Petition — Johnson v. Florida

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

MARVIN EDWIN JOHNSON

Petitioner,

-V.°-

STATE OF FLORIDA

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

P. DOUGLAS BRINKMEYER THEODORE E. MACK

ASSISTANT PUBLIC DEFNDER ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671 POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302 TALLAHASSEE, FLORIDA 32302

(904) 488-2458 (904) 488-2458

(MEMBER OF THE BAR OF THIS COURT) (COUNSEL FOR PETITIONER

UPON WHOM SERVICE IS TO

BE MADE.)

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF CITATIONS

QUESTION PRESENTED

CITATION TO OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED

BELOW

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

THE IMPOSITION OF A DEATH SENTENCE CONTRARY TO A JURY

PENALTY VERDICT OF LIFE IMPRISONMENT VIOLATES THE

DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT, THE

CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OF THE EIGHTH

AMENDMENT AND THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT

A.

The Imposition Of Death After A Jury

Decision For Life Is Contrary To The

Near-Unanimous Consensus Of The States

And The Great Weight Of Professional

Legal Opinion, Raising Grave Questions

Of Constitutionality Under The Sixth,

Eighth, And Fourteenth Amendments.

Florida's Practice, As Interpreted By

The Highest State Court In Petitioner's

Case, Is Based On The Mistaken Notion

That A Final Jury Decision For Life

Would Violate The Federal Constitution,

Indicating Violation Of The Eighth And

Fourteenth Amendments.

Florida's Policy Of Overturning Jury Life

Decisions Merely In Order To Avoid Isola-

ted “Errors” For Mercy Violates The Sixth

And Fourteenth Amendment Values Held App-

licable To Capital Penalty Juries In

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

The Overturning At The State's Behest Of

A Representative Jury's Verdict Against

The Death Penalty Based On Statutory

Findings Of Fact Constitutes A Unique

Double Jeopardy Situation Under The Fifth

And Fourteenth Amendments.

Since The Overriding Of A Jury's Verdict

For The Accused In A Trial Of Guilt Would

Be Not Only Unconstitutional But Schockingly

Unfair, Use Of This Procedure In The Pen-

alty Phase Of A Capital Case Should Be

Carefully Scrutinized Under The Due Process

Clause Of The Fourteenth Amendment.

12

15

18

21

PAGE(S)

REASONS FOR GRANTING THE WRIT (CONT,)

F. Infliction of The Extraordinary And Con-

troversial Sanction Of Death By An Unrep-

resentative State Judiciary, Contrary To

The Verdict Of A Jury Of The People, Con-

flicts With The Scheme Of Limited And

Representative Government Implicit In The

Eighth And Fourteenth Amendments, And

Violates The Principle Of Judicial Restraint. 24

CONCLUSION 28

CERTIFICATE OF SERVICE 29

APPENDICES: A - F

— ii-

TABLE OF CITATIONS

CASES PAGE(S)

Andres v. United States, 333 U.S. 740 (1948) 9

Baldwin v. New York, 441 U,S, 130 (1979) 9

Beck X. Alabama, _—saXUX«.S. _s,:100 8. ct. 2382 (1980) 8,9,12

Benton v. Maryland, 395 U.S. 784 (1969) 20,21

Bloom v. Illinois, 391 U.S. 194 (1968) 17

Brown v. Wainwright, 392 80. 2d 1327 (Fla, 1981) 27

‘Bullington v. Missouri, ? 2, 79-6740 (decision pending) 8,20

Burch v. Louisiana, 441 U.S. 130 (1979) 9

Burks v. United States, 437 U.S. 1 (1978) 8

Chambers v. State, 339 So.2d 204 (Fla. 1976) 16

Coker v. Georgia, 433 U.S. 584 (1977) 8,9

Collins v. State, 548 S.W. 2d 106 (Ark. 1977) a4

Dobbert v, Florida, 432 U.S. 282 (1977) 7,8,

Douglas X. State, 373 80. 2d 895 (Fla. 1979) 14

Duncan v. Louisiana, 391 U.S. 145 (1968) 7,9,11,16,24

Furman v. Georgia, 408 U.S. 238 (1972) 7,9,10,11,12,13,14,15

19,21,27

Gardner v. Plorida, 430 U.S. 349 (1977) 8,21,22,23,24,25

Godfrey v. Georgia, _ U.S. __, 100 8. Ct. 1759 (1980) 8

Gregg v. Georgia, 428 U.S. 153 (1976) 11,14,19,21,25

Green v. United States, 355 U.S. 184 (1957) 19,27

Hof v. Capital Traction Co., 174 U.S. 1 (1899) 21

Jackson v. Virginia, 443 U.S. 307 (1979) 22

Johnson v. State, 393 So.2d 1069 (Fla. 1981) 1,14,26

Jurek v. Texas,428 U.S. 262 (1976) 20

Lockett v. Ohio, 438 U.S. 586 (1978) 8,10,12,15,19

Mazer v. Stein, 347 U.S. 201 (1954) 7

McCaskill v. State, 344 So.2d 1276 (Fla. 1977) 16

McGautha v. California, 402 U.S. 183 (1971) 20

Palko v. Connecticut, 302 U.S. 319 (1937) 20,21

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) 16,25

Patton v. United States, 281 U.S. 276 (1930) 17

CASES (CONT. PAGE(S

People v. Fitzpatrick, 308 M. Y. 8. 2d 18 (1970) 9

People v. Frierson, 25 Cal,3rd 142 (Cal. 1979) 14

Presnell v. Georgia, 439 U.S. 14 (1978) 8

Price v. Georgia, 398 U.S. 323 (1970) 20

Proffitt v. Florida, 428 U.S, 242 (1976) 6,7,8,11

Re Winship, 397 U.S. 358 (1970) 22

Reid v. Covert, 354 U.S. 1 (1957) 16

Roberts v. Louisiana, 428 U.S. 325 (1976) 9

Smith v. Commonwealth, 248 S.E. 2d 135 (Va. 1978) 14

Smith v. Texas, 311 U.S. 128 (1940) 15

Spinkellink v. Wainwright, 578 F.2d 582 (CA5 1978) 22

State v, Dixon, 283 80. 2d 1 Fla. 1973) 8,19

Stroud v. United States, 251 U.S. 15 (1919) 20

Swisher v. Brady, 438 U.S. 204 (1978) 8

Tedder v. State, 322 80. 2d 908 (Fla. 1975) 17

Turner v. Louisiana, 379 U.S. 466 (1965) 15

United States v. Difrancesco, U. 8. „ 66 L. Ed. 2d 328

P ee ee ony 7 8,19, 23

United states v. Gibert, (Case No. 15,204) 25 Fed. Cas 1287

38 19

United states v. Grayson, 438 U.S. 41 (1978) 10

United States v. Jackson, 390 U.S. 570 (1968) 8

United States v. Martin Linen Suppty Company, 430 U.S. 564

20,21

United States v. Moylan, 417 F.2d 1002 (CA4, 1969) 17

United States v. Sisson, 399 U.S. 267 (1970) 18

Williams v. New York, 337 U.S. 241 (1949) 10

Wilson v. State, 225 80. 2d 321 (Fla. 1969) 20,23

Witherspoon v. Illinois, 391 U.S. 510 (1968) 9,15,16,17,18

Woodson v. North Carolina, 428 U.S. 280 (1976) 12

CONSTITUTIONS AND STATUTES

Constitution of the United States, Fifth Amendment i,2,5,9,10,18

Constitution of the United States, Sixth Amendment .

CONSTITUTIONS AND STATUTES (CONT.) PAGE(S

Constitution of the United States, Eighth Amendment 1,2,5,9,10,11,24

Constitution of the United States, Fourteenth Amendment 1,2,5,15,18,

19,24

28 U. 8. Cc. § 1257 (3) 1

Section 921.141, Florida Statutes (1977) 2,3,4,

Section 775.083, Florida Statutes (1977) 2,3,23

Ill. Rev. Stat., c. 38 Section 107 (c) (1) (1967) 18

MISCELLANEOUS

A. BOOKS

Kalven and Zeisel, The American Jury (1966) 11

Michael and Wechsler, Criminal Law and Its Admistration,

(1956 Supp.) 11

Rubin, The Law of Criminal Correction (1963) 11

B. REPORTS

American Bar Association Project on Standards for Criminal

Justice, Sentenci Alternative and Procedure, Sec. 1.1

commentary 909 Draft 1968) 11

American Law Institute Model code, Section 210.6 (P. O. D.

1962) 12

Hearings, Select Committee on the Death Penalty, Florida

House of Representatives (August 9, 1972) 13

Journal of the House of Representatives, Nov. 30, 1972 13

Letter by Chief Assistant State Attorney Harry L.

Shorstein of September 6, 1972, in A final Report of

The Governors Committee to Study Capital 1

5 13

Message of the Governor of New York, Nov. 16, 1949

N.Y. 2 Doc. (1950) 10,11

New York State District Attorney's Association, Memorandum

and Draft Bill (October 17, 1960) 10

Presidents Commisssion on Law Enforcement and Administration

of Justice: The Challenge of Crime in Free Society, Task

Force Report 11

19451 of the Royal Commission on Capital Punishment

MISCELLANEOUS (CONT. ) PAGE(S

C. PERIODICALS

Ehrhardt and Levinson, Flor!

Furman: An Exercise in Fu

nology 13

Gardner v. Florida: The application of Due Process to

Sentencing Procedures, 63 Frs L. Rev. 1201 23

Jury Discretion and the Unita Trial Procedure in

apita ases,

Jury Sentencing in Virginia, 53 Virg. L. Rev. 968 4

118875 1,23

t--A Judge or Jury Function?

12

Lafont, Assessment of Punishmen

38 Texas

Powell, J Trial of Crimes, 23 Washington and Lee L.

Rev. l, ce) 12,16,17,24

11

Shapiro, First Degree Murder Statutes and — ital

Sentencin IE Analysis and cc rison of

Statutory Systems for t 50 :

Penalty in exe Herde d Lo

Loyola L. 22

8 sium on Capital Punishment, 7 N.Y. L. Forum 249

115677 12

Togman, The Two-Trial ees in Capital Cases, 39

N. v. U. L. . 10,12

Westen and Drubel, Toward a General Theory of

Double Jeopardy, 1978 5S. Ct. Rev. II 18

Wollan, The Death Penalty after Furman, 1974 Criminal

Justice Systems Rev. 213 12

D. NEWSPAPERS

Editorial, “Let Jurors Decide Death penalty“, Miami

Herald (April 24, 1980) 22

QUESTION PRESENTED

Whether Florida's death penalty statute which allows the

trial judge to impose the death sentence in a capital case over

a jury recommendation of life imprisonment violates the Fifth,

Sixth, Eighth, and Fourteenth Amendments ot the Constitution

of the United States.

— yii -

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

MARVIN EDWIN JOHNSON

Petitioner,

-V.°-

STATE OF FLORIDA

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment of the Supreme Court of Florida.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Florida, Johnson v.

State, 393 80. 2d 1069 (Fla. 1981), is set out in Appendix A

infra.

JURISDICTION

The judgment of the Supreme Court of Florida was entered

on December 11, 1980 and rehearing was denied on March 6, 1981.

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

petitioners having asserted below and asserting here deprivations

of rights secured by the Constitution of the United States.

212

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. This case involves the Fifth, Sixth, Eighth

and Fourteenth Amendments to the Constitution of the United

States.

2. This case also involves the following provisions

of the statutes of Florida:

§ 921.141 Sentence of death or life imprison-

ment for Capital felonies; further

roce 8 ete ne ntence,.

(1) Separate proceedings on issue of

penalty, -- Upon conviction or 22 of guilt

of a defendant of a capital felony, the court shall

conduct a seperate 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 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 a5 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 purpose, unless waived by the def-

endant. In the proceeding, evidence may 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 aggra-

vating or mitigating circumstances enumerated in sub-

sections (5) and (6). Any such evidence which the court

deems to have probative value may be received, regardless

of its admissibility under the exclusionary rules of

evidence, provided the defendant is accorded a fair

opportunity to rebut any hearsay statements. However,

this subsection shall not be construed to authorize

the introduction of any evidence secured in violation

of the Constitution 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 argument for or against sentence of death.

(2) Advisory sentence the . =

after hearing all the 2 the , 1 delib-

erate 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 sentenced to life

imprisonment or death.

(3) Findings in support of sentence of

death. -- Notwithstanding the recommendation 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 writing its findings upon which the

sentence of death is based as to the facts:

(a) That sufficient aggravating

circumstances exist as enumerated in subsection (5),

and

(b) That there are insufficient

mitigating circumstances to outweight the aggrava~

ting circumstances.

In each case in which the court imposes the death

sentence, the determination of the court shall be

supported by specific written findings of fact based

upon the circumstances in subsections (5) and (6)

and upon the records of the trial and the sentencing

proceedings. If the court does not make the

findings requiring the death sentence, the court

shall impose sentence of life imprisonment in

accordance the s. 775.082.

(4) Review of judgment and sentence. -

The judgment of conviction a sentence of death shall

be subject to automatic review by the Supreme Court of

Florida within sixty (60) days after certification by

the sentencing court of the entire record, unless the

time is extended for an additional period not to exceed

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

shown. Such review by the Supreme Court shall have

priority over all other cases and shall be heard in

accordance with rules promulgated by the Supreme Court.

(5) ravating circumstances.-~- Aggrava-

ting circunstances shall be limited to the following:

(a) The capital felony was committed by

a person under sentence of imprisonment.

(b) The defendant was previously convic-

ted 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 persons.

*

(d) The capital felony was committed

while the defendant was engaged, or was an accomplice,

in the commission of, or an attempt to commit, or

flight after committing or attempting to commit, any

robbery, rape, arson, burglary, kidnapping, or aircraft

piracy or the unlawful throwing, placing, or dis-

charging 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.

