the house. Petitioner admitted
that he committed the Eight Days Inn robbery later the same night,
after one of the others in the car gave him the gun.* (S75, 92).
(4) Finally, at 2:00 a.m., while being questioned by Sgt. Blitch
alone, petitioner stated that he alone had robbed the Majik Mart
and shot the cashier. Petitioner was also questioned further
* Petitioner refused to state who handed him the gun.
-14-
ee
with respect to the Eight Days Inn robbery by Blitch alone and
by Blitch and Nilon. (1T685-686) (T714, 725-726). Interrogation
ceased at approximately 3:45 a.m. and petitioner was thereafter
booked for both charges. (S79-80).
Immediately after the third version, wherein petitioner
identified Carol Griffis and John Rapp as the persons who went
into the Majik Mart, Sgt. Blitch recommended that petitioner
repeat this statement to Assistant State Attorney Nilon "to hear
his side of the story in case they [Carol Griffis and John Rapp]
might be arrested at a later date and try to pin it on him."
(S76, 94). Petitioner acquiesced. Nilon came in and petitioner
repeated the statement to Nilon and Blitch.* (S76).
At 12:15 a.m. on October 24, (S78) Sgt. Blitch left
the petitioner alone with Assistant State Attorney Nilon who
continued the interrogation. Sgt. Blitch did not return until
1:30 a.m.**' (S78).
* Nilon testified that Blitch repeated it in petitioner's
presence - asking as he went along ~- “is that right Carl",
to which petitioner responded "yes". (S95).
** During this period that he was not interrogating petitioner,
Sgt.Blitch interrogated Carol Griffis, whom the police had
brought to the station house for questioning following her
release from the hospital that day. (S78). Blitch described
this interrogation as "without any success at all". (S78).
According to Blitch she was brought into the police station
sometime after 9:00 p.m. on October 23rd, the time that Blitch
arrived at the station. (S87). She was very “boisterous” at
the station. She was crying and upset that she did not have
the pills that she took. (S88). She was being questioned in
a room which petitioner would have passed on his way to the
bathroom (S88) and petitioner was well aware that she was in
police custody and had heard her moaning and carrying on.
(SR 91, 93-94).
-15-
Assistant State Attorney Jim Nilon had arrived at the
police station at approximately 8:30 - 9:00 p.m. on October 23rd,
solely for purposes of this case. Although he participated in
the interrogation of petitioner alone and with Sgt. Blitch, at
no time did the State Attorney advise petitioner of any legal
rights, nor were any such advices given to petitioner in his
presence. (S103). When Nilon first spoke to petitioner, around
11:30 - 11:45 p.m. (S92), petitioner told him to put away the
paper and pencil and not take any notes. (S96). Wilon never
informed the defendant that anything petitioner stated orally
would and could be used against him. Instead, Nilon simply com-
plied with petitioner's request.* (S106). Nilon was "not sure"
whether he was ever told that petitioner had previously been
advised of his rights by others that evening. (S103). The extent
of Assistant State Attorney Nilon's concern for petitioner's Fifth
and Sixth Amendment rights that night is reflected in the record
on cross-examination:
Q. During the time that you were with Mr. Shriner
{approximately 11:45 p.m. to 3:30 a.m.] did you.
advise Mr. Shriner of his constitutional rights?
A. No, I did not.
Q. During the time you were with Mr. Shriner did
anyone else advise him of his rights in your
presence?
A. Not that I can think of, no sir.
Q. Had you been told that anyone Mirandized him?
* ".,..I walked in there, I had the pad, I was ready to take
some notes. I put down his name and Mr. Shriner said,
“What are you writing?" I said "I wrote your name." He said,
"You're not going to write anything down." I said, "No,
I'm not going to write anything down.” I put my pad up.
(S104).
-16-
A. No sir. Let me take that back. I'm not sure
on that. He may have been. I think I was told
... I'm not sure of this, but I think I was told
he was Mirandized by the officers that arrested
him as part of the robbery on the Eight Days
Inn, if they had arrested him - - detained him.
Q. You think? You are not sure?
A. I'm not sure. (S103)
Petitioner made several futile attempts to exercise
his Fifth Amendment privilege to cut-offquestioning. Sgt.
Blitch testified at the suppression hearing as follows:
Q. Did he [petitoner] ever ["during that time from
nine o'clock until two thirty a.m...."] tell you
he wanted to stop talking or remain silent?
A. No sir, he did not. At times he would say,
"Well, I'm not going to answer that", but later
he would come back and usually he would give me
more than I had really anticipated." (S90).
The testimony of Assistant State Attorney Nilon reflects
that petitioner futilely tried to cut-off questioning. During
the first interrogation with Nilon alone, which began at approx-
imately 12:15 a.m., after petitioner stated who "they" were,
petitioner told Nilon that he did not want to answer futher
questions. At this point in time petitioner had been under
interrogation for eight hours.
The record at the suppression hearing reflects the
following testimony on Nilon's direct examination:
Q. Did he ever ask to stop talking or remain silent?
A. Yes, to a certain extent. What he did, in the
first conversation that I had with him after
Investigator Blitch had left the room particularly
in reference to the Eight Days Inn robbery, he
told me certain things that had happened in the
Eight Days Inn robbery and when I asked him par-
ticularly about the gun that he used in the Eight
Days Inn robbery he said to me something to the
effect, "Well, right now its like I'm crazy. It's
like I'm nuts." I said, "Well, Mr. Shriner..."
-17-
I don't remember what I said but I said "It's
not like you mean you are insane." He said, "No."
I said "You mean you don't want to answer any
more questions?" And he said, "Yes". I just sat
there for a minute. I think at that point I asked
him something about his family background and he
answered that, and that's the only time I can
think of he even alluded to the fact that he didn't
want to answer any questions or make any further
statements or anything." (S102).
On cross-examination at the suppression hearing,
Assistant State Attorney Nilon testified:
Q. Okay, you were in there at the point in time
when he's naming the "they"?
A. Yes, and the purpose was ...and before Officer
Blitch left ...the purpose was so an independent
witness, I guess, could be in there and we tried
to encourage Mr. Shriner to write out a written
statement or give us a statement that would be
tape recorded to protect himself. We told him
it would be in everybody's interest and if the
other people, Mr. Rapp and Mrs. Griffis, gave us
a statement that they would probably implicate him.
Q. But there was no written statement?
A. No written statements. (S105)
2. ©@
Q. All right.Let me go back to one of the statements
that Mr. Shriner is giving -- and it was kind of at
the end of Mr. Herbert's direct examination -- you
said that during one of the times you were talking
to Mr. Shriner concerning the weapon or the gun,
he made the statewent to you something about,"I'm
crazy" or "stop." "I'm crazy."
A. YOO, Sat:
Q. Kind of vague. We are not sure as to the termin-
ology that was used. The word crazy was used, though.
A. Crazy or nuts. "It's like I'm crazy or nuts."
And I interpreted that to mean, "It's like
I'm not really nuts, but for your sake and, you
know, in answering these questions, further
questions, it's like I'm nuts to you."
Q. Was he saying he was just getting confused or tired?
A. My impression was that he was saying, like, from now
on out as far as concerning the gun and specifics
of the eight Days Inn robbery, it was like he was
insane, that, you know, the answers would be like
a crazy man. I got the impression he was saying,
"Don't bother asking me any more questions about that."
-15-
A.
I believe you said on direct examination -- did he
say , "I don't want to answer any more questions?"
He never told me specifically like, "I don't want
to answer any more questions," that I can remember.
Did you get the impression he didn't want to answer
any more questions?
About that part of the incident, yes, about the
Eight Days Inn and where he got the gun and things
of that nature and any more specifics, yes, but
then we sat there for a minute or two and I asked
him some other questions. I think it was about
his personal ...
About his family and personal things?
Yes, and he just answered and we started another
conversation and he had no problem.
At that point he started saying, "I'm crazy. I'm
nuts" or whatever it was he tried -- the point he
was trying to get across to you and the fact that
he seemed to want to stop answering questions in
that area, did you advise him at that point in
time about his rights to an attorney?
No sir.
To your knowledge, at what time did this interview
actually terminate or end with Mr. Shriner?
Se @ @
I would say probably between three and three-thirty
a.m. on that Sunday morning. (S107-108)
At the trial, on direct examination, Assistant State
Attorney, Nilon, re-confirmed that petitioner, at one point, had
refused to answer further questions:
Q.
On
his testimony.
Why did you talk -- allright. At some point
he quit giving you specifics about that evening?
Yes.
All right. The topic changes?
Yes, we start talking about his personal life,
his family. (T709-710).
cross-examination at trial, however, Nilon changed
His question to petitioner was no longer whether
-19-
petitioner did not want to make "any further statement..." (S101),
but rather whether petitioner wanted to make no further statement
“about that". (T721). Moreover, whereas at the suppression
hearing the area of questioning which immediately preceded this
conversation concerned the gun used in the Eight Days Inn robbery
(s101), at trial Nilon stated that it was questioning concerning
petitioner signing his parents' Phoenix, Arizona street residence
to the motel registration folio immediately before the Eight Days
Inn robbery. (T7211). Nilon's record of cross-examination reads
as follows:
A. ..+..-I started questioning Mr. Shriner about signing
the registration and did he sign his address or his
parents’ address, and he, I don't want to say smile,
but he had kind of a smirk or a grin on his face
and said that "I am crazy". I said "Do you mean
by that you are actually, you know, out of your
mind or crazy?" And I don't remember whether he
answered that or not.
I said, "Well, you mean you don't want to answer
any more questions about that?" an@ he said,
"Yeah*. (T7721).
Confronted with petitioner's assertion of the Fifth
Amendment, Nilon did not advise petitioner of his Miranda advices
but, instead, simply stopped questioning on both offenses moment-
arily and then immediately resumed questioning in another area.
Nilon's cross-examination is as follows:
Q. He did not want to talk about that particular
area, did he?
A. No, he did not.
Q. Now, based upon that response, did you inquire
as to whether or not he wished to continue?
A. No sir. At that point in time there was about
a minute or two lull or lapse and that is when I
started talking about personal things.
Q. Okay. Then you started going on about this
personal family thing?
Yes. At that point in time, during those con-
versations, I really terminated conversations
about any offenses.
Okay. Now, during this time, did you advise Mr.
Shriner of the possibility that he had the right
to have an attorney and maybe he would want one?
No, sir, I did not.
Okay. At any time during these proceedings,
did you advise Mr. Shriner of this?
I did not, no sir.
At any time in your presence was he ever advised
of this?
Not that I remember, no, sir.
And then I believe shortly after this particular
counseling that you are talking about, I believe
then that Officer Blitch comes in and you leave?
I had some conversation after the conversation
about personal things and then Officer Blitch
came in and I left. (T722-723).
x* * *&
On redirect Nilon testified:
Q.
Now, you mentioned that he mentioned to you that
he didn't want to talk about it, he gave you an
impression that he didn't want to talk about the
specifics of the folio. Did he have any objections
about going on and talking about other things?
Specific -- I am sorry, I don't understand.
All right. Mr. Kearns talked about the thing
called problems sometime - -
Yes.
-- where the defendant said or you asked him about
the folio, signing it, and he said, "I am nuts,"
and you said, "You just don't want to talk about
it any more?" You didn't talk to him any more
about the folio, is that correct?
No, I dropped that subject.
Okay. Did he nave any problem talking about
anything else?
No, sir.
=2le
Q. Did he ever say that he didn't want to talk
about anything else?
As BO, Biz,
Q. Did he freely and voluntarily answer other
questions that you asked him?
A. Yes, sir. As I stated before, there was about a
minute or two lull period where we just sat there
and I said -- well, I might have started something
like, "Carl, where are you from?" And then we
started about personal matters that I have already
testified to. (T727-728).
The petitioner testified at the suppression hearing
that he requested an attorney several times that night* and
requested no further questioning. Petitioner's direct testimony
reads:
A. Well, several times whenever they started talking
to me. They would start talking to me and I ended
up telling them, you know, that I didn't want to
talk to them. Officer Murray, I told him that
several times.
Q. That you didn't want to talk to him?
A. Yes, sir. And then he would stop talking and
somebody else would come up and start talking
and when I would tell them that I didn't want to
talk, then someone else would come up. (SR92-93).
Petitioner testified that he could not recall telling
Sgt. Blitch and Assistant State Attorney Nilon that he did not
want to talk about the crimes without a lawyer, but he stated
that he did recall making that request to others who spoke to
him. (SR100-101, 103-103). Petitioner testified that he was
unable to recall "half of the statements...that I was supposed
to have said." (SR94). Throughout the twelve hours of question-
ing petitioner stated that he "kept asking for coffee".** (SR95)
* Discussed supra at 12.
** He testified that he was provided "a couple of cups of
coffee." (SR104).
=22@
Petitioner stated that he made the statements because he was
"tired and upset" because they were beidine Carol whom the police
told him was under arrest for the murder and other offenses.
(SR94, 105).
The trial court denied the defense motion to suppress
the statements. The Court gave no reason and made no findings.*
(S114).
