Petition — Joseph Robert Spaziano v. Florida

RECEIVED

IN THE JUN Z otyn.

SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK

SUPREME COURT, U.8. J

October Term, 1980

case no. 80-6785

JOSEPH ROBERT SPAZIANO,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

JERRY L. SCHWARZ

Assistant Public Defender

Counsel for Petitioner

INDEX

PAGE

Citation to Opinions Below 1

Jurisdiction 1

Question Presented for Review 2

Constitutional and Statutory Provisions

Involved 2

Statement of the Case 3-4

Reasons for Granting the Writ 4-9

Conclusion 9

ojo

TABLE OF CITATIONS

CASES CITED

Akers v. State (Fla. lst DCA 1979)

370 So.o0 ol

Bailey v. State (Fla. 1969)

er So.2d 296

Beck v. Alabama (1980)

447 U.S. , 100 S.Ct. 2382

Brown v. State (Fla. 1968)

"306 So.2d 377

Dowd v. United States (1951)

Felicia v. United States (8th Cir. 1974)

——“455 F.2d

° 353

Gerstein v. a (1975)

42 . *

Griffin v. Illinois (1956)

SOL Usbe Ae

Holloway v. Florida (1980)

U.S. , 101 S.Ct. 281

Holloway v. State (Fla. 1980)

379 i558 553

In re Winship (1970)

397 U.S. E58

Keeble v. United States (1973)

412 U.S. 205

Mitchell v. State (1946)

157 Fla. 121, 25 So.2d 73

Shapiro v. Thompson (1969)

; Toa. ie a.

State v. King (Fla. 1973)

oO. 162

-FLORIDA STATUTES (1973)

Section 782.04

Section 932.465

FLORIDA RULES OF CRIMINAL PROCEDURE

Rule 3.490

-ii-

PAGE

4,5

' IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

CASE NO.

JOSEPH ROBERT SPAZIANO,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner prays that a writ of cwrtiorari issue to

review the judgment of the Supreme “ourt of Florida filed

on January 8, 1981.

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of Florida, Case

No. 50,250, is reported at 393 So.2d 1119 (Fla. 1981) and is

set out in pages 1-5 of the Appendix.

JURISDICTION

The judgment of the Supreme Court of Florida was filed

on January 8, 1981, and rehearing was denied on March 6, 1981

(A 28). Jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1257 (3), Petitioner having asserted below and

asserting herein deprivation of rights secured by the

Constitution of the United States. On April 23, 1981, Mr.

Justice Powell granted an extension: of time in which to file

a petition for writ of certiorari in the above-entitled cause

“to and including June 4, 1981.”

“the symbol "A" followed by the appropriate page number will

designate the Appendix filed separately herewith.

QUESTION PRESENTED FOR REVIEW

WHETHER THE STATE OF FLORIDA HAS VIOLATED

THE DUE PROCESS AND EQUAL PROTECTION

CLAUSES OF THE FOURTEENTH AMENDMENT AND THE

CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF THE

EIGHTH AMENDMENT TO THE CONSTITUTION OF THE

UNITED STATES BY ARBITRARILY DENYING TO

PERSONS CHARGED WITH FIRST DEGREE MURDER WHO

WERE PROSECUTED AFTER THE STATUTE OF LIMI-

TATIONS HAD RUN ON ALL LESSER DEGREES OF

MURDER AND MANSLAUGHTER THE RIGHT THAT IS

CONFERRED ON ALL PERSONS CHARGED WITH DEGREE

CRIMES IN FLORIDA: TO HAVE THE JURY CHARGED

ON ALL LESSER DEGREES OF MURDER AND

MANSLAUGHTER.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

AMENDMENT VIII

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

AMENDMENT XIV

+ « » nor shall any State deprive any person

of life, liberty, or property, without the

due process of law; nor deny to any person

within its jurisdiction the equal protection

of the laws.

SECTION 932.465, FLORIDA STATUTES (1973)

Limitation of prosecutions.

(1) A prosecution for an offense punishable

by death may be commenced at any time.

(2) Prosecution for offenses not punishable by

death must be commenced within two years

after commission, but if an indictment, in-

formation, or affidavit has been filed within

two years after commission of the offense and

the indictment, information, or affidavit is

dismissed or set aside because of a defect

in its content or form after the two year

period has elapsed, the period for commencing

prosecution shall be extended three months

from the time the indictment, information, or

affidavit is dismissed or set aside.

RULE 3.490, FLORIDA RULES OF CRIMINAL PROCEDURE

If the indictment or information charges

an offense which is divided into degrees,

without specifying the degree, the jurors

may find the defendant guilty of any degree

of the offense charged; if the indictment

or information charges a particular degree

the jurors may find the defendant guilty

of the degree charged or of any lesser degree.

The court shall in all such cases charge the

jury as to the degrees of the offense.

@-2-

STATEMENT OF THE CASE

On September 12, 1975, the prosecution against Joseph

Robert Spaziano was commenced by the filing of an indictment

for the capital felony of first degree murder for the killing

of Laura Harberts alleged to have occurred on or about August

6, 1973 (Trial Record at 1-2).

Petitioner was tried by jury for the offense of first

degree murder. After the submission of evidence, outside the

presence of the jury, the trial judge presented Petitioner with

the choice of waiving the statute of limitations which had run

as to all lesser included non-capital offenses and having the

jury instructed only as to first-degree murder. Petitioner

chose the latter with the result that the jury was not per-

mitted to consider verdicts of guilt of lesser included non-

capital offenses (Trial Transcript at 751-755). The jury,

after deliberating more than five hours and after being given

the standard jury deadlocked charge, returned a verdict of

guilty of first-degree murder. The same jury recommended that

Petitioner be sentenced to life imprisonment but that advisory

verdict was overridden by the trial judge who sentenced Petitioner

to death on July 16, 1976.

After submission of briefs and oral argument but

prior to the decision, Petitioner twice filed Motions for

Leave to File Supplemental Brief in order to fully raise the

issue presented herein on direct appeal in the Supreme Court

of Florida (A 6-7, 10-14). Both motions were denied without

prejudice to the filing of a Notice of Supplemental Authority

(A 8, 15). Pursuant to the Court's Order, Petitioner filed a

Notice of Supplemental Authority (A 9). The Supreme Court

of Florida affirmed Petitioner's conviction concluding that:

By Notice of Supplemental Authority,

Spaziano raises the argument that the

state may not under Beck v. Alabama,

447 U.S. , 100 S.Ct. 2382, 65 L.Ed.2d

392 (1980), force him to choose between

waiving the statute of limitations which

ojo

had run as to all lesser included noncapital

offenses and having the jury instructed only

as to first-degree murder. The Beck v.

Alabama decision did not involve lesser

Included offenses for which the statute

of limitations had run but instead concerned

an express statutory prohibition on

instructions for lesser included offenses

when a defendant was charged with a capital

offense. Whatever the implications of

Beck v. Alabama may be, we do not find

that it requires the jury to determine

the guilt or innocence of lesser included

offenses for which the defendant could not

be convicted and adjudicated guilty.

(A 4). Petitioner's timely Motion for Rehearing (Al6-27) was

denied with Chief Justice Sundberg and Justice England voting

to grant the motion "for purposes of receiving briefs and

argument on the Beck issue" (A 28).

REASONS FOR GRANTING THE WRIT

The decision below presents an important issue of con-

stitutional law which has not been, but should be, settled

by this Court; namely, the right of citizens, charged with

crimes, to receive the equal benefit of mandatory procedural

rules deemed by Florida to be essential to a fair trial.

The crime of first degree murder has been defined by

the Florida Legislature as a degree crime. Section 782.04,

Florida Statutes (1973). It is abundantly clear under Florida

law that an individual charged with a degree crime is entitled

as a matter of right to have the jury instructed as to all

degrees of the offense. Brown v. State, 206 So.2d 377, 381

(Fla. 1968). Indeed Rule 3.490, Florida Rules of Criminal

Procedure mandates instruction on all degrees.

Petitioner was charged with and tried for the crime

of first degree murder. Were it not for the running of the

statute of limitations, under Florida law Petitioner would

have been given lesser degree instructions.

tthe fact that Petitioner was forced to choose between waiving

the statute of limitations or having the jury instructed only

as to first degree murder is irrelevant for it is clear that

but for the running of the statute of limitations instructions

on the lesser degree offenses would have been given and the

question of waiver would never have been raised. (Trial Transcript

at 751-755). Additionally, under Florida law, the statute

-4-

2 ig yt Nitin

The importance of the right of an accused in Florida

to have the jury instructed on lesser degrees was noted by

Justice Boyd, dissenting from the discharge of jurisdiction in

Holloway v. State, 379 So.2d 953, 954 (Fla. 1980):

The accused has a right to have the

jury instructed on all less serious

included offenses regardless of the

expiration of the limitations period

on the lesser offenses. The purpose of

these instructions is to guide the

jury in reaching the proper verdict and

the running of the statute of limitations

should have no effect.

