Petitioners Reply Brief — Enmund v. Florida

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Office - Supreme Court, U.S.

ILED

No. 81-5321 MAR LE 1962

ALEXANDER L. STEVAS.

CLERK

Ear, ENmMuND,

STaTe oF Foripa,

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

REPLY BRIEF FOR PETITIONER

Wiuuiam C. McLain

Assistant Public Defender

Hall of Justice Annex

495 N. Carpenter Street

Bartow, Florida 33830-3798

(813) 533-6715

Attorney of Record

JacK GREENBERG

James M. Nasait, III

JoEL BERGER

JoHN CHaRLEs Bocer

Desorau Fins

James S. LizpMan

Suite 2030

10 Columbus Circle

New York, New York 10019

AntTuony G. AMSTERDAM

New York University

School of Law

40 Washington Square So.

New York, New York 10012

Altorneys for Petitioner

----- se

a ST

Questions Presented

1. Whether death is an unconstitu-

tionally excessive and disproportionate

penalty under the Eighth and Fourteenth

Amendments for one who neither took life,

attempted to take life, nor intended to

take life?

2. Whether petitioner's degree of

participation in the killings was given

inadequate consideration and inadequate

weight by the Florida courts, thereby

violating his rights under the Eighth and

Fourteenth Amendments?

» ii «

INDEX

Page

Table Of AuthOritieS ccccccccccesesse iii

Argument eeeeeenreeeneneenseeneeeeeeneeneee#ee?#e 1

A. Respondent Misconceives

Petitioner's Legal Con-

tentions *eenoreeweeeeeeeeen-re 2

B. Respondent Misconceives

the Application of Peti-

tioner's Contentions to

Florida's Capital-Sentenc-

ing Statute cccccccccccce 12

Cc. Respondent Misstates the

Pacts and Prior Pro-

ceedings of Record ...... 17

1. The evidence at the

guilt-innocence

phase eeeeeeeeeeeeees 18

2. The sentencing pro-

CEEGINGS .wcccssccece 31

3. Proceedings on

appeal .wccccccccces 38

Conclusion eeeeoeeeeneeeeeeeeeeeeeeeeeee 44

Appendix

- iii -

TABLE OF AUTHORITIES

Page

Cases

Armstrong v. State, 399 So. 2d 953

(Fla. 1981) eoeeeteoeeveeeeeeeeeenenee passim

Coker v. Georgia, 433 U.S. 584

(7977) eoeeeeeeeveeeeeeeeeeene 3,4,11,15

Eddings v. Oklahoma, U.S. , 50

U.S.L.W. 4161 (January 19,

1982) *eeeseeeeeensteeneenseteeneneeneeneeeeee 3

Enmund v. State, 399 So. 2d 1362

(Fla. 1981) e*e*eeieseeenster#see#s#eseee#ee#e#eee#€* passim

Lockett v. Ohio, 438 U.S. 586

(1978) e*eneeeeeesee#seesenwee*es#eseees+mee@tee#ee#ee#ee#ee#e. 4,6

State v. Quinn, 623 P. 2d 630

(Ore. 1981) e*eeee#ensrteeneeses#ss#se#*e#senseee#ee8e? 10

Statutes

Pla. Stat. Ann. 775.082 *enereeseesnteneeee? 14

Fla. Stat. Ann. 782.04 eeeeeeeeeeee 41

Fla. Stat. Ann. 812.13 e*enereeeeeneeeee 14

Fla. Stat. Ann. 921.141-.... 29,36,37,38

~A A AH DHA

Fla. Stat. Ann. 947.16 eeeseeoeeeeeeeee 14

Other Authorities

- Rep. 143, 97th Cong., Ist

Sess. (1981) eeeeoeeeeneeneeeneeeeeeee 11

No. 81-5321

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

EARL ENMUND,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

REPLY BRIEF FOR PETITIONER

Respondent's brief necessitates

reply. It distorts the issues by miscon-

ceiving (A) petitioner's constitutional

contentions, (B) the application of those

contentions to the operation of Florida's

capital-sentencing statute, and (C) the

application of those contentions and of

that statute to the facts and proceedings

in this case.

A. Respondent Misconceives Petition-

er's Legal Contentions

Respondent repeatedly ascribes to

petitioner an argument which would erect

a “bright line rule" for capital-sentencing

determinations that is somehow inconsis-

tent with particularized consideration of

the facts of each individual case in which

the death penalty is in issue. E.g.,

Resp. Br. 28-33. Petitioner makes no such

argument. Earl Enmund's case necessarily

presents the question of the minimum state

of culpability that can support a death

sentence conforming to the Eighth and

Fourteenth Amendments' command of propor-

tionality in capital sentencing. At or

above that minimum state, capital punish-

ment may and must be individualized. E.g.,

Eddings v. Oklahoma, U.S. , 50 U.S.

