Petition — Enmund v. Florida

81-5521

IN THE

SUPREME COURT OF THE UNITED STATES ſ ECZIIVED

AUG 27 1981

Case No.

Ort ile OF The CLERK

| SUP ALE COURT, US.

EARL ENMUND,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

JERRY HILL

PUBLIC DEFENDER

TENTH JUDICIAL CIRCUIT

WILLIAM C. McLAIN

ASSISTANT PUBLIC DEFENDER

Chief, Capital Appeals

Hall of Justice Annex

495 N. Carpenter Street

Bartow, Florida 33830-3798

(813)533-6715 or 533-1184

ATTORNEYS FOR PETITIONER

IN THE

SUPREME COURT OF THE UNITED STATES

Case No.

EARL ENMUND,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

QUESTION PRESENTED

I.

Whether a death sentence imposed upon a defendant

convicted cf felony murder ‘s disproportional to the crime in

violation of the Eighth and Fourteenth Amendments to the

United States Constitution, where the death sentenced defen-

dant did not actually kill the murder victim; was not actually

present at the scene of the killing; did not intend the death

of the victim; and was convicted solely as an aider and abettor

to the robbery which provided the underlying felony for the

felony murder conviction?

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION OF THE SUPREME COURT

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUS ION

APPENDIX

1.

Opinion of the Supreme Court

of Florida in Enmund v. State,

__So.2d_ (Fla.

Order of the Supreme Court of

Florida denying rehearing in

Enmund v. State, So.2d _

a.

Section 921.141, Florida Statutes

(1975)

Indictment

Judgment and Sentence

CERTIFICATE OF SERVICE

PAGE NO.

Al

A22

A23

A26

A29

TABLE OF AUTHORITIES

Coker v. Georgia

433 U.S. 554 78775

Enmund v. State

80. 4. 1961) (case No. 48,525,

Opinion Filed April 16)

Furman v. Georgia

LOS US 28852)

Gre v. Georgia

275 is 153 7876)

Lockett v. Ohio

Z38 U.S. 556 (1978)

Woodson v. North Carolina

Amend. VIII, U.S. Const.

Amend. XIV, U.S. Const.

Title 28 United States Code, §1257(3)

Rule 17, United States Supreme Court Rules

§777.011, Fla.Stat. (1975)

§921.141, Fla.Stat. (1975)

PAGE NO.

11,12

13

12

10,11

11,12,13

11

4. 10, 1,

4,10,14

4

4

5

4

OPINIONS BELOW

The opinion and judgment of the Supreme Court of

Florida sought to be reviewed via this petition is not yet of-

ficially reported, but it is reproduced in the appendix as

item 1. (Al-21)

JURISDICTION OF THE SUPREME COURT

The Supreme Court of Florida issued the opinion and

judgment in this case on April 16, 1981. (Al-21) Petitioner

filed a motion for rehearing which was denied on July 20, 1981.

(A22) Petitioner asserted below and asserts here a depriva-

tion of his rights as guaranteed under the United States Con-

stitution. Title 28 United States Code, Section 1257(3) and

Rule 17 of the United States Supreme Court Rules confers cer-

tiorari jurisdiction in this Court to review the judgment in

this case.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Amendment VIII to the Constitution of the United

States:

Excessive bail shall not be required,

nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

2. Amendment XIV, Section 1 to the Constitution of

the United States, in part:

All persons born or naturalized in the

United States, and subject to the jurisdic-

tion thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law which

shall abridge the privileges or immunities

of citizens of the United States; nor shall

any State deprive any person of life, liberty,

or property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

3. Section 921.141, Florida Statutes (1975) which

is set forth in the Appendix as item 3. (423-25)

alin

4. Section 777.011, Florida Statutes (1975)

Principal In First Degree. Whoever

commits any criminal offense against the

state, whether felony or misdemeanor, or

aids, abets, counsels, hires, or otherwise

procures such offense to be committed, and

such offense is committed or is attempted

to be committed, is a principal in the

first degree and — de charged, convicted,

and punished as such, whether he is or is

not actually or constructively present at

the commission of such offense.

STATEMENT OF THE CASE

On May 22, 1975, a Herdee County, Florida grand

jury indicted Petitioner for the first degree murder of

Thomas Kersey, the first degree murder of Eunice Kersey and

robbery of Thomas Kersey. (R8-10)(A26-28) Petitioner pro-

ceeded to a joint trial with his co-defendant Sampson Armstrong.