-3-

(f) The capital felony was

committed for pecuniary gain.

(g) The capital felony was

committed to disrupt or hinder the lawful exercise

* any governmental function or the enforcement of

avs.

(h) The capital felony was expecially

heinous, atrocious, or cruel.

(i) The capital felony was a homicide

and was committed in a cold, calculated, and preme-

ditated manner without any pretense of moral or legal

justification.

(6) Mitigating circumstances. -~

Mitigating circumstances 28871 be the following:

(a) The defendant has no significant

history of prior criminal activity.

(b) The capital felony was committed

while the defendant was under the influence of extreme

mental or emotional disturbance.

(c) The victim was a participant in

the defendant's conduct or consented to the act.

(d) 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.

(f) 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.

(g) The age of the defendant at the

time of the crime.

STATEMENT OF THE CASE

Petitioner was indicted for first-degree murder and robbery

on August 29, 1978. On December 4, 1978 he received a trial by

jury in which testimony was presented to show that he had committed

a robbery of a pharmacy in which the pharmacist was killed after

an exchange of gunfire with the robber (App. A, P- 1-2). The jury

convicted petitioner as charged and an advisory sentencing proceeding

was held on the murder conviction. At the conclusion of that pro-

ceeding the jury recommended a life sentence but the trial judge

overruled the jury's recommendation and imposed the death penalty

(App. A, p. 4)

Petitioner's conviction and sentence was reviewed by the

Florida Supreme Court which issued an opinion on December 11, 1980,

affirming the judgments of conviction and sentence of death

(App. A). A timely motion for rehearing was filed by petitioner

and denied on March 6, 1981.

HOW THE FEDERAL eee WERE RAISED

E

In the trial court (See Appendix B, infra) and on appeal

to the Florida Supreme Court (Appendix A, infra), petitioner

fully raised the issue of Florida's procedure which allows

the trial court to impose a death sentence after a jury recom-

mendation of life and asserted that it violated his separate

specified rights under the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the Constitution of the United States. Each of

these contentions was expressly rejected by both the trial court

and Florida Supreme Court (App. A, p. 6, 7). Although the

justices were unanimous in their decision to uphold petitioner's

conviction, three of the seven justices dissented to the impo-

sition of the death penalty but not on constitutional grounds

(App. A, p. 9-11).

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER THE

IMPOSITION OF A DEATH SENTENCE CONTRARY TO A JURY PENALTY

VERDICT OF IFE IMPRISONMENT VIOLATES THE DOUBLE JEOPARDY

CLAUSE OF THE FIFTH AMENDMENT, THE JURY TRIAL CLAUSE OF

THE SIXTH AMENDMENT, THE CRUEL AND UNUSUAL PUNISHMENTS

CLAUSE OF THE EIGHTH AMENDMENT AND THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMENDMENT.

This case concerns the narrow aspect of Florida's capital

punishment scheme which permits the trial judge to impose a

death sentence notwithstanding the jury's penalty verdict of

life imprisonment based on statutory findings of fact. There

are thirty-four persons now under sentence of death in Florida

(out of a total Florida Death Row population of 155) who would

be directly affected if Petitioner were to prevail.2/ To

petitioner's best knowledge, Florida is the only American juris-

diction where prisoners are under sentences of death after jury

decision for life, although Indiana law would in theory seem

to permit such an outcome. 2

Petitioner urges that this Court grant certiorari because

the infliction of death by the sovereign contrary to the decision

of its own citizens throws into doubt not merely specific quaran-

tees of the Bill of Rights, but seven centuries of jury invio-

lability under our Anglo-American system of jurisprudence and

two centuries of representative advice and consent for extraor-

dinary uses of government power under our United States

Constitution.

Although this Court has considered various aspects of

Florida's death penalty system, it has never focused squarely

on the special and critical issue now before it.

In Proffitt v. Florida, 428 U.S. 242, 252 (1976), this

Court upheld the overall Florida scheme and noted that partica~

pation in penalty determination by the trial judge as well as

the jury might promote more accurate fact finding. However,

as Respondent Florida itself emphasizea?’ , that case involved

a death sentence imposed by the trial judge with the concur~

rence of the jury.

1. ‘There are six prisoners under death sentences after jury

life verdicts which have been affirmed by the Florida Supreme

Court, and 28 others with such sentences pending before the

Court. See also Appendices C and D.

2. See appendix E for a listing of current federal and state

death penalty statutes.

3. See Proffitt, supra, O. T., 1975, No. 5706, Brief for Re-

spondent at 76: "In Enis particular case, we are not cor.front-

ed with an overriding of a recommendation of mercy, but rather

unanimity as between the jury and the trial judge in concluding

that death was the appropriate sentence."

In Dobbert v. Florida, 432 U.S. 282 (1977), petitioner

was in fact sentenced to death notwithstanding a jury verdict

of life imprisonment, but claimed only that his punishment

under a statute enacted after the date of the crime violated

the Ex Post Facto and Equal Protection Clauses. See id. at

432 U.S. 304, n. 1 (Stevens, J., dissenting):

The atrocious character of this individual's

crimes ... is of course no more relevant to the

legal issue than the fact that 10 of the 12

jurors who heard all of the evidence voted to

spare his life.

It is axiomatic that this Court does not resolve issues

not raised on certiorari, see e.g. Mazer v. Stein, 347 U.S.

201, 208 anden. 6 (1954). However, Petitioner feels it impor-

tant to show why Proffitt and Dobbert not only do not control

the outcome of this case, but should not control.

Perhaps most crucially, in neither Proffitt nor Dobbert

did this Court have the opportunity to measure Florida's pro-

vision for overriding jury life determinations against the

overwhelming consensus of the States to the contrary both

before and after the landmark decision of Furman v. Georgia,

408 U.S. 238 (1972). Since at that time (1976-1977) many

jurisdictions were just reenacting death penalty statutes, no

clear pattern of post~Furman legislative practice was then

evident. In 1981, that pattern is clear and overwhelming.

Further, neither Proffitt nor Dobbert explored the evolu-

tion and current performance of the jury's function in capital

penalty determination. In Duncan v. Louisiana, 391 U.S. 145,

154-155 (1968), this Court rejected dicta holding that jury

trial did not apply to the States, stressing that such dicta

were not based on careful inquiry in the jury's role in our sys-

tem of law. This Court now has the opportunity to conduct the

inquiry demanded by Duncan before a death sentence is carried

out against the will of a jury.

Since Proffitt and Dobbert, this Court has also developed

a more secure framework of death penalty law by which to test

the overruling of a jury life decision against “evolving standards

of procedural fairness". Gardner v. Florida, 430 U.S. 349, 357

(1977) .4/

Further, this case may assist the Court in clarifying two

continuing problems of double jeopardy law: defining an "acquit-

tal, and drawing the line where the Constitution may prohibit

legislative treatment of decisions for the accused as merely

“advisory” or appea labile.

Petitioner stresses that his success would not significantly

disturb the scheme approved in Proffitt, since under Florida law

a sustained and sustainable death sentence after a jury life deci-

sion is the rare exception. &/

Nor would Petitioner's success upset Florida's overall poli-

cy of judicial capital sentencing with an advisory jury as ana-

lyzed in State v. Dixon, 283 80. 2 1, 8 (Pla. 1973).2/ In

United States v. Jackson, 390 U.S. 570, 575-576 (1968), this

Court noted that a scheme such as Florida's but with a jury

decision against death final "would conform to the long tradi-

tion that makes the trial judge ... the arbiter of the sentence”

while treating the jury's role as “merely advisory”.

4. See, e.g., Coker v. Georgia, 433 U.S. 584 (1977), Lockett v.

Ohio, 438 U.S. 586 (1978), Presnell v. Georgia, 439 U. F. 17 (1578),

Godfrey v. Georgia, __,U.S. 7 TF. 1759 (1980) and Beck

. 100 F. Ct. 2382 (1980). Sere

5. See, e.g., Burks v. United States, and companion cases, 437

U.S. 1 (1978), Swisher v. Brady, 738 U. 8. 204 (1978), United

States v. Difrancesco, „8. , 66 L.Ed. 2d 328 (1980), and

Bullington v. Missouri, No. 79-6740 (decision pending).

6. See Proffitt, supra, 428 U.S. at 248-250, and Dobbert, supra,

432 U.8. aC „

7. Notably, the authoritative construction of Dixon stresses the

trial judge's power to reduce an excessive jury verdict for death,

see id. at 8, but makes no specific mention of the power to over~

ride a jury verdict for life.

Since petitioner's important claims have never been

squarely addressed by the Court, and are of vital importance

to our scheme of ordered liberty as it governs the choice for

life or death, the Court should grant certiorari on the merits.

A. The Tmpos {tion Of Death After A Jury Decision

For Life Is Contrary To e Near-Unan us

Consensus e States And e Great Weight

At the onset Plorida's practice of overruling jury life

decisions must be placed in a perspective of national experi-

ence and history. At no time in the past 30 years have more

than three States allowed death sentences after jury decisions

for life.

This Court has consistently looked to objective indicators,

chiefly the existing laws and practices of the Nation, in testing

jury practices under the Sixth amendment 7 and death penalty pro-

cedures under the Eighth Amendment. 27

In 1948, only New York, Delaware and Utah sanctioned this

practice out of 42 jurisdictions (including federal) with discre-

tionary capital punishment for murder .22/ By the time of Furman

(1972) only Delaware and Utah permitted such a procedure out of

41 capital murder jurisdictions (including federal and District

of Columbia)2)/, New York having made a mercy decision by either

the judge or the jury binding in 1963.22/

8. See, e.g., Duncan, Supra, 391 U.S. at 161, Baldwin v. New York,

138 (1979).

9. See, e.g., Roberts v. Louisiana, 428 U.S. 325,336 (1976)

(mandatory death sentence), Coker v. Georgia, 433 U. S. 584,

593-597 (1977) (death penalty for rape 87 adult) and Beck v.

Alabama, v. 8. ’ ’ 100 8. Ct. 2382, 2388 (1986) (Pro aa

bition of lesser offense instruction in capital case).

10. See Andres v. Unites States, 333 U. S. 740, 767 (1948)

(Prankfurter, J., concurring). Inadvertantly, Justice Frankfurter

listed New York as binding and New Mexico as nonbinding, but see

New Mexico Acts of 1939, Ch. 49 (jury recommendation of life in-

prisonment in capital case binding).

11. See witherspoon V.iL}inois, 391 U. S. 510, 525-527 and nn. 2-8

(1968) (Oouglas, J., concurring). Both Utah and Delaware now make

life imprisonment automatic unless the jury unanimously agrees on

death. (See Appendix E).

12. See People v. Fitzpatrick, 308 u. v. 8. 24 18, 22 (1970).

— — ——— —

Since the decision in Furman, of jurisdictions (including

federal) which have adopted "quided discretion" death penalty

statutes with jury participation in the penalty phase, only

Florida and Indiana permit death sentences after jury decisions

for life (see Appendix E). Moreover, only in Florida does it

appear that such death sentences actually have been imposed since

Furman.

An additional indicator of unconstitionality under the

Eighth Amendment is the great rarity with which death séntences

after jury mercy recommendations were actually imposed and exe-

cuted under the pre-Furman Utah and New York laws.23/ (There

were no executions in Delaware after 1949).

All seven Utah executions during the period 1948-1972 in-

volved cases where the jury had refused to recommend life

imprisonment; in two other cases death sentences were affirmed

by the Utah Supreme Court after jury life recommendations, but

the defendants received executive clemency (see Appendix F for

Utah cases).

Knowledgable commentators have also stated that under the

pre-1963 New York law, trial judges almost “invariably” follow-

ed jury recommendations of mercy. See Togman, The Two-Trial

System in Capital Cases, 39 N. . U. L. Rev. 50, 75 n. 171 (1964),

citing New York State District Attorney's Association, Memorandum

and Draft Bill (October 17, 1960). In Williams v. New York, 337

U.S. 241 (1949), this Court affirmed a death sentence imposed des-

pite a recommendation for life; but the defendant, Samual Titto

Williams, received executive clemency, based in part on the jury's

reconmendat ion. 7 See Message of the Governor of New York,

13. For emphasis on actual frequency of imposition of the death

penalty as an index of 1 standards under the Eighth

Amendment, see Furman, 12 , and — s supra, 438 U.S. at

624-626 (White, J., co 25 in part).

14. [Petitioner does not challenge the holding in Williams, which

remains good law, see United States v. Grayson, 438 U.S. 11 (1978).

November 16, 1949, ., . Leg. Doc, (1950) No. 10, pp, 13-14,

quoted in Michael and Wechsler, Criminal Law and Its Administration

(1956 supp.) 55.

This near-uniform consensus of the States that jury decisions

against the death penalty should be final is in accord with pro-

fessional legal opinion, another factor this Court has considered

in both Sixth and Eighth Amendment decisions. [See, e.g., Duncan,

supra, 391 U.S. at 156-157, and Gregg v. Georgia, 428 U.S. 153,

189-195 (1976).] Thus a major study endorsed by this Court found

a reasonable basis for judge/jury disagreements in capital penalty

Gecisions. [Kalven and Zeisel, The American Jury 445 (1966), cited

in Duncan, supra, 391 U.S. at 157 and nn. 24 and 26.) The Court

itself has praised the great reluctance of juries to impose death.

[See Gregg, supra, 428 U.S. at 181-182; Furman, supra, 408 U.S. at

387-389 and 402 (Burger, C. J., dissenting) .]

Severe critics of noncapital jury sentencing have advocated

the jury's power to reject the death penalty. See, e.g., Note,

Jury Sentencing in Virginia, 53 Virg. L. Rev. 968, 969 (1967),

Rubin, The Law of Criminal Correction 325 (1963), Lafont,

Assessment of Punishment--A Judge or Jury Function?, 38 Texas L.