L.W. 4161 (January 19, 1982). Below that

minimum state, capital punishment is

forbidden. Coker v. Georgia, 433 U.S. 584

(1977).

This latter prohibition is not peti-

tioner’s invention. Coker established

it upon abundant Eighth Amendment author-

ity. See cases cited in Petr. Br. 10-11.

Unless Coker is overruled, and unless the

Eighth and Fourteenth Amendments are held

to permit a death sentence for petty

larceny or vehicular homicide, some line

must be drawn between degrees of culpabil-

ity for which the States can and cannot

inflict the punishment of death.’ A

i/ In the midst of its attack on “bright

lines,” respondent at one point suggests

its own such demarcation: between homi-

cidal and nonhomicidal crimes. Resp. Br.

36-37. As the vehicular homicide example

suggests, and as the analysis in Petr. Br.

[Footnote 1/ continues on next page.)

"brighter" line would seem better than a

"murkier" one for this purpose, so that

reviewing courts need not make a de novo

judgment upon each death sentence. But, in

any event, petitioner contends that the

facts of his case fail to establish the

minimum State of culpability required by

the Eighth Amendment for a death sentence

either (a) under the relatively bright-line

principle convincingly articulated in Jus-

tice White's concurring opinion in Lockett

v. Ohio, 438 U.S. 586, 624-25 (19.3) ,2/ or

(b) under any proper individualized con-

1/ = continued

16-17 demonstrates, such a line is incon-

Sistent with the “objective indicators of

society's ‘evolving standards of decency'"

(Coker v. Georgia, supra, 433 U.S. at 603

(Justice Powell, concurring) ).

2/ We say relatively bright-line because

of the substantial flexibility available to

legislators in framing, and triers of fact

Sideration of the relevant facts and

circumstances shown by the record here.

2/- = continued

in applying, intent-based standards. See

Petr. Br. 44 n.64.

As we note in our opening brief, the

constitional rule might be limited to three

objective factors whose absence here

distinguishes this case from almost every

other case in which a death penalty has

been imposed in this country over the past

decade: (i) physical participation in the

lethal act; (ii) presence at the site of

the act, and (iii) participation in a plot

to kill, if absent. Petr. Br. 36 n.55.

See Appendix E to Petr. Br. (separately

bound). Such a rule would be narrower, but

it would require factual determinations

less common in the criminal law of the

various States than a simple determination,

required in some well-established form by

the criminal codes of all fifty States, of

whether the defendant had a conscious

purpose to kill.

3/ Respondent is of two minds about the

Individualized consideration due the

relevant circumstances of Earl Enmund's

case. At one point, Florida grudgingly

concedes that “the fact that it was not

proved that Petitioner intended the murders

to occur might be relevant in mitigation."

[Footnote 3/ continues on next page.]

This major misconception of peti-

tioner's argument is embroidered by a

number of minor ones. First, petitioner

has not “argued that ... the death penalty

3/ continued

Resp. Br. 9. This much and more, of

course, is established by Lockett v. Ohio,

Supra: which reversed the death sentence of

a felony-murder accessory -- who proposed

and assisted in planning the robbery,

offered to secure a weapon to use in

carrying it out, drove the getaway car, and

hid the murder weapon and two of her

accomplices from the police, 438 U.S. at

590-91 -- because her limited participation

in the homicide itself, and her lack of an

intent to kill, had not been considered in

mitigation. Id. at 604.

Elsewhere, however, respondent approv-

ingly acknowledges “the Florida courts'

findings of the inapplicability of any

mitigating circumstances" in petitioner's

case. Resp. Br. 65 (emphasis added).

Respondent cannot have it both ways.

It cannot argue that individualized miti-

gating consideration of the lack of an

intent to kill and of nonparticipation in

the lethal act is sufficient to make a

death sentence imposed in such circum-

stances constitutional, and then turn

around and argue that those factors are

somehow devoid of “any mitigating" weight

in petitioner's case. See Petr. Br. 47-49.

has not often been imposed in a felony-

murder context." Resp. Br. 49. Petitioner

has argued and demonstrated that the death

penalty has infrequently been imposed upon

offenders who neither took life, attempted

to take life, or intended to take life, and

whose guilt of first-degree murder was

therefore established solely under the

felony-murder rule. Petr. Br. 32-36;

Apendices D and E. Petitioner's argu-

ment would not make the death penalty

unavailable to the States in felony-murder

cases, or even forbid the States to con-

sider the fact of felony-murder as an ag-

gravating circumstance in cases meeting

the minimum level of culpability for a

constitutional death sentence. Respon-

dent's page 49, footnote 10 thereon, and

Appendix thereto, referring to death sen-

tences meted out in Florida for killings

in "a felony-murder context” (Resp. Br.

