Opposition — Enmund v. Florida

;

QUESTION PRESENTED

WHETHER A DEATH SENTENCE IMPOSED

UPON A DEFENDANT CONVICTED OF FIRST

DEGREE MURDER IS DISPROPORTIONATE

TO THE CRIME IN VIOLATION OF THE

EIGHTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION,

WHEN THE DEFENDANT'S PARTICIPATION

IN THE CAPITAL FFLONY WAS MAJOR,

TO-WIT: THE DEFENDANT PLANNED THE

CAPITAL FELONY, WAS PRESENT WITHIN

A FEW HUNDRED FEET OF THE MURDERS,

DROVE THE GETAWAY VEHICLE, AND

PARTICIPATED IN AN ATTEMPT TO AVOID

DETECTION BY DISPOSING OF THE

MURDER WEAPONS?

PARTIES

In the Supreme Court of Florida, Petitioner was the

appellant and the State of Florida was the appellee.

TABLE OF

CONTENTS

QUESTION PRESENTED ......-.

PARTIES . 2+ ee ee ee eee s

TABLE OF CONTENTS .....+-

TABLE OF CITATIONS s

CITATIONS TO OPINIONS BELOW .

STATEMENT OF THE CASE ... .

STATEMENT OF FACTS s

JURISDICTION . . 2. © © © © @ ©

REASONS WHY THE WRIT SHOULD NOT BE GRANTED

CONCLUSION . . «© «© © «© © © © © «

CERTIFICATE OF SERVICE Kk.

TABLE OF

CITATIONS

CASES

Enmund v. State

8 362 (Fla. 1981) .

Gress Vv. 8 8

. * (1976) * . . .

Jacobs v. State

396 86-24 1113 (Fla. 1981)

Lockett v. Ohio,

-S. CRGVG) © © 0 «6

Proffitt v. Florida,

Stein v. New York,

. . 1953) . . . . .

OTHER AUTHORITIES

28 U.S.C. J 1237 ()

11

PAGE

1.29

9,14

13

10,11-13

13,14

13

CITATATIONS TO OPINIONS BELOW

The opinion of the Supreme Court of Florida upon which

review is sought is reported as Enmund v. State, 399 So.2d 1362

(Fla. 1981). Rehearing was denied on July 20, 1981.

STATEMENT OF THE CASE

Respondent does not accept Petitioner's Statement of the

Case and instead asserts the statement of the case as set forth

by the Supreme Court of Florida in its opinion in Enmund v.

State, 399 So.2d 1362 (Fla. 1981):

This cause is before the Court on

appeal from a judgment of conviction on

two counts of murder in the first degree

and one count of robbery. The Circuit

Court of the Tenth Judicial Circuit, in

and for Hardee County, sentenced

appellant Earl Enmund to death, thus

vesting in this Court jurisdiction of

his appeal. Art. V, § 3(b)(1),

Fla. Const.

The appellant and co-defendant

Sampson Armstrong were tried together

and convicted of the first-degree

murders and robbery of Thomas and Eunice

Kersey. After returning verdicts of

guilt the trial jury heard evidence on

the issue of sentence pursuant to

section 921.141, Florida Statutes

(1975), and recommended the death

penalty for both defendants: The trial

court imposed sentences of death on the

appellant for the two counts of

first degree murder and a sentence of

life imprisonment for the crime of

robbery. We affirm the judgments of

guilt of murder and robbery and the

sentences of death.

Id. at 1363.

ee

STATEMENT OF FACTS

Respondent does not accept Petitioner's Statement of Facts

as set forth in Petitioner's Statement of the Case and instead

tenders the following facts as set forth by the Supreme Court of

Florida in its opinion:

On April 1, 1975, at about eight

o'clock, a.m., the bodies of Thomas and

Eunice Kersey were discovered by their

daughter in their rural Hardee County

home, located on state highwey 62

between Fort Green to the west and

Wauchula to the east. Mr. and Mrs.

Kersey, aged eighty-six and seventy-four

respectively, had been shot to death.