4. Carol Griffis' Presence at Station House
Carol Griffis, petitioner's friend and roommate, had
suffered from an apparent drug overdose and been rushed to the
hospital when she lost consciousness during the search of the
room she shared with petitioner. This search occurred shortly
after petitioner's arrest. She had been released by the hospital
later that same day to the custody of the waiting Gainesville
police officers, who transported her to the station house for
questioning and held her at the station during the entire period
of petitioner's intervogntsion. According to Assistant State
Attorney Nilon, on one occasion that evening, petitioner had
heard her moaning. (S111). Her behavior there was described by
Sgt. Murray as alternating "between being cooperative to being
very uncooperative." (S121). Loud demands were made by her
for the medication "“quaaludes" which the police prevented her
from taking. She was interrogated on the second floor in the
detective section in the same squad room as petitioner, but at
* The Court: "Motion Denied."
In its written order, dated February 7, 1977, the
Court stated: "...the statements given to police officers
on the night of October 23rd and the morning of the 24th,
were freely and voluntarily given."
The Court granted petitioner a continuing objection
at trial to the use of the evidence which he had unsuccessfully
sought to suppress. (T396).
-23-
different ends of the room.* (S122). Petitioner knew that
she was there. (S117-118). Petitioner stated that he saw
her crying that night when he went to the bathroom. He heard
her moan on one occasion, and coula tell that she was upset
when persons opened the doo): to the polygraph room. (SR91).
The petitioner testified that the police told him that she was
arrested for murder and possession of drugs. (SR105).
III. Bifurcated Jury Proceeding on the Death Sentence
At the bifurcated advisory jury proceeding on the death
penalty the State introduced the petitioner's prior criminal
record for robbery and then rested. (T872). The defense
produced no evidence. (T872). The petitioner unsuccessfully
sought to discharge his trial counsel. (T887-88). This
request was denied. Petitioner was granted the right to argue
to the jury pro se, along with his counsel. Petitioner urged
the jury to recommend the death sentence. (T897).
The Court sent the case to the jury after charging
them on all (seven) statutory aggravating circumstances and all
(eight) statutory mitigating factors, (T898-901) even though there
was supporting evidence for only two statutory aggravating cir-
cumstances. The Court directed the jury to consider all the
trial evidence in reaching its decision on the sentence recom-
mendation. No limiting instructions were given with respect to
evidence concerning the Eight Days Inn robbery which had been
introduced solely on the issue of identification. (T898).
* Petitioner stated that he overheard Carol stating to a
detective that for once she was telling the truth and they
didn't believe her. (SR90-91). During the interrogation
in the polygraph room later that evening, Det. Murray came
in and told him that Carol was “throwing a tantrum about her
pills", which petitioner described as "methaquaaludes",
which were in her purse. (SR97). The police refused to
give her the pills.
-24-
The Court instructed the jury as follows:
If one or more aggravating circumstances
are established, you should consider all of
the evidence tending to »stablish one or more
mitigating circumstances and given that
evidence such weight as you feel it should
receive in reaching your conclusion as to the
sentence - which was to be imvosed. (T901-902).
* * *
Your advisory sentence must be based upon your
finding of whether sufficient aggravating circum-
stances exist and whether sufficient mitigating
circumstances exist which outweigh any aggravating
circumstances. (T902).
The jury returned with a recommendation of death. (R904).
IV. Sentencing
At the sentence, petitioner withdrew his request for
the death penalty stating that his remarks to the jury resulted
from his being “upset on the conviction". Petitioner requested
life. (Sentence Proceeding dated April 29, 1977* at 3).
At sentence the Courtstated that he found the fol-
lowing statutory aggravating** circumstances:
Of the guidelines in the statute for cases
such as yours, you fall into at least two
aggravating circumstances:
One, your criminal conduct of a violent
nature, namely, robbery?
Second, the fact that it was apparently an
offense that was committed in the attempt to
escape apprehension while committing a crime.
(Sentence 12).
The Court found no mitigating circumstances. (Sentence 13).
Hereafter referred to as "Sentence" followed by the
page reference.
** Section 921.141 of the Laws of Florida, which contains
the statutory aggravating and mitigating circumstances
is set forth in the "Statutes Involved". The 1979 Amend-
ments to such provisions are specifically noted.
-25-
However, in his written sentence order, dated April
29, 1977, the Court makes the following findings:
{T)he Court finds under aggravating circumstances
the following:
2. Whether the defendant has previously been
convicted of another capital felony or of a
felony involving the use of or threat of
violence to the person?
The defendant ... was convicted of the offense
of Armed Robbery in Dade County in 1972.
* *
4. Whether the murder for which the defendant
was convicted was committed while he was engaged
in the commission of or an attempt to commit ...
any robbery ...?
The evidence shows in this case that the Defendant
killed ... [the deceased] while perpetrating
robbery.
With respect to written findings of statutory miti-
gating circumstance the opinion states:
The Court finds, with the possible exception
of No. 6* above, there are no mitigating circum-
stances in this case. An examination of the
psychiatric evaluation in this case found both
in the presentence investigation from the Depart-
ment of Offender Rehabilitation and by the various
psychiatrists appointed to represent this defendant
prior to trial, he has been disgnosed as a
"sociopathic personality". An examination of
these reports, however, does not lead one to the
conclusion that his capacity is diminished thereby.
The Court finds that the aggravating circum-
stances far outweigh the mitigating circumstances.
(Written Sentence Order, dated April 29, 1977
at 2-3).
No.
6
states:
"6. Whether the capacity of the Defendant
to appreciate the ciminality of his
conduct or to conform his conduct to the
requirements of law was substantially
impaired."
-26-
The written order of sentence reflects that the
Court took into consideration, as aggravating circumstances,
factors outside the scope of those provided by statute. These
other factors are: petitioner's prison disciplinary record,
that he is a "security risk"*, his juvenile record and crimes
committed following his release from prison for which he was
not convicted.
The sentence order states:
In addition, an examination of the presentence
investigation, which was made available in its entirety,
including the confidential section, to the attorney for
the defendant prior to sentencing, indicates that dur-
ing the defendant's incarceration at the Department of
Offender Rehabilitation, he has presented a discipline
problem and to some degree a security risk. The invest-
igation further shows that he has engaged in a long
pattern of violent criminal conduct. In addition, it
is apparent that the robbery that was committed in per-
petration of the death of Judith Ann Carter was not the
sole robbery committed by this defendant subsequent to
his release from prison some three weeksprior to the
date of the offense.
(Sentence Order dated April 29, 1977 at 3)
V. Appeal to the Florida Supreme Court
On direct appeal to the Florida Supreme Court,
petitioner argued, inter alia, that his arrest was without
probable cause, that the interrogation violated his rights
under the Fifth, Sixth and Fourteenth Amendments and that
the Court based the death sentence on aggravating factors
outside those directed by Florida statute.
The Florida Supreme Court affirmed the Court below
in all respects. (The opinion is annexed as Appendix "A":.
* This refers to petitioner's repeated self-inflicted wounds
in apparent suicide attempts during pre-trial custody herein,
and to a spoon-swallowing incident while petitioner was serving
his prior sentence. (Pre-sentence Investigation Report.)
** Petitioner also argued that the Florida death statute
(Section 921.141) is unconstitutional on its face and
as applied herein.
=27J=
The Florida Supreme Court held that: (1) petitioner's "strik-
ing resemblance" to the composite drawing and description in the
bulletin constituted probable cause; (2) petitioner wanted to cut
off questioning only with respect to the Eight Days Inn robbery
and that the "partial exercise of his Miranda privilege" was
"respected" by Assistant Attorney Nilon.and (3) the consideration
of extra-statutory aggravating circumstances in imposing sentence
is harmless error in view of the presumption of death which
arises upon a finding of statutory aggravating circumstance
in the absence of a finding of any statutory mitigating circum-
stance.
=28-
REASONS FOR GRANTING WRIT
I
The Florida Supreme Court's ruling that petitioner's
right to cut-off interrogation was not violated herein con-
flicts with the Court's decisions in Miranda v. Arizona, 384
U.S. 436 (1966), and Michigan v. Mosley, 423 U.S. 96 (1975).
In Miranda, supra, the Court recognized an accused's
right to cut-off questioning before and during interrogation:
"If the individual indicates in any manner,
at any time prior to or during questioning,
that he wishes to remain silent, the interro-
gation must cease; ...without the right to cut-
off questioning, the setting of in-custody in-
terrogation operates on the individual to over-
come free choice in producing a statement after
the privilege has been once invoked." Miranda
v. Arizona, supra, 384 U.S. at 473-474.
The Court, in Michigan v. Mosley, supra, construed
this passage of Miranda. The Court rejected the interpretation
that this proscription precluded further interrogation under
any circumstances. In so doing, however, the Court similarly
rejected an interpretation at the other extreme, that would
permit recurring rounds of questioning, which is what occurred
here.
To permit the continuation of custodial
interrogation after a momentary cessation
would clearly frustrate the purposes of
Miranda by allowing repeated rounds of
questioning to undermine the will of the
person being questioned. Michigan v.
Mosley, supra, 423 U.S. at 102.
The Court held that in such cases the test of
admissibility is whether the authorities “scrupulously
honored" the accused's right to cut-off questioning:
-29-
We...conclude that the admissibility of
statements obtained after the person in
custody has decided to remain silent depends
under Miranda on whether this "right to cut
off questioning" was "scrupulously honored."
[footnote omitted] Michigan v. Mosley, supra,
423 U.S. at 104.
The facts here do not meet that test. Prior to
the confession to the homicide herein, at approximately
12:15 a.m., after approximately eight hours of non-stop
questioning by successive rounds of interrogators, petitioner
advised the person then interrogating him, Assistant State
Attorney Nilon, that he did not wish to answer any further
questions. Nilon, at the suppression hearing, testified that
his questioning at that time involved the gun used in the Eight
Days Inn Motel robbery and Nilon construed this request to mean
that petitioner did not wish to answer any further questions in
the particular area then being discussed. After a momentary
pause in the questioning, Nilon resumed questioning without
any additional Miranda advices, and upon resuming the questioning,
initially directed his questions to an innocuous and unobjection-
able area - the petitioner's family background - and, thereafter,
questioning shifted back to the Majik Mart robbery-killing.
Upon completion of Nilon's interrogation, at approximately
1:30 a.m., without any break, Sgt. Blitch, again took over the
questioning. Nilon never told Blitch of petitioner's request.
Blitch gave no new Miranda advices, but, rather at the commence-
ment of his interrogation Sgt. Blitch intensified the pressure
on petitioner by informing him, for the first time, that he
-30-
believed that petitioner was the Majik Mart robber-killer.*
Pursuant to Blitch's further interrogation, at approximately
2:00 a.m., after approximately nine hours of continuous question-
ing, petitioner finally admitted the robbery-killing.**
The Florida Supreme Court misapplied the test laid
down in Michigan v. Mosley, supra, and failed to recognize
critical distinctions in the facts of Mosley. In Mosley all
questioning immediately ceased when the accused invoked the
Fifth Amendment. Mosley was placed in a detention cell and
was not questioned again until two hours later, after fresh
Miranda warnings and a clear waiver. Here, questioning merely
stopped momentarily and then immediately resumed after shifting
to the innocuous area of petitioner's family background. Later,
the interrogation was brought back to the homicide and a con-
fession was ultimately obtained. No new Miranda warnings were
issued. No waiver inquiry was conducted. The crimes in Mosley
were unrelated and the place of interrogation and the persons
who conducted the interrogation were different. Here the crimes
* During the period between 12:15 a.m. and 1:30 a.m.,
while Nilon was questioning petitioner alone, Sgt.
Blitch was questioning the petitioner's girlfriend,
Carol Griffis. Petitioner claimed, until 2:00 a.m.,
that she had entered the Majik Mart, together with
John Rapp, while he, petitioner, had remained in the
car. Petitioner asserted that he was not involved
in what Griffis and Rapp did in the Majik Mart and
had no knowledge before the event.
** In addition, petitioner was requested to repeat his
prior admission as to the Eight Days Inn robbery.
-3l-
were inseparably intertwined* and questioning occurred at the
same time and place by the same interrogator. Moreover, whereas
questioning in Mosley in both instances was brief, here petitioner
had been questioned for approximately eight hours when the
state acknowledged his request to cease questioning. Following
his Fifth Amendment assertion, petitioner did not confess to the
crime until the completion of that round of interrogation and
commencement of the following round by a different questioner
who was never apprised of petitioner's assertion. **
Thus, this is the case which Mosley is not:
This is not a case, therefore, where the
police failed to honor a decision of a
person in custody to cut-off questioning,
either by refusing to discontinue the
interrogation upon request or by persisting
in repeated efforts to wear down his resis-
tance and make him change his mind.
Michigan v. Mosley, supra, 423 U.S. 105-106.
Assistant State Attorney Nilon's disregard of petitioner's
Fifth Amendment privilege was the type of conduct condemned
in Mosley and should not be permitted to stand.
The Florida Supreme Court misconstrued the rec cd
to avoid the Mosley sanction of suppression. The Florida
Supreme Court states:
* So much so that all the state's evidence on the
Eight Days Inn robbery - the confession and victim's
testimony - was admitted on the State's prima facie
case to show identification in the homicide. The
same gun was involved in each crime. See opinion of
Florida Supreme Court at 3,Appendix "A".
** The record is unclear as to the exact time lapse between
petitioner's request to stop and his confession. Nilon
began questioning petitioner alone at approximately
12:15 a.m. and Blitch began at approximately 1:30 a.m.
Petitioner confessed at approximately 2:00 a.m. The
request to stop occurred sometime during Nilon's question-
ing.