49), are all simply wide of the mark.~’

The same misconception animates respon-

dent's analysis of the various state stat-

utes which it categorizes in footnote 8 at

pages 43-45. Respondent asks the wrong

questions about these statutes,~ and gets

4/ In each case cited by respondent in

its appendix--save, of course, petition-

er's--the defendant either took life or

was actually present aiding and abetting

a codefendant who took life. See Petr.

Br. Appendix E. While an intent to take

life is, of course, not required under

Florida law either to convict a defendant

of first-degree murder or to sentence him

to die, the fact is that in the vast

majority of the "felony-murder context"

cases cited by respondent in its appendix,

unlike petitioner's case, the Florida

Supreme Court either expressly found, or

expressly affirmed the trial court's or

jury's finding, that the defendant intended

that life be taken. The cases are ana-

lyzed in the Appendix to this Reply

Brief.

5/ Respondent asks which "statutes allow

an aider and abettor to be convicted of a

capital offense, even though intent to

murder either has not been or cannot be

proved.” Resp. Br. 43 n.8. By looking

the wrong answer.

Respondent is similarly remiss in

reporting the progress of death penalty

5/ continued

solely at provisions defining the crime of

capital murder, respondent simply misses

the fact that: (1) several States include

a requirement that the felony-murder

defendant have taken life, or have intended

to do so, in the aggravating or mitigating

circumstance portions of their capital-sen-

tencing statutes (see the United States,

Arkansas, Colorado, Illinois, Indiana, New

Mexico and North Carolina provisions cited

in Petr. Br. 28-29 nn.43-40); and (2)

several States do not even include felony-

Murder as an aggravating circumstance that

will justify imposition of the death

penalty (see the Arizona, Idaho, Montana,

Nevada, Oklahoma, and South Dakota statutes

cited in Petr. Br. 29 n. 45).

6/ Contrary to Respondent's assertion,

six statutes it cites (Arkansas, Delaware,

Kentucky, Texas, Utah, and Washington), do

include mens rea requirements in setting

forth those types of murder or felony-

murder that are capital. Those require-

ments are all quoted in Petitioner's Open-

ing Brief at page 28 n.43. (Respondent's

citation of a Washington statute that was

recently ruled unconstitutional and later

reenacted in a different form accounts for

@- 10 -

legislation presently being considered in

the United States Senate. Although it is

true that Senate Bill 114 originally “would

{have] authorize[d] the imposition of the

death penalty for a number of federal

felonies in which death results, even if

there is no finding that the defendant

either committed the crime with the con-

scious purpose of causing death or partici-

pated in the homicidal act," Resp. Br. 23,

Senator Thurmond's Judiciary Committee

amended the bill before reporting favorably

upon it. The amendment requires that every

death sentence be supported by a finding

that the defendant either “intentionally

killed," “intentionally inflicted serious

6/ continued

one of these errors. See Petr. Br. 28

n.43.) The Oregon death-penalty statute

cited by respondent was ruled unconstitu-

tional in 1981, State v. Quinn, 623 P. 2d

630 (Ore. 1981), and Oregon remains without

a death penalty at this time.

o 1% @

bodily injury," or “intentionally partici-

pated in an act which he knew or reasonably

should have known would create a grave risk

of death to a person,...and the victim did die

as a direct result of the act." S. Rep.

143, 143, 97th Cong., Ist Sess. 33 (1981)

(emphasis added). The Committee concluded

that this requirement of “a high level of

culpable involvement in the homicide" was

necessary “to meet constitutional difficul-

ties under Coker v. Georgia.” Id. at 5S.

Respondent's most remarkable misstate-

ment of petitioner's constitutional conten-

tions is its assertion that the "next step”

following acceptance of those contentions

"would be an attack upon capital punishment

for those who planned death but did not

actually commit the killing.” Resp. Br.

55-56. Petitioner's argument that a death

sentence is unconstitutional (either on the

facts of this particular case or in gen-

@ 12 «

eral) in the absence of an intent to take

human life obviously does not look to im-

mMunizing persons who deliberately hire or

solicit others to kill for them. It looks

180 degrees in the opposite direction.

B. Respondent Misconceives the Appli-

cation of Petitioner's Contentions

to Florida's Capital-Sentencing

Statute

Respondent's asserted justifications

for inflicting the death penalty in cases

of accessorial liability for unintended

homicides occurring during a felony involve

similar misconceptions of petitioner's con-

tentions, as well as complementary miscon-

ceptions of the Florida death-penalty

statute.