The function of the jury, in reaching the

proper verdict, is to make factual and not

legal determinations. If the jury finds

that the conduct of the accused fits under

a certain category of crime, it so informs

the court in its verdict. The judge then

decides the legal question of whether upon

the verdict rendered an adjudication of

guilt is proper. If the verdict finds the

accused guilty of an offense barred by the

statute of limitations, the court should

acquit the defendant.

Additionally, Florida law clearly recognizes the right to a

jury pardon and extends that right to all those accused of

degree crimes. Brown v. State, supra; Bailey v. State, 224

So.2d 296 (Fla. 1969).

The decision to instruct a trial jury on lesser degree

crimes must not be an arbitrary one. While a state is free to

limit the application of procedural and substantive rights, it

cannot do so in an arbitrary and capricious fashion. The

rights involved here are both substantive [Section 932.465,

Florida Statutes (1973)) and procedural (Fla.R.Crim.Pro.3.490).

This Court has recognized the critical importance in

the jury trial process of lesser offense instructions. In

Keeble v. United States, 412 U.S. 205 (1973), the absolute

deprivation of lesser offense instructions created precisely

the risk of fact-finding errors which was emphasized in this

Court's opinion in In Re Winship, 397 U.S. 358 (1970). In

Footnote 1 continued:

of limitations is a bar to jurisdiction and not an affirmative

defense susceptible to waiver. See, e.g., Mitchell v. State,

157 Fla. 121, 25 So.2d 73 (1946); State v. King, 282 So0.2d 162

(Fla. 1973); Akers v. State, 370 So.2d 81 (Fla. lst DCA 1979).

Keeble, supra, this Court addressed the question of whether the

Major Crimes Act of 1885 should be construed to prohibit a jury

instruction on a lesser included offense where the lesser in-

cluded offense was not one of the crimes enumerated in the

act. This Court reversed the defendant's conviction for the

greater offense, holding that the defendant was entitled to

an instruction on a lesser offense even though there was no

jurisdiction to try him on the lesser offense. * The value

of such a safeguard was explained:

» « « if the prosecution has not established

beyond a reasonable doubt every element of

the offense charged, and if no lesser offense

instruction is offered, the jury must, as a

theoretical matter, return a verdict of

acquittal. But a defendant is entitled to a

lesser offense instruction --in this context

or any other--precisely because he should not

be exposed to the substantial risk that the

jury's practice will diverge from theory.

Where one of the elements of the offense

charged remains in doubt, but the defendant

is plainly guilty of some offense, the jury

is likely to resolve Its doubts in favor of

conviction. (Emphasis in original). 412 U.S.

at 212-213.

Applying the above principles announced in Keeble

in a capital case, this Court in Beck v. Alabama, 447 U.S.

___.+ 100 S.Ct. 2382 (1980) held that a sentence of death may

not constitutionally be imposed after a jury verdict of guilt

of a capital offense if the jury was not permitted to consider

verdicts of guilt of lesser included non-capital offenses. In

arriving at the decision it was stated:

"To insure that the death penalty is indeed

imposed on the basis of ‘reason rather than

caprice or emotion', we have invalidated pro-

cedural rules that tended to diminish the

reliability of the sentencing determination.

The same reasoning must apply to rules that

diminish the reliability of the guilt determi-

nation." (Footnote omitted). 100 S.Ct. at 2389-

2390.

“although the Eighth Circuit, in Felicia v. United States, 495

F.2d 353 (8th Cir. 1974) held that the District Court would have

jurisdiction over the lesser offense, this Court found it unneces-~-

sary to address this issue in reaching its conclusion. Keeble v.

United States, 412 U.S. 205, 214 n. 14. The lack of jurisdiction

This Court's committment to the lesser offense doctrine was

reaffirmed in observing, that "the nearly universal acceptance

of the rule in both state and federal courts establishes the

value to the defendant of this procedural safeguard." 100 S.Ct.

at 2389.

Most recently, in Holloway v. Florida, U.S. ,» 201

S.Ct. 281 (1980), Mr. Justice Blackmun with whom Mr. Justice

Brennan and Mr. Justice Marshall joined, dissented from the

denial of certiorari in a case raising the identical legal

issue presented herein. Mr. Justice Blackmun, after reviewing

the Court's previous decisions, observed that "the Court more

than once has expressed the understanding that a lesser in-

cluded offense option minimizes the risk of undermining the

reasonable doubt standard.” 101 S.Ct. at 282. He concluded

that:

The Court's decisions in both Keeble and

Beck imply that affording jurors a less

drastic alternative may be constitutionally

necessary to enhance or preserve their

essential fact-finding function. Whether

the trial court properly may enter a

judgment of gui’t should the jury convict

for a lesser included offense seems to

me a separate, legal matter with which

the factfinder need have no concern.

101 S.Ct. at 283.

Mr. Justice Blackmun recognized that this Court has never

explicitly held that a defendant is entitled to a lesser

included offense instruction as a matter of due process. 101

S.Ct. at 283, n. 4. However, where a crime by definition

includes lesser degrees and instructions on those lesser

degrees are mandatory, due process requires instructions on

those lesser degrees to reduce the substantial risk that

foreclosure of a lesser-degree instruction may induce fact-

finding error.

Footnote 2 continued:

was precisely the reason why Mr. Justice Stewart, Mr. Justice

Powell and Mr. Justice Rehnquist dissented: "I think this

holding would be correct only if the lesser included offense

were one over which the federal court had jurisdiction."

Keeble v. United States, 412 U.S. at 215 (dissent).

-7- .

Florida's actions further are violative of equal pro-

tection. By depriving a segment of those accused of degree

crimes the right to lesser degree instructions, Florida

emasculates those fundamental rights of its accused citizens.

Because of this discrimination, Florida's decision to single

out those of its citizens accused of degree crimes after the

statute of limitations has run on lesser degrees for different

substantive and procedural treatment must be strictly scruti-

nized in order that the constitutionality of this status

classification" . .. be judged by the stricter standard

of whether it promotes a compelling state interest." Shapiro

v. Thompson, 394 U.S. 618, 638 (1969).

Similar classifications have been condemned by this

court as violative of equal protection where the classification

restricted a fundamental right and promoted no compelling state

interest. In Dowd v. United States, 340 U.S. 296 (1951) the

Court held that state officials who prevented a prisoner from

filing an appeal while the same right was granted to those

persons not in prison was a denial of equal protection.

Likewise, in Griffin v. Illinois, 351 U. S. 12 (1956) this

Court held that an indigent was entitled to a trial tran-

script while seeking the appellate review which was integral

to a state trial system for finally adjudicating innocence

or guilt. In Gerstein v. Pugh, 420 U.S. 103 (1975) the failure

to provide a procedure for an independent determination of

probable cause in order to detain a citizen after a warrantless

arrest was deemed violative of equal protection where persons

arrested with a warrant had a right to a probable cause deter-

mination.

Florida has imposed its mandatory rule of instructions

on lesser degree crimes because it deems such instructions

integral to a full and fair determination of the innocence or

guilt of one charged with a degree crime. Florida, throughout

the litigation below, has never advanced any rationale for its

decision to deny the petitioner lesser degree jury instructions

save its claim of statute of limitations. Indeed, we submit

no rationale exists. The effect of the classification in

the instant case has been that Petitioner has been sentenced

to die as the trial judge overruled the only safeguard left

to Petitioner's jury - the advisory sentence of life imprisonment.

Such an invidious result cannot be squared with constitutional

guarantees.

CONCLUSION

The right of instructions on lesser degree crimes is

fundamental to Florida's scheme of fairness and goes to the

integrity of the fact-finding process. The due process, equal

protection and cruel and unusual punishment questions posed

here are substantia] and are of great importance. The ruling

below collides with these constitutional guarantees and review

by this court is necessary to resolve this disharmony. For

these reasons the Court should grant this Petition for Writ

of Certiorari.