-32-
We are satisfied that, based on Mr. Nilon's
testimony and the absence of rebuttal evidence
to the contrary, the trial judge correctly
concluded that appellant wanted to terminate
questioning only insofar as it related to the
Right Days Inn robbery. We are similarly
satisfied that Mr. Nilon respected appellant's
partial exercise of his Miranda privilege and
restricted further questioning to other areas.*
The record at the suppression hearing reflects that
petitioner requested all questioning to cease - not just
questioning related to the Eight Days Inn robbery. The testimony
of Assistant State Attorney Nilon on direct examination at the
suppression hearing establishes this:
Q. Did he ever ask to stop talking or remain silent?
A. Yes, to a certain extent. What he did in the
first conversation that I had with him after
Investigator Blitch had left the room, particularly
in reference to the Eight Days Inn robbery, he
told me certain things that had happened in the
Eight Days Inn robbery and when I asked him
particularly about the gun that he used in the
Eight Days Inn robbery he said to me something
to the effect, "Well, right now it's like I'm
crazy. It's like I'm nuts." I said, "Well, Mr.
Shriner..." I don't remember what I said, but I
said, "It's not like you mean you are insane."
He said "No" I said "You mean you don't want
to answer any more questions? 3? And he said, "Yes".
ay just sat there for a minute. I think at that
point I asked him something about his family
background and he answered that, and that's the
only time I can think of he even alluded to the
fact that he didn't want to answer any questions
or make any y further statements or anything.
(Emphasis added) (S102).
The petitioner's affirmative response to the question "Do you
mean you don't want to answer any more questions?" is the
exercise of his Fifth Amendment privilege to stop the inter-
* In a footnote the Florida Supreme Court at n.9
(See Appendix "A" ) states:
.+-[T)his record is bare of any perfidious police
practices. And considering the lack of contradictory
evidence in Shriner's testimony at the motion to
Suppress, we would be irresponsible to overturn the
trial judge's finding of voluntariness.
=-33-
rogation. To construe this unequivocal response to refer only
to the particular subject matter then under discussion eliminates
the Fifth Amendment privilege to cut-off questioning, since such
an assertion will always be in response to a particular question
in a particular area. This construction thus would place the
burden on the accused to repeatedly assert the privilege each
time that questioning shifted to a different area. This con-
struction was rejected in Michigan v. Mosley, supra.
To permit the continuation of custodial
interrogation after a momentary cessation
would clearly frustrate the purposes of
Miranda by allowing repeated rounds of
questioning to undermine the will of the
person being questioned. Michigan v.
Mosley, supra, 423 U.S. at 102
Petitioner's clear expression that he did not wish
to answer "any more questions" should not be superseded and
nullified by Nilon's testimony, on cross-examination at the
suppression hearing, with respect to the operations of Nilon's
mind in construing petitioner's request:
A. My impression was that he was saying, like
from now on out as far as concerning the gun
and specifics of the Eight Days Inn robbery,
it was like he was insane, that, you know,
the answers he was saying, "Don't bother asking
me any more questions about that." (S107-108).
(Emphasis added.)
This is especially true since Nilon changed his testimony in
this critical area at the trial. Thus, while the questioning
which precipated petitioner's request related to the gun used
in the Eight Days Inn robbery, according to Nilon's suppression
hearing testimony, at trial Nilon stated that it occurred when
he was questioning petitioner about signing his parent's Arizona
address to the motel register. Moreover, at the trial Nilon's
=-34-
question to petitioner was no longer whether petitioner "didn't
want to answer any questions or make any further statement...?"
(S102) but, rather, whether petitioner did not "want to answer
any more questions about that?" (1T721). (Emphasis added).
A. ...I started questioning Mr. Shriner about
signing the registration and did he sign his
address or his parents' address, and he, I
don't want to say smile, but he had kind of a
smirk or a grin on his face and said that "I
am crazy". I said, "Do you mean by that that
you are actually, you know, out of your mind or
crazy?" And I don't remember whether he answered
that or not.
I said, "Well, you mean you don't want to answer
any more questions about that?" and he said "Yeah".
(T721).
Thus, the Florida Supreme Court's ruling that petitioner
expressed the desire to stop questioning "only insofar as it
related to the Right Days Inn robbery" is not supported by
the record. The Florida Supreme Court focused on Nilon's
impression of what petitioner meant - rather than on what
petitioner said.
The assertion by the Florida Supreme Court that
petitioner offered no contradictory evidence at the suppression
hearing is misleading and shows a shift in the burden of proof.
Petitioner testified that on several occasions during the
interrogation at the Gainesville police station he stated that
he wanted to talk to a lawyer and did not wish to answer questions.
Petitioner candidly testified that he was unable to remember
whether he made such requests to Nilon and Blitch - who questioned
him during the last six hours - because he was so tired and upset.
The Court's reference to petitioner's "absence of rebuttal" and
"lack of contradictory evidence" is therefore misleading. While
it is true that petitioner's inability to recall the incident
=-35-
precluded specific contradiction of Nilon's testimony petitioner
testified that he made such assertions on numerous occasions to
numerous interrogators - of which Nilon may be one - during the
eight hours that preceded the confession to the homicide. More
importantly, however, by placing emphasis on the absence of
rebuttal by petitioner, the Florida Supreme Court has shifted the
burden of proof on the waiver issue to the petitioner, rather
than holding the State to its heavy burden.* Miranda v. Arizona,
supra, 384 U.S. at 475.
Moreover, even accepting what petitioner maintains
is the Florida Supreme Court's erroneous interpretation** of
petitioner's assertion of his Fifth Amendment privilege, it is
beyond dispute that petitioner expressly invoked his Fifth
Amendment privilege in some manner***, which should have been
sufficient to require Nilon to cease questioning. At the very
least it should have been sufficient to put the Assistant State
Attorney on notice to inquire whether petitioner wished to stop
all questioning or only those in a particular area, i.e. to
* As opposed to indulging "in every reasonable presumption
against waiver". Brewer v. Williams, 430 U.S. 387,404. (1977).
** That petitioner only wanted to stop questioning about
the Eight Days Inn robbery.
*** In Miranda v. Arizona, supra, the Court stated:
Once warnings have been given the subsequent
procedure is clear. If the individual indicates
in any manner, at any time prior to or during
questioning, that he wishes to remain silent,
the interrogation must cease. Miranda v.
Arizona, supra, 384 U.S. at 473-474.
-36-
clarify the scope of permissible questioning. Thompson v.
Wainwright, 601 F.2d. 768 (Sth Cir. 1979): Nash v. Estelle,
597 F.2d. 513 (5th Cir. 1979), cert. denied 444 U.S. 981 (1980)*.
Such an inquiry should have been coupled with fresh Miranda
advices, as in Michigan v. Mosley, supra, and further inter-
rogation should not have proceeded in the absence of a clear
and intelligent waiver.
The record here is one of scrupulous disregard and
indifference to petitioner's Miranda rights. The Assistant
State Attorney who participated in the all-night interrogation
from 11:30 p.m. to after 3:30 a.m. never once informed the
defendant of his Miranda warnings nor were such warnings given
in his presence. He could not even recall anyone that night
informing him that petitioner had been given his Miranda
advices. During the eight hours of interrogation at the
Gainesville Police Station the only Miranda warnings that
petitioner received were those administered at 9:00 p.m. in
the context of voluntarily taking the polygraph test in the
absence of counsel, which petitioner agreed to do. No additional
warnings were given** prior to the most intensive period of
* Both these cases involved a request for counsel during
interrogation. Since such a request is determined at this
pre-proceeding stage by Fifth Amendment standards it should
apply here as well. Brewer v. Williams, 430 U.S. 387 (1977).
The State has the burden to prove “an intentional relinquish-
ment or abandonment of a known right or privilege". Johnson
Vv. Zerbst, 304 U.S. 458, 464 (1938).
** It should be further noted that in connection with the Miranda
warnings given at approximately 5:00 p.m., shortly after
petitioner's arrest, the person who administered the warn-
ings and elicited petitioner's written "waiver", did not
know and, therefore, did not advise petitioner of the nature
of the charge on which questioning was sought. It was not
until Sgt. Murray began questioning a short time later that
petitioner was informed that the advices were given in con-
nection with the Eight Days Inn robbery. Although Murray
also questioned petitioner concerning the Majik Mart
robbery-killing no additional warnings or separate waiver
for such questioning was obtained.
-37-
interrogation which immediately followed completion of the
polygraph test.
Lastly, the Florida Supreme Court is simply wrong
when it states that "Nilon respected appellant's partial
exercise of his Miranda privilege and restricted further
questioning to other areas." (Opinion at 3, Appendix " A").
This is refuted by the trial record. Both Blitch and Nilon
testified that petitioner was re-questioned on the Eight
Days Inn robbery during his last oral statement, which the
police obtained between 1:45 a.m. and 3:00 a.m. (Blitch T685-686).
(Nilon T714, 725-726).
The Florida Supreme Court's ruling that petitioner's
right to cut-off questioning meets the “scrupulously honored"
test laid down in Michigan v. Mosley, supra, should be reviewed.
II.
The imposition of the death penalty herein based on
consideration of factors other than the statutory aggravating
factors in §921.141,* and excluding consideration of non-
statutory mitigating circumstances, is arbitrary and capricious
and constitutes a violation of the Eighth and Fourteenth Amend-
ment ban on cruel and unusual punishment. Furman v. Georgia,
408 U.S. 238 (1972); Lockett v. Ohio, 438 U.S. 586 (1978).
The record reflects that the sentencing court found
two statutory aggravating circumstances; that the petitioner
had a prior record for robbery, a felony involving violence,
* This is the Florida death sentence statute. FLA. STAT. ANN.
§921.141 (West Supp. 1980). It is set forth in its present
form at Appendix "D". The 1979 amendments are annexed at
Appendix E, discussed infra at 47-48.
-38-
and that the k: ling occurred during the commission of a robbery.
The sentencing court found no statutory mitigating circumstances.
The record reflects that the sentencing court additionally con-
sidered the following non-statutory aggravating circumstances:
(1) petitioner's extensive record as a juvenile delinquent be-
tween 1963 and 1971; (2) petitioner's extensive prison disciplin-
ary record between 1972 and 1976; (3) the "likely" commission
of five robberies for which petitioner was not convicted; and
(4) petitioner's repeated self-inflicted wounds, in apparent
suicide attempts, while detained on the within charge. (Sentence
10-14). See also written sentenced order, dated April 29, 1977,
annexed at Appendix "C".
The trial court found that there were no statutory
mitigating circumstances. (Sentence 13) (Sentence order at 3,
annexed at Appendix "C"). The record reflects that neither the
jury nor the court at sentence considered non-statutory miti-
gating circumstances. (See sentence order at 3, annexed hereto
at Appendix "C"). The jury, in fact, was expressly precluded
from such consideration being instructed to only consider what
was specified by the statute.* (T900-901).
The Florida Supreme Court, in answer to petitioner's
contention that it was unconstitutional to consider non-statutory
* Appellant raised below the constitutionality of the refusal
to permit the jury to consider non-statutory mitigating
factors in the context of the trial court's refusal to
permit the testimony of a clergyman who had witnessed three
electrocutions. The Supreme Court of Florida held that
such testimony was not relevant to the sentence phase.
The petitioner also contended below that the Florida death
penalty statute on its face and as applied herein is un-
constitutional. The Florida Supreme Court considered and
rejected this contention. See Opinion at 4, Appendix "A".
-39-
aggravating factors, held that it was not “clear” that the
court considered such factors, but that assuming that it did,
the error was harmless since death is presumed where statutory
aggravating circumstances are present and statutory mitigating
circumstances are not.*
The Florida Supreme Court's refusal to acknowledge
the sentencing court's consideration of the non-statutory
aggravating circumstances is disingenuous. The record reflects
that the court not only considered such factors but, relied on
them more heavily than the statutory aggravating circumstances.
* The Florida Supreme Court's opinion states as follows:
As a preliminary matter, the record is replete
with evidence to support the judge's finding of
aggravating circumstances numbered two and four
[footnote omitted]. The record also supports the
finding of no mitigating circumstances. It is not
clear, however, whether the judge considered appellant's
disciplinary record as an aggravating circumstance.
Even if we assume that the disciplinary problem was
so treated, the error was harmless. We have here two
valid aggravating circumstances counterbalanced by
no mitigating circumstances. Since death is presumed
in this situation, [footnote omitted] improper con-
sideration of a non-statutory factor does not render
the sentence invalid:
It appears that the United States Supreme Court
does not fault a death sentence predicated in
part upon non-statutory aggravating factors where
there are no mitigating circumstances. The absence
of mitigating circumstances became important, be-
cause so long as there are some statutory aggravating
circumstances, there is no danger that non-statutory
circumstances have served to overcome the mitigating
circumstances in the weighing process, which is
dictated by our statute. Elledge v. State, 346
So. 2d 998, 1002-03 (Fla. 1977). (Emphasis in
original) Opinion at 5, Appendix “A".
-40-
The court at sentence had two options: life imprisonment or
death. The remarks of the court at sentence thus must be
understood as responding to the plea made by petitioner and
his counsel for imposition of a life sentence rather than
death. Petitioner's extensive prior disciplinary record,
his repeated self-inflicted wounds and the spoon swallowing
incident were relied on by the court in rejecting the life
sentence alternative. The court stated, in imposing sentence:
The fact that your infractions, while you were in
the penitentiary, and the nature of those, tells
me that a life sentence, with a minimum of 25,
would be no answer in your case.
Accordingly, I order that you be taken by the
proper authorities to the Florida State Prison
and kept there in close confinement until the
date of your execution is set. (Sentence 13).