First, respondent asserts that "“"[j]Ju-

dicial acceptance of [petitioner's posi-

tion] ... would be tantamount to the

issuance of ‘death warrants’ for innumer-

able convenience store clerks and service

- 13 @

station operators" (Resp. Br. 61) whom

robbers would thereby be licensed to kill

"in order to prevent subsequent identifica-

tion by the victim" (Resp. Br. 60 n.12; see

also Resp. Br. 8-9). Of course nothing in

any of petitioner's contentions would

forbid death sentences in such cases

as respondent describes which are all, by

express ("witness elimination") hypothesis,

intentional killings. Nor would any

prosecutor have any difficulty in convinc-

ing the trier of fact to infer such an

intent to kill in any case where the facts

Supported the inference -- as, indeed,

occurred in the only two actual cases cited

in this context by respondent. (See the

analysis of the Vaught and Hargrave cases

in the Appendix, infra.)—

7/ Respondent goes so far as to say that

a robber in Florida “has ... nothing to

lose by murdering the victim" unless he

e 14 «

But the Florida statute does not

require a finding of intent to kill

or to “eliminate witnesses" (see Resp. Br.

9) as the condition of a death sentence

for accessorial felony-murder, and the

facts of petitioner's case will support no

such finding. To the contrary, the Florida

Supreme Court found that the killings here

were the "spontaneous" actions of peti-

tioner's robbery accomplice, Sampson

Armstrong, undertaken in petitioner's

absence after one cf the robbery victims

7/ continued

faces the death penalty. Resp. Br. 60.

This assertion is absurd. In Florida, as

elsewhere in the United States, the penalty

for murder is greater than the penalty for

robbery. Compare Fla. Stat. Ann. §§ 775.

082, 813.13, 947.16 (first-degree murderer

not sentenced to die must receive a life

sentence without possibility of parole for

25 years; robber who does not kill may be

sentenced to any term of years from 0 to

life, and may be paroled at any time after

one year.)

- 1§ «

opened fire on Armstrong and nis wife. A.

55; 399 So. 24 at 1373, incorporating

Armstrong v. State, 399 So. 2d 953, 963

(Pla. 1981).

Both respondent's “creation of risk"

(Resp. Br. 39-47) and “deterrence” (PResp.

Br. 48-63, especially 69-63) justifications

also defend a Florida statute that does not

exist. These arguments expressly justify

the death penalty for the underlying fel-

ony, not for a killing that “spontaneously”

occurs Guring its commission. If they were

valid arguments, Coker v7. Georgia could not

have been decided as it was, since rape no

less than robbery is, and has been deter-

mined by “numerous state legislatures [to

be,) ... sO dangerous that death is a for-

seeable and likely result of participation

in that conduct.” Resp. Br. 43-44.

Tne Florida statute under which

petitioner stands condemned to die does not

@ 16 -

require a finding of foreseeability of

death -- let alone a finding that “loaded

firearms are used" in the underlying fel-

ony, Resp. Br. 42. To the extent that

it expresses a generic finding of the life-

endangering character of all enumerated

felonies, that finding no more justifies

the death penalty for Earl Enmund than for

Ehrlich Coker. See Petr. Br. 7-10.

Respondent plays the operation of the

Florida statute false in yet another critical

regard. Under that statute, respondent says,

"[{iJn practice, a death sentence for an

aider and abettor will only be imposed in

extreme cases where the defendant's in-

volvement is major." Resp. Br. 46-47.

Petitioner's death sentence suffices to

refute this glib assertion. Nowhere in

its brief does respondent tell us what

“extreme cases" means or undertake to

demonstrate that petitioner's is one of

e 1797

them. Respondent does argue that peti-

tioner's involvement in the robbery, not

the murder “was major," but this, again,

is a justification for punishing the

robbery, not the murder, with death. And

in any event, respondent arrives at even

this insufficient justification by disre-

garding -- and in some cases misrepresent-

ing -- the record, to which we next turn.

Ce Respondent Misstates the Facts

and Prior Proceedings of Record

Page limitations required the omis-

sion of a detailed statement of the facts

from petitioner's initial brief. Conse-

quently, respondent has charged that

"[pletitioner's statement of the case

omits material facts" (Resp. Br. 1) and

has exploited this omission by offer-

ing a grossly incomplete and slanted

version of the record. We now set the

record straight.

e 18 -

1. The evidence at the guilt-inno-

cence phase

The following evidence was presented

at the first phase of petitioner's bifur-

cated jury trial:

At 7:45 a.m. on April 1, 1975, Harold

Elems was working on his property in a

rural portion of Hardee County, Florida,

when he heard “[w]hat appeared to be

gunfire ... ," R. 1043, i.e., “more than

six but not fifteen” shots fired “in a

short length of time." R. 1044. Although

he could not then see the nearby Kersey

home, a minute or two later he drove his

truck to within 100 yards of the back of

that house, of which he had "a pretty clear

view ... for probably a minute or so." R.

1044-45. Seeing nothing unusual, Mr. Elems

drove on, arriving at his destination,

several minutes away, at precisely 7:50

a.m. R. 1045-47. He testified that as of

= 19 -

approximately 7:47 a.m. he noticed no cars

on or near the road in front of the Kersey

property. R. 1047.