Rev. 834, 838 (1960), and Report of the Royal Commission on Capital

Punishment, 1949-1953, Paragraph 571. This vital distinction was

stressed by both professional sources cited in Proffitt, supra,

428 U.S. at 252 n. 10. See American Bar Association Project on

Standards for Criminal Justice, Sentencing Alternative and Proce-

dures, Section 1.1, Commentary (Approved Draft 1968) at 47-48

(strong reasons for requiring jury consent for death penalty) and

President's Commission on Law Enforcement and Administration of

Justice: The Challenge of Crime in Free Society, Task Force Report,

The Courts 26 (capital jury discretion generally accepted, but non-

capital jury sentencing undesirable).

Especially relevant here are several authorities, including

the American Law Institute Model Penal Code, which endorse

Florida's general scheme of judicial capital sentencing with

an advisory jury, but stress finality for a jury determination

of life. See American Law Institute, Model Penal Code Section

210.6 and Commentary at 133 (P. o. b. 1962), Togman, supra, 39

N. v. L. Rev. 50, 53, Wollan, The Death Penalty After Furman, 1974

Criminal Justice Systems Rev. 213, 230, Symposium on Capital

Punishment, 7 N. Y. L. Forum 249, 312-313 (1961) (Opinion of

Prof. Louis B. Schwartz) and Comment, Jury Discretion and the

Unitary Trial Procedure in Capital Cases, 26 Ark. L. Rev. 33,

52-53 (1972).

This Court should grant certiorari to measure the procedure

by which petitioner was sentenced to death against these objec-

tive and manifest indexes of unconstitutionality.

B. Florida's Practice, As Interpreted By The

Highest State Court in Petitioner's Case

As stated in Lockett v. Ohio, 438 U.S. 586, 602 (1978)

the States deserve clearest guidance" in interpreting Furman

and subsequent death penalty cases. This Court should grant

certiorari to clarify the Florida Supreme Court's notion that

jury life determinations cannot be final, because their finality

would violate Furman. This misunderstanding not only places the

validity of Petitioner's sentence in doubt, but effectively chills

the possibility for legislative change.

This Court has consistently rejected death penalty procedures

premised on the misconception that Furman prohibited the "arbi-

trary" granting of mercy rather than the arbitrary infliction of

death. 27% The overruling of jury life decisions in Florida was

15. See, e.g., Woodson v. North Carolina, 428 U. S. 280, 298-299

(1976) (mandatory death sentence), Lockett, supra, 438 U.S. at

599-600 and nn. 7-8 (restriction of mitigating factors in capital

case) and Beck, supra, at U.S. n. 7 and 100 8. Ct.

at 2386 n. 7 and 2392 (prohibition of lesser offense instruc-

tion in capital case).

= 13 -

was apparently conceived and is certainly now administered under

such a misconception.

At the time of Furman, Florida had just amended it 1872 law,

which permitted the majority of a jury to grant mercy in capital

cases, providing for a separate penalty trial with suggestive

standards (Laws of Florida, 1972, Ch. 72-72). After Furman a

prominent Florida prosecutor advocated a scheme similar to the

Model Penal Cede, with an advisory jury's verdict of life final,

and the Florida Senate passed such a 12. 07 However, the

Governor had advocated exclusion of the jury from the penalty

phase for fear of violating Purman)//, and the Attorney General

had expressed similar tears. 70 Thus the provision in Florida's

post-Furman law for death sentences after jury life verdicts can

clearly be viewed as an aberration intended to comply with Furman

rather than a free legislative judgment that jury life decisions

should not be final. National practice before and after Furman

supports this view.

16. See Letter by Chief Assistant State Attorney Harry L.

Shorstein of September 6, 1972, in A Final Report of The

Governors Committee To Study Capita 8 nt 7

and Journal of the House of Representatives. November

30, 1972 at Senates adop version o on 921.141

(4), making jury's failure to recommend death final).

17. See Ehrhardt and Levinson, Florida's Legislative Response

to Furman: An Exercise In Futility?, eo OF CE na 0

a r no ’ pot .

18. See Hearings,Select Committee on the Death Penalty,

Florida House of Representatives at 20-21 (August 9, 1972)

(view of Attorney General that jury discretion with standards

still risked violation of Furman).

In Douglas v. State, 373 S0. 2d 895, 897 (Fla. 1979), in

deciding a challenge based on double jeopardy, the court itself

confirmed this view when it held that prohibiting death sentences

after jury life determinations would "place our statute in con-

travention of the directives of the United States Supreme Court”.

(Emphasis Supplied.) Id., the Court stated that its understanding

of Furman was “perhaps more important" than any other considera-

tion in rejecting for the first time a constitutional challenge

to the overriding of life verdicts.

In Petitioner's case below, Johnson v. State,393 So.2d 1069

at 1074 (Fla. 1980), the court specifically confirmed

and restated its position in Douglas:

[Al cceptanceofdefendant's assertion would

ourt's rective urman ..., since to

acce t his 2 would mean that a trial

Judge and 30 suck oe would be bound b —

3 Ts recommendation of lite. (Emphasis

supplied. J

Of course this view is erroneous, see Gregg v. Georgia,

428 U. S. 153, 203 (1976) ("the isolated decision of a jury to

afford mercy" does not invalidate system with adequate safe-

guards against arbitrary infliction of death). Petitioner

stresses that he briefed the Court below on the overwhelming

consensus of the States for final jury life determinations, see

Douglas v. State, supra. Thus the court's misinterpretation of

Furman is now a settled point in State law which cries out for

clarification. Also of note, the High Courts of three states

have sustained schemes where a jury life decision is binding but

the trial judge is free to reduce a verdict of death -- the pre-

cise result which the Florida Court has declared contrary to

Furman. 2% Thus Florida law on this point is not only in con-

19. See People v. Frierson, 25 Cal. 3rd 142,177, 599 P. 2d 587,

607-608 Teak, 1975)~ Collins v. State, 548 8. M. 2d 106, 112

(Ark. 1977) (trial judge's power to reduce verdict of death

promotes interests of Furman), and Smith v. Commonwealth, 248

S.E. 2d ge 145-146 (Va. 1978).

SAAS WAL mne BOGS WUNALOLM Practice OL tne NATION, Put 1s

based on the assumption that the Cruel and Unusual Punishment

Clause forbids deference to a jury's decision to spare life.

This Court has not hesitated to review and cure similar

aberrations stemming from Furman. See nn. 9 and 15, above.

Both the responsibilities of this Court as stated by the Chief

Justice in Lockett, and the value of a human life which the con-

science of the community has voted to spare, call for the granting

of certiorari in this case.

C. Florida's Poli Of Overturning Jury Life

Decisions Herel In Order To Avoid Petia ten

"Errors" For Mercy Violates The Sixth And

Fourteenth . Values Held Applica-

ble To Capital Penalty Juries in dees

V. III TEN 391 U.S. 510 (1960).

Although this Court has not to date required jury parti-

cipation in capital penalty determination2//, it has demanded

that any jury involved in deciding life or death must comport with

the same basic Sixth and Fourteenth Amendment values as a jury

trying the issue of guilt. Witherspoon v. Illinois, 391 U.S. 510,

518 (1968). Whereas Illinois deprived the jury of its representa-

tive nature by broad death-qualification of venirepersons, Florida

strips the jury of a yet more fundamental attribute: the power to

bi for a - By extending application of the Sixth

Amendment to capital penalty juries, even though such juries may

not themselves be required, Witherspoon is in accord with earlier

cases which enforced “established tradition in the use of juries”

at a time when the States were presumed free to dispense with jury

trial altogether, see Smith v. Texas, 311 U.S. 128 (1940) at 130,

and Turner v. Louisiana, 379 U.S. 466, 471-473 (1965).

Petitioner stresses that the issue on which he seeks review

is not whether Florida law defines a jury's life decision as

"merely advisory”, but whether this definition is consistent

with the Sixth Amendment values protected by Witherspoon.

20. Question reserved in Lockett, supra, 438 U.S. at 609 n. 16.

|

The most absolute English monarch might intimidate, im-

prison, or attaint a recalcitrant jury--but could not reverse

its verdict for the accused. See Powell, Jury Trial of Crimes,

23 Washington and Lee L. Rev. 1, especially 2-3 and n. 4 (1966).

May Florida now exercise this power to impose a penalty whose

very controversy was at the heart of Witherspoon's demand for a

representative panel? See id. at 519-521.

As declared in Duncan, supra, 391 U.S. at 156-157, the

jury's prime purpose, to prevent oppression by the Government",

may be especially served when the panel reaches a different

result than the judge--and this purpose is utterly eviscerated

if the Government may overstiavh a jury's decision in favor of

innocence or 1ite.2/

Under Florida law, the practice of overriding jury life

verdicts is based not on the premise that juries are incapable

of making intelligent penalty decisions22/, but solely on the

fear that in isolated cases juries will “unreasonably” reject

death. See Chambers v. State, 339 80. 2d 204, 208-209 (Fla. 1976)

(England, J., concurring) (override of life verdict is to pre-

vent “impassioned and unreasoned" decision against death).

This “limited” but pernicious violation of the jury's integri-

ty, whose only justification is that jurors “cannot be relied

21. Even more stark and appositehere, see Parklane Hosiery Co.

v. Shore, 439 U. S. 322, 354 (1979) (Rehnquist, J., dissenting) :

"It Is precisely because the Framers believed that they might

receive a different result at the hands of a jury of their peers,

than at the mercy of the sovereign's judges, that the Seventh

Amendment was adpoted".

22. See e.g. McCaskill v. State, 344 So.2d 1276, 1280 (Fla. 1977)

("Juries are the conscience of our communities” in penalty phase),

and Chambers v. State, 339 So.2d 204, 209 (Fla. 1976) (England J.,

concurring) (since death penalty decision is “reasoned judgement.

„„ both our pnglo-Amer ican urisprudence and Florida's death p

tat 8 u avor dgmer

23. See Reid v. Covert, 354 U. S. 1 39-40 (1957) ("slight encroach-

ment” on jury trial and other safeguards may be most dangerous),

and Parklane, supra, 439 U. S. at 345-346 (Rehnquist, J., dissenting)

("procedural reform” may erode vital functions of the jury).

upon to vote for death" when State law would make it "the pro-

per penalty", see Witherspoon at 391 U.S. 518-519, is antago-

nistic to the entire Sixth Amendment concept of the jury as

we have known it for 200 years.

In Bloom v. Illinois, 391 U.S. 194, 209 (1968), this Court

stressed that although "recalcitrant or irrational juries” may

occasionally acquit against the law, we are prepared to run the

risk under the Constitution. When the Sixth Amendment requires

finality for the outright acquittal of a dangerous criminal (e.g.

of a racial murderer, based on approval for the deea)24/ , this

Court should carefully scrutinize Florida's refusal to accept a

verdict of life imprisonment based, at worst, on charity“, see

Witherspoon at 391 U.S. 520 and n. 17.

Under Tedder v. State,322 So.2d 908, 910 (Fla. 1975), a

death sentence after a jury life verdict may be sustained only if

"virtually no reasonable person could differ". Thus Florida trial

and appellate courts are required, in effect, to determine whether

the jury's life decision was based on the evidence and the law,

or was “unreasonable"--i.e., based on scruples against the death

penalty. Florida's policy ignores the truth that jury verdicts

* the accused are final in part because “the courts cannot search

the minds of the jurors to find the basis upon which they judge”.

United States v. Moylan, 417 F.2d 1002, 1006 (CA4, 1969). (Emphasis

supplied. )25/

Whereas in Illinois an unrepresentative jury imposed the

death penalty were a representative panel might choose life,

Florida imposes the death penalty after a representative jury

actually has chosen life. While Illinois stifled the community's

verdict before its birth, Florida strikes it down in esse.

*

rg Powell, supra, 23 Washington and Lee L. Rev. at 5 and

0- .

25. The fact that under Florida law the jury is instructed that

it must base its penalty verdict on statutory findings of fact

supported by evidence does not diminish the relevance of

witherspoon: but additionally places the override of a life de-

cis n conflict with "the maintenance of the jury as a fact-

finding body", Patton v. United States, 281 U.S. 276,312 (1930)

This Court should grant certiorari to clarify the meaning

of Witherspoon and the imperatives of the Sixth Amendment when

the voice of the community has spoken for life. Obviously a

Florida trial judge's power to override a jury death verdict

does not violate the values of Witherspoon, see 391 U.S. at 518

n. 12: "At the time of the petitioner's trial, the jury's penalty

determination was binding upon the judge. 111. Rev. Stat., c.

38, Section 360, 801 (1959). That is no longer the case in

Illinois, for the trial judge is now empowered to reject a jury

recommendation of death, Ill. Rev. Stat., c. 38 Section 1-7 (c)

(1) (1967), but nothing in our decision turns upon whether the

judge is bound to follow such a recommendation." (Emphasis

supplied.)

D. The Overturning At The State's Behest Of

A Representative J "s Verdict Against The

Dea enalt Based On Statuto nd 8

Of Fact Constitutes A Unique 2 Jeopard

Situation Under The Fifth bnd Fourteenth

r STR a

In the wake of recent decisions permitting “advisory” or

appealable decisions in favor of juvenile and criminal defendants,

Petitioner emphasizes five factors which together make his case a

unique and critical test of when life itself has been placed in

jeopardy under the Fifth Amendment.

(1) The decision to spare Petitioner's life was made by a

representative jury, not a referee or judge. See United States

v. Sisson, 399 U.S. 267, 334 (1970) (Burger, C. J., dissenting)

("the Constitution gives an accused the benefit of any mistakes

in his favor of the first jury he encounters", but does not extend

this finality to mistakes by judges). Accord, Westen and Drubel,

Toward a General Theory of Double Jeopardy, 1978 S. Ct. Rev. 81,

130-137 (Fifth Amendment protects jury's inherent finality as

conscience of community, but finality of decisions by magistrates

and judges is up to legislatures).