Some of the evidence constituting the

state's case in the trial court consist-

ed of physical items recovered at the

scene and examined in the course of

investigation. The bodies were found on

the kitchen floor, near the back door of

the home. There was a quentity of blood

on the floor, some five feet away from

where che bodies were lying, that

prompted the authorities to invescigate

the possibility that one of the

perpetrators was wounded during the

attack. Later that morning, police

found Jeanette Armstrong, the wife of

co-defendant Sampson Armstrong, being

treated for a gunshot wound in a

hospital in nearby Avon Park, in

Highlands County. The blood recovered

at the scene proved to be of a different

type from either of the kerseys blood,

and to match the blood type of Jeanette

Armstrong.

On the ground outside the house,

investigators found a plastic jug filled

with water.

There were four firearm projectiles

found at the scene. One was on the

ground outside the house, one in the

door jamb of che back door, one in the

water heater in the kitchen of the

house, and one on the floor, under the 5

body of Mrs. Kersey. Mrs. Kersey was

shot six times in all, with three of the

wounds being superficial so that three

of che bullets exited the body. Three

bullets remained in her body and were

recovered. The three bullets found in

the body all entered the body in the

right side and passed downward.

Mr. Kersey was shot twice. One

dullet entered his right arm and

passed on through his heart to the ieft

side of his body. The other entered his

chest from directly in front. Both

bullets were recovered. The bullet that

entered from the right side had a slight

downward angle. The one that entered

the front of the chest was almost

straight in its path from front to back.

According to expert firearms identifi-

cation testimony, one of the bullets

recovered was a .38 caliber and the

other was a .22 caliber. The .38

caliber bullet from the body of Mr.

Kersey, a .38 caliber bullet from the

body of Mrs. Kersey, and the .38 caliber

bullet found in the kitchen door jamb,

where [sic] all fired from the same

weapon. The .22 caliber bullet found in

the body of Mr. Kersey and a .22 caliber

bullet from Mrs. Kersey were both fired

from the same gun.

The pathologist who testified at

trial told the court and the jury that

when a bullet enters the body, it can be

deflected in numerous ways, so that it

is difficult to discern the angle of

fire from the path of the bullet. With

regard to the specific question of

reconstructing the position of Mrs.

Kersey when she was shot, based on the

paths cf the bullets, the pathologist

testified, "Well, there are all sorts of

possibilities. .. There is really no

way that I could determine what position

her body was in when she was shot.

Is he was shot from below, above, and

behind." None of the entrance wounds on

either of the bodies were inflicted from

a range of closer than several feet

away.

The state presented the testimony of

a witness who drove by the Kersey home

between 7:30 and 7:40 a.m. on the day

the bodies were found. When she passed

the Kersey home, she saw on the side of

the road a 2 cream-colored car with

a license tag bearing the prefix number

18. There was a black man in the car.

Another witness for the state drove by

the house at 7:35 that morning and saw a

car parked beside the road about two

hundred yards west of the house. It vas

a large, yellow car with a dark colored

top. There was one person in the car.

The state's evidence also included

the testimony of two of the Kerseys'

neighbors. One testified that on April

lst he was at work on his own land only

two or three hundred yards from the

kerseys house when, at about 7:45 a. u.,

he heard from six to fifteen shots of

gun fire and some highpicched screaming.

The other neighbor said that he lived

only two hundred yards west of the

Kerseys, and that between 7:30 and 8:00

o'clock that morning he heard about

seven loud sounds. He would have

thought that they were caused by Mr.

Kersey hammering to separate some scrap

metal, except for their irregular

sequence. From the sounds he remember-

ed, he concluded chat they also could

have been gunfire.

A neighbor of the appellant also

testified for the state. He said he

lived about three-fourths of a mile from

Enmund's home, and that they both lived

on a road that runs off of New York

Avenue south of the town of Wauchula.