Similarly, petitioner's extensive record as a
juvenile delinquent, and the claim that he had committed five
robberies between October 1, 1976 and October 23, 1976, for
which he had not been convicted, were considered and relied
on by the court in rejecting the life sentence alternative
which would make petitioner eligible for parole in twenty-
five years.
---Your presentence investigation shows you had
a history of robbery, history of institutionaliz-
ation on a juvenile basis for many, many years.
+ * *
Your presentence investigation shows that
while you were in prison, you continued to have
disciplinary infractions, that upon your first
condition of release you lasted three weeks before
it was revoked.
Your presentence investigation also shows that
it ig likely that you committed at least four rob-
beries besides the one that was proved as collateral
fact evidence in your murder case, ...all within...
three weeks of your release. (Sentence at 11-12).
-4l-
Accordingly, the record at sentence refutes the
Florida Supreme Court's contention that it is not "clear" that
the sentencing court considered such non-statutory aggravating
factors.
Consideration of non-statutory aggravating circum-
stances destroys the uniformity of application which the Court
sought to foster in Furman v. Georgia, supra, which held that
unbridled discretion in imposing the death sentence is un-
constitutional. In fact, it was in response to Furman that
the Florida State Legislature enacted Section 921.141 and
expressly limited* the court's and jury's consideration to the
Statutory aggravating circumstances in imposing the death sent-
ence. Permitting imposition of the death penalty based on
particular aggravating circumstances falling outside the statute,
which happen to strike a particular judge as relevant - which
is what happened here - is a return to the unbridled, uncon-
stitutional scheme which was condemned in Furman v. Georgia, supra.
Consideration of non-statutory aggravating factors was
particularly prejudicial here for other reasons. The presentence
investigation report indicates that petitioner has an extensive
juvenile record in the state of Ohio between 1963 [when he first
was placed in custody as a juvenile at the age of 10] and 1971.
In re Gault, 387 U.S. 1, (1967) is a landmark case wherein the
Court held under the due process clause that juveniles must be
* Section 921.141(5) provided that "[a])ggravating circumstances
shall be iimited" to those provided by statute. The statute
in its present form is annexed at Appendix "D". To see it in
its form at sentence herein see 1979 amendments annexed as
"E", discussed infra at 47-48.
-42-
accorded certain fundamental due process rights, including notice
of the charges, counsel if indigent, a written record for review,
the privilege against self-incrimination and the right to con-
front and cross-examine witnesses. In re Winship*, 397 U.S. 358
1970) held that proof beyond a reasonable doubt is required under
the due process clause in juvenile delinquency proceedings.
These landmark cases were considered a radical departure from
existing juvenile offender laws in most, if not all states, and
such was the case in Ohio where the petitioner's juvenile delin-
quent record arose. See e.g. Cope v. Campell, 175 Ohio St. 475,
196 N.E.2d 457 (1964) (no right to counsel); State v. Shardell, 107
Ohio App. 338, 153 N.E.2d 510 (1958) (no privilege against self-
incrimination); in re Angler, 19 Ohio St. 2d 70, 249 N.E.2d 808
(1969) (no proof beyond a reasonable doubt standard). For this
reason, most, if not all, petitioner's juvenile delinquent ad-
judications, which the court relied on at sentence, are uncon-
stitutional. The consideration of these adjudications constitutes
a violation of due process in ordinary felony cases. Burgett v.
Texas, 389 U.S. 109 (1967); United States v. Tucker, 405 U.S.
443 (1972). No lesser standard should apply here where the
ultimate sentence of death is involved.
Similar problems exist with the sentencing court's
consideration of petitioner's prison disciplinary record which
arose between 1972 and 1976. These infractions involved loss
of good time and ‘disciplinary confinement." In Wolff v.
McDonnell, 418 U.S. 539 (1974) the Court held that the due
* Held“¥etroactive in Ivan V. v. New York, 407 U.S. 203 (1971).
-43-
process clause of the Constitution required that in prison
disciplinary matters for which a sanction of solitary confine-
ment or loss of good time could be imposed, a hearing must be
held, that written notice of the charge must be provided at
least twenty-four hours before the hearing, and that thereafter
the inmate must be provided a written statement specifying the
evidence relied on and the reasons for the disciplinary action
taken. This too, at the time, was considered a radical depart-
ure from existing prison disciplinary proceedings in most, if
not all, states and such was the case in Florida where petitioner
was imprisoned. No such provisons existed in Florida prior to
Wolff and they were not enacted by the Florida legislature
until 1975. (See Chapter 945.21 Florida Session Laws 1975).
[The latter provisions were found partially inadequate under
Wolff in Myers v. Askew, 338 So.2d 1128 (Fla. App. 4th District
1976) (no requirement of a statement of evidence relied on)].
For this reason, most, if not all of the matters on which
petitioner was disciplined between 1971 and 1976 do not pass
constitutional muster and therefore should not have been con-
sidered. Burgett v. Texas, supra; United States v. Tucker, supra.*
* While the Court in Wolff, for policy reasons held that
the new minimal due process standards were not retro-
active, id did so for reasons which have no application
here: The Court in Wolff stated:
[a] lthough such new procedures relate to]
the integrity of the fact finding process
in the context of disciplinary proceedings,
where less is generally at stake for an
individual than at a ciminal trial, great
weight should be given to the significant
impact a retroactivity ruling would have
in the administration of all prisons in
the country... Wolff v. McDonnell, supra,
418 U.S. at 573-574.
The Court's consideration - as a non-statutory
aggravating circumstance - of petitioner's self-inflicted
wounds, during apparent suicide attempts, and a spoon-
swallowing incident which required surgery, are
symptons of mental illness and emotional instability.
The imposition of the death sentence based in part on
petitioner's mental sickness is a gross violation of due
process and should be recognized as such. See Robinson v.
California, 370 U.S. 660 (1962) (unconstitutionality of
California statute making narcotics addiction a criminal
offense. )
The Florida Supreme Court indicates, however, that
even if it was wrong to consider such non-statutory aggravating
factors, the error was harmless. The Florida Supreme Court
bases this holding on the presumption of death, which it states
arises from the finding of statutory aggravating circumstances
in the absence of statutory mitigating circumstances. This
presumption violates Lockett v. Ohio*, supra.
Petitioner was sentence prior to Lockett. Under
the law then prevailing in Florida, it was unlawful for the
jury or the sentencing court to consider non-statutory
* In Lockett v. Ohio, the Court held:
That the Eighth and Fourteenth Amendments require
that the sentences, in all but the rarest kind of
capital case, not be precluded from considering,
as a mitigating factor, and aspect of a defendant's
character or record and any of the circumstances of
the offense that the defendant proffers as a basis
for a sentence less than death. Lockett v. Ohio,
438 U.S. at , 98 S.Ct. at 2965 (plurality
opinion) (Emphasis in original).
-45-
mitigating circumstances. Cooper v. State,* 336 So.2d 1133
(Fla. 1976) (per curiam) cert. denied, 431 U.S. 925 (1977).
In reliance on Cooper the trial court here expressly limited
the jury's consideration - at the advisory sentence phase -
to the statutory circumstances - both aggravating and miti-
gating.** (T900-901). The Court applied the same proceedure
in imposing sentence. See written sentence order at 2-3,
annexed at Appendix "C". However, while this case was on
appeal to the Florida Supreme Court, that court in Songer
v. State, 365 So.2d 696 (Fla. 1978) (per curiam) acknowledged
that Florida's statutory scheme would be invalid under the
Court's then recent opinion in Lockett v. Ohio, supra, if
construed to preclude consideration of non-statutory miti-
gating factors. The Florida Supreme Court then went to great
lengths to distinguish Cooper, supra, concluding that the
statute had not been so construed.***
* In relevant part the Florida Supreme Court there stated:
[T]he Legislature chose to list the mitigating
circumstances which it judged to be relevant for
determining the appropriateness of a death penalty...
and we are not free to expand the list. Cooper v.
State, supra, 335 So.2d at 1139.
** This error at the jury advisory sentence phase is
gravely prejudicial since, under Florida law, a judge
may override a jury's recommendation of life imprison-
ment only on facts "so clear and convincing that no
reasonable person could differ". Dobbert v. Florida,
432 U.S. 282 (1977) (citing Tedder v. State, 322 So.2d
908-910 (1975).
*** The Court in Songer strained to distinguish Cooper on
the facts, stating that Cooper held only that "irrelevant"
evidence shoud be excluded. Songer v. State, supra,
365 So.2d 696 at 700 (Fla. 1978).
Regardless of the Florida Supreme Court's statement
in Songer that the Florida death statute had not been inter-
preted to preclude consideration of non-statutory mitigating
circumstances - a statement which petitioner maintains is
clearly wrong in view of Cooper - the undeniable fact exists
here that the trial court did expressly limit the jury's con-
sideration at the sentence phase to the statutory mitigating
circumstances.* The record reflects that at sentence the Court
did the same.** It should further be noted that the Florida
death penalty statute was amended in 1979 by the state legis-
lature to effect this change required under Lockett. The
legislature excluded the words "limiting consideration to
statutory mitigating factors" at Section 921.141(3) (b), and,
additionally, provided for consideration of "the nature of the
crime and the character of the defendant" at Section 921.141(1).
* The Court instructed the jury that:
The mitigating circumstances you may consider,
established by the evidence, are as follows: (T900)
(Thereafter the Court read the jury the seven
statutory mitigating provisions of Section 921.141(6)).
(T900-901).
** The sentence order states:
The following are statutory mitigating circumstances
which have been considered.
[The court then enumerates the statutory mitigating
circumstances]
The Court finds with the possible exception of No.
6 above, (substantial impairment of capacity to
appreciate criminality of conduct or to conform
conduct to law) there are no mitigating circumstances
in this case.
[The Court then proceeds to state in further detail
why No. 6 is not present here). (Sentence order at
2-3, annexed at Appendix "C").
-~47-
If this was the law prior to Lockett - as the Florida Supreme
Court states in Songer - such amendments would not have been
needed. The petitioner's sentence occurred in 1977, after
the Cooper decision and before Lockett, which gave rise to the
amendments at the 1979 session of the Florida legislature.
(See 1979 Session Law, Chapter 70-353, annexed hereto at
Appendix "E".
The record reflects* the following mitigating (non-
statutory) circumstances which the jury and the sentencing
court did not consider: (1) on the date of the murder, petitioner
had been drinking and taking drugs, 4 to 5 beers, 8 to 9 rum,
speed and marijuana; (2) petitioner was the seventh of ten
children and "yanked up by the hair of the head rather than
reared" (Psychological Screening Report); (3) petitioner has
and I.Q. of 121 and a superior learning ability; and (4) the
self-inflicted wounds are evidence of severe emotional and
mental problems.
It was wrong for the court to consider the non-
statutory aggravating circumstances which give rise to
"unbridled discretion", condemned in Furman v. Georgia, supra,
and which otherwise are improper basis for enhancement of
punishment. That alone warrants vacating the death sentence.
It was also wrong to exclude consideration of non-statutory
mitigating circumstances under Lockett v. Ohio, supra. This
too, standing alone, warrants setting aside the sentence.
Coupled together these errors constitute a gross violation of
* The mitigating factors stated here are based on information
in the pre-sentence report. There undoubtedly would have
been others developed by defense counsel had the practice
then been to permit jury and court consideration of non-
statutory mitigating factors.
-48-
Eighth and Fourteenth Amendments. The Florida Supreme Court's
contention such error is "harmless" is in conflict with the
decisions of this Court and ought to be reviewed.
III.
The Florida Supreme Court's finding that petitioner's
"striking resemblance"* to the composite drawings in a police
bulletin provided probable cause to take petitioner into
custody for questioning, conflicts with the Court's decision
in Dunaway v. New York, 442 U.S. 200 (1979)**
In Dunaway, supra, the Court condemned the police
practice of picking a person up for questioning on less than
probable cause, and taking him to the station house for custodial
questioning. Such interrogation, the Court held, must be premised
on a lawful arrest based on probable cause.*** The Court stated:
"Hostility to seizures based on mere suspicion
was a prime motivation for the adoption of the
Fourth Amendment, and decisions immediately
after its adoption affirmed that common rumor or
repert, suspicion, or even ‘strong reason to
suspect’ was not adequate to support a warrant
for arrest. Dunaway v. New York, supra, 442 U.S.
at , quoting from Henry v. United States, 361
U.S. 98 (1950).
* The Florida Supreme Court held:
--- [T]he sketches attached to the police BOLO
[Be On The Lookout Bulletin] bore a striking
resemblance to appellant, thus furnishing Deputy
Denson with reasonable grounds to believe that
appellant had committed the robberies. Opinion
at 1, annexed to Appendix at "A".
** Both sides below briefed the case herein before the
Supreme Court of Florida prior to the Court's decision
in Dunaway. The Florida Supreme Court's opinion herein,
dated May 22, 1980, makes no reference to the Dunaway
decision. There is therefore no indication that the
Florida Supreme Court ever considered Dunaway in
reaching its decision.
*** The probable cause standard is "defined in terms of
facts and circumstances ‘sufficient to warrant a prudent
man in believing that the suspect had committed or was
committing an offense'". Beck v. Ohio, 379 U.S. 89, 91
(1964). See also, Henry v. United States, 361 U.S. 98,
(1959); Brinegar v. United States, 338 U.S. 160, 175-76,
In Dunaway the respondent, State of New York, con-
ceded the absence of probable cause to arrest - arguing instead
that such investigative seizure was not within the purview of
the Fourth Amendment. The police in Dunaway had more information
implicating Irving Dunaway than Deputy Denson had with respect
to the seizure of petitioner for questioning herein. In Dunaway,
the police had spoken to two named individuals who had implicated
a person named "Irving" in the commission of the homicide. In
addition, an informant had picked out a mug shot of the defendant,
Irving Dunaway, as a person known to the deceased. Dunaway v.