Respectfully submitted,

RICHARD L. JOPANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/l13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

[RECEIVED]

JUN Z Wyn:

OFFICE OF THE C

mm Sn em

SUPREME COURT OF THE UNITED STATES

October Term, 1980

CASE NO. 80 oa 67 8 >

JOSEPH ROBERT SPAZIANO,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

APPENDIX ON PETITION FOR

A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street

13th Floor Harvey Building

West Palm Beach, Florida 33401

(305) 837-2150

JERRY L. SCHWARZ

Assistant Public Defender

Counsel for Petitioner.

INDEX TO APPENDIX

Opinion, Supreme Court of Florida

Spaziano v. State, 393 So.2d 1119

Fla.

Motion for Leave to File Supplemental

Brief

Order Denying Motion

Notice of Supplemental Authority

Motion for Leave to File Supplemental

Brief

Order Denying Motion

Motion for Rehearing

Order Denying Motion for Rehearing

PAGE

10-14

16-27

_—-

SPAZIANO v. STATE

Cite an, Fin, 388 Sod 1119

1. Based on _— Petition _ Informa-

tion ——. Indictment filed ____, 19,

on 19, was adjudi-

cated to have committed « delinquent act

for violation of Floride Statute(s) ____ —

which constitute(s) the offense(s) of

and for which the maximum sentence al-

lowable by law is

2 All persons entitled to notice of this

hearing were duly and properly notified and

the following were present

attorney(s) and

____ representing the Department of

Health and Rehabilitative Services;

The predisposition study: prepared by the

Department of Health and Rehabilitative

Services was received and considered, as

was all other relevant and material evi-

dence offered; and compliance with the

dispositional considerations, determinations

and discussions required by law having been

established

It is ORDERED that this child be, and

is hereby committed to the custody

of the Department of Health and Rehabil

tative Services for an indeterminate penon,

but not longer than: (a) the nineteenth

birthday; (b) the maximum sentence allow:

able by law, allowing days credit for

time spent in detention or other incarcera-

tion prior to this commitment, or (c) until

otherwise legully released and discharge!

therefrom, whichever first occurs

The parties are advised that an appeal is

authorized by law, but it must be com-

menced within uhirty days from the date of

this order.

ORDERED at Florida, this

eee CRY C8 cy 19...

with

CIRCUIT JUDGE

Pla. 1119

Joseph Robert SPAZIANO, a/k/a

Crazy Joe, Appellant,

v

STATE of Florida, Appellee.

Ne. 56258.

Supreme Court of Florida.

Jan. 8, 1981.

Rehearing Denied March 6, 1981.

Defendant appealed from imposition of

death sentence after his conviction in the

Circuit Court, Seminole County, Robert

McGregor, J., for first-degree murder. The

Supreme Court held that: (1) evidence was

sufficient to sustain jury verdict of guilty,

(2) colloquy between jury foreman and trial

judge concerning status of jury delibera-

tions was proper; (3) standard jury instruc-

tion for deadlocked jury i# not improper,

(4) jury is not required to determine guilt or

innocence of lesser included offenses for

which defendant could not be convicted and

adjudicated guilty; (5) trial judge's consid-

eration of confidential information in pre-

sentence investigation report without first

disclosing information to defendant and

providing defendant with opportunity to

present evidence in response denied defend-

ant due process of law; and (6) tna! judge's

consideration of prior convictions for non-

violent offenses and misdemeanors and

charges for which there were not convic-

tions was improper

Conviction affirmed, remanded for re-

sentencing

1. Homicide 250

Evidence in prosecution for murder,

which included testimony of witness who

had led authorities to dump where bodies

were found two years after witness had

observed them with defendant, was suffi-

cient to sustain jury's verdict of guilty

—

re eee

—— ee

ne

a |

1120 Fe

3 Criminal Law 904

Colloquy betwee trial judge and jury

foreman in murder prosecution, in which

judge asked jury foreman whether there

was reasonable probability, that jury could

agree upon verdict, and foreman replied he

Gid not know but believed jury would like

more time to deliberate, was proper.

2. Criminal Law ©0630)

Standard jury instruction that it is

duty of jury to agree upon verdict if they

ean do 80 without violating conscientiously

held convictions of individual jurors is fair,

unbiased, and not improper. SJI No. 2.19,

31 West's F.S.A. (Repealed).

4 Crimi: a! Law @881(4)

Jury is not required to determine guilt

or innocence of lease ‘ncluded offenses for

which defendant could not be convicted and

adjudicated guilty because statute of limi-

tations on lesser included offenses had run.

& Constitutional Law @=270(2)

Where judge used confidential infor-

mation in presentence investigation report

without first disclosing information to de-

fendant and providing defendant an oppor-

tunity to present evidence in response, im-

position of death sentence denied defendant

due process of law. U.S.C.A.Const. Amend.

14.

& Criminal Law @=986.2(4)

In considering defendant's prior crimi-

nal record, trial judge is limited to only

those offenses for which defendant was pre-

viously convicted. West's F.S.A. § 921.-

141(5), (5X).

7. Homicide e=354

Consideration of convictions for non-

violent offenses and misdemeanors and

charges for which there were no convictions

by judge in imposing death sentence upon

defendant convicted of murder was improp-

er. West's F.S.A. § 921.141(5), (5Xb).

Richard L. Jorandby, Public Defender,

Craig S. Barnard, Chief Asst. Public De-

fender and Jerry L. Schwarz, Asst. Public

Defende-, West Palm Beach, for appellant.

Jim Smith, Atty. Gen and Wallace EB

Allbritton and David P. Geuldin, Asst. At-

tys. Gen., Tallahassee, for appellee.

PER CURIAM.

resentencing because the trial judge relied

in part on information not available to the

jury or the defendant in imposing the death

sentence, con

430 U.S. 349, 97 S.Ct. 1197, 61 L.Ed.2d 303

(1977), and also relied upon nonstatutory

aggravating factors, in violation of section

921.141, Florida Statutes.

The material facts reflect that the skele-

tal remains of two bodies were discovered

at the Altamonte city dump. One body was

positively identified through the use of den-

tal records as that of Laura Harberts. The

appellant, Robert Spaziano, was charged

with the murder of Harberts, and the prin-

cipal witness for the state was Ralph Dili-

sio, @ sixteen-year-old acquaintance of the

appellant. Dilisio testified that Spaziano

often bragged about the girls he had muti-

lated and killed, and on the occasion Dilisio

and another individual accompanied the ap-

pellant to the Altamonte dump site where

Dilisio saw two corpses, both covered with

blood. Dilisio stated that Spaziano claimed

responsibility for these killings; one of the

corpses was determined at trial to have

been Laura Harberts.

The appellant attacked Dilisio’s testimony

as being unreliable because at the time he

viewed the corpses, Dilisio had been taking

numerous types of drugs on a regular basis

for at least a year Defense counsel chal-

lenged the sufficiency of Dilisio’s recall and

jon abilities because of the drug

habit, although Dilisio testified that on the

particular day of the sighting he had not

taken any drugs. Dilisio was able to suc-

cessfully direct the police to the site where

the corpse of Laura Harberts was foun/.

—

— | .

SPAZIANO v. STATE

Fa 1121

Chae an, Pin, 988 F038 1118

MR. PAT“ UAL: Your Honor, I don't

know if 1 can say that there will be

we would like to spend some more tme.

We don't feel, | don't believe, that we're

at the point where we are at an impasse

that cannot be overcome

The jury then continued to deliberate until

10:26 p. m, at which time the jury was

brought back, and, in response to an inquiry

from the judge as to whether or not they

would be able to reach « verdict, the fore-

man rephed “At this point, Your Honor, |

don't believe so.” The trial court then pro-

coeded to instruct the jury by using stan-

dard jury instruction 219 in eff: t at the

time of the trial, which read as follows:

Ladies and gentlemen, it is your duty to

agree upon as verdict if you can do so

without violating conscientiously held

convictions that are based on the evi-

dence or lack of evidence. No juror,

from mere pride or opinion hastily

formed or expressed, should refuse to

agree. Yet, no juror, simply for the pur

pose of terminating » case, should sc-

quiesce in a conclusion that is contrary to

his own conscientiously held view of the

evidence. You should listen to each oth-

er's views, talk over your differences of

opinion in a spirit of fairness and candor

and, if possible, resolve your differences

and come to # common conclusion, so that

@ verdict may be reached and that this

case may be disposed of. [Now renum-

bered as 2.21.)

The jury resumed their deliberations and

approximately thirty minutes later, shortly

after 11:00 p. m., they returned « verdict of

guilty.