This witness cestified that on the

morning of April Ist, at about 6:30 he

was standing out beside the road, New

York Avenue, that goes into Wauchula to

the north. He was waiting for a ride

that was to take him to another town on

personal business. The person who was

to meet him there did not come that

morniag, but he was still standing there

waicing for him after 8:00 o'clock. The

witness said that at approximately 6:30

or 6:45, he saw Earl Enmund and his

former common-law wife Ida Jean Shaw in

their yellow Buick with a vinyl top.

Ida Jean Shaw was driving. There were

two others in the back seat, one male

and one female. The car traveled north

toward town (the town of Wauchula). At

about 8:00 o'clock, the car came back,

travelling "pretty fast in a southerly

direction on New York Averue, with the

appellant driving, Ida Jean Shaw in the

front seat, and one of the other two

— le in the car lying down across the

ack seat.

The husband of the kerseys grand-

daughter testified that Mr. Kersey

usually kept large amounts of cash on

his person. He generally kept the cash

in che form of one-hundred-dollar bills.

Ic was not unusual for him to have from

ten to twenty of these on his person at

any given time. He kept che money in

his wallet, and the wallet was in his

hip pocket at all times. He normally

slept in his regular work clothing and

kep’ che? wallet in his pocket even as he

slep .

Mr. Kersey, the witness testified,

liked to show his cash to people he

dealt with, and he did so frequently

=

and indiscriminately. He tended to save

his money rather than to spend it, and

he was proudly vocal about having it.

He was a large, strong man who felt that

he could protect his wallet.

Another witness testified that two

weeks prior to the murders, he saw that

Mr. Kersey had from twelve to fifteen

hundred dollars on his person.

A few weeks prior to the murders, the

appellant and a friend jointly purchased

a calf from Mr. Kersey. They paid him

in cash and when Mr. Kersey took out his

wallet to put away the money he showed

them its contents. Appellant Enmuind

said, "Look at the money this man's

got. Mr. Kersey responded, "That ain't

no money. I can dig up $15,000, $16 ,000

any time I want to. Appellant's friend

told Mr. Kersey that he shouldn't be

showing his money around like that. Mr.

Kersey said, "I know you, Jim." The

other man responded, "Yeah, you know me

but you don't know the rest of then.

After the killings, Mr. Kersey's wallet

was not found on his person or anywhere

in the house.

J. B. Neal testified that at about

noon on April 1, 1975, he saw co-

defendant-Sampson Armstrong in Lake

Placid, in Highlands County. Armstrong

told Neal that he and his wife Jeanette

had done a robbery that morning at a

ranch house outside of Wauchula and that

Jeanette had been shot. Armstrong told

the witness that they had gone to the

back door of the house of an elderly man

and woman, saying that they needed water

for an overheated car. When Mr. Kersey

came out of the house, Armstrong grabbed

him, held his gun on him, and told

Jeanette to get the money out of his

pocket. Then, the old man cried out to

his wife, and — a window Armstrong

saw Mrs. Kersey coming out the front

door and around the house with a gun.

Mrs. Kersey shot Jeanette Armstrong.

Then Armstrong knocked the old man down

and shot Mrs. Kersey. Mr. Kersey got

back up and Armstrong shot him in the

chest. After the shooting, they put the

old people in the house, took the money.

and left.

Jeanette Armstrong is the daughter of

Ida Jean Shaw. In April of 1975, Ida

Jean Shaw and Earl Engund were living

together as husband and wife,

and had been doing so for about twelve

years.

There was testimony that the investi-

gating authorities, based on witnesses’

descriptions of the car seen near the

Kersey home the morning of the murders,

began to search for a large, yellow or

cream-colored car with a dark top and

having an "18" license tag prefix. They

found a car meeting this general

description in the possession of Ida

Jean Shaw.

At Walker Memorial Hospital in Avon

Park on the morning of the murders,

police questioned Ida Jean Shaw

concerning Jeanette Armstrong's gunshot

wound. She told them that she and

Jeanette had been travelling that

morning from Wauchula to Avon Park when

Jeanette entered an orange grove to

urinate and was shot. In the subsequent

course of the investigation of the

Kersey murders, Ida Jean Shaw gave a

statement to the state attorney

—u— the appellant and Sampson

Armstrong in the crimes. Subsequent to

that initial statement, she gave two

statements, one of them a formal

deposition, in which she repudiated the

original statement. In these statements

she said that Jeanette Armstrong left

her house on March 31, 1975 with two men

referred to as Luke and Willie.