The bodies of Thomas and Eunice Kersey

were discovered between 7:55 and 8:00 a.m.,

on April 1. They were lying head to head,

partially in the kitchen and partially

across the rear doorway. R. 1019-21, 1056,

1070. Mr. Kersey had been shot twice, his

wife six times. R. 1102, 1106. No weapons

were discovered at the scene or introduced

at trial, R. 1567, although a ballistics

expert testified that bullets had been

fired from a .22 and a .38 caliber weapon.

R. 1055-57, 1139-41.

The police were unable to locate Mr.

Kersey's wallet (R. 1084-85), although

testimony at trial indicated that he kept

it on his person at all times. The night

before he was shot, Mr. Kersey told his

son that he had $1,400 or $1,500 in his

@ 20

The State relied almost exclusively on

the testimony of Jay B. Neal, a close

friend of Sampson Armstrong, for a descrip-

tion of the events at the Kersey residence

on the morning of April 1, 1975. R. 1345.

According to Neal, Armstrong told him

"about a job" he and his wife Jeanette

Armstrong "had done,” during which an

"old lady shot Jeanette." R. 1347-48.

Sampson told Neal that he and his wife

went to the door of a ranch house owned by

"two old persons” and asked for some water

because their “car had run hot." Rk.

1348. When the man went behind his house

to get a water jug, Sampson "grabbed

the old man ... around the neck and put the

8/ According to several witnesses, Mr.

Kersey usually carried large sums of money

in $100 denominations in his wallet and

liked "to flash his money around," not only

among friends and at church, but also to

Strangers. R. 993, 1005-06, 1010.

@ 21 -

gun on him ... holding him to the back door

like." R. 1349. According to Neal, Samp-

son then said that:

He was telling Jeanette

to get the money. And

somehow or other the old

man hollered for his wife

and his wife heard the

scream and he could look

through the back window and

see the old lady coming

around the house with the

GuN.ees As soon as she got

there she shot and hit

Jeanette and he hit the

old man and knocked him down

and shot the lady.... By

the time he shot the lady

and the old man got up and

he shot the old man in the

chest.... Then he say he

took them in the house and

put them head by head ...

‘ene BOEO ccc

R. 1350-51.

9/ Police testimony established that

Jeanette Armstrong was admitted to a

local hospital with a gunshot wound on

April 1, 1975. and that a blood sample

taken from her matched a blood stain

found inside the Kersey home, which did not

match either victim's blood. R. 1087,

1070-71, 1125-30, 1157.

[Footnote 9/ continues on next page.]

- 22 -

Contrary to respondent's false asser-

tion that “Armstrong had told [Jay B. Neal]

that he, petitioner, and Armstrong's wife

had robbed and killed an elderly couple,"

Resp. Br. 3, Neal did not implicate peti-

tioner in any way. Indeed, as the Florida

Supreme Court noted on appeal, Neal's

account “did not include any reference to

{[petitioner].” A. 49; 399 So. 2d at 1270.

Nor did the crime-scene evidence implicate

petitioner in either the robbery or the

9/ continued

Jeanette Armstrong's mother, Ida Jean

Shaw, also corroborated Neal's testimony in

several respects. Ms. Shaw testified

that her daughter confessed to her about "a

robbery," R. 1190, 1196, and that Sampson

Armstrong told her that he had $600 left

"out of the robbery.” R. 1197; see also R.

1195-96, 1202, 1246-47. According to Shaw,

Sampson also told her “he made sure that

the people was dead." R. 1207-08. Fin-

ally, Ms. Shaw testified that she saw

either Jeanette Armstrong or Sampson

Armstrong with a .38 caliber weapon some-

time before April 1, 1975. R. 1200-01.

@ 23 «

shootings that began when Mrs. Kersey fired

on Jeanette Armstrong.

The only evidence linking petitioner

to the robbery falls into three categories:

(i) Sometime during the early

part of March, 1975, petitioner and two

acquaintances stopped at Mr. Kersey's house

to buy a calf that Mr. Kersey had adver-

tised for sale. Upon receipt of the

purchase money, Mr. Kersey displayed the

contents of his wallet to all present,

precipitating a discussion among the four

men about “the money this man's got." R.

997-1000.

(ii) The State introduced the

testimony of Willie Lee, a neighbor of

petitioner, who was standing on the road

outside his house on April 1, 1975 for

several hours waiting for a ride that never

came. R. 1298, 1302. As summarized by the

Florida Supreme Court, Lee

a 24 <-

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. e+. At about 8:00

o'clock, the car came back

travelling “pretty fast" ...,

with [petitioner] ... driv-

ing, Ida Jean Shaw in the

front seat, and one of the

two other people in the car

lying down across the back

seat.