(R959-1702)(Al) On September 30, 1975, both men were convicted

as charged and both were sentenced to death for the murders.

(R110-111,1697,1698,1701)(A29-30) Petitioner also received

a life sentence for the robbery conviction. (R110-111,1697,

1698,1701)(A29-30) Another co-defendant, Jeanette Armstrong,

was tried separately and was convicted of two counts of second

degree murder and one count of robbery. (R16) She received

three consecutive life sentences. (A16)

The Supreme Court of Florida affirmed Petitioner's

convictions and sentences in the judgment now before this

Court.

Around 8:00 a.m. on April 1, 1975, Thomas Kersey

and his wife, Eunice, were found shot to death in nets —_"

home in Hardee County, Florida. (R1020-1024,1102-1104) (Al-2)

Thomas Kersey was shot twice and his wife was shot six times.

(A2) Both .38 caliber and .22 caliber bullets were recovered

from each body. (R1134-1144)(A2-3) A quantity of blood was

located about five feet away from the bodies, leading inves-

tigators to think that one of the perpetrators might have

.

been wounded. (R1157)(A2) Additionally, Thomas Kersey's

wallet was missing. (R1010,1014)(A5) He usually carried a

substantial amount of cash and frequently flashed his money

indiscriminately. (R1010,1014)(A4-5) A few weeks before the

homicides, Petitioner and a friend jointly purchased a calf

from Kersey, and at that time, Kersey had opened his wallet

and bragged about his money. (2983-989,996-999, 1507-1509)

(A5)

Later on July Ist, Jeanette Armstrong was located

in a nearby hospital under treatment for a gunshot wound.

(R1131)(A2) She was married to Petitioner's co-defendant,

Sampson Armstrong, and the daughter of Petitioner's common-

law wife, Ida Jean Shaw. (R1132,1185)(A2,5)

Neighbors of the Kersey's testified that they heard

six to fifteen gunshots the morning of April 1, 1975, between

7:30 a.m. and 8:00 a.m. They were two to three hundred yards

from the Kersey residence at the time. (R1043-1045,1049-1050)

(A3) Two other witnesses testified to driving by the Kersey

residence around 7:35 a.m. on April 1, 1975. (R1025-1026,

1036-1041)(A3) One reported seeing a large cream-colored car

on the side of the road occupied by a black male. (R1027)(A3)

The car had a license tag with a prefix number of 18. (R1026)

(A3) The other witness reported seeing a large, yellow car

with a dark top occupied by one person with long hair. (R1041)

He did not determine if the person was male or female. (R1041)

Two days after the homicides, a yellow and brown Buick with

a license tag prefix of 18 was located. (R1095) The~car be-

longed to Ida Jean Shaw. (R1095)

One of Petitioner's neighbors testified that he saw

Petitioner and Ida Jean Shaw in their yellow Buick about 6:30

or 6:45 a.m. on April 1, 1975. (R1298-1302)(A4) Two others,

a male and a female, were in the back seat. (R1298-1302)(A4)

Ida Jean was driving. (R1298-1302)(A4) The car was traveling

north toward the town of Wauchula. (R1298-1302)(A4) At 8:00

a.m., the neighbor saw the car traveling south with Petitioner

driving, Ida Jean in the front seat and one of the two others

in the back seat was lying down. (R1298-1302) (A4)

J.B. Neal, an acquaintance of Sampson Armstrong,

testified that about 11:30 a.m. on the day of the homicides

Armstrong told him about the murders. (R1348-1354) (45)

Armstrong said that he and his wife, Jeanette, went to the door

of a house outside of Wauchula and asked the elderly man who

answered the door for some water for an overheated car. The

man went after a jug and Armstrong pulled a gun on the man at

the back door. Armstrong told Jeanette to get the man's money.

However, the man yelled for his wife who appeared with a gun

and shot Jeanette. Armstrong then shot the woman and the old

man. Armstrong said that he and Jeanette were both armed and

had gone to house to commit a robbery. According to Neal's

testimony, Armstrong never implicated Petitioner in the crime.

(R1348-1354) (A5)

Ida Jean Shaw, Petitioner's common-law wife of twelve

years (R1172,1182)(A5) testified at trial as a Court's witness

over defense objections. (R1179-1269)(A6-9) The prosecutor

granted her transactional immunity and agreed to dismiss pending

perjury charges against her. Her previous inconsistent state-

ments under oath regarding this case was the basis of the perjury

charges. (R1178-1179)(A8-9) Shaw told four different stories.