According to this story, Jeanette said

that they were going to Fort Myers to a

nightclub. On the foliowing morning,

Luke and Willie brought Jeanette home

wounded. Jeanette, Luke and Willie then

told Ms. Shaw to tell anyone who asked

that Jeanette had been shot while

trespassing in a citrus grove. The

import of the story told in the

depositions was to implicate "Luke and

Willie" in the Kersey mrders and to

exculpate the defendants. In one of her

depositions, Ida Jean Shaw stated that

her earlier statement implicating the

defendants in the crimes was false and

was fabricated by agreement with

Jeanette Armstrong and calculated to put

Earl and Sampson in jail and thus be

free of the strictures of married life.

Ida Jean Shaw, over the objection of

the defendants, was called to testify at

trial as a court's witness. The court

examined her and then the state and

counsel for each of the defendants

cross-examined her.

Ms. Shaw testified at trial as

follows. At and around the time of

the crimes, she and the appellant lived

together in a house on Revell Road in

Wauchula, and that they had held

themselves out to friends and neighbors

and in business transactions as husband

and wife for twelve years. Her daughter

Jeanette was married to Sampson

Armstrong end lived in Lake Placid. On

the weekend preceding Tuesday, April

Ist, Ms. Shaw celebrated a birthday. On

Friday night, Jeanette came to her home.

On Sunday, she and Jeanette went to Lake

Placid and brought Sampson back. On

Monday night, March 31, Jeanette,

Sampson, and the appellant Enmund were

all there at the house in Wauchula. On

pre 4, April lst, when she awoke at

about 7:45 a.m., none of the three was

there. Neither was her brown and yellow

1969 Buick.

Ms. Shaw got up and went to the

neighbcrhood wash house. About ten

minutes later, either Enmund or Sampson

Armstrong came into the wash house and

told her that Jeanette had been shot.

Ida Jean Shaw went back to the house.

Jeanette was in the appellant's red

Plymouth automobile. Sampson was with

her and the appellant was in the house.

Ms. Shaw then took Jeanette up to the

local store corner and called an

ambulance. Then appellant Enmund came

to the corner where they were awaiting

the ambulance and asked her what had

happened to Jeanette. Ida Jean Shaw

told Enmund that Jeanette had been shot

In an orange grove. Then the ambulance

came and Ida Jean accompanied Jeanette

on the ride to the hospital. Ida Jean

learned from Jeanette how she was shot.

Earl followed in a separate car.

Sampson Armstrong also went to the

hospital that day.

After spending Tuesday morning at the

hospital, Ms. Shaw left there with Earl

and Sampson. They went to Wauchula to

get the children and then went on to

Lake Placid. On the way to Wauchula,

Ida Jean Shaw asked the appellant "why

he did it." He replied that he had seen

Mr. Kersey's money and therefore decided

to rob him. Sampson Armstrong said that

he made sure the people were dead.

Ida Jean Shaw testified further

that on Wednesday, April 2, 1975, she,

Earl, Sampson, and some of her children

were in a car on their way home from the

hospital when Sampson 2 her 8200. By

passing written notes in the car, she

asked him how much money he got out of

the robbery and he responded that he had

$600 left. She took the $200 and made a

loan payment on an account of Earl

Enmund's that was in arrears. There was

corroborating testimony of this, and

that the bill was paid with two one-

hundred-dollar bills.

Ms. Shaw testified that prior to the

events of April lst, she kept a .22

caliber pistol in the et compartment

of her car. On April 2, she removed the

gun from the loft at her house on Earl

Enaund's directions. He and Sampson

told her to get rid of the gun and also

a .38 caliber pistol that was at the

house, because, Sampson said, they had

been used to kill some people. She put

the guns in the bottom of a bucket of

greens and gave the bucket to a friend,

Jeanette's paternal uncle. This person

testified chat the bucket was a large

and heavy metal one and that the greens

spoiled in the crunk of his car. He

said he threw chem away, bucket and all,

and didn t know about the guns. The

murder weapons were never recovered.