At the conclusion of the sentencing phase

of the trial, the jury recommended that the

defendant receive a sentence of life imprie

enment. The trial court ordered s presen-

tence investigation. In bis sentencing or-

der, the judge stated that he considered the

presentence investigation as well as

the facts heard during the trial, and found

thet sulficient aggravating circumstances

existed to justify the death sentence. The

trial judge found that the circumstances of

the offense were especially heinous, atro-

cious, and cruel, and, secondly, foond that

the defendant was previously convicted of

felonies involving the use or threat of vio-

lence to the person. The trial judge based

the second finding upon convictions listed in

the presentence investigation report, includ-

ing two convictions discussed in a confiden-

tial section of the report. Finally, the tris!

court found that the other statutory catego

ries of aggravating circumstances were in-

applicable, and that there were no mitigat-

ing circumstances.

Pursuant to Gardner v. Florida, 430 U.S.

249, 97 S.Ct 1197, 51 L.Ed.2d 993 (1977),

after notice of appeal was filed we directed

the trial judge to disclose any information

he may have used in sentencing that was

pot disclosed to the defendant. In his re-

sponse, the trial judge advised this Court

that neither party received copies of the

confidential portion of the presentence in-

vestigation report, nor did they receive the

personality inventory report that was at-

tached to it. The trial judge did, in fact,

use this information in imposing this death

sentence.

Trial Phase

The appellant asserts as grounds for error

in the trial phase that: (a) the evidence was

insufficient to support the jury's verdict,

(b) the trial court erred in its instructions to

the jury concerning their responsibilities,

and in giving the approved standard jury

instruction after an apparent deadlock; (c)

the prosecutor's summation was inflamma-

tory and prejudicial; (d) the trial court

improperly limited ercas-examination of »

°“* «=< em Bet ot 6m Ormee se © 4 mune

1122 Fis. 383 SOUTHERN REPORTER, 24 SERIES

prosecution witness; and (e) the tna! court

improperly denied appellant's request for a

jury view of the scene.

{1} With reference to the contention

that the evidence is insufficient, the appel-

lant asks us to reject in totality the testuumo-

ny of Dilisio. Dilisio led the authorities to

the dump where the bodies were found two

years after he observed them with the ap-

pellant. Both the jury and the trial judge

had a superior vantage point to weigh the

credibility of Dilisio’s testimony. We find

the evidence in this record was sufficient to

sustain this jury's verdic’

(2.3) The contention that the trial

judge made improper comments during «

colloquy with the jury foreman concerning

the status of jury deliberati.ns, and the

assertion by the appellant that our standard

jury instruction for a deadlocked jury is

improper, are both without merit. ~The col-

loquy was clearly reasonable and proper,

and we find that our standard jury instruc-

tion, presently standard 221, is fair, unbi-

ased and has been specifically approved by

this Court in State v. Bryan, 290 So.2d 482

(Fla.1974) In addition, such a charge has

also been approved by the Fifth Circuit

Court of Appeals. United States v. Thom-

as, 567 F.2d 638 (5th Cir 1978), United

Siates v. Solomon, S65 F.2d 364 (Sth Cir

1978); United States v. Bailey, 480 F.2d 518

(Sth Cir, 1973)

The contention that the prosecutor's com-

ments were inflammatory and prejudiial,

that the trial court improperly limited

cross-examination and that the trial court

improperly deni ! « jury view, are clearly

without merit and do not warrant discus-

sion.

[4] By Notice of Supplementa! Authori-

ty, Spaziano raises the argument that the

state may not under Bech ». Alabama, 447

U.S. ——, 100 S.Ct. 2382, 65 L.Ed.2d 392

(1980), force him to choose between waiving

the statute of limitations which had run as

to all lesser included noncapita! offenses

and having the jury instructed only as to

first-degree murder. The Beck v. Alabama

decision did not involve lesser included of-

fenses fur which the statute of limitations

had run but instead concerned an express

statutory prohibition on instructions for

lesser included offenses when a defendant

was charged with a capital offense. What-

ever the implications of Beck v. Alabama

may be, we do not find that it requires the

jury to determine the guilt or innocence of

lesser included offenses for which the de-

fendant could not be convicted and adjudi-

cated guilty.

Sentencing Phase

The trial judge considered a confidential

portion of the presentence investigation re-

port which contained information that the

appellant had beer « suspect in four homi-

cides and three bombings, was a member of

the “Outlaws” gang, had been convicted of

rape and sentenced to the state prison, had

been charged with forcible carnal know!l-

edge, rape, and false imprisonment for an-

other incident, but allegedly escaped prose-

cution because of harassment and threats

towards the victim by gang members, and

had been convicted of other nonviolent felo-

ny and misdemeanor offenses.

(5) In Gardner v Florida, decided after

the trial and sentence in this cause, the

United States Supreme Court held that a

defendant in a death case is denied due

process of law when the death sentence is

imposed, even in part, on the basis of infor.

mation that he had no opportunity to deny

or explain The Gardner decision prohibits

the judge's use of this confidential informa-

tion in the presentence investigation report

without first disclosing that information to

Spaziano and providing an opportunity to

present evidence in response. Under the

standards set down in Gardner, we must

find clear error in the use of the confiden-

tial portion of the presentence investigative

report

[6,7] Section 921.141(5), Florida Stat-

utes, limite the factors in aggravation

which may be considered by the trial judge -

in imposing the death sentence. In con-

sidering # defendant's prior criminal record,

the trial judge is limited to only those of-

fenses for which “the defendant was previ-

|

Fla. 1123

We affirm the conviction and remand for

SPAZIANO v. STATE

Che an, Fla, 383 Sod 1119

ously convicted.” Provence v. State, 337

So.2d 783 (Fla.1976). Further, these under-

lying convictions are also limited to “anoth-

er capital felony or felony involving the

use or threat of violence to the person.”

§ 921.141(5Xb), Pla Stat. The prior felony

offenses involving violence for which the

appellant in this case was convicted are

proper factors to be considered in aggrava-

tion. However, the convictions for nonviol-

ent offenses and misdemeanors and charges

for which there was no conviction must be

excluded as aggravating factors

In conclusion, we find the Gardner viola-

tion and the statutory limiting fectors in

aggravation require this cause to be re-

manded to the tral judge fur resentencing

resentencing by the trial judge in accord-

ance with the views expressed in this opin-

ion

It is #0 ordered.

SUNDBERG, C. J, ard ADKINS, BOYD,

OVERTON, ENGLAND and ALDERMAN,

-~ ae

IN THE SUPREME COURT OF FLORIDA

JOSEPH ROBERT SPAZIANO,

Appellant

vs. CASE NO. 50,250

STATE OF FLORIDA,

Appellee.

MOTION FOR LEAVE TO FILE SU’?LEMENTAL BRIEF

Appellant, JOSEPH ROBERT SPAZIANO, hereby moves this

Honorable Court for an Order allowing Appellant to file a

supplemental brief in the instant coucjjan ae therefor,

states:

1. Appellant was sentenced to death on July 1€, 197¢.

1978.

3. Ora) argument wis heard in the present case on

October 3, 1979.

4. Since that time the United States Supreme Court

has decided the case of Beck v. Alabama, U.S. _, 100 S.Ct.

2382(June 20, 1980) whic! held that a sentence of death nay

not be constitutionally imposed after a jury verdict of guilt

of a capita’ offense, when the jury wa. not permitted to con-

sider verdicts of guilt of Jesser ineluded non-capital offenses.

In arriving at its decision, the court stated:

"To insure that the death penalty is indecd

imposed on the basis of ‘reason rather than

caprice or emotion’, we have invalidated

procedural rules that tended to diminish the

reliability of the sentencing determination.

The same reasoning must apply to rules that

diminish the reliability of the guilt determi-

nation." (Footnote omitted). 100 S.Ct. at 238%9-

2390.

In the present case Appellant was given a choice of waiving

the statute of limitations which had run as to all lesser in-

cluded non-capital offenses or of having the jury instructed

only as to first degree murder, Appellant chose the latter

2 The initial brief of Apoellant was filed in September,

with the result that the jury was not permitted to consider

verdicts of guilt of lesser included non-capital offenses

(T 751-755). Thus a serious constitutional issue is pre-

sented for this Court's determination. The issue involves

questions of reJiability, as well] as due process and equal

protection of the laws. Beck v. Alabama, supra; United States

v. Jackson, 390 U.S. 570(1968). This Court has not previously

addressed this issue, although certiorari was denied after

hearing argument in Holloway v. State, 379 So2d 953(Fla.1980)

because of a lack of decisional conflict.