(2) The jury's decision for the accused involved the con-

stitutionally mandated choice of life or death, not a mere sel-

als BO

ection of discretionary sentencing alternatives. See Lockett

v. Ohio, supra, 438 U.S. at 603-605 and n. 13. Both object-

ively and subjectively, the accused can reasonably be expected

to place as much importance on the life/death determination as

on the verdict of guilt or innocence itself. 27% Indeed the in-

position of a death sentence on a defendant after a jury life

determination must cause a truly singular quantum of cont inu-

ing anxiety", whether or not the sentence is actually sustained

on appeal and carried out.

(3) Unlike any usual sentencing procedure in noncapital

cases (or even capital cases before Furman), the Florida proce-

dure requires the jury to base its verdict for either life or

death exclusively on statutory findings of fact supported by the

evidence. Aside from the consideration of mitigating factors

mandated by Gregg and Lockett, supra, the jury is required to

resolve aggravating circumstances which the Florida Court has

declared “actually define those crimes” punishable be death,

see Dixon, supra, 283 80. 2d 1, 9 (Fla. 1973), and thus “must

be proved beyond a reasonable doubt", id. @mphasis supplied).

Thus in 1981, Florida enacts in reality the hypothetical case

which Mr. Justice Story found shocking in United States v.

Gibert, (Case No. 15,204), 25 Fed. Cas. 1287, 1301 (CCD Mass.

1834): the prolongation by the Government of capital jeopardy

after a jury has failed to find “aggravated circumstances"

defing a capitally punishable crime:

“suppose a robbery of the mail, charged in

the indictment with being effected by wounding

the carrier, or putting his life in jeopardy

(which is a capital offence), and there is con-

26. Compare Difrancesco, id, at uv. s. 66 L.Ed. 2d

345-346 (noncaptial defendant's “primary concern and anxeity

obviously relate to the determination of innocence or guilt",

rather than the largely "nonadversarial” matter sentence).

Under Green v. United States, 355 U.S. 184, 187-188 (1957),

this case 1s radically distinguished from Difrancesco by the

unique degree of “continuing...anxiety and insecurity” inflicted

«39 @

viction of the robbery without such agg-

ravated circumstances, can a new trial

be granted, upon the application of the

government...? Many other cases of a like

nature may easily be put, where the offence

in an aggravated form is a capital felon

and without such aggravations not.

(Emphasis Supplied $277

(4) Unlike the classic case of Stroud v. United States,

251 U.S. 15 (1919), here prolonged jeopardy to suffer the

death penalty after a jury has rejected it is the result purely

of State action, not of an appeal at the defendant's own behest.

In this aspect, Bullington v. Missouri, supra, is similar to

Stroud.

(5) In contrast even to the appeal by the prosecution of

a jury's lesser offense verdict (on grounds of legal error) al-

owed in Palko v. Connecticut, 302 v. 8. 319 (1937)22/, here the

overturning of petitioner's jury life determination did not “wipe

the slate clean" of the underlying first-degree murder conviction

and did not provide him with the chance to present his case on

either guilt or penalty to a second jury of his peers. Again

this is in contrast with both Stroud and Bullington.

In order to interpret for today the guarantee against being

put twice in jeopardy of life, this court should grant certiorari.22/

26. (cont.) while the prisoner awaits appellate review of a death

sentence after a jury life verdict. At least one Florida Death

Row inmate, Walter Carnes, committed suicide while awaiting

review of such a sentence contrary to the verdict of his peers

(see Appendix D), and the State appellate process may require an

average of 2-3 years. Under Price v. Geor ia, 398 U.S. 323,

331 (1970), this "is an ordeal not to be 3 lightly” even

if the jury's decision is ultimately upheld by the Florida

Supreme Court as “reasonable”.

27. For cases equating aggravating circumstances in schemes like

that of Florida with substantive definitions of capital murder,

see Jurek v. Texas, 428 U.S. 262, 270 (1976), McGautha v.

California, 402 U. S. 183, 206 n. 16, and Wilson v. State, 225

30. 2d 321, 325 (Fla. 1969) (statute requiring aggravating cir-

cumstances for death penaly would in effect define "other pre-

scribed elements” of first-degree murder) (emphasis 21

28. Overruled in Benton v. Maryland, 395 U.S. 784 (1969)

29. Obviously the Fifth and Sixth Amendments do not bar the re-

duction of a jury death verdict by the trial judge see United

- 20 -

E. Since ane overriding Of a Jury's Verdict

nA Trial O uilt Would

Se Wot Onl Unconstitutional But ShockinglL

Unfair, Use Of This Procedure In The Penalt

Phase Of A Capital Case Shou Be Carefu

crutiniz er @ Due Process Clause O

e Fourteenth Ame nt.

Under the flexible due process approach of Gardner, supra,

this Court should grant certiorari to examine a death penalty

procedure which would be not merely unconstitutional but fund-

amentally unfair in a trial of guilt, and for which the State

can offer no persuasive justification beyond the risk of "error"

in any criminal jury proceeding.

In Gregg, supra, 428 U.S. at 199 n. 50, this Court explained

why arbitrary“ mercy is not banned by Furman:

[If a qury refused to convict even though

the evidence supported the charge, its ver-

dict would have to be reversed and a ver-

dict of guilty entered or a new trial or-

dered, since the discretionary act of jury

nullification wou not be rmitted....

Such a system, of course, would be totally

alien to our notions of criminal justice.

(Emphasis supplied.)

Since Florida's procedure is intended to remedy not the

corrosion of substantial legal error” but the jury's verdict

against death after an error-free penalty trial, it would fail

even the elementary finality test implicit in Palko, supra, 302

U.S. at 328. For such an interpretation of Palko, see Benton,

supra, 395 U.S. at 810 (Harlan, J., dissenting): "...I have no

hesitation in stating that it would be a denial of due process

at least for a State to retry one previously acquitted following

an errorless trial." Id., Justice Harlan held this principle of

finality as “indubitably...to be ranked as fundamental.”

The need for certiorari is underscored by the fact that

overruling a jury's life decision has been condemned as unfair“

29 (cont.) States v. Martin Linen „ 430 U.S. (1977) ban overriding

jurors j nt in manner to accused has never pre-

vented a trial judge from ruling re favor of criminal defendant).

Accord, Hof v. ital Traction Co., 174 U.S. 1, 13-14 (1899)

Tyjudge may set tac verdict “except on acquittal of a criminal

charge").

pay aes

by a Florida journal advocating the death penal ty, and has

been disapproved for the judge/jury conflict it spawns in a

scholarly article generally commending Florida's capital case

law. See, Shapiro, First Degree Murder Statutes and Capital

Sentencing Procedures: An Analysis and Comparison of Statutory

Systems for the Imposition of the Death Peanlty in Georgia,

Florida, Texas and Louisiana, 24 Loyola L. Rev. 709, 736 (1978)

(disapproving “the tensions between trial judge and jury in-

herent in the Florida system"). See also id. at 743-747.

From a due process perspective, Florida's attempt to over-

turn "unreasonable" life decisionsruns afoul of the simple truth

stated in Spinkellink v. Wainwright, 578 F.2d 582, 605 (CAS 1978): 3

{R]easonable persons can differ over the

fate of every criminal defendant in 177

death penalty case. sis supp °

It is a further signal of fundamental unfairness when

Florida tests a jury's decision for life by the same “reasonable-

ness” standard applied to a criminal conviction or civil verdict.

See Jackson v. Virginia, 443 U.S. 307, 317 (1979) n. 10 (power of jury

to enter “unassailable but unreasonable” verdict on "side of

mercy" does not protect irrational "guilty" verdicts from review

and reversal). See also Re Winship, 397 U.S. 358, 372 (1970)

(Harlan, J., concurring) (fundamental fairness “requires a more

stringent standard for criminal trials than for ordinary civil

litigation").

Following the due process approach of Gardner, this Court

might weigh Florida's deviation from the elementary norm of jury

30. Editorial, "Let Jurors Decide Death Penalty,” Miami Herald

(April 24, 1980) at p. 6: "No one of conscience who supports

capital punishment wants the death penalty imposed under rules

that can be applied capriciously. It is more than unfair. to

the defendant to permit one person-— the judge--to sentence him

to death when the jury has voted for life imprisonment instead.

2 ap as well, a near-abondonment of faith in the jury system

tself.”

finality in light of four factors: (1) The accused's interest

in finality; (2) The State's interest in disregarding that fin-

ality; (3) Any relevant differences between the guilt and penalty

phases of the trial; and (4) The fiscal and administrative impact

if the overriding of jury life determinations is prohibited. See

also Note, Gardner v. Florida: The Application of Due Process to

Sentencing Procedures, 63 Virg. L. Rev. 1281, 1284 n. 28.

Under thie test, it is clear: (1) That the accused has an

interest in the finality of a jury life decision which at least

approximates her or his interest in the finality of an acquittal

or lesser offense conviction; (2) That the State has less inter-

est in overturning an “unreasonable” determination for the

“severe” penalty of life imprisonment=~/ than in overruling the

outright acquittal of a dangerous criminal; (3) That Florida's

policy is not based on any pertinent difference between the guilt

and penalty trials, but merely on the risk of an “unreasonable”

verdict for the accused which is inherent in any jury proceeding;

and (4) That elimination of Florida's practice will promote rather

than hinder both fiscal and judicial economy in death penalty

cases. 227

31. The Florida Court called life imprisonment "a punishment

of great severity” in Wilson, supra, 225 So.2d at 334, and it

is more severe not because there is a 25-year minimum without

parole under the 1972 statute (Section 775.082 (i), F. . 1977).

32. This test gives a radically different result in noncapital

sentencing. Point by point: (1) The defendant does not have

an interest in the sentence comparable to that in the Guilt/

innocence determination; (3) Noncapital sentencing is a deli-

cate and largely nonadversarial process requiring expertise

beyond that of a jury; and (4) Providing for informed jury

noncapital sentencing determinations would be most taxing,

both fiscally and administratively. See Jury sentencing.

Virginia, supra, 53 Virg. L. Rev. at 969 a - °

poin Y, an egregiously lenient sentence or jury recommendation

in a noncapital case might closely approach in result an erroneous

acquittal, in a situation where the accused has no overbalancing

interest in either innocence or life, see DiFrancesco, supra.

«22 0

This Court should grant this petition for certiorari in

order to review Petitioner's case.

F. Infliction Of The Extraordinary And Con-

oversia nection Death By An Unrepre-

Sentative State Judicia Contrary To 52

erdaic ur e Peopie niiicts

Beyond calling into question specific quarantees of the

Bill of Rights, the infliction of death after a jury's verdict

for life casts a shadow of doubt over our entire scheme of

limited government by advice and consent. The broad consti-

tutional values at stake in Petitioner's case are an additional

and compelling reason for granting certiorari.

In Gardner, supra, 430 U.S. at 357, this Court stated not

merely that the death penalty is the ultimate penalty of our

entire legal system, but further that “the action of the

sovereign in taking the life of one of its citizens differs

dramatically ftom any other legitimate state action". (Emphasis

supplied.) Thus the decision to impose the death penalty is

extraordinary, and should be especially subject to our overall

scheme of democratic checks and balances.

As stressed in Powell, Jury Trial of Crimes, 23 Washington

and Lee L. Rev. 1, 7-8, the absolute finality of a jury's verdict

for the accused is guaranteed by the double jeopardy bar but far

transcends that provision:

The founding fathers, in light of history,

decided that the balance here should be

struck in favor of the individual. To

reverse this today would negate the key

role of the jury as a check on government.

It might even unbalance our entire system

of constitutional checks and balances.

Ymmphasis supplied.) = —

In Duncan, supra, 391 U.S. at 156, this Court likewise

viewed the jury's role as reflecting "a fundamental decision

about the exercise of official power", and recently Mr. Justice

~ 24 =

Rehnquist

Thus

emphasized this theme anew:

"Just as the principle of separation of

ers was not incorporated by the Framers

nto the Constitution in order to promote

efficiency or dispatch in the business of

government, the right to a jury trial was

not guaranteed in order to facilitiate

prompt and accurate decision of lawsuits.”

Parklane Hosi Co. v. Shore, supra, 439

° nguis issenting).

Florida's practice violates the check of jury finality

e° Je,

for the accused in the one situation where it should be most

inviolable.

In defending the death penalty under Eighth Amendment com-

munity standards, United States Solicitor General Robert H.

Bork embraced the view now urged by Petitioner:

In a representative democracy the legisla-

ture speaks for the people that elected it.

once enacted, the penalty cannot be imposed

unless the people themselves, acting as a

jury of the peers of the accused, agree to

with its pre-

rogative to “nullity” Laws and penalties re-

pellent to its sensibilities s an effective

3 check against legisiative aberrations.

Thus, if a penalty can pass the dual test of

t by th le's representatives,

ives sit-

y not

en by ish-

ment clause. (Emphasis Ai

Since petitioner's death sentence fails such a dual test",

a test in

accord with both the enormity of the death penalty and

the role of the jury as an organ of our democracy, this Court

should grant certiorari.

If Gardner is correct that capital punishment is an extra-

ordinary power of the sovereign, then this Court should carefully

measure Florida's procedure of death by dissensus against the

constitutional norm of advice and consent for the Nation's

gravest and most ominous decisions.

Under our Consitution it is hard to make war and easy to

make peace, If either the House of Representatives orthe Senate

33. Gregg

States as

„ supra, No. 74-6257 , O. T., 1975, Brief for the United

Amicus Curiae at 30-31.

rejects war, that decision is final, though the Nation perish.