New York, __U.S. _, 99 S.Ct. 2248, 2251 n. 1. Here the sole
basis for taking petitioner in for questioning was his "resemblance"
to the composite drawings and general terms of the physical des-
cription in the police bulletin. Such information is not ade-
quately "supported by probable cause particularized to that
person." Ybarra v. Illinois, U.S. , 100 S. Ct. 338 at
342 (1979) (Emphasis added). That information would not
have warranted the issuance of an arrest warrant by an impartial
magistrate and a fortiori is an inadequate basis for a warrant-
less arrest.*
The record here is replete with references indicit-
ative of the fact that petitioner was taken into custody by
the authorities solely "for questioning". (S10). The arrest-
ing officer so testified. (S10). At the time that petitioner
was cuffed and placed in the police car, Deputy Denson told
* The strong traditional preference for warrants requires
that the probable cause standard for a warrantless arrest
should be no less stringent. Beck v. Ohio, 379 U.S. 89 (1964).
-50-
John Rapp, the driver of the car, that he could follow them
to the Sheriff's office so that he could drive the petitioner
home upon his release. (S9). Moreover, Officer McManus
testified that he informed petitioner at the station house
that he "was under suspicion of a crime being investigated
by another officer". (T568-569). At no time was he told
that he was under arrest. Similarly, the officer in charge
of the Eight Days Inn investigation, Sgt. Murray, who
questioned petitioner at great length at the Sheriff's office,
testified that he informed petitioner that he was "detained
as a possible suspect” in a robbery. (T575). Petitioner
testified at the suppression hearing that he was told that
if he cooperated "this whole thing could be settled and I
could be on my way." (SR97). Petitioner stated that Murray
told him that someone was on his way to the station house to
identify him, and that if such person couldn't, petitioner
would be permitted to leave. (SR96-97). Assistant State
Attorney Nilon, one of the primary participants in this
investigation, corrected himself with respect to the use
of the term “arrest”:
Q. Had you been told that anyone had Mirandized
him?
A. No sir, let me take that back. I'm not sure
on that. He may have been. I think I was
told...I'm not sure of this, but I think I
was told he was Mirandized by the officers
that arrested him as part of the robbery on
the Eight Days Inn, -- if they had arrested
him -- detained him. (S103) (Emphasis added)
As in Dunaway, the law enforcement officers embarked
upon an "expedition for evidence... in the hope that something
might turn up". Dunaway v. New York, supra, _—iU.S. at __s,
99 S. Ct. at 2259. This is confirmed in the testimony of Sgt.
Blitch with reference to petitioner's earlier denial of any
involvement:
---I felt that he was concealing facts around
the case and I continued talking to him to try
to obtain these facts. (T675).
Here, as in Dunaway, the fruits of the unlawful
detention - the petitioner's incriminating statements, the
discovery of petitioner's Arizona driver's license with the
adcress matching the one given by the person who robbed
the Eight Days Inn, the consent to search and the evidence
obtained as a result thereof, (the 38 caliber cartidges) as
well as the petitioner's sketch of the store, must be sup-
pressed since they were obtained through direct exploitation
of the illegal arrest. Davis v. Mississippi, 394 U.S. 723
(1969); Wong Sun v. United States, 371 U.S. 471 (1963);
Nardone v. United States, 308 U.S. 338 (1939); Silverthorne
Lumber Co. v. United States, 251 U.S. 385 (1929). This is
so regardless of whether the Court finds - contrary to
petitioner's contention - that petitioner's right to cut-off
questioning was “scrupulously honored." Brown v. Illinois,
422 U.S. 590 (1975); Dunaway v. New York, supra.
~52=
IV.
Under the "totality of the circumstances" the
confession obtained following more than eleven hours of
intensive interrogation was involuntary and should have
been suppressed as violative of the due process clause of
the Fourteenth Amendment. Spano v. New York, 360 U.S.
315 (1959); Chambers v. Florida, 309 U.S.227 (1940).
Petitioner was questioned without stop from 4:30 p.m.
until approximately 4:00 a.m. Two law enforcement agencies,
in addition to the State Attorney's office, worked in teams
and sometimes alone to put pressure on petitioner to confess.
The intensified pressure on petitioner as the evening ran into
morning is reflected in the four separate statements that
petitioner gave. Petitioner initially denied any knowledge
of the offenses under investigation, however, after about
five hours of questioning, he relented and stated that he did
know something. This change in position followed completion
of a lie detector test. For the next two hours petitioner
stated that "they" did it while he waited in the car. As
the pressure became greater petitioner admitted to the lesser
offense - the armed robbery of the Eight Days Inn, still main-
taining his innocence as to the robbery-killing herein. Still
greater pressure led petitioner to state who “they” were at
approximately 11:30 p.m. The authorities did not believe
this version however and pressed still further. Finally,
at approximately 2:00 a.m., petitioner admitted that he alone
had committed the robbery-killing.
-53-
The record reflects that during this period the
authorities showed no regard for petitioner's Miranda rights.
Petitioner was given the Miranda warnings shortly after his
arrest by an officer who was unfamiliar with the reason
that petitioner was in custody. As a result, petitioner
was not informed of the nature of the charge on which such
rights were given. Nonetheless, the authorities obtained a
waiver of rights. It was not until questioning began by the
officer in charge of the Eight Days Inn robbery investigation
that the nature of the charge -"robbery”" - was filled in on
petitioner's written Miranda waiver form. Although the
"robbery" presumably referred to the Eight Days Inn, the
authorities questioned petitioner without any additional
Miranda advices with respect to the robbery-killing herein.
Petitioner testified that his repeated requests for counsel
and the end of questioning were met simply by a fresh team
of interrogators.
Petitioner was taken to the Gainesville police
station at 7:30 p.m. primarily for purposes of interrogation
on the robbery-killing which fell within their jurisdiction.
He was questioned there approximately an hour and a half
before any Miranda warnings were given. Moreover, the warnings
given were solely in the context of submitting to the polygraph
test which petitioner agreed to take. Petitioner was given
no additional warnings upon completion of the polygraph test
when intensive interrogation by Sgt. Blitch and Assistant
State Attorney Nilon commenced.
-54-
During the period from 9:00 p.m. until approximately
3:30 a.m. petitioner was interrogated in a 10' x 10' poly-
graph room. He was handcuffed to the chair at all times,
except when permitted to leave to go to the bathroom. Dur-
ing the entire period of custodial interrogation - approximately
12 hours - he was given two cups of coffee and nothing to
eat.
Additional pressure was placed on petitioner when
the police brought his girlfriend, Carol Griffis, to the
station house. She had fainted and required emergency medical
treatment during the search of the house at approximately
5:00 p.m. She was taken to the hospital and then released to
the police who brought her direct to the station house for
questioning. Carol was loud and very emotional during the
entire period that she was questioned. Petitioner could hear
her whenever the door to the polygraph room opened and was
concerned for Carol's welfare. The police told petitioner that
Carol had been arrested for the murder herein. This was a
device to compel a further statement from petitioner, which
finally succeeded.
During this interrogation petitioner testified that
he made repeated requests that questioning stop. Sgt. Blitch
and Assistant State Attorney Nilon acknowledged such requests
but did not honor them. Instead each shifted questioning
momentarily to another area and then came back around to the
area sought. No fresh Miranda warnings were given and no
waiver was sought. Petitioner's will to resist was eventually
worn down by the authorities’ presistent questioning.
-55-
The Florida Supreme Court does not address this
issue raised by petitioner below. That decision should be
reviewed by the Court to determine whether the confession
obtained herein is involuntary under all the circumstances
herein.
CONCLUSION
For the foregoing reasons the petition for
certiorari should be granted.
Respectfully submitted,
a nee
E. THOMAS BOYLE, P.C.
Attorney for Petitioner
CARL ELSON SHRINER
Office & P.O. Address
202 East Main Street
Smithtown, New York 11787
E. THOMAS BOYLE
of Counsel
Dated: Smithtown, New York
October 24, 1980 my
-56-
No. 22
May 30, 1980
SUPREME CO’RT OPINIONS
Criminal Law—Murder—Death Penalty—Probable
Cause for fession—V oluntariness—Con-
tinued Questioning After Refusal to Discuss Particu-
lar Subject—Evidence—Other C tencing—
Exclusion of Graphic Description of Electrocution
Prope ath Sentence Not Invalidated by
Consideration of Non-Statutory Aggravating Factor
CARL ELSON SHRINER, c=
. Appellan : Case No. 51,749
STATE OF FLORIDA, Appellee. ©
May 22,1980. An appeal from the Alachua County Circuit Court.
Green, Judge. Cass No. 76-822-CF.
Daniel T. O'Connell of O'Connell and Hulsander, Gainesville, Florida,
for appellant. Jim Smith, Attorney General, and A.S. Johnston,
Assistant Attorney General, Tallahassee, Florida, for appellee.
(PER CURIAM) = Appellant, Cari Elson Shriner, was con-
victed of one count of murder in the first degree. The
jury recommended and the trial judge imposed a sentence of
des.h. Jurisdiction vests in this Court pursuant to article
V, section 3 (b)(!), Florida Constitution. We affirm the
conviction and sentence. !
The following facts came to light at trial. At approxi-
mately 1:30 a.m. on Friday, October 22, 1977, two young
women entered a Gainesville convenience store (Majik Market)
Two other persons were in the store at that time, the store
clerk, Judith Carter, and a male customer. The women made
their purchases ahead of the male customer and departed.
The man was in his mid-twenties, of medium height, slender;
he had a receding hairline, medium to dark brown collar-
length hair, dark eyes, a mustache and a three-to-four-day-old
beard.
At 6:15 a.m. the same morning, James Grills went into
the Majik Market and discovered the dead, body of Judith
Carter. He summoned police who arrived-at about 6:30 a.m.
Gainesville police investigator Mason photographed the
scene and recovered three projectiles from the store.
Associate district medical examiner Clark later recovered two
projectiles from the body.
Alachua County deputy sheriff Denson went on duty
Saturday at 3:30 p.m., October 23, 1976, and received a be-
on-ookout bulletin (BOLO) with a written description and
two composite sketches attached. The and
sketches were based in part on information obtained from
the two young women at the Majik Market and on an eye-
witness account of an armed robbery which took place carly
Friday morning at an 8 DaysInn. At 4:00 p.m. that Saturday,
Deputy Denson stopped opposite a car at a stop sign. The
passenger in the car matched the description in the BOLO.
Denson stopped the car, advised the passenger of his Miranda2
rights and asked him some questions. After learning that the
passenger had recently been released from prison, Denson
took him into custodv. The passenger was Cari Shriner.
Upon arrival at the Alachua County sheriff headquarters,
detectives readvised appellant of his Miranda rights. Appellan
signed in four separate places a form constituting an acknow-
led t of understanding of Miranda <ights, a waiver of the
right to have an attorney present during questioning, a consent
to be interviewed and 4 consent to make a statement. Shriner
gave his local address as 1223 Northeast Eighteenth Avenue,
where he and Carol Griflis lived at the home of John and
Nancy Rapp. John Rapp was the driver of the car in which
appellant was apprehended. Shriner had an Arizona driver's
license bearing the name Carl Elson Shriner and the address
$14 W. Buist, Phoenix, Arizona, and $338 in his wallet.
A gunman robbed the & Days Inn in Gainesville at about
3:00 a.m. Friday, October 22. 1976, 3 under the following
circumstances. While waiting tor the security guard to leave
the immediate area, a man asked the clerk for a room and
filled out a guest registration form. He robbed the clerk
and took the forin with him, but not before the clerk had
removed two of the five copics. It was signed “Rob E.
Williams, 514 W. Buist, Phoenix, Ariz.” The motel clerk
identified appellant as the culprit in a photo lineup and at
trial.
At the sheriffs office appcliant signed a written consent
to search the portion of the Rapp residence occupied by
him. After John and Nancy Rapp consented in writing to a
search of the remainder of their home, the police discovered
a Smith and Wesson .38 caliber revolver hidden in a chair in
the Rapp children’s living room. FBI firearms identification
expert Bolienbach took possession of the gun and the five
projectiles found in the Majik Market and determined con-
clusively that the projectiles were fired from that gun. 5
Appellant was taken to the Gainesville Police Departinent
at 7:30 p.m., Saturday, October 23, 1976. He signed a
waiver and consent form after being readvised of his Miranda
rights. Numerous law enforcement officers and an assistant
State attorney participated in the ensuing interrogation,
which continued from 9:00 p.m. until 2:45 a.m. the following
morning. Appellant first offered to Sergeant Blitch a number
of inconsistent accounts of his knowledge of the murder and
confessed only to the 8 Days Inn robbery. At approximatcly
1:00 a.m. Sunday, October 24, 1976, during questioning by
assistant state attorney Nilon and with Blitch out of the
room, Shriner made some cquivocal statements evincing an
apparent desire to terminate questioning about the 8 Days
Inn robbery. © Nilon proceeded to other subjects and
the interrogation continued. At 2:00 a.m., with Sergeant
Blitch present, appellant confessed to the murder of Judith
Carter.