5. Briefing of this issue is essential to afford

Appellant, an indigent defendant who has been sentenced to

death, full and fair appellate review. Additionally, bric fing

of this issue will aid this Court in fulfilling its duty to

independently review the entire record to determine whether

the interest: of justice require a new trial. Fla.App.b. + .1!

WHEREFORE, Arpellant respectiully requests this Court

to enter an Order allowing twenty (20) days in which to fils

Supplemental Ericf limited to tne 1eresoing issuc consistin:

of no more than ten (10) pages in length.

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial] Circuit of Florida

224 Datura Street/l3th Floor

West Palm Beach, Florida

(305) 837-2150

\ f

ot i...

Y 4

JERRY ’L. SCHWARZ

Assistant Public Defender

Best Copy Available

B

CERTIFICATE OF SERVICT:

I HEREBY CERTIFY that a copy hereof has been furnished

by mail to Honorable Wallace E. Allbritton, Atttorney General's

Office, The Capitol, Tallahassee, Florida, this ec day of

!

iC. arr Ze

* eat Sor esinss se a 5 a

September, 1980.

7

IN THE SUPREME COURT OF FLORIDA

THURSDAY, SEPTEMBER 25, 1980

JOSEPH ROBERT SPAZIANO

Appellant,

vs. CASE NUMBER 50,250

STATE OF FLORIDA

Appellee.

er eee 8 ee 8 2 92 4 8.0 6

Upon consideration of the Appellant's motion for leave

to file supplemental brief, the motion is denied without prejudice,

tc the filing of a Notice of Supplemental Authority, pursuant to

Rule 9.210(g).

A TRUE COPY BDM

C: Jerry L. Schwarz, Esquire

TEST: Wallace E. Allbritton, Esquire

seas

Sid J.

Clerk, preme Court

- ow.

IN THE SUPREME COURT OF FLORIDA

JOSEPH ROBERT SPAZIANO,

Appellant,

vs.

STATE OF FLORIDA, CASE NO, 50,250

Appellee.

NOTICE OF SUPPLEMENTAL AUTHORITY

Appellant, JOSEPH ROBERT SPAZ1ANO, by and through

undersigned counsel, pursuant to this Court's Order dated

September 25, 180, hereby gives notice to all parties, and

this Honorable Court, of intent to rely on the following

authoricy in tlhe case at bar:

Beck v. Alabami, U.S.___, 100 S.Ct.

338211980) which held that a sentence

of death may not be constitutionally

imposed after a jury verdict of guilt of

a capital offense, when the jury was not

permitted to consider verdicts of guilt

of lesser included non-capital offenses:

“Po insure that the death penalty is indeed

imposed on the basis of ‘reason rather than

caprice or emotion,’ we have invalidated

procedural rules that tended to diminish

the reliability of the sentencing determi-

nation. The same rcasoning must apply to

rules that diminish the reliability a a

the guilt determination.” (Footnote omitted).

(Linphasis Supplied). 100 S.Ct. at 2389-2390.

Regarding the impropriety of forcing Appellant to choose

between waiving the statute of limitations which had run as

to all lecser inciuded non-capital offenses and having the jury

instructed only as to first degree murder.

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of FLorida

224 Datura Street/l13th Floor

West Palm Beach, Florida 33401

ae as

IN THE SUPREME COURT OF FLORIDA

JOSEPH ROBERT SPAZIANO,

Appellant,

vs. ;

CASE NO. 50,250

STATE OF FLORIDA,

Appellee.

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF

Appellant, JOSEPH ROBERT SPAZIANO, by and through

his undersigned counsel, hereby moves this Honorable Court

for an Order allowing Appellant to file a supplemental brief

of no more than ten(10) pages in length in the above-styled

cause, and as grounds therefor, states: , s

1. Appellant was sentenced to death on July 16, 1976.

2. The initial brief of Appellant was filed in September,

1978.

3. Oral argument was heard in the present case on

October 3, 1979.

4. On September 11, 1980, undersigned counsel filed

a Motion for Leave to File Supplemental Brief based on the

intervening decision of the Supreme Court of the United States

in Beck v. Alabama, 447 U.S. __, 100 S.Ct. 2382(June 20,

1980), a copy of which motion is attached hereto and by

reference made a part hereof. By Order dated September 25, 1980

this Covrt denied Appellant's motion “without prejudice, to the

filing of a Notice of Supplemental Authority, pursuant to Rule

9.210({g)." On October 13, 1980 undersigned counsel filed a

Notice of Supplemental Authority pursuant to the above described

Order.

5. Since that time on October 14, 1980, the Supreme

Court of the United States denied certiorari in Holloway v. Florida,

IC

alg >

Po

___U.S._ es 49 ULS.L.W. 3268(1980). However Justice Blackmun,

with whom Justice Brennan and Justice Marshall joined, dissented

from the denial of certiorari because they believed the case

presented “an important due process question requiring inter-

pretation of our decisions in Keeble v. United States, 412 U.S.

205(1973), and Beck v. Alabama, 447 U.S. (1980)." Id. Justice

Blackmun after reviewing those decisions concluded that:

The Court's decisions in both Keeble and

Beck imply that affording jurors a less

drastic alternative may be constitutionally

necessary to enhance or preserve their

essential fact-finding function, Whether

the trial court properly may enter a judgment

of quilt should the jury convict for a les.er

included offense seem. to me a separate,

legal matter with which the factfinder need

have no concern. 49 U.S.L.W. at 3268-3269.

These same concerns were expressed by Justice Boyd in his

dissenting opinion from this Court's decision, after hearing

argument, to deny certiorari because of a lack of jurisdiction.

Holloway v. State, 379 So,2d 953(Fla. 1980). Of course Hollow y

was not a capital case and the concerns expresssed by Justice

Blackmun and Justice Boyd are further heightened in the instant

case because the death penalty is involved. See Beck v.

Alabama, supra, 447 U.S. at _, 100 S.Ct. at 2389-2390.

Thus, the issue has never been decided on its merits by

this Court.

6. The instant motion is filed in the utmost good

{faith and with due deference to this Court, solely for the

purpose of preserving Appellant's rights to full and fair

appellate review and the effective assistance of counse] on this

capital appeal. Covnsel would respectfully submit that a

Notice of Supplemental Authority, requiring as it does the mere

citation of intervening decisions without argument, Rule 9.210

(g), Fla.R.App.P., is woefully insufficient to raise and preserve

an issue for consideration by this Court which was not raised

in the initial brief filed previously in this cause. Counsel

would no*e, for this Court's benefit, that the Supreme Court

of the United States permits the filing of supplemental briefs

@2-

|

a nto 5

~~ td

to apprise the Court of intervening matters at iny time prio:

to the announcement of a decision, with the caveut that the

filing of ‘such supplemental briefs will not delay submission

and consideration of the case by the Court. See Rules 22.4,

22.5 and 22.6, Rules of Supreme Court (1980 rev.).

7. Thus a substantial question regarding the reliability

of the guilt determination in the instant capital case is

presented for this Court's review. The issue has not previously

been addressed by this Court. The importance of the con-

stitutional question involved herein has been recognized by

both Justice Blackmun and Justice Boyd in their respective

dissents. Surely where, as in the present case, an indigent

defendant's very life may hang in the balance, justice and

fairness dictate that this Court permit plenary consideration of

the for: yoing issue,

WHEREFORE, Appe)iant respectfully requests this Court

to enter an Order allowing fifteen(15) days in which to file

a Supplemental Brief limited to the foregoing issue consistins

of no more than ten(]0) pages in length,

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Stree*/13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been furnished

by mail to Honorable Wallace E. Allbritton, Assistant Attorney

General, The Capitol, Tallahassee, Florida, this S& day of

November, 1980.

ere SSSA. SS em i omnes | *

ow

IN THE SUPREME COURT OF FLORIDA

JOSEPH ROBERT SPAZIANO,

Appellant

V6» CASE NO. 50,250

STATE OF FLORIDA,

Appellec.

eee ee ee ee

MOTION FOR LEAVP TO FIL SUPPLEMENTAL BRIEF

Appellant, JOSEPH ROBERT SPAZ IANO, hereby moves this

Honorable Court for an Order allowing Appellant to file a

and

supplemental brief in the instant case,/as grounds therefor,

states:

1. Appellant was sentenced to death on July 16, 197¢.

2. The initial brief of Appellant was filed in September,

1978.

, 3. Oral argument was heard in the present case on

October 3, 1979.