A. 37; 399 So. 2d at 1364-65; see R.

1300-04. Lee testified that the male and

female occupants of the back seat were

"younger" and black, as are Sampson and

Jeanette Armstrong. R. 1301, 1307-08,

1323.

The State also introduced the testi-

mony of Mary Alice Gibbs and Robert Clark

Davis, who drove past the Kerseys' home at

around 7:35 on the morning of April 1.

Both saw a yellow or cream-colored car

@ 28

just off to the right (east) side of Route

62, about 200 yards west of the Kersey

residence, and both saw "one person in the

car under the [steering] wheel." R. 1025,

1026, 1028, 1037, 1039. The only positive

description of that person at trial was

Mrs. Gibbs' statement that she saw "a black

male in the car. 2 2/ The Florida Supreme

Court concluded that Mrs. Gibbs' testimony

was the “only evidence," albeit "“inferen-

{[tial]" evidence, that placed petitioner in

the vicinity of the Kersey home when

Sampson and Jeanette Armstrong robbed and

killed its occupants. A. 49-50; 399 So. 2d

at 1370.

10/ Mrs. Gibbs testified that the car

"had an 18 tag." R. 1026. Other testimony

revealed that Ida Jean Shaw's yellow Buick

had "an 18 tag." R. 1094-95. Contrary to

respondent's assertion that "Petitioner was

seen in a car near the scene of the mur-

ders," Resp. Br. 2, neither Mrs. Gibbs nor

Mr. Davis could identify petitioner as the

person she or he saw in a car near the

Kersey home. R. 1038, 1039.

- 26 -

(iii) The third category of

evidence touching on petitioner consisted

of the testimony of Ida Jean Shaw.11/ First,

11/ The prosecutor conceded to the jury

that Ms. Shaw was herself a suspect in the

Kersey affair. R. 1568. At trial, she

repeatedly admitted actions that implicated

her as at least an accessory after the

fact. See A. 39-40; 399 So. 2d at 1365-66;

R. 1213-14, 1232, 1238-39, 1249.

Ms. Shaw admittedly gave a number of

inconsistent stories under oath before

trial. A. 43; 399 So. 2d at 1367; see,

e.g., R. 1208-09, 1225-26, 1233-35, 1257-

59. As a result, she spent thirteen days

in jail before trial on charges of perjury

and was released by the State only after

she agreed to repudiate certain prior sworn

statements in which she exonerated peti-

tioner and inculpated her daughter and two

companions in the robbery and shooting. R.

272-74, 280-81, 1178-80, 1259, 1261, 1572.

Ms. Shaw was called as a witness by the

court because of her “hostility"™ to the

State, and testified under a grant of

immunity by the State from prosecution for

murder, robbery and perjury. R. 103-06,

274, 281-82, 429-30, 1178-80, 1251-52.

At trial, she admitted to having perjured

herself again during the court's direct

examination. Compare R. 1194, 1196

and R. 1205. As she summed it up: “Some-

times I just lie because I can." R. 1222.

The version of Ms. Shaw's testimony re-

ported here is the most damaging to peti-

tioner.

= 27 «

Ms. Shaw testified that at about 7:55 a.m.

on April 1, 1975, she was in the wash house

when either Sampson or petitioner -- she

could not remember which--informed her that

Jeanette had been shot. R. 1187, 1188,

1212, 1224. Ten minutes earlier, the

Armstrongs and petitioner had been gone, R.

1185-86, and Ms. Shaw testified that she

did not “have any reason to believe that

Jeanette, Earl and Sampson did not return

together." R. 1212.

Next, Ms. Shaw testified that, while

riding in a car with petitioner later that

day, after Jeanette had confessed the

robbery to her, she asked petitioner "[w]hy

he did it," and he responded “that he

had seed the man with money ... the time he

eee went out there to buy a cow." R.

1205-06. When asked if she remembered

at any time talking to petitioner about

"whether he was inside that house or not,"

@ 26 -

she answered, "No, because Jeanette had

told me.” R. 1206-07.”

Finally, Ms. Shaw testified that, for

a couple of days after April 1, 1975, peti-

tioner hid either two or three guns in the

loft of his house, and thereafter “Sampson

and Earl” instructed Shaw “to get rid of

all the guns." R. 1199-1200, 1201-02,

1231-32. She did so, first by burying them

in her garden, and later by giving them to

a friend in "a bucket of greens" with

instructions "to get rid of [them]..,"

1232, 1272-77.

12/ Jeanette Armstrong was tried separ-

ately, convicted of two counts of second-

degree murder and one count of robbery,

and sentenced to three consecutive life

terms. See A. 51; 399 So. 2d at 1371. Her

confessions to the police and to Ms. Shaw,

stating that petitioner remained outside in

the car during the robbery, are discussed

in nn. 15-16, infra.