While the President has sole power tc appoint Justices to this

Court, a refusal to concur by the Senate is final, though the

nominee be worthy and the Senate's motive be not merely “unrea-

sonable” but petty or partisan.

By unleashing the dog of capital punishment against the

will of a representative jury, Florida defies the preference

of our entire Constitution for error on the side of caution

and restraint. Florida violates the norm of democratic plura-

lism by compelling the community to accept the death penalty

after its representative voice has spoken for 1ite.24/

In this case, the State after a full hearing was unable

to persuade 7 of 12 jurors that death was appropriate. The

State now maintains that Petitioner must be executed because

"virtually no reasonable person” could agree with the jury,

although 3 of 7 Justices in the court below eloquently defended

the jury's penalty decision as not merely “reasonable” but

appropriate, if not correct, see Johnson at 393 80. 2d 1074-1076

(opinions of Sundberg, C. J. , and McDonald, J., with Overton,

J., concurring in both these opinions). Such an execution

rends the legal fabric of democracy itself. 22/

34. The State may not settle the matter simply by referring

to a contrast between guilt determination and sentencing. Just

as the declaration of war may seem more akin to the military

and foreign policy responsibilities of the President than to

the normal legislative function of Congress, so the individual-

ized determination of life or death may (especially in the

weighing of mitigating circumstances) appear more similar to

noncapital sentencing than to a simple decision on guilt.

However, like war, the decision to impose death transcends

normal categories, and may not be taken against the advice

and consent of a jury without undermining the legitimacy of the

decision. In contrast, just as the President may take or

ignore advice from Congress on normal military and foreign

policy decisions, so a sentencing judge in a noncapital case

may follow or disregard a jury's recommendation for leniency

without compromising basic democratic values.

35. Plorida’s possible interest inpreserving the challenged

procedure on the basis of federalist pluralism is vitiated

by the very anti-pluralistic nature of compelling a community

to accept the death penalty when its representative voice has

spoken for life. Granting certiorari would show a concern for

- 26-

These Justices iterated that the circumstances of the of-

fense were such, especially the initiation of deadly force by

the victim as the perpetrator was leaving the premises, that

reasonable persons couldrationally recommend life imprisonment

rather than death for this defendant. Moreover, the facts pro-

vide ample evidence upon which the jury could have made a reasoned

determination that aggravating circumstances either did not exist

or were outweighed by the mitigating circumstances, including

possible mental distrubance as a result of being wounded, the

sparing of witnesses who were present, and the fact that it was

not a planned killing. The verdict for the accused simply can-

not be passed off as an unreasoned decision. Even if it could,

it is the traditional power of a jury to refuse to find an agg-

ravated offense where the facts might seem to justify otherwise.

See, e.g. Green v. United States, 355 U.S. 184 (1957). A

scintilla of doubt could, and should, be accorded weight by the

factfinder as the one body which can properly make such a deter-

mination. See Report of the Royal Commission on Capital Punishment,

1949-1953, Paragraph 39. Also not contradictory to a reasoned

judgment is the intangible impression by the jury of the accused

whom this jury heard and observed as he testified. With a repre-

sentative jury the values of the commumity regarding the penalty

and the offense are manifestly to be recorded. Thus it is no

extraordinary function of a jury to include such factors in its

conclusion.

The Florida Court very recently stressed that when it

affirms death sentences, “we are... the messengers, and not the

message". Brown v. Wainwright, 392 So.2d 1327, 1333 (Fla. 1981).

35. (cont.) the true pluralism reflected by petitioner's jury.

Morever, the variety of death penalty statutes employed by jur-

isdictions which respect the jury's life determination show that

“pluralism” will not be curbed if petitioner prevails.

Here, however, the people's message was for life, and the Florida

judiciary acted not merely as the messenger but as the decreers

of death.

In past death penalty cases, Justices of this Court have

faced the “excruciating agony" of judicial restraint in defer-

ence to popular decisions for the death penalty. Furman, supra,

408 U.S. at 405 (Blackmun, J., dissenting). In thig case, where

the representative voice of the jury and the bias of our system

in favor of life are in tandem, the warning of Mr. Justice

Rehnquist carries special weight, id. at 470:

{Jjudicial overreaching may result in sa-

crifice of the equally important right of

the people to govern themselves.

In order to clarify the meaning of judicial restraint when

the conscience of the community has spoken for life, this Court

should grant certiorari.

CONCLUSION

The writ of certiorari should be granted.

Respectfully submitted,

- DOUGLASV BRINKMEYER

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE FLORIDA 32302

(904) 488-2458

(MEMBER OF THE BAR OF THIS COURT)

oe eee

ASSISTANT PUBLIC DEFENDER

SECOND JUDICAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302

(904) 488-2458

(COUNSEL FOR PETITIONER UPON WHOM

SERVICE IS TO BE MADE.)

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

APPENDIX E:

APPENDIX F:

TABLE OF APPENDICES

OPINION OF THE FLORIDA SUPREME COURT

MOTION FOR ARREST OF JUDGMENT

DEATH SENTENCES IMPOSED IN FLORIDA AFTER

JURY PENALTY VERDICTS OF LIFE IMPRISONMENT,

1973-1981

DEATH SENTENCES IMPOSED IN FLORIDA AFTER

JURY PENALTY VERDICTS OF LIFE IMPRISONMENT:

CURRENT DISPOSITIONS

JUDGE/JURY ROLES IN CAPITAL PENALTY DETER-

MINATION: A SURVEY OF NATIONAL LEGISLATIVE

PRACTICE, 1972-1981

UTAH EXECUTIONS AND DEATH SENTENCES~~

JURY RECOMMENDATIONS (1948-1972)

la

le

1d

le

1f

Marvin Edwin JOHNSON, Appellant,

v. 1

STATE of Florida, Appellee.

Nos. 56167, 56703.

1070 Fla.

beyond jurors’ common knowledge; and (3)

although jury recommended life imprison-

ment, death was appropriate sentence to be

imposal for murder committed luring com-

mission of armed robbery by escaped con-

viet who had previously been convicted of

felonies involving use of threat of violence.

Affirmed,

England, J., filed a specially concurring:

Opinion.

Sundberg, C. J., filed an opinion con-

curving in part and dissenting in part in

which Overton and MeDonald, . joined.

ie Donald. J., filed a dissenting opinion

in which Overton, J., joined.

1. Criminal Law o730(3)

While some questions asked defendant

on cross-examination were improper, no re-

versible error resulted from questions which

allegedly attacked his character, contained

false innuendo, and were premised on facts

that the state was not prepared to prove,

where with one exception trial court either

sustained defense counsel's objections bo-

fore defendant answered objectionable

questions or gave adequate curative in-

structions.

2. Criminal Law o=1171.8(2)

Iniproper question allowed by trial

court on cross-examination of defendant

relating to his possession of a gun, other

than murder weapon, almost two months

after crime, without any curative instruc-

tion, was harmless error. West's F.S.A.

$§ 59.041, 924.33.

3. Criminal Law o=1153(1) .

Trial court has broad discretion in do-

termining range of subjects on which ex-

pert witness may be allowed to testify and

unless there is clear showing of error, its

decision will not be disturbed on appeal.

4. Criminal Law o=469

Discretion of trial court to determine

range of subjects on which expert witness

may be allowed to testify is not boundloas

and expert testimony should be excluded

where facts testified to are of such a nature

393 SOUTHERN REPORTER, 24 SERIES

AS not to require any special knowledge or

experience in order for jury to form conclu-

sions from facts.

5. Criminal Law c= 469

If disputed issue is beyond ordinary

understanding of jury, expert testimony is

admissil....

6. Criminal Law t

Pacts affecting reliability of testimony

of eyewitness to robbery and murder at

pharmacy were within ordinary experience

of jurors and did not require any expertise

beyond common knowledge of jurors, aad

thus trial court did not abuse its discretion

in granting state's motion to exclude prof-

fered testimony concerning fallibility of

eyewitness perception and identification.

7. Criminal Law @=438(4)

In prosecution for first-degree murder

and armed robbery, court did not reversibly

err in admitting photographs of pharmacy

where robbery-murder occurred after of fi-

cers had reconstructed scene of crime.

8. Homicide 331

Three people who were present in

drugstore at time of fatal shoot-out were

not “many persons” in context of aggravat-

ing circumstance provision of death sen-

tence statute but trial court's findings that

there were other aggravating circumstanc-

es, including fact that defendant was under

sentence of imprisonment when murder was

committed and that he had been previously

convicted of felony involving use or threat

of violence, and that there were no mitigat-

ing circumstances, were proper. West's

F.S.A. § 921.141(5y(e).

See

definitions.

9. Criminal Law += 163

Imposition of death sentence upon de-

fendant following his first-degree murder

and armed convictions, after jury

recommendation of life imprisonment, did

not violate his right against double jeopar-

dy. USC. A Const. Amend. 5.

i ee e ae *

1 9 > ey yee Oe * „

JOUNSON . STATE

Fu. 1071

Cite as, Pla, 393 = 1088

10. Jury 309)

Trial court's. osition of death sen-

tence after jury recommendation of life did

not impinge upon right to trial by jury of

defendant, who was convicted of first-de-

re munter and armed robbery, since func-

tion of jury in sentencing phase is not same

as function of jury in guilt phase.)

11. Homicide G34

Where facts sugyesting death sentence

were so clear and convincing that virtually

no reasonable person could differ, there

were no mitigating circumstances, statutory

or otherwise, and there were valid aggra-

vating circumstances, death was appropri-

ate sentence to be imposed for murder com-

mitted during commission of armed robbery

by escaped convict who previously had been

convicted of felonies involving use or threat

of violence.

Louis C. Curres, Asst. Public Defender,

Tallahassee, Fla., for appellant.

Jim Smith, Atty. Gen, and A. 8 John-

ston, Asst. Atty. Gen., Tallahassee, for ap-

pellee.

PER CURIAM. ese

Marvin Edwin Johnson appeals his

victions for murder in the first degree and

Johnson does not challenge the life sentence

that he received for the armed robbery.

the prescription counter, There was an ex-

change of gunfire, and Moulton continued

to fire at Johnson until his gun was emp-

tied. No longer able to defend himself,

Moulton stood up with his hands in the air.

Johnson then walked up to within a foot

and a half of the defenseless pharmacist,

said “You think you're a smart son-of-a-

bitch, don’t you?,” and shot him in the

cheat.

Johnson was indicted for and convicted of

first-degree murder and robbery. Al-

though the jury recommended a life sen-

tence, the trial-court found no mitigating

factors and five aggravating factors and

imposed the death penalty.

[1,2] Johnson challenges his convictions

on several grounds. He first contends that

he was deprived of a fair trial because

character, contained false innuendo, and

were premised on facts which the State was

not prepared to prove. Some of the ques

tions were improper, but no reversible error

resulted because, with one exception, the

trial court either sustained defense coun-

, answered

quate curative instruction. After exam-

ining the entire record, we conclude that

the one improper question allowed by the

trial court relating to defendant's posses-

sion of a gun, other than the murder weap-

on, almost two months after the crime and

for which there was no curative instruction,

was harmless error. Section 924.33, Florida

Statutes (1977); Section 59.041, Florida

Statutes (1977).

* Johnsen cleo contends that the trial court. |

deprived him of his rights to due process of

law and to compulsory attendance of wit-

nesses by granting the State’s motion in

limine to prevent the testimony of an ex-

pert witness who would have testified

about the fallibility of eyewitness percep-

tion and identification. The State asserts

that the facts affecting the reliability of an

eyewitness identification are within the or-

dinary experience of jurors, that the conelu-

1072 Fla.

sions to he drawn from the facts affecting

the reliability of an eyewitness should be

left to the jury, and that expert opinion

should be excluded where the facts testified

to are of a nature as not to require any

special knowledge or experience to form a

conelusion.

[3-5] The trial court has broad disere-

tion in determining the range of subjects on

which an expert witness may be allowed to

testify, and, unless there is M clear showing

of error, its decision will not be disturbed on

appeal. Fortianus v. State, 329 So.2d 397

(Fla, let DCA 1976). We reiterated this

proposition most recently in Buchman v.

Seaboard Coust Line Railroad Co, 381 80 2

229 (Fla.1980). In Buchman, we affirmed

the trial court's admission of expert testi-

mony in a railroad crossing accident case

because there was no clear showing that the

court abused its diseretion in admitting the

expert testimony. See also Welfare v. Sea-

board Cuust Line Railroad Co, 373 So.2d

886 (Fla.1979); Public Health Foundation

for Cancer and Blood Pressure Research,

Inc. v. Cole, 352 So.2d 877 (Pla. 4th DCA

1975), cert. denied, 361 So.2d 834 (Fla. 1975)

—— discretion, however, is not boundless

and expert testimony should be excluded

where the facts testified to are of such a

nature as not to require any special know!-

State, 362 So.2d 1017 (Fla. 3d DCA 1978);

Johnson v. State, 314 80 2d 248 (Fla. Ist

DCA 1975). The common thread running

through all the decisions dealing with the

admissibility of expert testimony is

4th DCA 1975); Seaboard Coast Line Rail-

road v. Hill, 250 So.2d 311 (Fla. 4th DCA

1971), writ discharged, 270 So.2d 359 (Fla.

1972). 8

In Nelson v. State, the appellate court

affirmed the trial court's exclusion of ex-

pert testimony of a psychologist on matters

393 SOUTHERN REPORTER, 24 SERIES

of eyewitness identification from a criminal

trial and correctly stated:

When facts are within the ordinary ex-

perience of jurors, conclusions to be

drawn therefrom are left to the jury.

McGough v. State, 392 So.2d 751 (Fla.

1974); Tongay v. State, 79 So.2d 673 (Fla.