4. Since that time the United States Supreme Court

has di cided the case of Beck v. Alabama, __U.S.___, 100 S.Ct.

2382(June 20, 1980) which held that a sentence of death may

not be constitutionally imposed after a jury verdict of guilt

of a capita) offense, when the jury was not permitted to cun-

sider verdicts of guilt of lesser included non-capatal vffenses.

In arriving at it% decision, the Court stated:

"To insure that the deut! penalty is indeed

imposed on the basis of ‘reason rather than

caprice or emotion’, we have invalidated

procedural rules that tended to diminish the

reliability of the sentencing determination.

The same reasoning must apply to rules that

diminish the reliability of the guilt determi-

nation." (Footnote omitted). 100 §,Ct. at 2389-

2390.

In the present case Appellant was given a choice of waiving

the statute of limitations which had run as to all lesser in-

cluded non-capital offenses or of having the jury instructed

only as to first degree murder, Appellant chose the latter

ead cs

with the result that the jury was ne! permitted to consider

verdicts of guilt of lesser included non-capital offenses

(T 751-755). Thus a serious constitutional issue is pre-

sented for this Court's determination. The issue involves

questions of reliability, as wel! au: duce process and equal

protection of the laws. Beck v. Alabama, supra; United Stetes

v. Jackson, 390 U.S. 570(196%). This Court has not previously

addressed this issue, although certiorari was denied after

hearing argument in Holloway v. State, 379 So2d 953(Fla.1980)

because of a lack of decisional] conflict.

5. Briefing of this issue is essential to afford

Appellant, an indigent defendant who has been sentenced to

death, full and fair appellate review. Additionally, briefing

of this issue will aid this Court in fulfilling its duty to

independently review the entire record to determine whether

the interests of justice require a new trial). Fla.App.R. 6.16

(p); Fla.R.App.P. 9.140(f).

WHEREFORE, Appellant rewpectiully requests this Court

to enter an Order allowing twenty(20) days an whieh to file a

Supplemental brief limited to the fcieqoing issue consistins

of no more than ten (10) pages im length,

Respectfully submitted,

RICHARD 1... JORANDBY

Public Defender

Sth Judicial Circuit of Florida

224 Datura Street/13th Floor

West Palm Beach, Florida

(305) 837-2150

BY — Fs | Bah is

JERRY/L, SCHWARZ

Assistant Public Defender

CERTIFICATE OF SERVICE:

I HEREBY CERTIFY that a copy hereof has been furnished

by mail to Honorable Wallace E. AlJhritton, Atttorney General's

Office, The Capitol, Tallahassec, Florida, this /*° day of

September, 1980. '

oe : a on

~*~ OF Counsel. 3

[4

ee ee ee 6 rete ee .

a

JOSEPH ROBERT SPAZIANO

Appellant,

vs.

STATE OF FLORIDA

Appellee.

me oe 2 6 ee 8 8 ee eS @

IN Tii= SUPREME COURT OF FLORIDA

THURSDAY, NOVEMBER 13, 1980

CASE NO. 50,250

Upon consideration of the Appellant's motion

for leave to file supplemental brief in the above styled

cause, the motion is denied without prejudice to file notice of

Supplemental Authority.

A TRUE COPY

TEST:

[S

KE

NOV * * 198!

AP} ..

6a) 1

BDM

C: Jerry L. Schwarz, Esquire

Wallace E. Allbritton, Esquire

IN THE SUPREME COURT OF FLORIDA

JOSEPH ROBERT SPAZIANO,

Appellant,

vs.

CASE NO. 50,250

STATE OF FLORIDA,

Appellee.

MOTION FOR REHEARING

Appellant, JOSEPH ROBERT SPAZIANO, respectfully requests

this Honorable Court to grant rehearing from its opinion filed

January 8, 1981, and as grounds therefore, states:

In remanding this case for resentencing because of the

Gardner violation this Court did not reach the other isgues

with regard to Appellant's sentence. ‘This Court did however,

by affirming Appellant's conviction, reject all challenges to the

conviction. Thus rehearing is sought with regard to this Court's

decision to affirm Appellant's conviction.

FAILURE TO INSTRUCT ON LESSER DEGREES OF HOMICIDE

In rejecting Appellant's argument that it was consti-

tutional)y impermissible to force him to choose between waiving

the statute of limitations which had run as to all lesser included

noncapital offenses and having the jury instructed only as to

\

first-degree murder, this Court stated:

“Whatever the implications of Beck v. Alabama

may be, we do not find that it requires the

jury to determine the guilt or innocence of

lesser included offenses for which the defendant

could not be convicted and adjudicated guilty."

Slip opinion at 5.

This Court may have overlooked the constitutional principle

announced in Beck and other relevant decisions bearing on the

issue Appellant sought to present. That such a misconception of

Beck or overlooking other relevant decisions occurred may be due

in large part to this Court's refusals to allow Appellant to file

a Supplemental Brief fully raising the issue. Had Appellant been

allowed to file a Supplemental Bricf then the “impiications of

Beck v. Alabama” to the instant casc might have been readily

apparent.

lt

ao

’ 4

It is well settled in Florida that offenses divisible

into degrees are unique in the law and are singled out in the

requirement that the factfinder determine which degree of the

stated offense, if any, a defendant may be quilty of. “ule

3.490 of the Florida Rules of Criminal Procedure mandates that

when a defendant is being tried for a crime which is divided into

degrees, "(t]he court shall in all sucli cases charge the jury as

to the [lesser] degrees of the offense." In Brown v. State, 206

80.2d 377,381(Fla. 1968) this Court reinforced this rule

{identic lly worded in statutory form as Section 919.14, Florida

Statutes (1965)) by mandating that a trial judge MUST instruct

on all lesser degrees of the offense charged "if the case is

allowed to go to the jury for a determination of guilt or

innocence on the offense charged.” Acvord Brown v. State, 124

So.2d 481(Fla. 1960).

In Killen v. State, 92 So.2d 625 (Fla. 1957), this Court

held that the lesser degree offenses were required even when the

defendant was charged with first degree felony murder. Section

919.14 was an ABSOLUTE rule.

In State v. Abreau, 363 So.2d 1063(Fla. 1978) this

Court mandated:

{T)he failure to instruct on the next

immediate. . . offense (one step removed)

constitues error that is PER SE REVERSIBLE

(Emphasis added).

Id. at 1064. This Court modified its prior holding in Lomax v.

State, 345 So.2d 719(Fla. 1977), but preserved the reasoning in

Lomax that when the trial court determines that a lesser-included

offense should not be given, the judge

is permitted to invade the province

of the jury by making a unilateral

determination that a lesser-included

offense instruction is unnecessary

because there is overwhelming evidence

to convict the defendant of the crime

charged.

Lomax at 721. This Abreau per se rule, when combined with this

Court's earlier holding regarding lesser degree offenses in Brown,

206 So.2d at 381, provided an end to state assertions of harmlicss

error whenever the trial court failed to instruct on the next

ajo

7

immediate offense.

In the present case the trial judge did not instruct on

the lesr°*r degrees of murder because the statute of limitations

had run as to those offenses. But such an interpretation cannot

be squared with the mandatory requirement of instruction on lesser

degrees provided by Rule 3,490, Fla.R.Crim.P.

The purpose of the statute of limitations:

is to protect every person from

being interminably under the threat

or cloud of possible criminal pros-

ecution, which otherwise might be

indefinitely delayed until the time

when defense witnesses die, disappear

or otherwise become unavailable, judges

would change office, or innumerable other

time hazards might develop, which could

conceivably vefeat or at least hamper,

an otherwise good defense.

State v. Hickman, 189 So.2d 254, 261(Fla. 1966). Thus, a person

is protected from prosecution and subsequent adjudication for less

than capital offenses when a significant pericd of time has

passed,

The functions of the jury, on the other hand, are to

weigh the evidence, determine credibility, resolve conflicts

and determine the ultimate facts. It must then find within whic

crime, if any, the determined facts fall.

It sas panetiien obligation of the jurors "to disreyarcd

the consequences of [their] verdict." Fla. Std. Jury Instr. (Crim.)

2.15 ("Matters to be Disregarded"). This standard instruction is

an embodiment of the common law of this State. See Johnson v.

State, 308 So.2d 38, 40(Fla. 1975) quoting Simmons v. State, 36

So.2d 207, 208(Fla. 1948). The jury here was instructed accordingly

(T 804).