- 29 -

During petitioner's case, he admitted

purchasing a cow from Mr. Kersey in March,

but denied any knowledge of the robbery and

shooting. R. 1500, 1509-11. He gave a

minute-by-minute account of his activities

on and around his farm on April 1, 1975.

R. 1475-83.

Petitioner testified that he is a

forty-three-year-old, partially disabled

veteran with four children, ages one

to eleven. R. 1467-68. He described his

well-established ties to the community

(including his ownership of a home and

orchard) and his longstanding employment

as a contract hauler and picking-crew

13/ Fla. Stat. Ann. § 921.141(3) required

the trial court to consider this mitigating

evidence introduced at the guilt-innocence

phase in passing sentence on petitioner.

At the penalty phase, petitioner's counsel

also argued that "very definite mitigating

- 30 <-

In closing argument, the prosecutor

acknowledged that the State's case did not

provide "a clear and complete and accurate

picture of what went on." R. 1558-59. In

his view, however, the evidence demon-

strated that “Jeanette Armstrong was there

and that she got shot by Mrs. Kersey;" that

"Sampson Armstrong killed the old people;"

and that petitioner "was in that car

between those two times." R. 1576-77.

Following the State's request for a

"principal and accessory" instruction (R.

13/ continued

circumstance[s]" were present, including

(1) the absence of any evidence "that Earl

Enmund was at the house at the time of the

shooting,” and (2) that the killings were

not “anticipated,” but were the result of

a “spontaneous gunfight" between the Arm-

strongs and the Kerseys which petitioner

"could not be associated with." R. 1683-

85. Respondent grossly misrepresents the

record in asserting that petitioner "failed

to present or proffer any evidence at all

in mitigation.” Resp. Br. 67 (emphasis in

original).

# 31 «

1395, 1553), the trial judge twice charged

the jury” that "(t]he killing of a human

being while engaged in the perpetration of

e+e robbery is murder in the first degree

even though there is no premeditated design

or intent to kill," and that the defendant

could be convicted of first-degree murder

if “the deceased was killed by ... someone

acting in consort [sic] with the defen-

dant." A. 6, 8, 15, 17. The jury subse-

quently announced identical verdicts

as to Sampson Armstrong and petitioner:

guilty of two counts of first-degree murder

and one count of robbery. R. 1639,

2. The sentencing proceedings

At the sentencing pliase of the trial,

14/ Three hours after the jury retired to

deliberate the foreman requested, and the

trial court provided, further instructions

"[o]n the difference between first degree

and second degree” murder. A. 13-19.

@ 32 -

the State's only witness was Hardee County

Sheriff Newton Murdock who testified that,

because the two victims were advanced in

years and a number of shots were fired,

"this is the worse homicide I have been to

involving two people." R. 1658-59. The

State also introduced a judgment order

showing that petitioner had been convicted

in 1957 of robbery and sentenced to one

year in jail. R. 1667; State's Sentencing

Exhibit, No. 1.

In his closing argument on sentence,

the prosecutor conceded that Sampson Arm-

strong was the "“triggerman." He argued,

however, that petitioner was "just as

guilty as the triggerman," whether or

not he “set foot inside that house,"

because he "set it all up ... [and] drove

them there." R? 1679-80.

The trial judge directed the jurors to

"determine by a majority vote whether or

- 33 -

not you advise the imposition of the death

penalty” based upon "one, whether suffi-

cient aggravating circumstances as here-

after enumerated existed to justify the

death penalty; [and] two, whether suffi-

cient mitigating circumstances exist as

hereafter enumerated which outweigh the

aggravating circumstances found to exist

eoee” Aw 19. The instructions did not

require the jury to find, as a precondition

to imposition of the death penalty, that

the defendant intended to take life, ac-

tually participated in a homicidal act, or

was present when the homicide occurred.

The jury recommended imposing the

death penalty on both defendants. A. 23-

24; R. 1690-91. The trial court immediate-

ly sentenced petitioner and Sampson Arm-

15/

strong to die on both counts of murder.”

15/ Although the trial court heard no

further evidence before reaching this

- 34 -

A. 27-28; R. 1698, 1701. In oral remarks

prefacing petitioner's death sentence, the

court found four aggravating circumstances

in the case: "this capital felony was

committed while the Defendant was engaged

in or was an accomplice in the commission

of ee. a robbery; this capital felony was

committed while the Defendant was engaged

15/ continued

conclusion, it had an additional source of

information before it that had not been

introduced at trial: the full text of the

sworn pretrial statements of Ida Jean Shaw.

R. 283; see R. 1700. According to Ms.

Shaw's statements: (1) Jeanette Armstrong

told her that “We went out there to rob

them, but weren't intending to have no

shooting," May 5, 1975 statement, at p. 18,

and that "we didn't know the man had a wife

and he hollered and told his wife to bring

the gun, and ... she started shooting and

the bullet hit [Jeanette]," Aug. 19, 1975

statement, at p. 11; (2) Sampson Armstrong

told her that “we went to rob them and had

to kill them," May 5, 1975 statement, at p.