First, on the day of the homicide, she said that Jeanette re-

ceived her gunshot wound when she entered an orange grove to

urinate. (R1191-1192)(A6) Later, Shaw told the State Attorney

a story implicating Petitioner and Sampson Armstrong in the

crime. (R1179-1269)(A6) In two more statements, one a formal

deposition, Shaw repudiated the original statement and gave

another version implicating two men known as Luke and Willie.

(R1179-1269)(A6) She said that Jeanette left with those two

men the night before the homicides and returned the next

morning with the gunshot wound. (R1179-1269)(A6) Shaw said

that the statement implicating Petitioner and Sampson Armstrong

was a fabrication, contrived by agreement with Jeanette with

the goal of putting Petitioner and Sampson in jail, thereby

freeing the two women of their husbands. (R1179-1269) (A6)

At trial, Ida Jean Shaw testified that Jeanette and

Sampson who lived in Lake Placid were visiting her and Peti-

tioner. (R1179-1269)(A7) On Tuesday, April 1, 1975, Ida Jean

awoke around 7:45 a.m. (R1186)(A7) Petitioner, Sampson, Jeanette

and Ida Jean's yellow and brown Buick were gone. (RI186) (A7)

About ten minutes later, either Petitioner or Sampson approached

Ida Jean and said that Jeanette had been shot. (R1188,1223)(A7)

The four of them went to the hospital. (R1190-1192)(A7) On

the return trip to Wauchula, Ida Jean said she asked Petitioner,

"Why he did it." Petitioner allegedly responded that he had

seen Mr. Kersey's money when he purchased a cow. (R1205-1206)

(A7) Ida Jean further testified that on the following day,

while she, Sampson, Petitioner and some of Ida Jean's children

drove back from the hospital, Sampson gave her $200. (R1195)

(A7-8) Via a written note, Sampson indicated the money came

from the robbery and that he had $600 left. (R1196-1197,1245-

1248) (A7-8) Petitioner said nothing about a robbery. (R1196)

Shaw used the $200 to make a payment on Petitioner's truck,

but she did not tell Petitioner the money was from a robbery.

(R1198-119S) Later, at the direction of Sampson and Petitioner,

Ida Jean disposed of her .22 caliber pistol and a .38 ‘caliber

pistol belonging to Sampson or Jeanette. (R1198-1201,1231) (A8)

Sampson said the guns had been used to kill some people. (R1202)

(A8)

Sampson Armstrong testified in his own behalf. (R1413-

1417) He denied murdering and robbing the Kersey's and said

Ida Jean Shaw lied about his giving her $200. (R1428) Sampson

said he was at his home in Lake Placid from March 30 until

Tuesday, April 1, when he heard his wife, Jeanette, had been

shot. (R1413-1417)

Petitioner also testified at trial. He said that

he awoke at 5:30 a.m. on April 1, ate breakfast, watched news

on television and began some errands around town. (R1474-1476)

He left Wauchula for his house about 7:45 a.m. (R1477-1478)

When he returned home, Ida Jean and Jeanette left in Peti-

tioner’s red Plymouth to pay some bills in Avon Park. (R'.79-

1480) He noticed that Ida Jean had forgotten a check, and he

followed them to give it to her. (R1480-1482) In Avon Park,

Petitioner saw his Plymouth parked at a store. He stopped,

and Ida Jean told him that Jeanette had been shot when she

went into an orange grove to urinate. (R1482) Petitioner

called Lake Placid to leave a message for Sampson Armstrong

and followed the ambulance to the hospital. (R1483-1484)

The Supreme Court of Florida affirmed the suffi-

ciency of the evidence to support Petitioner's convictions.

(Al-21) The opinion noted the following conclusions:

There was no direct evidence at trial that

Earl Enmund was present at the back door of

the Kersey home when the plan to rob the el-

derly couple led to their being murdered.

J.B. Neal's account of what Sampson Armstrong

told him did not include any reference to

Enmund. Ida Jean Shaw testified to Enmund's

absence that morning and his statements of his

complicity. But the only evidence of the de-

gree of his participation is the jury's likely

inference that he was the person in the car by

the side of the road near the scene of the

crimes. The jury could have concluded that he

was there, a few hundred feet over. waiting to

help the robbers escape with the kersey s money.