The rationale underlying this rule has been aptly ex-

pressed by Judge Gewin in Pope v. United States, 298 F.2d 507

tthe issue regarding waiver is irrelevant to the present discussion

for it is clear that but for the running of the statute of limi-

tations instructions on the lesser degree offenses would have been

iven and the question of waiver would never have been raised.

Additionally, under Florida law, the statute of limitations is a

bar to jurisdiction and not an affirmative defense susceptible to

waiver. See, e.g., Mitchell v. State, 157 Fla. 121, 25 So.2d 73

(1946); State v. King, 262 50.20 142(Fla. 1973); Akers v. State,

320 So.2d 61(Fla. Ist DCA 1979)

-3-

NR Re ae Ce |” Ne ee ea

i

(Sth Cir. 1962):

To inform the jury[regarding). . .

MATTERS RELATING TO DISPOSITION OF

THE DEFENDANT, tend to draw the

attention of the jury away from their

function as sole judyes of the facts,

open the door to compromise verdicts and

to confuse the issue or issues to be

decided. (Emphasis supplicd).

Id. at 508. Since the judgment of conviction of the Defendant

by the trial court involves the adjudication of the Defendant

and the statute of limitation specifically governs this adjudica-

tory process, the consideration of the statute of limitations

(except when factual issues are presented) is not for the jury

and should have no effect upor the instructions which guide them

in reaching their verdict. It is this very reason that a trial

court does rot instruct the jury that he may withhold adjudication

following a determination of guilt by the jury.

This principle was applied by the Supreme Court of the

United States in Keeble v. United States, 412 U.S. 205(1973).

In an analogous and remarkably similar Situation, the defendant

was charged, tried, and convicted in federal district court under

the Major Crimes Act of 1885, for assault with intent to commit

great bodily injury. The defendant requested an instruction to

the jury on the lesser-offense of Simple assault. The trial court

refused to give the instruction since the trial court was without

jurisdiction to try the defendant on such a charge. ? The Suprene

Court reversed the defendant's convictio» for the greater offense,

holding that the detendant was entitled to an instruction on the

lesser offense. * The court recognized the inherent danger of ubuse

of prosec tion for the greater offense for which the federal court

had jurisdiction:

“although a later case in the Eighth Circuit; Felicia v. United

States, 495 F.2d 353(8th Cir. 1978), held that the district court

would have jurisdiction over the lesser offense, it is importart

to recognize that the Supreme Court found it unnecessary to address

this issue in reaching its conclusion. Keeble at 214 n. 14,

3the lack of jurisdiction was the precise reason why Justices Stewart,

Powell and Rehnquist dissented: "I think this holding would be

correct only if the lesser included offense were one over which the

federal court had jurisdiction.” Keeble at 215 (dissent).

-4-

17

Moreover, it is no answer to petitioner's

demand for a jury instruction on a lesser

offense to argue that a defendant may be

better off without such an instruction.

True, if the prosecution has not established

beyond a reasonable doubt every element of

the offense charged, and if no lesser offense

instruction is offered, the jury must as a4

theoretical matter, return a verdict of

acquittal. BUT A DEFENDANT IS ENTITLED TO

A LESSER OFFENSE INSTRUCTION - IN THIS CONTEXT

OR ANY OTHER - PRECISELY BECAUSE HE SHOULD

NOT BE EXPOSED TO THE SUBSTANTIAL RISK THAT

THE JURY'S PRACTICE WILL DIVERGE FROM THEORY.

WHERE ONE OF THE ELEMENTS OF THE OFFENSE CHARGED

REMAINS IN DOUBT, BUT THE DEFENDANT IS PLAINLY

GUILTY OF SOME OFFENSF , THE JURY IS LIKELY

TO RESOLVE ITS DOUBTS IN FAVOR OF CONVICTION.

(Emphasis supplied).

Id, at 212-13.

Applying the above principles announced in Keeble to a

capital case, the Supreme Court in Beck v. Alabama, 447 U.S. __100

S.Ct.2382(1980)held that a sentence of death may not be con-

stitutionally imposed after a jury verdict of guilt of a capital

offense, when the jury was not permittted to consider verdicts

of guilt of lesser included non-capital offenses. In arriving

at its decision the Court stated:

"To insure that the death penalty is indeed

imposed on the basis of ‘reason rather than

caprice or emotion’, we !.ave invalidated pro-

cedural rules that tended to diminish the

reliability of the sentencing determination.

The same reasoning must apply to rules that

diminish the reliability of the guilt determi-

nation." (Footnote omitted). 100 S.Ct. at 2389-

2390. \

The implications of Keeble and Beck as they apply to

the instant case were succinctly stated by Justice Blackmur with

whom Justice Brennan and Justice Marshall joined, in his dissent

from the denial of certiorari in Holloway v. Florida, U.S.

___» 101 S.Ct. 281(1980). Justice Blackmun after reviewing

those decisions concluded that:

The Court's decisions in both Keeble and

Beck imply that affording jurors a less

drastic alternative may be constitutionally

necessary to enhance or preserve their

essential fact-finding function. Whether

the trial court properly may enter a judgment

of guilt should the jury convict for a lesser

included offense secms to me a separate, legal

matter with which the factfinder need have no

concern. 101 S.Ct. at 263.

-5-

These same concerns were expressed by Justice Boyd in his

dissenting opinion from this Court's decision, after hearing

argument, to deny certiorari because of a lack of jurisdiction.

Holloway v. State, 379 So.2d 953(Fla. 1980). Of course

Holloway was not a capital case and the concerns expressed by

Justice Blackmun and Justice Boyd are further heightened in the

instant case because the death penalty is involved with its

attendant greater need for reliability. Sce Beck v. Alabama,

supra, 447 U.S. at __, 100 S.Ct. at 2389-2390.

Such is our position before the Court. By failing to

instruct the jury on the lesser degree offenses, the jury was

placed ir. a position identical to that of the jury in Keeble.

There was substantial doubt raised by tice State's case as to

the guilt of Appellant for the crime charged. * Yet, the jury

was understandably unwilling to risk the chance that Appellant

might in fact be guilty. The verdict uncquivocably establishe’

that thi. dilemma in the juror's minds wis resolved in favor

of guilt as opposed to acquittal. Had the jury been allowec to

consider verdicts of lesser degrees thei their essential fact-

finding function would have been preserved. Instead Appellant's

jury was left with only one safeguard against an erroneous decision-

they very guickly recommended life as the appropriate punishment.

Zn Beck a defendant charged with first dégree murder in

Alabama was barred by the statute from having the jury cousider

lesser degrees. In the present case, as in Holloway, the defcn-

dants were barred by the running of the statute of limitations from

having the jury consider lesser deyrecs. The holding of Beck that

in a capital case such a limitation is constitutionally prohibited

because it enhances the risk of an unwarranted conviction applies

with equal force to the present situation. Thus this Court's

4 Indeed the difficulty the jury had in arriving at their verdict,

requiring a jury deadlock instruction and hours of deliberation,

supports this contention. That difficulty was based on the cir-

cumstantial nature of the State's case and the fact that there was

absolutely no evidence offered to corroborate the testimony of

the State's chief witness, Anthony Dilisiolerroneously referred

to as _— Dilisio in the opinion(sJip at 2) = Ralph Dilisio was

Anthony Dilisio's father).

-6-

Z|

=e

superficial distinction of Beck because it did not involve a

statute of limitations does not bear up under close scrutiny.

The constitutional principle is the same and applies herein.

Clearly, Appellant was entitled to the lesser degree instructions

and the trial judge's failure to give them violated Appellant's

rights to due process and equal protection of the laws.

The Supreme Court in Keeble, sunra, specifically

addressed the disparity of justice whom « jury instruction 15 varred

in one group of cases whereas the defendants in another group

are entitled to the benefit of the instruction on a lesser offense.

The court held that the denial by the trial court of the Defendant's

request for an instruction on the lesscr-offense of simple

assault resulted in deprivation of “procedural rights guaranteed

to other defendants." Keeble, 412 U.s. at 212.

The Supreme Court in Kecble held that an Indian must be

tried in federal court under the same ;rocedure afforded tc a

non-Indian in federal court. The Court reasoned: 1) a fedcera)

statute expressly provide that Indians charged under the Major

Crimes Act of 1885 must be tried in the same manner as other

persons who are tried in federal court: and 2) the defendant has

a right under common law to a jury instruction on a lesser included

offense.

The instant case is remarkably similar to Keeble.