1955); Thomas v. State, 317 So.2d 450

(Fla. 34 DCA 1975). We believe it is

within the common knowledge of the jury

that a person being attacked and beaten

undergoes stress that might cloud a sub-

sequent identification of the assailant by

the victim. As such, the subject matter

was not properly within the realm of

expert testimony... ..

362 So.2d at 1021.

ls In the present case, the facts affect-

ing the reliability of Gary Summitt’s testi-

mony were within the ordinary experience

of the jurors and did not require any exper-

tise beyond the common knowledge of the

jurors. The trial court did not abuse its

discretion in granting the State's motion to

exclude the proffered expert testimony.

[7] We also reject Johnson's argument

that the court reversibly erred in admitting

a a at ee

after the officers had reconstructed the

scene of the crime.

In addition to reviewing the record in

light of the alleged errors set forth by

Johnson, we have reviewed the evidence

pursuant to Florida Rule of Appellate Pro-

cedure 9.140(f) to determine whether the

interests of justice require a new trial, and

we conclude that no new trial is required.

Accordingly, we affirm the convictions.

Johnson also challenges his sentence of

death on several grounds. After the jury

recommended a life sentence, the trial

court, finding no mitigating circumstances,

imposed the death sentence. As aggravat-

ing circumstances, the court found:

FINDING: Marvin Edwin Johnson

was under sentence of imprisonment in

the State of Tenncssee, but had escaped

therefrom, when he committed the mur-

der of which he has been convicted.

JOUNSON . STATE

Fla. 1073

Cite an, Fla, 393 %

FINDING: Marvin Edwin Johnson

had not previously been convicted of any

capital felony, but had been convicted of

a felony involving the use or threat of

violence to the person, to-wit:

1. On October 14, 1964, the defendant

pled guilty to the offense of robbery in

Giynn County, Georgia, arid sentenced to

four years, wherein said robbery was

committed by “grabbing and holding (the

victim), throwing him down upon a bunk

located in the Glynn County Jail, tying

his hands und feet ..., placing a cloth

gag in his mouth, and threateaing and

offering to strike and hit him with two

pieces of metal, fastened together, mak-

i i .., the same being then

Penalty Phase umber 9, 1978.

2 On November 16, 1976, the defend-

ant was found guilty and sentenced to

twenty years for the offense of armed

robbery in Bradley County, Tennessee.

State Exhibit No. 5, Penalty Phase, De-

cember 9, 1978. 3

3. The defendant testified at the trial

that he had Leen convicted of a crime ten

times. The only evidence of what those

crimes were are the two convictions enu-

merated in 1 and 2 above. This Court

has recently been furnished copies of sev-

eral prior convictions of the defendant,

but the Court has neither studied these

documents nor knows the details of them.

have been sent to defense counsel.

In view of the evidence of prior convic-

tions, the Court makes no judicial deter-

mination of what type of convictions are

on the defendant's record except as enu-

merated above.

FINDING: Marvin Edwin Johnson did

create a great risk to many persons. Ile

did, in robbing Woodrow Moulton at gun-

point and in the ensuing gun battle with-

in the confines of the Warrington Phar-

macy, and in murdering the said Wood-

row Moulton, create a great risk of death

to the other three persons present in the

drugstore at the time.

Finding: The murder was committed

while Marvin Edwin Johnson was en-

gaged in the commission of an armed

robbery of the Warrington Pharmacy.

FINDING: The murder was commit-

ted during an armed robbery during

which the defendant, Marvin Edwin

Johnson, engaged in a pistol shoot-out

with the victim. Upon discovering that

the victim had exhausted his ammunition,

tim and pointing his 357 magnum revolv-

er within a foot or two of the victim's

chest, remarked to his victim, “You think

you're a smart son-of-a-bitch, don't

you?”, and proceeded to shoot the victim

dead with one shot through the victim's

heart.

While the method and manner of the

murder was not especially except

to the extent that any murder is heinous,

* the murder was atrocious and cruel and

was committed to reek revenge upon

Woodrow Moulton for having defended

his life and property in a completely law-

ful manner. i

The trial court made it perfectly clear at

the sentencing hearing that it had not re-

stricted itself solely to the statutorily enu-

merated mitigating circumstances.

181 The trial court erroneously found

that Johnson created a great risk of death

to many persons. The “many persons” re-

ferred to by the trial court were the other

three persons present in the drugstore at

the time of the shoot out. Three people are

not “many persons” as we have interpreted

that term in the context of section 921-

14(5Xe). Kamp(f v. State, 371 8% 1 1007

(Fla.1979). We therefore hold that this ag-

circumstance is not applicable.

However, the trial court's findings that

there were four other aggravating circum-

stances and no statutory or other mitigat-

- see — —

107 Fla.

ing circumstances were proper. See State

v. Dixon, 3X3 Sod 1 (Fla.1973).

{9} Jobnson's contention that the impo-

sition of death after a jury recommendation

of life violates his right against double jeop-

ardy has already lwen rejected by this

Court in Douglas v. State, 373 So d $95

(Fla. 1979) In Douglas, we hohl that a

jury's recommendation of life is not tanta-

mount to a judgment of acquittal of a erime

for which a death sentence is appropriate

since such recommendation is advisory only,

and we-explained that acceptance of de-

fendant’s assertion would place our present

death penalty statute in contravention of

the United States Supreme Court's di-

rectives in Furman v. Georgia, 408 U.S. 238,

92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), since to

accept his argument would mean that a

trial judge and this Court would be bound

by the jury’s recommendation of life.

{10} He further asserts that for the trial

court to impose a death sentence after a

jury recommendation of life impinges on his

right to trial by jury. The function of the

jury in the sentencing phase, however, is

not the same as the function of the jury in

the guilt phase. The United States Su-

preme Court, in Proffitt v. Florida, 423 U.S.

242, 96 S.Ct. 2960, 49 L.Ed.2u 913 (1976),

approved the role of the jury under Plori-

da's death penalty statute as advisory only.

See also Douglas v. State; Hoy v. State, 353

$o.2d 826 (Fla. 1977), cert. denied, 439 U.S.

920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978).

Johnson's arguments that the court's

override of the jury recommendation

amounts to eruel and unusual punishment

and violates his right to due process of law

are likewise without merit. These argu-

ments are based on the same faulty premise

as Johnson's double jeopardy argument that

the jury's role is more than advisory that it

binds the trial court and this Court.

lin Johnson's final argument is that

the trial court's overriding of the jury's liſe

recommendation is contrary to the dictates

of Tedder v. State, 322 S0 Al 908 (Fla. 1978)

In Tedder, we held that a jury's recommen-

dation of life should be given yreat weight

393 SOUTHERN REPORTER, 2d SERIES

and that in order to sustain a sentence of

'death, “the facts suggesting a sentence of

death should be so clear and convincing that

virtually no reasonable person could differ.”

Later in Hoy v. State, wherein we sustained

the trial court's override of a jury recom-

mendation, we said that the jury recom-

mendation is to be accorded great weight,

but the ultimate decision as to whether the

death penalty should be imposed rests with

the trial judge. In the present case, we

find from the totality of the circumstances

that the facts suggesting the death sen-

tence are so clear and convincing that virtu-

ally no reasonable person could differ.

There are no mitigating circumstances,

statutory or otherwise, and there are four

valid aggravating circumstances. We con-

clude that death is the appropriate sentence

to be imposed for this atrocious and cruel

execution murder committed during the

commission of an armed robbery by an es-

caped convict who previously had been con-

victed of felonies involving the use or

threat of violence.

Accordingly, having found no reversible

error, we affirm the convictions and sen-

tences. :

It is so ordered.

ADKINS, BOYD, ENGLAND and AL-

DERMAN, JJ., concur.

ENGLAND, J., concurs specially with an

opinion. .

SUNDBERG, C. J. concurs in part and

dissents in part with an opinion, with which

OVERTON and McDONALD, JJ., concur.

OVERTON, J., concurs as to the convic-

tion, but dissents as to the sentence.

McDONALD, J., dissents with an opinion,

with which OVERTON, J. concurs. 5

ENGLAND, Justice, concurring specially.

While I concur in the Court's affirmance

of Johnson's conviction and sentence, I can-

not characterize this killing as cither atro-

cious or crucl, as those terms are used in

our death penalty statute. My disagree-

ment on this point, however, is irrelevant to

the outcome of the case.

JOUNSON ». STATE

Fla 1075

Cite as Pla, 393 So.2d 1069

SUNDBERG, Chief Justice, concurring in

part and dissenting in part.

I concur in so much of the majority opin-

ion as affirms the convictions in this case,

but I must respectfully dissent from that

part which affirms the sentence of death.

Beeause the jury recommended the iinpo-

sition of a life sentence, the standard to be

applied in determining whether to sustain

the trial judge's death sentence is that “the

facts suggesting a sentence of death should

be so clear and convincing that virtually no

reasonable person could differ.” Tedder v.

State, 322 So.2d 903, 910 (Fla.1975). After

a complete review of the circumstances sur-

rounding this criminal episode as cataloged

in the majority opinion, I believe reasonable

persons could clearly differ over whether

this homicide is so set apart frum the norm

as to call for imposition of the death penal-

ty. Conceding, as must any person, that all

murders are unwarranted and anathema to

any civilized society, nonetheless our capital

punishment statute reserves the Ceath pen-

alty for those acts which are so flagrantly

vile, cruel and outrageous as to set them

apart from other capital felonies.

From the seminal case upholding our cap-

ital punishment statute we are taught:

Death is a unique punishment in its

finality and in its total rejection of the

possibility of rehabilitation. It is proper,

therefore, that the Legislature has chosen

to reserve its application to only the most

aggravated and unmitigated of most seri-

ous crimes : ;

State v. Dixon, 2 So2d 1, 7 (Fla.1973)

(emphasis added).

Thus, it [§ 921.141, FlaStat) again

presents evidence of legislative intent to

extract the penalty of death for only the

most aggravated, the most indefensible

of crimes.

Id at 8 (emphasis added).

What is intended to be included are those

capital crimes where the actual commis-

sion of the capital felony was accompa-

nied by such additional acts as to set the

crime apart from the norm of capital

felonies-the conscienceless or pitiless

crime which is unnecessarily torturous to

the victim.

Id. at 9 (emphasis added).

ant finally:

It must be emphasized that the proce-

dure to be followed by trial judges and

juries is not a mere counting process of X

number of aggravating circumstances

and M number of mitigating circumstanc-

cs, but rather a reasoned judgment as to

what factua) situations require the impo-

sition of death and which can be satisfied

by life imprisonment in light of the total-

ity of the circumstances present.

Id. at 10.

ence of four aggravating circumstances and

the absence of any statutory mitigating cir-

out cligibility for parole until the expiration

of twenty-five years.

OVERTON and McDONALD, JJ. concur.

McDONALD, Justice, dissenting.

1 would affirm the conviction but dissent

from the imposition of the death sentence.

I disagree with the statement that from

the totality of the circumstances the facts

suggesting the death sentence are so clear

and convincing that virtually no reasonable

1076 Fla. 393 SOUTHERN REI

person could differ. Prior to the shooting

the defendant had completed his crime of

robbery and was leaving. The victim initia-

ted the shooting. 1 do not condone the acts

of the defendant thereafter in the slightest,

and there is ample evidence to support pre-

meditated murder, but I feel that there

may be factors which would justify the

jury’s recommendation of mercy. The tes-

timony of the psychologist could lead one to

believe that the defendant's apparent ma-

levolent act against the victim was in fact

an unplanned reaction to being fired at.

He directed no overt act of hostility or

harm at the witness Summitt, whose subse-

quent testimony at trial was primarily re-

db sponsible for Johnson's conviction, nor did

he attempt to harm any other occupant of

the store. Since he apparently showed

some mercy the jury could have felt it

should also. The proper sentence in this

case is life imprisonment.

OVERTON, J., concurs.

APPENViA ©

IN THE CIRCUIT COURT IN AND FOR 4 COUNTY, FLORIDA

if

“eM it

STATE OF FLORIDA,

Plaintiff, 9 75

)

vs. Is CASE NO. 78-1869,

uw

11

*

) 2.5

MARVIN EDWIN JOHNSON, ) 227 — 2

) 29 S 2

Defendant. ) me —

) 2 2 2

222 83

> Pe poy >

MOTION FOR ARREST OF JUDGMENT wee * 2

— 2 r. ‘>

1 en

COMES NOW the Defendant, MARVIN EDWIN JOHNSON; pursuant

to Florida Rule of Criminal Procedure 3.610, and moves this

' Honorable Court to arrest the judgment sentencing the Defendant

i

. circumstances.

to death on the following ground:

1. The judgment and sentence of death by the Court

fails to conform to the jury finding at the penalty phase. Not

only is the verdict uncertain in support of said sentence, the

Jury found that there were either no aggravating circumstances or

the aggravating circumstances were outweighed by the mitigating

$

—

* The concept of overturning a jury's finding of fact in

t savor of a criminal defendant is unknown in common law and

| violative of the Sixth Amendment to the United States Constitution

ana Article 1, Section 22 of Florida's Constitution; the Fifth .

and Fourteenth Amendment to the United States Constitution

ö and Article 1, Section 9 of Florida's Constitution; the Eighth

ö

0 Amendment to the United States Constitution and Article 1.

section 17 of the Constitution of the State of Florida.

WHEREFORE, the Defendant prays this Honorable Court

will enter its order arresting the judgment entered by this

Court.