Appellant presents a plethora of issues for our consideration,
several of which do not merit discussion. His first colorable
contention is that his arrest was illegal because of a lack of
probable cause. We disagree. A law enforcement officer has
probable cause to arrest if he has reasonable grounds to believe
that the person arrested has committed a felony. State v.
Outten, 206 So. 2d 392, 397 (Fla. 1968). The facts consti-
tuting probable cause need not meet the standard of conclusive-
ness and probability required of the circumstantial facts upon
which a conviction must be based. Id. Here, the sketches
attached to the police BOLO bore a striking resemblance to
appellant, thus furnishing deputy Denson with reasonable
grounds to believe that appellant had committed the robberies.
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56. ' 8
5/30/80
Of considerably greater difficulty #hether, although
o:herwise voluntary, Shriner’s confession must be suppressed
because of his claim that the police persisted in questioning
him after he indicated an unwillingness to answer questions
on a particular subject. Appellant relies upon the following
language in Miranda v. Arizona, 384 U.S. 436, 473-74:
Once warnings have been given, the subsequent pro-
cedure is clear. If the individual indicates in any manner,
at any time prior to or during questioning, that he wishes
to remain silent, the interrogation must cease. At this
point he has shown that he intends to exercise his Fifth
Amendment privilege; any statement taken after the
person invokes his privilege cannot be other than the
product of compulsion, subtle or otherwise. Without the
right to cut off questioning, the setting of in-custody
interrogation operates on the individual to overcome
free choice in producing a statement after the privilege
has been once invoked. [Footnote omitted.}
Miranda required exclusion of any statements stemming
from custodial interrogation unless the prosecution demon-
strated compliance with its specific prophylactic safeguards?
It law enforcement officers fail to give the specified warnings
before interrogation or fail to follow the Miranda guidelines
during interrovation, the statement thus derived may be
suppressed, even though otherwise “wi-olly voluntary.”
Michigan v. Mosley , 423 U.S. 96 (1975); Michigan v. Tucker,
417 US. 433 (1974).
In Michigan v. Mosley, police questioning was held proper
even though the 2zccused had earlier indicated his desire to
remain silent. The Supreme Court rejected a strict rule
which wouid totally preclude all further custodial interroga-
tion. ® At the same time it observed that to construe Miranda|
to require only a pause in questioning, with a resumption of
interrogation after only a momentary respite, would effec-
tively undermine the will of the accused:
Clearly, theretore, neither this passage nor any other
passage in the Miranda opinion can sensibly be read to
create a per se proscription of indefinite duration upon
any further questioning by any police officer on any
subject, once the person in custody has indicated a
desire to remain silent.
A reasonable and faithful interpretation of the Miranda
opinion must rest on the intention of the Court in that
case to adopt “fully effective means. . . to notify the
person of his right of silence and to assure that the exer-
cise of the right will be scrupulously honored. . . .”
384 U.S., at 479. The critical safeguard identified in
the passage at issue is a person's “right to cut off ques-
tioning.” Id., at 474. Through the exercise of his
option to terminate questioning he can control the time
at which questioning occurs, the subjects discussed, and
the duration of the interrogation. The requirement that
law enforcement authorities must respect a person's
exercise of that option counteracts the coercive pressures
of the custodial setting. We therefore conclude that the .
admissibility of statements obtained after the person in
custody has decided to remain silent depends upon —
Miranda on whether his “right to cut off questioning”
was “scrupulously honored.”
423 U.S. at 102-04 (Footnotes omitted).
Turning to the facts here, it appears that during interroga-
tion by assistant state attorney James Nilon, Shriner indicated
(
a desire to stop talk...g about the 8 Days Inn robbery. At
the hearing on the motion to suppress Nilon described the
episode in this way:
Direct Examination:
Q. During any of that period of time that you were in
his presence did he ever ask to have an attorney present?
A. No, sir, he did not.
Q. Did he ever ask to stup talking or remain silent?
A. Yes, to a certain extent. What he did, in the first
conversation that I had with him after Investigator Blitch
had left the room, particularly in reference to the 8 Days
Inn robbery, he told me certain things that had happened
in the 8 Days Inn robbery and when I asked him particu-
larly about the gun that he used in the 8 Days Inn robbery
he said to me something th the effect, “Well, right now it’s
like I’m crazy. 't’s like I’m nuts.” I said, “Well, Mr.
Shriner. . .” I don't remember what I said, but I said,
“It’s not like you mean you are insane.” He said, “No.”
I said, “You mean you don’t want to answer any more
questions?” And he said, “Yes.” I just sat there for a
minute. I think at that point I asked him something about
his family background and he answered that, and that’s
the only time I can think of he even alluded to the fact
that he didn't want to answer any questions or make any
further statements or anything.
TH100-101.
Cross-Examination:
Q. All right. Let me go back to one of the statements
that Mr. Shriner is giving——and it was kind of at the end
of Mr. Hebert's direct examination—you said that during
one of the times you were talking to Mr. Shriner concern-
ing the weapon or the gun, he made the statement to you
something about, “I’m crazy” or “Stop. I’m crazy.”
A. Yes, sir.
Q. Kind of vague. We are not sure as to the terminology
that was used. The word crazy was used, though.
A. Crazy or nuts. “It's like I'm crazy or nuts.” And |
interpreted that to mean, “It's like I'm not really nuts,
but for your sake and, you know, in answering these
questions, further questions, it’s like I’m nuts to you.”
Q. Was he saying he was just getting confused or tired?
A. My impression was that he was saying, like, from now
on out as far as concerning the gun and specifics of the
8 Days Inn robbery, it was like he was insane, that, you
know, the answers would be like a crazy man. I got the
impression he was saying, “Don’t bother asking me any
more questions about that.”
Q. I believe you said on direct examination——did he say,
“I don’t want to answer any more questions”?
A. He never told me specifically like, “I don’t want to
answer any more questions,” that I can remember.
Q. Did you get the impression he didn’t want to answer
any more questions?
A. About that part of the incident, yes, about the 8 Days
Inn and where he got the gun and things of that nature
and any more specifics, yes, but then we sat there for a
minute or two and | asked him some other questions. I
think # was about his personal. . .
Q. About his family and personal things.
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SUPREME COURT OPINIONS a
A. Yes, and he just answered an. .¢ started another
conversation and he had no problem.
TH107-108.
. At trial Mr. Nilon offered this account:
Cross-Examination:
Q. At the point in time that you are talking to him now
concerning the Eight Days Inn, I believe there was a little
. incident that took place, and you are talking to Mr.
Shriner, and I believe that Mr. Shriner seemed to indicate
to you that he did not want to talk, he was having
problems. My understanding is did he use the words
“I am crazy” or “1 am having problems”. Do you
remember the thing that I am talking about?
A. Yes, 1 do.
Q. Okay. There was some problem at this point in time,
was there not, in the interview room, that existed between
Mr. Shriner and yourself as to this interrogation?
A. I don’t know what you mean by a problem. There was
a point in time that he made some of the statement that
you are talking about.
Q. Can you be more specific about that, please?
A. Yes, 1 can. I had gotten some information from one
of the investigators, and I can’t tell you which one
because there were a number of them, prior to going
into the room concerning a piece of paper, | think it was
a registration that the person who had committed the
robbery had signed before he or as he was pulling the
robbery giving an Arizona address.
I started questioning Mr. Shriner about signing the
registration and did he sign his address or his parents’
address, and he, | don't want to say smile, but he had
kind of a smirk or a grin on, his face and said that “l
am crazy.” I said, “0 you mean by that that you are
actually, you know, out of your mind or crazy?” And!
daqn’t. remember whether he answered that or not.
I said, “Well, you mean you don’t want to answer any
more questions about that?” And he said, “Yeah.”
Q. Okay. But there was some problem at this point in
family things?
A. Yes. At that point in time, during those conversations.
I really terminated conversations about any offenses.
TT 720-722.
Redirect Examination
Q. Now, you mentioned that he mentioned to you that he
didn’t want to talk about it, he gave you an impression
that he didn’t want to talk about the specifics of the
folio. Did he have any objections about going on and
talking about other things?
A. Specific——I am sorry, I didn’t understand.
Q. All right. Mr. Kearns talked about the thing called
problems sometime——
A. Yes.
Q. ——where the defendant said or you asked him about
the folio, signing it, and he said, “I am nuts,” and you said,
“You just don’t want to talk about it any more.” You
didn’t talk to him any more about the folio; is that
correct?
A. No,| dropped that subject.
Q. Okay. Did he have any problem talking about anything
else?
A. No, sir.
Q. Did he ever say that he didn’t want to talk about any-
thing else?
A. No, sir.
Q. Did he freely and voluntarily answer other questions
that you asked him?
A. Yes, sir. As 1 stated before, there was about a minute
or two lull period where we just sat there and | said——
well, | might have started something like, “Carl, where
are you from?” And then we started about personal
matters that I have already testified to.
Q. All right. Now, during that time when he was making
the admissions of guilt to you, “I shot her, why I shot her,”
did he ever stop or tell you that he wanted to stop talking
about it?
time, he did not want to talk about it? A. No, sir.
MR. HERBERT (state attomey]: The State objects, Q. Or that he wanted a lawyer?
Your Honor. The words speak for themselves. What A. No, sir.
counsel calls a problem, the witness has already said TT 727-728.
that he doesn't know what that means but he is telling Appellant testified in his own behalf at the motion to suppress
what happened. but made no mention of any desire to terminate questioning
MR. KEARNS [defense counsel]: I will rephrase the We are satisfied that, based on Mr. Nilon's testimony and the
question, Your Honor. absence of rebuttal evidence.to the contrary, the trial judge correctly
THE COURT: The objection is moot by the question concluded that appellant wanted to terminate questioning only
being withdrawn. insofar as it related to the 8 Days Inn robbery. We are similarly
BY MR. KEARNS: satisfied that Mr. Nilon respected appellant's partial exercise of his
Miranda privilege and restricted further questioning to other
ae that particular ares, reas. Given this posture, the police did not run afoul of Mirands
A. No, he did not. and Mosley by continuing the interrogation:
When a person in custody has responded to proper police
interrogation by voicing a general willingness to talk, subject
only to a limited desire for silence, and his wishes not to
discuss a particular subject-matter area are respected, nothing
minute or two lull or lapse and that is when I started rooted in law or constitutional policy makes it improper to
talking about personal things. question him as to any unlimted subjects. 9
Q. Okay. Then you started going on about this personal [United States v. Vasquez, 476 F. 2d 730, 732-33 (Sth Cir. 1973);
Q. Now, based upon that response, did you inquire as
to whether or not he wished to continue?
A. No, sir. At that point in time there was about a
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268
SUPREME COURT OPINIONS
5/30/80
accurd, Sinith v. United States, 505 F. .u 824 (6th Cir.
1974); United States v, Mathews, 417 F. Supp. 813 (E.D.
Pa.), aff'd., 547 F. 2d 1165 (3d Cir. 1976), cert. denied,
429 US. 1111 (1977).
Hence, appellant's confession was properly admitted at trial.
Appellant next asserts error in the admission of evidence
relating to the 8 Days Inn robbery. He properly cites
Williams v. State, 117 So. 2d 473 (Fla. 1960), for the Ppropo-
sition that evidence of other crimes is inadmissible if
nftered solely for the murmose of showine had character or
Plupeliaily, Lowe ver, Wades WOss persiiit Cried Ul
other ‘crimes
if it casts light on the character of the act under investi-
gation by showing either motive, intent, absence of
mistake, common scheme, identity or a system or
general pattern of criminality so that the evidence of such
other crimes would have a relevant or material bearing
upon some essential aspect of the offense then being
tried. ;
Ashley v. State, 265 So. 2d 685, 693 (Fla. 1972).
Relevancy is the test; if the proffered evidence is relevant
for any purpose other than to show bad chrracter or propen-
sity, it should be admitted. Id.
We concur in the trial judge's ruling that evidence of the
8 Days Inn robbery was admissible to prove identity. The
following facts adduced at trial make apparent the relevancy
of this evidence: (1) police found a .38 caliber gun and
cartridges in appellant's residence; !0 (2) ballistics expert
Bollenback identified the gun found in appellant’s residence
as the murder weapon; !! (3) at 3,00 a.m., only ninety.
minutes after Judith Carter's murder, a man robbed the 8
Days Inn. The hotel clerk identified appellant as the culprit
and testified that the gun used in ¢ robbery closely
resembled the murder weapon. 44 Thus, the evidence of the
8 Days Inn robbery, if believed by the jury, places the
murder w t nt within
minutes of Judith Carter’ Such evidence is clearly
probative of the murderer's identity.
The remaining issues involve the sentencing phase of the
trial. Appellant's constitutional attack on the death penalty
has been thoroughly canvassed in prior decisions and found
groundless. Proffitt v. Florida, 428 U.S. 242 (1976); Alford v
State, 307 So. 2d 433 (Fla. 1975), cert. denied, 428 US.
912 (1976); State v. Dixon, 283 So. 2d 1 (Fla. 1973), cert.
denied, 416 U.S. 943 (1974). Equally meritless is the con-
tention that it was error to exclude the testimony of a priest
who had witnessed an execution by electrocution. While
it is settled that an advisory jury and trial judge may consider
evidence of mitigating factors beyond those enumerated in
section 921.141 (6), F. S. (1977), 13 the evidence must be
relevant to the sentencing inquiry. We do not believe that
a descriptive account of an electrocution would aid the jury
Or judge in their effort to apply section 921.141 fairly and
correctly. Indeed, such evidence would more likely serve to
distort and obfuscate the process.