At trial Ms. Shaw testified that the

story about Luke and Willie was a

complete fabrication, and that she made

up the story and related ic at the

request of the defendants. Ear! Enmund,

she said, instructed her on this matter

in letters smuggled out of the jail.

The state's counsel moved that

Ida Jean Shaw be called as a court's

witness on the ground that due to the

inconsistencies in her pretrial state-

ments, the state was not certain how she

would testify and would not vouch for

her credibility. Through her examina-

tion by the court, cross-examination by

the state, and cross-examination by

counsel for each of the defendants, the

following matters pertaining to her

credibilicy were brought out for

consideration by the jury. Ms. Shaw was

granted immunity from prosecution for

any role she might have played in the

murders and robbery. As related above,

she gave several inconsistent statements

during the investigation and prosecution

of the crimes. One of her statements

was in a deposition under oath, and at

trial she conceded that she had lied in

that statement. Prior to the trial, she

was charged with perjury. She was

arrested and held in jail for thirteen

days. The prosecutors advised

her of the maximum penalty for the crime

of which she stood accused. Then they

promised her that she would not be

prosecuted for perjury if she would

testify at the murder and robbery trial

and tell the truth.

399 So.2d at 1363-1367.

JURISDICTION

The jurisdiction of this Court is asserted under 28 U.S.C.

§ 1257(3).

REASONS WHY THE WRIT

SHOULD NOT BE GRANTED

The sole issue raised by Petitioner is that his death

sentences are allegedly disproportionate to the crimes of murder

for which he was convicted. Petitioner's argument is predicated

on his allegation that he did not intend that the victims be

killed and that he was not physically present at the exact scene

of the murders. However, the State of Florida strongly asserts

that the penalty for a first degree murder conviction is a matter

of state law and that Petitioner has not presented a substantial

federal question.

In Gregg v. Georgia, 428 U.S. 153, 187 (1976), this Court

held that a sentence of death could be imposed for a particular

offense if the procedure followed in reaching the decision to

impose the death penalty was not constitutionally Af ire and the

sentence was based upon consideration of the particular circum-

tances of the offense and the character of the offender. In

reaching its conclusion, the Court recognized that the deter-

mination of whether a particular crime was suitable for the death

penalty was a question particularly suited to resolution by state

legislators and that "a heavy burden rests on those who attack

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the judgment of the representatives of the people." Id. at 428

U.S. 175. “That States have authority to make aiders and

abettors equally responsible, as a matter of law, with

principals, or to enact felony-murder statutes is beyond

constitutional challenge." Lockett v. Ohio, 438 U.S. 586 (1978),

Petitioner contends that, notwithstanding the legislative

mandate of the will of the people of the State of Florida that

the death penalty is appropriate in a felony murder case, the

death sentence in Petitioner's case is disproportionate to the

crime because Petitioner did not intend that the victims be

killed and he was not present at the exact scene of the murders.

However, the Court needs only to look at some of the facts of

Petitioner's case in order to determine that his involvement in

the crime was much more substantial that he would have the Court

believe. For example, the trial court found as a matter of fact

and as an aggravating circumstance that the murders were

committed for pecuniary gain and that the ropbery of the elderly

Mr. Kersey was planned by Petitioner after he had personally

observed Mr. Kersey with a large amount of money on his person.

Enmund, supra, at 1372. The trial court stated that Petitioner

was an accomplice in the capital felony and that his parti-

cipation in the capital felony was major. The trial court also

found that Petitioner actively participated in an attempt to

avoid detection by causing the murder weapons to be destroyed or

lost. Id. at 1373. Similarly, the Supreme Court of Florida

found that it was reasonable for the jury to conclude that

Petitioner was present in the getaway car merely a few hundred

feet away from the murder scene and that Petitioner was the one

who drove the getaway car when it was seen speeding away from the

murder scene on the morning of the killings. Id. at 1365, 1370.