WILLIAM RANKIN of

Kerrigan, Estess & Rankin

224 East Government Street

Pensacola, Florida 32501

(904) 432-2317

Attorneys for Defendant

— ———— —

——— — eee

APPENDIX C

DEATH SENTENCES IMPOSED IN FLORIDA AFTER JURY

. 3-198)

In the list which follows, the abbreviation "FSC" means the Florida Supreme

Court, while "USSC" means United States Supreme Court. Each individual sentenced

to death is listed only once,

although in some zases more than one death sentence

may have been imposed on a singie defendant for different offenses, and in other

cases a death sentence may have been imposed, reversed, and then reimposed. Un-

der Gardner v. Florida, 430 U.S. 349 (1977), a number of death sentences have

been remanded to the trial court in order to give the accused an opportunity to

rebut or respond to any previously undisclosed material considered in imposing

the original sentence of death.

the jury's penalty verdict.

. Elwood Barclay (B)

Henry Brown (B)

Franz Buckrem (M)

Jackson Burch (B)

Walter Carnes (B)

Glen Chambers (W)

Ernest John Dobbert, Jr. (d)

Howard Virgil Lee Douglas (u)

Daniel Wilbur Gardner (u)

Jesse Lamar Hall (W)

Darrell Hoy (u)

Sonia Jacobs (W)

Jimmie Lee Jones (B)

Robert Fieldmore Lewis (W)

James McCaskill ()

- le -

Such a remand does not, of course, invalidate

FSC upheld 3-17-77. Remanded for re-

sentencing by FSC per Gardner 9-7-78.

Resentenced to death 4-18-80

FSC reduced to 25-year life 2-1-79.

FSC reduced to 25-year life 1-26-78.

FSC reduced to 25-year life 3-10-77.

Committed suicide on death row. Case

dismissed by FSC, 7-15-75.

FSC reduced to 25-year life 11-4-76.

FSC upheld 1-14-76. USSC upheld 6-15-77.

FSC remanded for resentencing per Gard-

ner, 4-2-78. Resentenced to death 6-78.

FSC upheld second death sentence 7-5-79.

Cert. den. 6-9-80.

FSC upheld 2-18-76. Cert. den. 4-77.

Death warrant signed 7-17-79. Federal

stay 7-24-79 .

FSC upheld 2-26-75. USSC reversed

3-22-77 (Gardner v. Florida). Resen-

tenced to 25-year life 5-77.

FSC remanded for new trial 12-20-79.

Allowed to plead guilty and receive

25-year life, 6-80.

FSC upheld 12-2-77. Granted executive

clemency 6-12-80.

FSC reduced to 25-year life 3-26-81.

FSC reduced to 25-year life 5-12-76.

FSC remanded for resentencing 4-2-81.

FSC reduced to 25-year life 4-7-77.

. James McCray (B)

. Rodney Mal oy (M)

. Jack Neary (W)

„ Eddie Odom (W)

. Michael Provence (u)

. Anthony Eugene Sawyer (8)

. William Horace Shue (W)*

. Darius Slater (B)

„ Joe Spaziano (WwW)

„ Lloyd Swan (B)

. Joseph Taylor (B)

. Mack Reed Tedder (u)

. Larry Thompson (W)

. Ernest Coyle Walker (W)

. Clifford Williams (8)

. Otis Williams (B)

. William Thomas Zeigler (W)

FSC upheld 10-30-80.

FSC reduced to 25-year life 12-20-79.

FSC reduced to 25-year life 5-15-80.

First review in FSC pending.

FSC reduced to 25-year life 7-21-76.

FSC upheld 2-19-75. Trial judge subsequently

reduced to 25-year life 8-6-76.

FSC reduced to 25-year life 12-8-78.

FSC reduced to 25-year life 6-25-75.

FSC remanded for resentencing 1-8-81.

FSC reduced to 25-year life 9-3-75.

FSC reduced to 25-year life 5-15-75.

FSC reduced to 25-year life 11-19-75.

FSC reduced to 25-year life 1-21-76.

Died on death row 3-17-77. Possible suicide.

FSC reduced to 25-year life 6-12-80.

FSC reduced to 25-year life 4-7-77.

First review in FSC pending.

DEATH SENTENCES IMPOSED IN FLORIDA AFTER JURY PENALTY VERDICTS OF LIFE IMPRI~-

. Alonzo Winfred Bryant (B)

Sentence imposed 11-22-77.

John William Barfield (u)

Sentence imposed 3-3-78.

. Robert Lewis Buford (8)

Sentence imposed 3-31-78.

Roy McKennon (B)

Sentence imposed 4-21-78.

. James L. Phippen (u)

Sentence imposed 6-22-78.

. Beauford White (B)

Sentence imposed 6-22-78.

. David Monroe Goodwin ()

Sentence imposed 8-18-78.

.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

FSC reduced to 25-year life 10-23-80.

FSC upheld 3-20-81.

First review in FSC pending.

*Death sentence of William Horace Shue was imposed for sexual battery upon

a child which did not result in the death of the victim, an offense puni-

shable by death or life imprisonment without opportunity for parole during

the first 25 years of the sentence, see Section 794.011 (2), Florida Stats.

(1977).

40.

41.

61.

Durham Eldon Stokes (M)

Sentence imposed 8-25-78.

William Glenn Welty (W)

Sentence imposed 10-31-78.

. Raleigh Porter (W)

Sentence imposed 12-11-78.

. Guy Ennis Smith (u)

Sentence imposed 12-21-78.

. Marvin Edwin Johnson (u.)

Sentence imposed 1-12-79.

. Robert D. Heiney (W)

Sentence imposed 3-29-79.

. Thomas McCampbell (8)

Sentence imposed 4-24-79.

. Soloman Webb (B)

Sentence imposed 11-16-79.

. William Howe Gilvin (W)

Sentence imposed 1-4-80.

. Bernard Bolander (W)

Sentence imposed 4-25-80.

Donald Albert Walsh (W)

Sentence imposed 6-26-80.

7

Gregory Scott Engle (u

Sentence imposed 8-17-79.

. Rufus Stevens (u)

Sentence imposed 8-17-79.

Earnest Lee Miller (W)

Sentence imposed 1-30-80.

Michael E. Canady (W).

Sentence imposed 6-20-80.

Bobby Earl Lusk (M)

Sentence imposed 2-5-80.

. Gregory Mills (8)

Sentence imposed 4-18-80.

Ervin McCray (B)

Sentence imposed 8-25-80.

Ricky Washington (B)

Sentence imposed 9-15-80.

Dan Edward Routly 2

Sentence imposea 11-24-80

Connie Livingston (B)

Sentence imposed 10-10-80.

Durwin Norris

Sentence imposed 3-12-81.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

FSC upheld 12-11-80.

First ruten in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

First review in FSC pending.

NOTE: Letters after names show race of defendant: (B8)=Black, (W)=White.

Under Section 775.082 (1) (Florida Stats., 1977), the only available

penalties for first degree murder or sexual battery on à child are

death or life imprisonment without opportunity for parole during the

first 25 years of the sentence. In this list, the sentence provided

as an alternative to the death penalty is referred to as “25-year life."

- e 2

APPENDIX D

DEATH SENTENCES IMPOSED IN ELOREDA AFTER JURY

PENALTY VExDICTS 2 NE. URRENT

DISPOSITIONS

In the list which follows, the abbreviation FSS“ means

Florida Supreme Court, while “USSC” means United States Su-

preme Court. In some of these chses, death sentences have

been vacated by the Florida Supreme Court and then reimposed

on remand by the trial judge after a “Gardner hearing” where

the accused may rebut or respond to any previously undisclosed

material used as a basis for the original death sentence, see

Gardner v. Plorida, 430 U.S. 349, 357 (1977).

A. Under Death Sentence Affirmed Sy FSC

1. Howard Virgil Lee Douglas FSC Affirmed: Douglas v.

State, 328 80. 28 18 (1976);

nied Post-Conviction

Relief: gee v. State,

373 So.2 .

2. Ernest John Dobbert, Jr. PSC Affirmed: Dobbert v.

State, 328 So.2d 433 (1976):

USSC Affirmed: Dobbert .

Florida, 432 U.S. 282 (1977);

irmed on resentencing

after Gardner hearing and new

death sentence from trial

court: Dobbert v. State, 375

So.2d 1 0

3. Elwood Clark Barclay FSC Affirmed: Barclay v.

State, 343 80. 24 126611977)

now under resentence of death

after Gardner hearing; direct

review by rsc pending.

4, James McCray FSC e McCrae 85 State,

S0. 2d

Pat. 300% 1980. — 2 denied,

April 9, 1981).

5. Marvin Edwin Johnson . FsSc Affirmed, Johnson v.

State, 393 So.2d 1069 (1980).

6. Beauford White FSC a e White v. State,

80. 2 (Case No. Fa.

Karch 30, T1980).

B. Death Sentenced Reversed By USSC After

FSC AfTirmance, Then Reduced To Life Im-

=rTsonnent By Florida Courts.

7. Daniel Wilbur Gardner PSC Affirmed: Gardner v.

State, 313 So.2d 675 (1975);

Reversed: Gardner v.

Florida, 430 u. J. 399 (1977).

- ld -

C. Death Sentence Reduced fo Life Imprison-

ment by IAI Judge Alter Toc aTTirmance

8. Anthony Bugene Sawyer

FSC Affirmed: Sawyer v.

State, 313 So.34 680 (1975) 5

Reduced by trial judge,

Aug. 1976. :

D. Death Sentence Reduced To Life Imprison-

t by © ti C1 ifter rsc Al-

men xecutive emency A

firmance

9. Darrell Edwin Hoy

10.

11.

12.

13.

14,

15.

16.

47.

18.

19.

20.

21.

22.

23.

24,

E. Death Sentence Reduced

FSC Affirmed: Hoy v. State

553 30. 20 826 (877 execu-

tive clemency granted, dune

12, 1980.

To Life Imprison-

ment By FSC

Joseph Taylor

Darius Slater

Lloyd Swan

Mack Reed Tedder

Larry Thompson

Jimmie Lee Jones

Michael Edward Provence

Glen Stark Chambers

Jackson Burch

James McCaskill

Otis Williams

Franz Peter Buckrem

William Horace Shue, Jr.

Henry Brown

Rodney Malloy

3

FSC Reduced Taylor v.

State, 294 802 O48 1970).

FSC Reduced: Slater v.

State, 316 So.2d 539 (1975).

FSC Reduced: Swan v. State,

322 So.2d 485 °

FSC Reduced: Tedder v.

State, 322 So. 908 (1975).

FSC Rédueeds: Thompson v.

State, 328 So.2d f (1976).

FSC Reduced: Jones v. State,

332 80. 2d 615 (1970).

FSC Reduced: Provence v.

State, 337 So.cd 765 (1976).

FSC Reduceds Chambers v.

State, 339 So.2d 209 (1976).

FSC Reduced: Burch v. States

343 80. 2d 831 8

PSC Reduced McCaskill x.

State, 344°So.2d 1276 (1977).

FSC Reduceds Williams v.

State, 34% So. 1977).

PSC Reduced: Buckrem v.

State, 355 So. zd 1II (1978).

PSC Reduced: Shue v. State,

366 80. 2d 387 (1975). ~—

FSC Reduced: Brown . State,

367 80. 2d 616 (1979). 25

FSC Reducedi Malloy v.

State, 382 80 2 1190 (1979).

47. Solomon Webbd

4 — — —

198).

80).

).

25. Jack Near FSC Reduced: Near

1 : State, 384 30 2 887 (1

26. Clifford Williams, Jr. FSC Reduced: Williams v.

State, 386 So. 9

27. James Leroy Phippen FSC kKeduced: 2297552 ve

: State, 389 So. 980

28. Sonia Jacobs FSC 1 28 v.

State,

(Case No. 550175. Nach 26,

1981).

F. Death Sentence Remanded To Trial

ourt For Reconsideration er

eversa

29. Joseph Robert Spaziano, FSC Remanded For Resen-

*“tencings Spaziano v. State,

393 80. 2d F115 [eae

30. Robert Fieldmore Lewis FSC Remanded For Resen-

pase Lewis v. State,

se No.

S851. AprTT-2. 1981).

G. Conviction Reversed B PSC Defen-

dant Permitted On Retrial > Plead

Guilty And Receive Lite sentence

31. Jesse Lamar Hall PSC Reversed Convictions

Hall v. State, 381 So. 2d

1 pled guilt

retrial and received life

sentence, June, 1980.

K. Death Sentence Pendi First

Review In Fsc ‘

32. Eddie Odom

33. Alonzo Winfred Bryant

34. John William Barfield

35. Roy McKennon

36. David Monroe Goodwin

37. Durham Eldon Stokes

38. William Glenn Welty

39. William Thomas Zeigler

40, Raleigh Porter

41, Guy Ennis Smith

42, Robert D. Heiney

43. Thomas McCambell

44, Gregory Scott Engle

45. Rufus Stevens

46, Robert Lewis Buford

60.

61. Ernest Coyle Walker

Bernard Bolander

William Howe Gilvin

Donald Albert Walsh

Earnest Lee Hiller

Michael E. Canady

Bobby Ear! Lusk

Gregory Mills

Ervin McCray

Ricky Washington

Dan Edward Routly

Connie Livingston

Durwin Norris

I. Suicide Or Possible Suicide While Under

tence In

entence peiore rs eview en-

as Decided

Walter Carnes

Committed suicide, 1975;

Bee Carnes v. State, Case

No. ° » motion to dis-

miss filed July 14, 2975,

and order entered July 15,

1975.

‘Possible suicide, March

19771 cause of: deaan un-

certain, and accident or

homicide not excluded.

