# Petition — Johnson v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2406%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 882 ## Text 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-