First, under fundamental principles of constitutional law, a

person charged with any crime must be tried in the same manner and

with the same fairness granted to others similarly charged. Loper

v. Beto, 440 F.2d 934(5th Cir. 1971), vacated on other grounds ,

405 U.S. 473(1972). Second, this Court has recognized the

absolute right to jury instructions on the lesser degree offenses.

Rule 3.490, Fla.R.Crim.P. ; see Brown, 206 So.2d at 381. Therefore,

just as in Keeble, Appellant, here, was cntitled to the lesser

offense instructions, and it was reversible error since the trial

court failed to so instruct.

The Keeble principle was again applied ir Ynited States

~ »

ae

v. Antelope, 430 U.S. 641(1977). The defendants in Antelope

were charged and convicted in federul district court under the

federal felony-murder statute, even though there was no felony-

murder statute under state law. The Court held that no con-

stitutional violation was committed because the defendants were

"subjected to the same body of law as any other individual,

Indian or non-Indian, charged with first degree murder committed

in federal enclave.” 430 U.S. at 648.

Here, Appellant was charged with first degree murder

and was entitled to be tried in the same manner and with the

same right afforded to all other persons similarly charged. When

the trial court failed to instruct on lesser degrees because the

statute of limitations had run as to them, he was deprived of this

right guaranteed to all other persons charged with first degree

murder. Effectively, such a rule establishes two standards of

justice for persons accused of first deyree murder:

i. For persons accused of first degree murdcr

where the statute of limitations has not run, lesser degree

instructions would be mandated.

2. For persons accused of first degree murdcr

where the statute of limitations haus run, no instructions vu

lesser degree offenseswould be given.

The opportunity for prosccutor).] abuse \s painfully

upparent from such a distinction. Given the recognition in both

Keeble and Beck that, although in theory the jury must acquit

where the state has failed to prove all the elements of the charged

offense and there are no lessers, in fact the jury is likely to

resolve any doubts in favor of conviction; an ill-motived

prosecutor could in a case where the defendant may have actually

committed homicide of a lesser degree wait until the statute

of limitations had run and substantially increase the possibility

that the defendant will be convicted of the higher charged offense.”

Scoincidentally the indictment in the present case was returned on

September 12, 1975(R 1-2), only some three weeks after the two-year

statute of limitations had run as to tlic lesser degrees of homicide,

even though testimony indicated that Appellant's alleged involvement

was known as early as March, 1975(T 648).

The horror in such a situation would be magnified manifold

: if the defense asserted by the defendant were that the defendant

did in fact kill the victim but that the facts as presented by

the Statc only constituted manslaughter. Presumably, the defendant

could be put to death when he only may have committed manslaughter

and the jury could not find a more appropriate crime under which

to return a guilty verdict. Such prosecutorial vindictiveness would

run afoul of constitutional safeguards. See Blackledge yv. Perry,

417.U.S. 21, 27(1974).

The trial judge's failure to instruct on the lesser

degrees also deprived Appellant of the right to a “jury pardon."

The right to jury pardon has been specifically recognized in

Florida. Sve Bailey v. State, 224 Su.dd 296(Fla, 1969); Thomus

v. State, 351 So,2d 77(Fla. 4th DCA 1977); Lightfoot v. State, 331

So.2d 388(Fla. 2d DCA 1976), cert. denicd, 344 So,2d 376(F1l4.1977).

This right was bent summarized in Brown, 2006 So.2d at 38.2, when

this Court eyuated the mandatory instruction rule to the rule that

“cives to the accused the right to have the jury consider tl.

evicence, and, if it desires, find him not guilty of any crime,

even tho. jh the trial judge might be tully convinced that the

evidence overwhcimingly establishes his guilt."

It is no answer that Appellant was treated like a}l others

charged where the statute of limitation: had run:

Judicial inguiry under the Equal

Protection Clause, therefore, does

not end with a showing of cqual

application among the MPMLERS of

the class defined by the legislation.

(Emphasis supplied).

McLaughlin v. Florida, 379 U.S. 184, 19), 85 S.Ct. 283, 288(1964).

Here, the defendant was placed in the classification of persons

whose statute of limitations protections had vested. This Court

cannot determine his equality by the treatment of persons within

this group, but must demand equality with ALL persons charged with

first degree murder.

Joseph Spaziano was indicted and brought to trial shortly

after the statute of limitations had run on the lesser decree

offenses. The delay was in no way attributable to him, There

24

was nothing Appellant could have done to place himself before a

uae fae cesee had run. Yet, he was forced to suffer the

consequences of the running of the statute by being placed

in a position where the jury could choose only between first degree

murder and acquittal. The deprivation of his right to equal

treatment with all similarly charged is violative of due process

and equal protection of the laws and constitutes, inthis capital

case, cruel and unusual punishment. This Court should reverse

and afford Appellant a new trial where the jury is properly in-

structed on all degrees of unlawful homicide.

INSUFFICIENCY OF THE EVIDENCE

With regard to the sufficiency of the evidence this

Court based its decision on the asserted fact that "“Dilisio led

the authorities to the dump where the bodies were found two years

after he observed them with appellant.” Slip opinion at 4. Such

an assertion is not supported by the trial record. In fact it is

just as likely, and indeed probable, that police investigators,

including Lt. Abbgy took Appellant to the scene of the offense and

asked him if that was the place he visited two years previously.

There is no evidence to support the assertion that he “led”

the authorities to the dump as the authorities were already fully

aware of that location.

Beyond that this Court has overlooked most of Appellant's

argument: as to why Dilisio's testimony is wholly unworthy of

belief, Aside from his extensive drug involvement Dilisio also

had a motive to lie as he believed Appellant had “raped” his

stepmother(R 49-50). In addition, according to his father, Dilisio

had a tendency to exaggerate the truth(R 182). Most importantly

Dilisio never testified about the alleged incident at the dump until

after he went to a hypnotist(R 80). Dilisio testified that he was

questioned by Detective Abhgy several times without mentioning the

alleged incident. Dilisio stated he Pe ~- LO whether the

hypnotist used mind-relaxing drugs, nor, perhaps more importantly

could he recall whether the hypnotist or Detective Abbgy suggested

-10-

CS.

anyth.ng to him while under hypnosis(R 82-85). The inherently

unreliable nature of hypnotically recalled testimony was noted

recently by the Supreme Court of Minnescta. State v. Mack,

292 S.W. 2d 764(Minn, 1980), It also must be considered that

when Dilisio was first approached by Detective Abbgy and at the

time of several of the initial interviews, Dilisio was in letention

in Seminole County and at a halfway house(R 74-79 ; T 647-648),

Yet, subsequent to the hypnotic session and his revelations to

Detective Abbgy, when his deposition was taken Dilisio testified

he was on probation(R 47).

All of these factors together detract from the sufficiency

of the State's case against Appellant. This Court must not ignore

the inconsistencies in Dilisio's testimony nor his motive to lie.

Clearly, the evidence, taken as a whole, points as easily to

innocence as to guilt. As such, this Court should not sustain

a conviction and sentence to the extreme penalty on the unsatisfactory

and insubstantial testimony of a lé-ycar-old admitted drug user.

At the very least the interestsof justice demand that Appellant be

afforded a new trial.

WHEREFORE, for the foregoing reasons Appellant respectfully

requests this Honorable Court to grant rehearing, withdraw its

prior o; nion and order that Appellant be afforded a new trial in

the abov. -styled cause.

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

Sth Judicial Circuit of Florida

224 Datura Street/l3th Floor

West Palm Beach, Florida 3340)

(305) 837-2150

_ - 9:

“By J

-RRY) L.

ssistant Public-fefender

elie

Ubi Osteen : Zhe

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been furnished

by mail to Honorable Wallace E. Allbritton, Assistant Attorney

General, The Capitol, Tallahassee, Florida 32301, this

22nd day of January, 1981.

!

, ;

Nol | cs Hels vow tu,

sel. z ‘

OT Com

—_-*

upreme Court of Florida

FRIDAY, MARCH 6, 198°

T SPAZIANO, ~

llant, e CASE NO. 50,250

* Circuit Court Wo. 75-430-CFA

° (Seminoie

FLORIDA, =

poellee. *

7

Sm i Oe me ee i

Upon consideration of tne Motion for Rehearing filec in the above

se by tne attorney for Appellant,

IT IS ORDERED that sa13 Motion be and the same is hereby denied.

“DKINS, BOYD, OVERTON ana ALDERMAN, JJ., concur

SUNDSERG, C.J. ana ENGLAND, J., would grant Motion for Rehearing for

purposes of receiving oriefs and argument on the Beck issue

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