— 4d -

SUMMARY OF CASE DISPOSITIONS

Florida Death Sentences After Jury Life Verdicts

A. Under Death Sentence Affirmed by FSC----------<-------<---=-- 6*

B. Death Sentence Reversed By ussc After FSC Affirmance,

Then Reduced To Life Imprisonment By Florida Courts--~----- 1

o. Death Sentence Reduced To Life Imprisonment sy Trial

Judge After FSC Affirmance-------------<-<-<--<-<--- ———— 1

D. Death Sentence Reduced To Life Imprisonment By Executive

Clemency After FSC Affirmance----<--<--<-<-<<<<-<--<-= ----1

E. Death Sentence Reduced To Life Imprisonment By FSC------- 19

F. Death Sentence Remanded To Trial Court For Reconsi-

deration After FSC Reversal - -2*

G. Conviction Reversed By FSC, Defendant Permitted On

Retrial To Plead Guilty And Receive Life Sentence--------- 1

H. Death Sentence Pending First Review In FSC--------------- 28*

I. Suicide Or Possible Suicide While Under Death Sentence

Before First Review Of Sentence In FSC Was Decided---~----2

TOTAL NUMBER OF CASES 61

TOTAL NUMBER OF PERSONS POTENTIALLY AFFECTED 36*

(Categories marked (*) are potentially affected by Petitioner's

claims challenging the constitutionality of death sentences im-

posed after jury decisions for life imprisonment.)

Summary Of FSC Casé Dispositions

Death Sentences After Jury Life Verdicts

APFIRMED-------------------------- — — — — 9

REDUCED TO LIFE IMPRISONMENT-------------------------------19

REVERSED AND REMANDED FOR RECONSIDERATION BY TRIAL JUDGE----2

CONVICTION REVERSED, DEFENDANT PLED GUILTY AND RECEIVED

LIFE SENTENCE ON RETRIAL~------------------~----------------1

(6)

(2)

(28)

FIRST REVIEW OF DEATH SENTENCE NOW PENDING-------- ———— 28

SUICIDE OR POSSIBLE SUICIDE, FIRST REVIEW HoOTED--—————————2

TOTAL NUMBER OF CASES . 61

(Numbers in parenthesis ( ) show persons potentially affected

by Petitioner's constitutional claims, including 34 persons

presently under sentence of death, and two persons whose death

ent have been remanded for reconsideration by the trial

court.

THIS DATA IS COMPILED AS OF APRIL 15, 1981

(36)

APPENDIX E

2 9 0 8 : e

JUNGE/IVURY NOLTS LI CAPITAL PENALTY OLTRMIIvASION

A Survey Of National Legislative Practice, 1972-1981

1. Jury Life Verdict binding

ARKANSAS Crim. Code (1977) §41-1301-1302 L

CALIFORNIA * Penal Code (1979) 3199. 7790.4 U

COLOPADO Rev. Stats. (1973) §16-11-103* L

CONNZSCTICUT Gen. Stats. Ann. (1979 Pck.Pt.) §33a-46a U (?)

DELAVIARE Code Anns (1977 Cum.Supp.) §11-4209 L

GLORGIA Code Ann. (1977) §26-3102, §27-2302 L

ILLINOIS Ann. Stats. (1979) §36-9-1 L

KENTUCKY Rev. Stats. (1973 Cum.Supp.) 3532. 0257 U (?)

LOUISIANA Code of Crim. Proc. (Pck.Pt. 1979) Art. 905.8 L

MARYLAND Ann. Code. (1978 Cum.Supp.) Art. 27, §413 L

MASSACHUSETTS 1879 Chapter 488, Section 55 — L

MISSISSIPPI Code (1978 Cun.Supp.) §99-19-101 L

MISSOURI Crim. Code (1979 Spec. Pamph.) §565.006 L

NEVADA Rev. Stats.(1977) §175.554 U

NEW HAMPSHIRE Rev. Stats. Ann. (1977 Supp.) §630.5 L

NEW MEXICO Stats. Ann. (1979 Supp.) 31-20A-3 L

NORTH CAROLINA Gen. Stats. (1978) §15A-2000 L

OKLAHOMA Stats. Ann. (1973-1979 Pck.Pt.) §21-701.11 L

PENNSYLVANIA Act No. 1978-141: §18-1311 L

. SOUTH CAROLINA code Ann. (1973 Cum.Supp.) §16-3-29 L

SOUTH DAKOTA State Laws 1979 Chapter 160: §23A-27A~-4 L (2)

TENULSSELD Code Ann. (1973 Cum. Supp.) §39-2404 L

TEXAS code Crim. Proc. Art. 37.071 T

UTAH Crim. code (1978) §76-3-207 iy L

VIRGINIA Code (1979 Cum.Supp.) §19.2-264.4 L

WASHINGTON Rev. Code Ann. (1970 Pck.Pt.) §10.94.020 U (?)

WYOMING Stats. (1977) §6-4-102 L

UNITED STATES 49 USC §1473 (1976) (Antihijacking Act) U

2. Jury Life Verdict Not Binding

FLORIDA - State. Ann. (1977) §921.141 M

INDIANA Stats. Ann. (1979) §35-50-2-9 U

’ 3.

3. Judge Sentences After Jury Finding Of Aggravation

Minn Code (1975) 8133-330

OHIO Rev. Code Ann. (1973) §2929.03*

4. Penalty Determination By Judge Alone N

ARIZOWA Rev. Stats. Ann. (1973 Supp.Pamph.) 513-454

IDAHO Code (1978 Cum,Pck.Supp.) §19-2515

MONTANA ~ Rev. Codes (1977 Interim Supp.) §95-2206.6

NEBRASKA _ Rev. Stats. (1975) §29-2520

OREGON Rev. Stats. (1979) 163. 116%

LEGENDS AND NOTATIONS

ite sentence unless ;jury unanimously agrees on death

U---Unanimous verdict requireé for either life or death

M---Majority suffices for verdict of either life or death

T---Unique Texas procedure--penal ury answers special questions on

deliberate nature of murder, — At defendant would engage in

future acts o. dangerous violence, and (if raised) lack of provoca-

tion by victim. 12 jurors required to answer each question zes“;

10 jurors may auswer any question no“ and prevent death penalty.

LEGENDS AND NOTATIONS CONT. NEXT PAGE

-le-

LEGENDS AND NOTATIONS (CONT.)

*Ohio and Colorado statutes found unconstitutional because

mitigating circumstances limited--see Lockett Vv. Ohio, 438

U.S. 586 £1978) . Colorado in August of 1979 amended its sta-

tute to comply with Lockett by allowing unlimited considera-

iw see nev. Stats. (1979 Cum.Supp.), Section

#The net ag statute is not absolutely clear in its language

concerning the finality of a jury decision inst death, but

in Gall v. Commonwealth, 607 S.W.2d 97, 104 (Ky. 1980) the Su-

preme Court of Kentucky construed the statute to require a jury

finding of at least one aggravating circumstance in the penalty

phase before the judge may consider imposing the death ea,

Since the statute calls for written findings of aggravating cir-

cumstances by the jury only “if its verdict be a recommendation

of death,” see Kentucky Rev. Stats. (1978 Cum.Supp.) Section

532.025 (3), it appears that a jury life decision is in effect

binding under the Kentucky scheme.

@Alabama statute declared unconstitutional in Beck v. Alabama,

U.S. __,» 100 8. Ct. 2382 (1980), because of prohibition

Fr lesser offense instructions in capital cases under that

statute.

**Oregon death 3 statute declared unconstitutional by

Supreme Court of Oregon in State v. quinn, 623 P. 2d 630 (or.

1981) on ground that making “deliberateness” of capital nur-

der a fact to de determined by the trial judge alone in the

penalty phase denied an accused the right to trial by jury.

(?) The Kentucky statute as interpreted by the Supreme Court

_of Kentucky requires a unanimous {ry verdict for death, but

the consequences of a jury's inability to agree on the penalty

issue are not defined. The Connecticut and South Dakota sta-

tutes do not specifically state a unanimity requirement on

penalty, but it is fairly assumed; the Washington statute does

not specify the result if the jury fails to agree on the pe-

nalty issue.

Overall Catecorics

JURY LIFE VERDICT BINDING- 28

JURY LIFE VERDICT nor BINDING - - -2

JUDGE SUNTCNCES APTCR JURY

r nnn nena 2

JUDGE DDITCRMINES PLiiALTY ALONE-<wnm “ 777 5

TOTAL JURISDICTIONS 37

Jury Participates In Determining Aggravation

YES------ 32 |

NO et ARP TER 1 =) j

TOTAL JURISDICTIONS 3?

RESULT IN FAVOR OF DEFENDANT BINDING 30

RESULT iu FAVOR OF DEFENDANT or BINDING 2

SUBTOTAL OF JURISDICTIONS 32

_ Jury Particinates In Actual Sentence Decision

YES-- on — 30

15.— 2

TOTAL JURISDICTION ä rm 37

RESULT IN PAVOR OF DEFENDANT BINDING 28

RESULT IN FAVOR OF DEFESIDANT NOT BINDING 2

SUBTOTAL OF JURISDICTIONS a 30

METHOD OF STUDY: For each jurisdiction restoring a discretionary

death penalty since Furman X. Geor ic, 408 U.S. 238 (1972), an

atterpt was made to Find tie latest statute. Since the purpose

here is to survey the “evolving standar¢s of decency" as reflected

by the norm of national legislative action, a few statutes such as

those of Colorado and Ohio are included which have been deciared or

may be declared unconstitutional because they do not permit the

full consideration of all mitigating circumstances which the de-

fendant may present at the penalty proceedings. f

— *

Rules On Jury Penalty Vote

. LIFE UNLESS UNANIMOUS FOR DEATH (L) — 21

UNANIMITY POR AY VERDICT REQUIRED (U)-------- 7*

MAJORITY SUFFICES FOR LITE OR DLATH (M)------- 1*

TEXAS PROCEDURE--SPECIAL PENALTY QUESTIONS---~- _1

SUBTOTAL OF JURISDICTIONS = - 30

„(b includes Indiana (life not binding); (0 includes Florida

(life not binding). The majority rule in Florida is not speci-

fically connected with the nonbinding nature of the verdict as

the statute is now construed, since from 1872 to 1972 the same

majority rule applied but the verdict was final. *

THIS SURVEY IS BASED ON INFORMATION AVAILABLE TO APRIL 15, 1981.

- Je

ih OPE” fue £ behave ae *

UTAH EXECUTIONS AND DEATH SENTENCES--JURY RECOMMENDATIONS (1948-1972)

Previous to the decision of Purman v. Georgia, 408 U.S. 236

(1972), the State of Utah had a death penalty statute which made

the ultimate penalty mandatory unless the jury recommended mer-

cy, and in cases where the jury did recommend mercy extended

discretion to the trial judge to impose a penalty of death or

of life imprisonment. It may be noted that under Utah law death

was the normal penalty for first degree murder, and life impri-

sonment the exception which thus required agreement by both

judge and jury.

There follows a list of every defendant whose death sentence

was executed in Utah between 1948 and 1967 (when a moratorium on

executions began which was to last nationwide for 10 years while

federal constitutional questions were being resolved.

Also, there are listed reports of two Utah cases (in 1941 and

1951) where a death sentence was sustained by the Utah Supreme

Court after a jury recommendation of mercy, but was not carried

out.

s

The records show that at least since 1948, there were no

executions in Utah after jury recommendations of mercy.

DEFENDANTS EXECUTED IN UTAHs 1948-1967

Name Date of verdict Dist. Ct. # Appel. Rpt.

1. Mares, Elisio J. Summit Cnty. State v. Mares,

Executed 9/10/51 March 7, 1947 2 Ct. 192 P.cd Bol (Ut. 1948)

2. Gardner, Ray Demp- Dec. 13, 1949 Weber Cnty. State v. Gardner,

sey Executed 2nd Dist. Ct. 230 P.cd 559 (Us.-1951)

— 8 9-51 #4803

J. Neal, Don Jesse —— State v. Neal, 262 P. 2d

Executed 7/1/55 750, 799 Cts 1953)

Utah 8. Ct. doted lack

of jury mercy recon-

mendation id. a 9.

- if -

Name Verdict Date Dist. Ct. # Appel. Rpt.

. Braasch Dec. 9, 1949 Iron Cnty. tate v. Braasch,

Vern 4. N 5th Dist. Ct. 228 824-285 U. 1951)

Executed 5711/56 #171

5. Sullivan, Dec. 9, 1949 Same as Braasch Sub_nomin2 Beuesch

Melvin L. (co-defendant)

Executed 5/11/56

6. Kirkhan, . r M 9292885 State. v. Kirkhan,

Barton K. 2 52

Executed 6/7/58 (Ut. 1958). Absence

of jury mercy recom-

mendation noted in

opinion, id. at 862.

7. Rodgers, Dec. 16, 1957 San Juan Cnty. State v. Rodgers,

James . 7th Dist. Ct. 52 Poza 1078-0 t. 1958)

Executed 3/30/60 Crim. #243

NOTE: In two cases, those of Neal and Kirkham, the opinion of the

Utah Supreme Court itself mentions the choice of the jury for a

verdict of first degree murder without rather than with a recon-

mendation of mercy; thus only the appellate citation is given for

these cases. Information on the other five cases was obtained

from the relevant Judicial District Courts of Utah, where the

er- were ian pa n each of these cases, tri

verdict 8

7 6 @specially s ng because cus-

es were provided with separate verdict forms

decision, including any of 1 degree

prisonment.

omar ur

for each possible

murder with a recommendation for life

Name ellate Opinion Aff’ entence Date Commuted

1. Markham, John State v. Markham, 112 P. 2d 496, September 22, 1941

pee 496-497 (Ut. 1941).

2. Matteri, Fred State v a 1838.0 325. June 11, 1951

NOTE: Commutation dates based on records of Utah State Prison in

case of Fred Metter i, and on a document in the Utah State Archives

reporting the granting of executive clemency to John Markham: Memo-

randum, Office of the Attorney General (September 24, 1941) (state=

ment of actions taken by Board of Pardons in meeting of September

20-22, 1941), p. 1, Paragraph 5, Case No. 7083. The records of

Utah State Prison also confirm the accuracy and completeness of the

above list of Utah executions 1948-1972, which is also available in

Bowers, Executions in America 385 (1974).

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