The evidence, therefore, was sufficient to

find that the appellant was a principal of the

second degree, constructively present aiding

and abetting the commission of the crime of

robbery. This conclusion supports the verdicts

of murder in the first degree on the basis of

25 felony murder portion of section 782.04 (1)

(a).

(415)

On his appeal to the Supreme Court of Florida, Peti-

tioner raised the issue of the constitutionality of his death

Bo

sentence under the Eighth and Fourteenth Amendments, since he

was convicted on a felony murder theory, he did not intend

the death of the victims, did not actually kill the victims

and was not actually present at the scene of the robbery at

the time the killings occurred. The Supreme Court of Florida

held:

Appellant contends that since the evidence

does not establish that he intended to take

life, the death penalty is impermissible under

the eighth amendment ban on cruel and unusual

unishment. Appellant offers us no binding

egal authority that directly supports this

proposition, and we therefore reject it.

(Al6)

REASONS FOR GRANTING THE WRIT

I.

A DEATH SENTENCE IMPOSED UPON A

DEFENDANT CONVICTED OF FELONY MUR-

DER IS DISPROPORTIONAL TO THE CRIME

IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, WHERE THE DEATH

SENTENCED DEFENDANT DID NOT ACTUALLY

KILL THE MURDER VICTIM; WAS NOT AC-

TUALLY PRESENT AT THE SCENE OF THE

KILLING; DID NOT INTEND THE DEATH OF

THE VICTIM; AND WAS CONVICTED SOLELY

AS AN AIDER AND ABETTOR TO THE ROB-

BERY WHICH PROVIDED THE UNDERLYING

FELONY FOR THE FELONY MURDER CONVIC-

TION.

The issue of whether a death sentence is a propor-

tionate penalty where the killing for which the defendant stands

convicted was unintentional or committed by a co-perpetrator

in the course of a felony murder is not new to this Court.

However, this Court has never decided this question. In Gregg

v. Georgia, 428 U.S. 153 (1976), this Court held:

bythe offender, we comnet, say tht ene

punishment is unvariably disproportionate

to the crime. (Emphasis added)

Id., at 187. That holding left open the issue of whether an

unintentional killing violates the mandates of the Eighth and

Fourteenth Amendments.

-10-

During the same year as the Gregg decision, this

court specifically reserved ruling on the above issue in

Woodson ». North Carolina, 428 U.S. 280, 305 . 40 (1976).

In 1978, the issue arose again in Lockett v. Ohio, 438 U.S.

586 (1978), but the plurality opinion in that case did not

reach or address the question. Chief Justice Burger, writing

for the Court, did criticize Ohio's death penalty statute

for not taking into account as a mitigating factor the lack

of a specific intent to cause the death of the victim and the

defendant's role in a felony-murder situation. Id.

Three of the concurring Justices in Lockett, al-

though not able to agree on a single opinion, would have gone

further than the Court's opinion to hold that the death penalty

cannot be constitutionally imposed in a case where a defendant

did not possess the intent to kill and/or was only vicariously

involved in a felony-murder. Justice Blackmun concluded that,

although it was impossible to define a convincing bright line

rule such as was used in regard to rape, Coker v. Georgia, 433

U.S. 584 (1977), to make workable a disproportionality approach“

in a case such as Lockett, the sentencing authority should

seriously consider a defendant's participation and the character

of his mens rea. Lockett v. Ohio, 438 U.S. 586,613 (1978)

(sustice Blackmun concurring) Justices Marshall and White, on

the other hand, would develop a per se unconstitutional rule

where there was no intent to cause death and/or there existed

only proof of a felony murder. Justice Marshall noted:

When a death sentence is imposed under

the circumstances presented here, I fail

to understand how any of my Brethren--

even those who believe that the death

penalty is not wholly inconsistent with

the Constitution--can disagree that it

must be vacated.... The imposition of

the death 8 for this crime totally

violates the 12 of proportionality

embodied in the Eighth Amendment's pro-

hibition, Weems v. United States, 227

U.S. 349 (JI Tt makes no distinction

between a wilful and malicious murderer

and an accomplice to an armed robbery in

-ll-

which a killing unintentionally occurs.

See State v. Lockett, 49 Ohio St.2d 48,

67 (1976) (dissenting opinion).