Appellant contends finally that his death sentence is
fatally defective because the judge considered nonstatutory
aggravating circumstances. The relevant portions of the
judge’s findings are as follows:
The question occurs as to whether death or life im-
prison ment should be the verdict of this Court. Using the
statutory guidelines of mitigating circumstances as
Opposed tv aggravating circumstances, the Court finds under
aggravating circumstances the following:
1. Whether the Defendant was under sentence of imprisonment
when he committed the murder for which he was convicted. This
cas does not fit this guideline.
2. Whether the Defendant has previously been convicted of
another capital felony or of a felony involving the use or threat of
violence to the person.
The Defendant CARL ELSON SHRINER was convicted of the
offense of Armed Robbery in Dade County in 1972. He served a
AVS yes wm tedetnns tte tin ov jo : oe tht etoeene
for this act.
3. Whether in committing the murder for which he has just been
convicted, the Defendant knowingly created a great risk of death to
many persons. This guideline is not applicable to this case.
4. Whether the murder for which the Defendant was convicted
was committed while he was engaged in the commission of or an
attempt to commit, or flight after committing or attempting to
commit, any robbery, rape, arson, burglary, kidnapping, aircraft
piracy or the unlawful throwing, placing or discharging of a
destructive bomb or device.
The evidence shows in this case that the Defendant killed Judith
Ann Carter while perpetrating robbery.
The following are statutory mitigating circumstances which have
been considered:
1. Whether the Defendant has no significant history of prior
criminal activity.
2. Whether the murder was committed while Defendant was
under the influence of extreme mental or emotional disturbance.
3. Whether the victim was a participant in the Defendant's
conduct or consented to the acts.
4. Whether the Defendant was an accomplice in the murder
committed by another person and the Defendant's participation
was relatively minor.
5. Whether the Defendant acted under extreme duress or
under the substantial domination of another person.
6. Whether the capacity of the Defendant to appreciate the
criminality of his conduct or to conform his conduct to the require-
ments of law was substantially impaired.
7. The age of the Defendant at the time of the crime.
The Court finds, with the possible exception of No. 6 above, there
are no mitigating circumstances in this case. An examination of
the psychiatric evaluation in this case, found both in the presentence
investigation from the Department of Offender Rehabilitation and
by the various psychiatrists appointed to represent this Defendant
Prior to trial, he has been diagnosed as a “sociopathic personality.”
An examination of these reports, however, does not lead one to
the conclusion that his capacity is diminished thereby.
The Court finds that the aggravating circumstances far outweigh
the mitigating circumstances.
In addition, an examination of the presentence investigation,
which was nade available in its entirety, including the confidential
section, to the attorney for the Defendant prior to sentencing,
indicates that during the Defendant's incarceration at the Depart-
ment of Offender Rehabilitation, he has presented a discipline
problem and to some degree a security.risk. The investigation
further shows that he has engaged in a long pattern of violent crim-
inal conduct. In addition, it is apparent that the robbery that was
committed in perpetration of the death of judith: Ann Carter
was not the sole robbery committed by this Defendant subsequent
to his release from prison some three weeks prior to the date of
the offense.
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et
269
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if | Criminal Law ‘“urder—Death Penalty—Exclusion of
Asa matter, the rn 4 is replete with — Propsective J. .cs Who Could Not Vote to impose Death
evidence to support the judge's finding of aggravating cir- Penalty Pro our Day Delay in Holding Sentencing
cumstances numbered two and four.” The record also
supports the finding of no mitigating circumstances. It
is not clear, however, whether the judge considered appel-
lant’s disciplinary record as an aggravating circumstance.
Even if we assume that the disciplinary problem was so
treated, the error was harmless. We have here two valid
aggravating circumstances counterbalanced by no mitiga’
circumstances. Since death is presumed in this situation, !
improper consideration of a nonstatutory factor does not
render the sentence invalid:
It appears that the United States Supreme Court does not
fault a death sentence predicated in part upon non-
statutory aggravating factors where t no miti-
ing ci The absence of mitigating circum-
stances become important, because, so long as there are
some statutory aggravating circumstances, there is no
danger that nonstatutory circumstances have served to
overcome the mitigating circumstances in the weighing
process which is dictated by our statute.
Elledge v. State, 346 So.2d 998, 1002-03 (Fla. 1977)
(emphasis in original).
Accordingly, the judgment of guilt and the sentence of
death are affirmed. It isso ordered. (England, CJ.,
Adkins, Boyd, Overton, Sundberg and Alderman, JJ., Concur)
1. References to specific pages in the record will be designated as
follows: record on appeal, R; supplemental record on appeal, SR;
Trial transcript, TT; red-bound transcript of 2/3/77 hearing, TH.
2. Miranda v. Arisona, 384 U.S. 436 (1966).
3. TT 641 4. TT 651, 655 5. TT 636
6. The facts surrounding this episode will be fully explored later
in this opinion.
7. United States v. Chariton, 565 F.2d 86, 89 (6th Cir. 1977),
cert. denied, 434 U.S. 1070 (1978).
8. Id.
9. We also concur with the Circuit Court's footnote no. 2 to the
However, this record ts bare of any perfidious police practices. And
considering fhe lack of contradictory evidence in Shriner's testimony
at the motion to suppress, we would be irresponsible to overturn
the trial judge's finding of voluntariness. See Cooper v. State, 336
So. 2d 1133 (Fla. 1976), cert. denied, 431 U.S. 925 (1977).
10. TT 611.
11. TT 636.
12. TT 641-56.
13. See Lockett v. Ohio, 438 U.S. $86, 98 S.Ct. 2954; $7 L.
Ed. 24 973 (1978); Proffitt v. Florida, supra; Spinkellink v. Wain-
pn $78 F. 2d $82 (Sth Cir. 1978), cert. denied, 440 US. 976
( 7
14. Section 921.141 (S)(b) and (4), F. S. (1977).
15. “When one or more of the aggravating circumstances is found,
death is presumed to be the proper sentence unless it or they are
overriden by one or more of the mitigating circumstances. . . Ne
State v. Dixon, 283 So. 2d at 9.
Phase and Failure to Sequester Jury Not Denial of Due
P secutorial Discretion in Granting Immunity
to Co-Perpetrator Does Not Render Death Penalty
Unconstitutional
ERNEST CHARLES DOWNS, *°
Appellant, °
v. * CASE NO. “3,524
STATE OF FLORIDA, 7
Appellee. °
eeseoeee eee eee
May 22,1980. An appeal from the Duval County Circuit Court.
Pate, Judge. Case No. 77-2874 Div. S.
Richard Lovett Brown, Jacksonville, Florida, for appellant.
Jim Smith, Attorney General, and Raymond J.. Marky, Assistant
Attorney General, Tallahassee, Florida, for appellec.
(PER CURIAM) Ernest Charles Downs was convicted of
the murder in the first degree of Forrest Jerry Harris, Jr.
The jury recommended that the death penalty be imposed,
and, after weighing the aggravating and mitigating circum-
stances, the trial court imposed a sentence of death. Downs’
conviction and sentence of death are before this Court on
direct appeal pursuant to article V, section 3 (b\(1), Florida
Constitution. Downs also appeals his conviction for con-
spiracy to commit first-degree murder. We have reviewed
the record, considered the fifteen points raised on appeal, and
have found no reversible error.
in April, 1977, John Barfield approached Downs with an
offer of five thousand dollars if Downs would kill Harris.
Downs accepted the contract to kill Harris and enlisted the
assistance of Larry Johnson. On April 23, 1977, at Downs’
insistence, Johnson phoned Harris and identified himself as
Joseph Green, from whom Harris was expecting a call, and
told Harris that he wanted to talk to him about flying con-
traband. They arranged a meeting in Jacksonville. Downs
drove down a dirt road and left Johnson there to await
Downs’ return with Harris. Downs picked up Harris and
drove to the location where he had left Johnson. Harris exited
the car and approached Johnson at which time Downs shot
Harris four times in the head with a .25 caliber automatic
pistol. Together, Downs and Johnson dragged the body off
the road into the bushes where Downs fired another shot
into Harris’ chest to make sure that he was dead.
Downs argues that his conviction should be reversed
because the trial court erred in allowing into evidence a dia-
gram prepared by Johnson outside the courtroom, because
he was denied due process by the prosecutor's interruption
of defense counsel during defense reply summation , because
he was denied an impartial jury, because he was deprived of
due process by not being allowed to videotape depositions,
because his right to cross-examine a witness was curtailed,
because he was deprived of his right to compulsory process
for obtaining witnesses, because he was denied his fifth
amendment right against self incrimination , because he was
denied due process by admission of a particular hypothetical
question propounded by the prosecutor to the medical
examiner, because the judge commented on the evidence,
and because the evidence is insufficient to support the con-
viction.
For the most part, Downs’ points on appeal are completely
THE FLORIDA LAW WEEKLY is 2 publication of Judicial and Administrative Research Associates.
1327 North Adams Surest. Post Office Bon 4284, Tallahasace. Florida 32303. Phone (904) 222-3171.
fe:
IN THE SUPREME COURT OF FLORIDA
WEDNESDAY, AUGUST 27, 1980
CARL ELSON SHRINER, ss
Appellant, ine CASE NO. 51,749
vs. a
Circuit Court Case No. 76-822-CF
**
STATE OF FLORIDA, (Alachua)
Appellee. =
On consideration of the motion for rehearing filed by
attorney for appellant,
IT IS ORDERED by the Court that said motion be and the
same is hereby denied.
A True Copy Cc
cc: Hon. A. Curtis Powers, Clerk
TEST: Hon. R. A. Green, Jr., Judge
Daniel T. O'Connell, Esquire
of O'Connell & Hulslander
Sid J. White A. S. Johnston, Esquire
Clerk Supreme Court
QiIhi. Ce rrarewe
By:
Deputy Clerk
IN THE CIRCUIT COURT OF FLORIDA
EIGHTH JUDICIAL CIRCUIT, IN AND
FOR ALACHUA COUNTY, FLORIDA
STATE OF FLORIDA,
=
Plaintiff, e : 2 i
vs. ase No. 76-822-CF ee
==" ~N
CARL ELSON SHRINER, aa
al: ae
Defendant. Pt yee
ee o- e “ee ~- pe _.
a m
; wo
SENTENCE
The Defendant, CARL ELSON SHRINER, was indicted by a
Grand Jury of Alachua County, Florida, and charged with the
first degree murder of Judith Ann Carter.
The case came on for trial and resulted in a verdict
of Guilty of Murder in the First Degree. The Jury, upon
further deliberation, returned an advisory sentence verdict
of death.
During the course of the trial proceedings, the Defendant
twice asked the jury to recommend death rather than life in
prison.
Upon sentencing, however, the Defendant retracted
that request,
The facts of the case show that on the date of the occur-
rence, the deceased was a clerk in a local convenience store.
The Defendant, after he robbed the deceased, shot her five
times until she was dead.
From the evidence adduced upon this
trial
» there is no doubt that the Defendant is guilty of the crime.
The question occurs as to whether death or life imprison-
ment should be the verdict of this Court.
Using the statutory
guidelines of mitigating circumstances as opposed to aggravating
circumstances,
the Court finds under aggravating circumstances
the following:
1. Whether the Defendant was under sentence of imprison-
ment when he committed the murder for which he was convicted.
This case does not fit this guideline.
2. Whether the Defendant has previously been cpnyeetedene
p
im
m
o
Fited & Recorded
judgment Docket
niinutes ot Cour=
ke $4 pose t £70
Boek Pe evit Soni?
of another capital felony or of a felony involving the use of
or threat of violence to the person.
The Defendant CARL ELSON SHRINER was convicted of the
offense of Armed Robbery in Dade County in 1972. He served
a five-year sentence in the Department of Offender Rehabilita-
tion for this act.
3. Whether in committing the murder for which he has
just been convicted, the Defendant knowingly created a great
risk of death to many persons. ‘his guideline is not appli-
cable to this case.
4. Whether the murder for which the Defendant was con-
victed was committed while he was engaged in the commission of
or an attempt to commit, or flight after committing or attempting
to commit, any robbery, rape, arson, burglary, kidnapping,
aircraft piracy or the unlawful throwing, placing or discharging
of a destructive bomb or device.
The evidence shows in this case that the Defendant killed
Judith Ann Carter while perpetrating robbery.
The following are statutory mitigating circumstances
which have been considered:
1. Whether the Defendant has no significant history of
prior criminal activity.
2. Whether the murder was committed while Defendant
was under the influence of extreme mental or emotional distur-
bance. fe
3. Whether the victim was a participant in the
Defendant's conduct or consented to the acts.
4. Whether the Defendant was an accomplice in the murder
committed by another person and the Defendant's participation
was relatively minor.
5. Whether the Defendant acted under extreme duress or
under the substantial domination of another person.
6. Whether the capacity of the Defendant to appreciate
the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired.
ois
7. The age of the Defendant at the time of the crime.
The Court finds, with the possible exception of No. 6
above, there are no mitigating circumstances in this case.
An examination of the psychiatric evaluation in this case,
found both in the presentence investigation from the Depart-
ment of Offender Rehabilitation and by the various psychiatrists
appointed to represent this Defendant prior to trial, he has
been diagnosed as a "sociopathic personality". An examination
of these reports, however, does not lead one to the conclusion ©
that his capacity is diminished thereby.