Thus, when considering whether Petitioner's sentence was

disproportionate to the crimes for which he was convicted, it

must be remembered that his participation was major. Id. at

1373.

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Again, however, despite the fact that Petitioner's

participation in the murders was substantial, Petitioner claims

that the death penalty was disproportionate in his case because

he did not intend to kill. In support of this proposition, he

relies heavily on Justice White's concurring opinion in Lockett,

supra. Although Lockett's death sentence was reversed on other

grounds, Justice White went further and expressed the view that

the Eighth Amendment was violated by imposition of the death

penalty “without a finding that the defendant possessed a purpose

to cause the death of the victim." Id. at 438 U.S. 624.

However, in a separate concurring opinion, Justice Blackmon

—strongly disagreed:

I do not find entirely convincing the

disproportionality rule embraced by ny

Brother White. The rule that a

defendant must have had actual intent to

kill, in order to be capitally sen-

tenced, does not explain why such intent

is the sole criterion of culpability for

Eighth Amendment purposes. What if a

defendant personally commits the act

proximately causing death by pointing a

loaded gun at the robbery victin,

verbally threatens to use fatal force,

admittedly does not intend to cause a

death, yet knowingly creates a high

probability that the gun will discharge

accidentally? What if a robbery parti-

cipant, in order to avoid capture or

even for wanton sport, personally and

deliberately uses grave physical force

with conscious intent to inflict serious

bodily harm, but not to kill, and a

death results? May we as judges say

that for Eighth Amendment purposes the

absence of a "conscious purpose of

ere death," post, at 628, 57 L Ed

d, at 1004, transforms the culpability

of those defendants’ actions?

Applying a requirement of actual

intent to kill to defendants not

immediately involved in the physical act —

causing death, moreover, would run

aground on intricate definitional

problems attending a felony murder.

What intention may a State attribute to

a robbery participant who sits in the

getaway car, knows that a loaded gun

will be brandished his companion in

the robbery inside the store, is willing

to have the gun fired if necessary to

make an escape but not to accomplish the

robbery, when the victim is shot by the

companion even though not necessary for

11

%

escape? What if the unarmed partici-

pant stands immediately inside the store

as a lookout, intends that a loaded gun

merely be brandished, but never bothered

to discuss with the triggerman what

limitations were appropriate for the

firing of the gun? What if the same

lookout personally intended that the gun

never be fired, but, after his companion

fires a fatal shot to prevent the victim

from sounding an alarm, approves and

takes off?

The requirement of actual intent to

kill in order to inflict the death

penalty would require this Court to

impose upon the States an elaborate

."constitutionalized" definition of the

requisite mens rea, involving myriad

problems of line drawing that normally

are left to jury discretion but that, in

disproportionality analysis, have to be

decided as issues of law, and

interfering with the substantive

categories of the States’ criminal law.

And such a rule, even if workable, is an

incomplete method of ascertaining cul-

pability for Eighth Amendment purposes,

which necessarily is a more subtle

mixture of action, inaction, and degrees

of mens rea.

Id. at 438 U.S. 614 n.2.

Justice Rehnquist reached a similar conclusion in even

more direct terms:

I finally reject the proposition

urged by my Brother White in his

separate opinion, which the plurality

finds it unnecessary to reach. That

claim is that the death penalty, as

applied to one who participated in this

murder as Lockett did, is

“disproportionare" and therefore

violative of the Eighth and Fourteenth

Amendments. I know of no principle

embodied in those Amendments, other than

perhaps one's personal notion of what is

a fitting punishment for a crime, which

would allow this Court to hold the death

penalty imposed upon her unconstitu-

tional because under the judge's charge

to the jury the latter were not :

required to find that she intended to

cause the death of her victim. As my

Brother White concedes, approximately

half of the States "have not legisla-

tively foreclosed the possibility of

imposing the death penalty upon those

who do not intend to cause death."

Ante, at 625, 57 L Ed 2d, at 1002.