Permitting imposition of the death

penalty solely on proof of felony-murder,

moreover, necessarily leads to the kind

of “lightning bolt, "freakish," and

“wanton” executions that persuaded other

members of the Court to join MR. JUSTICE

BRENNAN and myself in Furman v. Georgia,

408 U.S. 238 (1972), in holding Ceorgia's

death penalty statute unconstitutional.

Whether a death results in the course of

a felony (thus giving rise to felony-mur-

der liability) turns on fortuitous events

that do not distinguish the intention or

moral culpability of the defendants.

That the State of Ohio chose to permit

imposition of the death At under a

41 vicarious theory of liability seems

to belie the notion that the Court can

discern the “evolving standards of decency,”

Trop X. Dulles, 356 U.S. 86,101 (1959),

embodied in the Eighth Amendment, by re-

ference to state “legislative seagrass.”

see Gregg v. Georgia, 428 U.S. 153,175

(opinion o „ POWELL, STEVENS, JJ.)

Lockett v. Ohio, 438 U.S. 586,619,620 (1978)(Justice Marshall,

concurring). Justice White relied upon the proportionality

rule of Furman v. Georgia, 408 U.S. 238 (1972) and Coker u.

Georgia, 433 U.S. 584 (1977) in concluding that a death sen-

tence is disproportionate to the severity of the crime where

a defendant did not intend to cause the death of the victim:

I nevertheless concur in the judgment

of the Court reversing the imposition of

the death sentences because I agree with

the contention of be petitioner...that

it violates the Eighth Amendment to in-

poss the penalty of death without a

nding that t en E possessed A

urpose to cause the ath of the victim.

t is now established d a penalty

constitutes cruel and unusual punishment

if it is excessive in relation to the

crime for which it is imposed. A punish- _

ment is disproportionate "if it (1) makes ~ -

no measurable contribution to acceptable

goals of punishment and hence is nothing

more than the purposeless and needless

imposition of pain and suffering; or (2)

is grossly out of proportion to the

severity of the crime. A punishment

might fail the test on either ground.”

Coker v. Georgia, 433 U.S. 584,592 (1977)

(pinion of WHYTE, J) Because it has

been extremely rare that the death penalty

has been imposed upon those who were not

found to have intended the death of the

-12-

victim, the punishment of death violates

both tests under the circumstances pre-

sent here.

* 25 *

I recognize that approximately half of

the States have not legislatively fore-

closed the possibility of imposing the

death penalty upon those who do not in-

tend to cause death. The ultimate judg-

ment of the American people concerning

the imposition of the death penalty upon

such defendants, however, is revealed not

only by the content of statutes and by the

imposition of capital sentences but also

by the frequency with which society is

prepared actually to inflict the punish-

ment of death. See Furman v. Georgia.

408 U.S. 238 (1972). t is clear from

recent history that the infliction of

death under circumstances where there is

no purpose to take e has been w

2 te

„ tf *

* * *

the seriousness 9

Under, those circumstances the con-

clusion is unavoidable that t n-

tribute to acceptable or,

erceptible goals of punishme

1232

Lockett v. Ohio, 438 U.S. 586, 624-625 (1978) (Justice White,

concurring).

The time is ripe for this Court to squarly address

the issue presented in this case. Petitioner's case is an

excellent vehicle to decide the troublesome question of whether

a defendant should die when convicted of felony murder where

a co-defendant killed the victim, even though the defendant

himself did not intend the death of the victim and was not pre-

sent at the time of the killing. The Supreme Court of Florida

has carefully sifted the facts and concluded that Petitioner's

guilt rests on a felony murder theory. Additionally, that

court clearly held that, at best, the facts demonstrated that

Petitioner was not actually present at the scene of the murder.

Enmund v. State, 80. 2d (Fla. 1981) (case No. 48,525, opinion

-13-

filed April 16). (415) Petitioner believes his death sentence

is disproportional to his crime in violation of the Eighth and

Fourteenth Amendments. He urges this Court to grant a writ of

certiorari.

CONCLUSION

Upon the foregoing reasons, Petitioner asks this

Court to grant a writ of certiorari.

Respectfully submitted,

Assistant Public Defender

Chief, Copital Appeals

Hall of Justice Annex

495 N. Carpenter Street

Bartow, Florida 33830-3798

(813)533-6715 or 533-1184

Member Of The Bar Of The

United States Supreme Court

olin