The Court finds that the aggravating circumstances far
outweigh the mitigating circumstances.
In addition, an examination of the presentence investi-
gation, which was made available in its entirety, including
the confidential section, to the attorney for the Defendant
prior to sentencing, indicates that during the Defendant's
incarceration at the Department of Offender Rehabilitation,
he has presented a discipline problem and to some degree a
security risk. The investigation further shows that he has
engaged in a long pattern of violent criminal conduct. In
addition, it is apparent that the robbery that was committed
in perpetration of the death of Judith Ann Carter was not the
sole robbery committed by this Defendant subsequent to his
release from prison some three weeks prior to the date of the
offense.
Upon being asked in open court if the Defendant had any
cause to show why the sentence of the law should not be
pronounced, and having said nothing sufficient, IT IS THE
ORDER AND JUDGMENT OF THIS COURT THAT
YOU, CARL ‘ELSON SHRINER, BE SENTENCED TO DEATH IN THE
ELECTRIC CHAIR. IT IS THE ORDER, JUDGMENT AND SENTENCE OF
THIS COURT THAT YOU BE TAKEN BY THE PROPER AUTHORITIES TO THE
FLORIDA STATE PRISON AND KEPT THERE IN CLOSE CONFINEMENT UNTIL
THE DATE YOUR EXECUTION IS SET, THAT ON SUCH DAY YOU SHALL BE
PUT TO DEATH BY HAVING ELECTRICAL CURRENTS PASS THROUGH YOUR
Filed & MNeacordced
-3- Sucrment Docket
Minuteo ef Court
/ wn 89 ort tad
Cler =a Resse
.*
t ey + @
Judgment Docket
Minutes of Court
Book Bd Pore #_f ] Z
Clerk Cirenc? Curt
BODY IN SUCH AMOUNTS AND FREQUENCY UNTIL YOU ARE RENDERED
DEAD.
The Defendant is advised that the case will be appealed
directly to the Florida Supreme Court and the Public Defender
of the Eighth Judicial Circuit is hereby appointed to represent
the Defendant for purposes of appeal.
DONE AND ORDERED in open court at Gainesville, Alachua
County, Florida this 29th day of April, 1977.
| xy ©% :
CIRCUIT JUDGE
Copies to: \
Counsel of Record
§ 919.01 crim. PROC. & CORRECTIONS
CHAPTER 919. CONDUCT OF JURY
$19.01 to 919.22 Repealed by Laws 1970, c. 70-339, § 180
For superseding provisions contained
in 1972 rida. Rules of Criminal Proce-
dure, see, now, Rules 3.370, $.391 et seq.
CHAPTER 921. SENTENCE
Sec. Sec.
B f victim to an Fel ts; fi rints
NMG Aeatervent r¢ sustencing hears "Mt Felony, Jugmente: fingeryr
ing; submission of written
statement [New).
921.14! Sentence of death or life imprisonment for capital felonies; fur-
ther proceedings to determine sentence
(1) Separate proceedings on issue of penalty.—Upon conviction or adjudica-
tion of guilt of a defendant of a capital felony, the court shall conduct a sep-
arate sentencing proceeding to determine whether the defendant should be
sentenced to death or life imprisonment as authorized by s. 775.082. The pro-
ceeding 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 pro-
vided in chapter 913 to determine the issue of the imposition of the penalty.
If the trial jury has been waived, or if the defendant pleaded guilty, the sen-
tencing proceeding shall be conducted before a jury impaneled for that yur-
pose, unless waived by the defendant. In the proceeding, evidence mzy be
presented as to any matter that the court deems relevant to the nature of the
crime and the character of the defendant and shall include matters relating
to any of the aggravating or mitigating circumstances enumerated in tsubsec-
tions (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 thé defendant is accorded a fair opportunity to re
but any hearsay statements. However, this subsection shall not be construed
to authorize the introduction of any evidence secured in violation of the Con- |
stitution of the United States or the Constitution of the State of Florida.
The state and the defendant or his counsel shall be permitted to present argu-
ment 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 which outweigh the
aggravating circumstances found to exist; and
(c) Based on these considerations, whether the defendant should be sen-
tenced to life imprisonment or death.
(3) Findings In support of sentence of death.—Notwithstanding the recom-
mendation of a majority 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 imposes a sentence of death, it shall set forth in writ-
ing 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 circumstances to outweigh the ag-
gravating circumstances.
In each case in which the court tmposes the death sentence, the determination
of the court shall be supported by specific written findings of fact based
76
‘is
b NRE EY cid Me peta ce tr bates,
miley
-s
wy
SAMA ody Bho. 2
MP om
<mamm
CRIM. PROC. & CORRECTIONS § 921.14]
upon the circumstances in subsections (5) and (6) and upon the records of
the trial and the sentencing proceedings. If the court does not make the
(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 uot
to exceed thirty (30) days by the Supreme Court for g00d 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 cir t Aggravating circumstances shall be lim-
ited to the following:
(a) The capital felony was committed by a person under sentence of im-
prisonment.
(b) The defendant was Previously convicted of another capital felony
or of a felony involving the use or threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many per-
sons.
(a) The capital felony was committed while the defendant was engaged,
or was an accomplice, in the cqammission 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.
. (©) The capital felony was committed for the purpose of avolding or pre-
venting a lawful arrest or effecting an escape from custody.
(h) The capita) felony was especially heinous, atrocious, or cruel.
(i) The capital felony was a homicide and was committed in a cold, calcu-
lated, and premeditated Joanner without any pretense of moral or legal justi-
fication.
(6) Mitigating circumstances.—Mitigating circumstances shall be the fol-
lowing:
(a) The defendant has no significant histery of prior criminal activity.
(b) The capital felony was committed while the defendant was under the
influence of extreme mental or emotiona! disturbance.
(c) The victim was « participant in the defendant's conduct or consented
(a) The defendant was an accomplice in the capital felony committed by
another person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial
domination of another person.
(g) The age of the defendant at the time of the crime.
Amended by Laws 1972, ¢. 72-724, § 9, eff. Dec. 8, 1972. Amended by Laws
1974, c. 74-379, § 1, eff. Oct. 1, 1974; Laws 1977, ¢. 77-104, § 248, eff. Aug. 2,
1977; Laws 1977, c. 77-174, § 1, eff. Aug. 2, 1977; Laws 1979, c. 79-353, § 1,
eff. July 3, 1979.
~ dstan La 1979, c. 78-3 substituted tn
me J thie ets wa om of ~_— the fifth sentence of (1) “to the
Laws 1974, c. 74-379, ‘ 1, added the nature of the crime and character of
third sentence to 1). the defendant” for “‘to sentence’ delet-
erected erfors and Gsieted chester, | S4,iR, subsece. (2) (b oy) eee
or A -
saaered See Reviser's ed subsec. (5)(i).
ry sit. ©. 77-174, @ reviser’s bill, Reviser’s Note—1977:
amended section to reflect language _ Conforms internal references to edi-
at of torial of subsections cre-
Seatetery’ revision and indesine ated by a book tetee Laws of Florida.
77
1979 REGULAR SESSION Ch. 79-353
least quarterly to discuss safety problems within § state government, to
attempt to find solutions for these problems and, when possible, to
assist °\ the implementation of the solutions.
(3) The council shall report annually to the Governor and the
Legislature, by January 15 preceding any regular legislative session, any
actions taken to prevent job-related employee accidents, together with
suggestions of safeguards and improvements.
Section 2. Subsections (3), (4), (5), and (6), of section 633.081,
Florida Stetutes, are hereby repealed. ‘
Section 3. This act shall take effect October 1, 1979.
Approved by the Governor July 3, 1979. :
Filed in Office Secretary of State July 5, 1979.
CRIMES AND OFFENSES—CAPITAL PUNISHMENT ,
CHAPTER 79-353
Senate Bill No. 523
An act relating to capital punishment; amending s. 921.141(1),
(2), (3), (5), Plorida Statutes; Providing that evidence may
be presented as to ony matter that the court deems relevant
to the nature of the crime and the character of the defendant
at sentencing proceedings on the issue of the Penalty for a
defendant convicted or adjudicated guilty of a capital
felony; specifying grounds upon which the jury renders an
advisory sentence to the. court; specifying findings upon
which the court imposes the sentence of death; providing an
additional circumstance which the court .or the jury must
consider as an aggravating circumstance; providtiy an
effective date.
Be It Enacted by the Legislature of the State of Florida:
Section 1. Subsections a), (2), 3) and (5) of section 921.141,
Tlorida Statutes, are amended to read: , ;
921.14) Sentence of death or life imprisonment for capital felonies;
further Proceedings to determine sentence,-- g
(1) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon conviction or
*djudication of guilt of a defendant 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 s. 775.082. The proceeding shall be conducted by the trial judge
before the trial jury as soon as practicable. If, through impossibility
cr inability, the trial jury is unable to reconvene for a hearing on the
issue of penalty, having determined the guilt of the accused, the tria)
judge moy Summon @ special juror or jurors as provided in chapter 913 to
determine the issue of the imposition of the penalty. If the trial jury
has been waived, or if the defendant Pleaded guilty, the sentencing
Proceeding shall be conducted before a jury impaneled for that. purgose,
wiless waived by the defendant. In the proceeding, evidence may be
CODING: Words in etruch-threough type are deletions from existing law;
words in underscored type are additions. a }
* 2025
Ch. 79-353 1979 REGULAR SESSION
Presented as to any matter that the court deems relevant to the nature ‘o
the crime and the character of the defendant to-sentenece, and shal],
ne e matters relating o any o the aggravating or mitigatin
circumstances enumerated in subsections (5) and (6). Any such evidence:
which the court deems to have probative value may be received, regardlessi.|
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 thew
constitutions of the United States or of the State of Plorida., The state,
end the defendant or his counsel shall be permitted to~ present argumen'
for or against sentence of death. m
(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 enumerate
in subsection (5); 3
‘ ;
(b) Whether sufficient mitigating circumstances exist as-enumerated
4n-subseett+on-46}7 which outweigh the aggravating circumstances found t
exist; and ‘ ' . o Mb i3
(c) Based on these considerations, whether the defendant should b
sentenced to life imprisonment or death. ~
‘ .
(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH.~-Notwithstanding th
eggraveting and nes tea circumstances shall enter a sentence o lifes
f
shall set forth in writing its findings upon which the sentence of death
is based as to the facta: , :
(a) That sufficient aggravating circumstances exist as enumerated |
subsection (5), and ' “i
(b) That there are insufficient mitigating circumstances7--as
enumerated-4n-subseetton-{6}7 to outweigh the aggravating circumstances
In each case in which the. court imposes the. death sentence, th
determination of the court shall be Supported by specific writ
findings of fact based upon the circumstances in subsections (5) and (6
end upon the records of the trial and the Sentencing proceedings. -If th
court does not make the findings requiring the death sentence, the cour
shall impose sentence of life imprisonment in accordance with s. 775.08
ove no @ ; +, ‘> Je
(5) AGGRAVATING CIRCUMSTANCES .~--Aggravating ‘Circumstances shall
limited to the following: . ' : td
=e) The capital. felony was committed by a person under sentence:
imprisonment. . : pend See ;
(b) The defendant was previously convicted of another capitel feli
or of @ felony involving the use or threat of violence to the person.
B 4
%
’ ‘ al
(c) : The defendant knowingly created a Great risk of death to ma
persons. :
{d) The capital felony was committed while the defendant was engage
or was an accomplice, in the commission of, or an attempt to commit, :
CODING: Words in: strech-through type are-deletions from existing law;
words in underscored type are additions. Stet a
1979 REGULAR SESSION Ch. 79-354.
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 pecuniary gain.
(g) The capital felony was committed to disrupt or hinder the lawful
exercise of any governmental function or the enforcement of laws.
(h) The capital felony was especially heinous, atrocious, or cruel.
Section 2. This act shall take effect upon becoming a law.
Approved by the Governor July 3, ° /9.
{A
Filed in Office Secretary of State July 5, 1979.
or 8 be, : ‘ ae ‘
SCHOOLS—FOOD SERVICE PROGRAM—FUNDING
. "CHAPTER 79-354
,
Senate Bill..No. 53)
An act relating to school food service programs; amending s.
228.195(4),- Florida Statutes; changing the formula for
determining the level of state support for the district:
school food service programs; providing an effective date.
Be It Enacted by the Legislature of the State of Plorida:
Section 1. Subsection (4) of section 228.195, Florida Statutes, is
amended to read: oa Eee ‘
228.195 School food service programs.--+ "-
(4) bEVBL--OF STATE SUPPORT.--The state shall provide the state
National School Lunch Act matching requirements. The funds provided
shall be distributed In such # manner as to comply wit e requirements
for state matching under the Nationa School Lunc ct. per--meat
ehfference7--when-the-computed-cost-of -meale-served-to-econombentiy-needy
ehttdren-exceedsr
fad
4a}--Eneome-from-federet-sourcesy-and
+{b}~-Recetpts-from-the-sate-of-reduced-price-mesisr
the--computed--cost--of --meaks--shat}--not-—enceed--the-necessary-cost-of
shtotntngy-prepertngy—and-serving-such-meols-es-presertbed-by-requbattons
0f-the-state-booerdr
Section 2. This act shall take effect July 1, 1979. :
Approved by the Governor July 3,71979. ’
Filed in Office Secretary of State July 5, 1979.
CODING: Words in etruek-through type are deletions from existing law;
words in underscored type are additions.
2027
Ss
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.