Centuries of common-law doctrine

establishing the felony-murder

doctrine, dealing with the relationship

between aiders and abettors and

principals, would have to be rejected to

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adopt this view. Just as surely as many

thoughtful moralists and penologists

would reject the Biblical notion of "an

eye for an eye, a tooth for a tooth," as

a guide for minimum sentencing, there is

nothing in the prohibition against cruel

and unusual punishments contained in the

Eighth Amendment which sets that

injunction as a limitation on the

maximum sentence which society may

impose.

Id. at 438 U.S. at 635, 636. See also, Stein v. New York, 346

U.S. 156 (1953), where this Court previously upheld the death

sentence of a defendant convicted of felony murder, although the

defendant did not actually do the killing.

Thus, there is competent authority that a defendant's lack

of intent to kill should not be a bar to the imposition of the

death penalty. This is not to say, however, that in Florida the

intent of a defendant convicted of felony murder is not rele-

vant--evidence of a defendant's intent is properly admissible in

mitigation during the sentencing phase of a capital trial. The

jury's weighing of the aggravating circumstances versus ait ga-

ting circumstances has previously been upheld by this Court in

Proffitt v. Florida, 428 U.S. 242 (1976). See also, Jacobs v.

State, 396 So.2d 1113, 1117 (Fla. 1981), where the Supreme Court

of Florida has recently stated that "the jury should be allowed

to weigh all the facts and circumstances surrounding the

homicide, so that their advisory verdict will be the result of

reasoned judgment rather than an exercise in discretion."

However, it is extremely significant to note that during the

sentencing phase of Petitioner's trial, Petitioner offered

absolutely no evidence in mitigation (R 1677).

ce,

Therefore, it is clear that under Florida law the degree,

nature, and character of a defendant's mens rea in regard to the

commission of the mrder, while having little or no outward

bearing on the question of guilt under the felony-murder concept,

are highly relevant in the sentencing process and are admissible

-13-

n Florida in mitigation. As stated previously, Petitioner took

an active part in the criminal transaction which resulted in his

murder convictions. While it does not appear that he pulled the

trigger, he was certainly free to present this fact in mitiga-

tion. Under Florida law, both the jury which renders an advisory

sentence and the trial court which determines the actual

sentence, are permitted to consider all the facts and circum-

stances of the crime, including the fact that the convicted felon

did not intend to kill. This procedure is not constitutionally

infirm. Proffitt, supra. Moreover, the fact that Florida law

thus encourages those engaged in robbery to leave their guns at

home and to persuade their coconspirators to do the same in the

hope that fewer victims of robberies will be killed does not

offend the Constitution.

CONCLUSION

The decision of what penalty to impose for a particular

type of criminal conduct is one traditionally left with the

lawmaking bodies of the various states. The state legislature is

in the best position to determine the will of the people, and

such legislative determination should not lightly be set aside.

Gregg, supra. Although Petitioner was apparently not the

triggerman in the two murders involved in his case, both the

trial court and the Supreme Court of Florida found that his

participation in the crimes was substantial in that he devised

the idea for the robbery, planned the robbery, assisted in the

perpetration of the robbery, drove the getaway car, and helped

dispose of the murder weapons. That Florida has chosen to punish

such reprehensible criminal conduct with a death sentence is not

violative of the Constitution. Petitioner has simply not

asserted a substantial federal constitutional question.

Accordingly, Respondent respectfully requests that Petitioner's

petition fer writ of certiorari be denied.

Respectfully submitted:

JIM SMITH

Attorney General

-14-

° R

Assistant Attorney

COUNSEL OF RECORD

Assistant Attorney General

OF COUNSEL.

THE CAPITOL, 1502

Tallahassee, FL 32301

(904) 488-0600

COUNSEL FOR RESPONDENT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy hereof has

been furnished to WILLIAM C. MCLAIN, Assistant Public Defender,

Chief, Capital Appeals, Hall of Justice Annex, 495 N. Carpenter

Street, Bartow, FL 33830-3798, by U. S. Mail this 25%h day of

September, 1981.

Assistant Attorney “Gene

COUNSEL OF RECORD