18; and (3) petitioner told her that “he

took them out there and stayed in the car"

and that he “was ... in the car the whole

time," Aug. 19, 1975 statement, at pp. 18-

19.

- 35 -

in or was an accomplice in the commission

of ... a robbery; this capital felony was

committed for pecuniary gain[;] ... this

capital felony was especially heinous,

atrocious, or cruel[; and] this Defendant

--- had previously been convicted of a

felony involving the use or threat of use

of violence to a person." A. 28. The court

found “no mitigating circumstances." A.

28.

16/ In both its oral sentencing opinions

and its subsequent written findings (see

the following paragraph of text), the trial

court expressly stated that it was relying

upon “the background of this Defendant

based on the Court's participation in this

trial and of [sic] the [separate] trial of

one Jeanette Armstrong." A. 27, 31; see

also R. 1697. Jeanette Armstrong's trial

differed from petitioner's in that Jeanette

Armstrong's written confession and por-

tions of a transcript of tape-recorded

admissions made by her just prior to her

written statement (R. 298-355), were in-

troduced at her trial, but not at peti-

tioner's. R. 259-65, 328-29. The trial

judge relied on these statements in

sentencing petitioner even though, at a

@ 36 -

The trial court did not file written

findings of fact in support of the capital

sentence -- as required by Fla. Stat. Ann.

§ 921.141 -- until nineteen months after

petitioner's trial, when the Supreme Court

of Florida ordered written findings in

connection with petitioner's appeal. A.

29. The court again concluded that the

four aggravating circumstances enumerated

16/ continued

joint pretrial hearing, he forbade counsel

for petitioner to cross-examine Ms. Arm-

strong concerning the statements, “because

her confession would not be admissible in

trial against your client." R. 328-29.

Because the trial court considered Ms.

Armstrong's statements, we note here that

she told the police that Sampson and

Jeanette Armstrong, alone, went up to the

Kerseys' house because petitioner “wouldn't

go no further. He stayed in the car."

According to Jeanette, when she and Sampson

were taking Mr. Kersey's wallet at gun-

point, Mr. Kersey called out to his wife to

"shoot the nigger," and Mrs. Kersey there-

upon fired “the first shot," striking

Jeanette. State's Ex. 3, Aug. 11, 1975

(see R. 313, 354-55).

- 37 -

above were present in petitioner's case,

and that “none of the statutory mitigat-

ing circumstances applied to this defen-

dant.""~ A. 30-32 (emphasis in origi-

nal).

In support of its finding that the

capital felony in petitioner's case was

"especially heinous, atrocious or cruel,"

the trial court stated that the killing of

Mr. and Mrs. Kersey “was not a spontaneous

matter," but was done for the “purpose ...

of eliminat[ing] ... witnesses to armed

robbery." A. 30. The judge also stated

that it was “reasonable to conclude, and

17/ As in its instructions to the jury at

the sentencing phase of the trial, in which

the jury was told that the only mitigating

circumstances it was to consider were those

"hereafter enumerated” -- i.e., the seven

specific circumstances enumerated “by

Statute" -- A. 19-21, the trial court

eonfined its discussion of mitigating

circumstances exclusively to the seven

"statutory" circumstances in Fla. Stat.

Ann. § 921.141(6). A. 32.

- 38 -

the court so finds, that the defendant

Enmund and the defendant Sampson Armstrong

each fired into the bodies of Mr. and Mrs.

Kersey." A. 31. However, in its findings

directed to the “minor participation"

mitigating circumstance of Fla. Stat. Ann.

§ 921.141(6)(d), the trial court abandoned

the ahove-quoted statement and instead

characterized petitioner as an “accomplice

to the capital felony," whose participa-

tion was limited to before-the-fact

planning of the robbery and the after-the-

fact disposal of weapons. A. 32.

3. Proceedings on appeal

On appeal, the Supreme Court of

Florida reiected the trial court's findings

insofar as they assigned petitioner any

role in the shooting of Mr. and Mrs.

- 39 -

Rersey.—’ The Supreme Court expressly

upheld petitioner's conviction of first-

18/ The trial court based its conclusion

that petitioner participated in the shoot-

ing on three factual premises: that both

Kerseys were shot while in a “prone posi-

tion;" that Jeanette Armstrong had previ-

ously "sustained serious wounds;" and

that “different caliber guns" were used to

kill the Kerseys. The first two premises

are simply incorrect. As the Florida

Supreme Court noted, the pathologist

testified that “there is really no way [he]

could determine the positions” of the

victims when shot. A. 36; 399 So. 2d at

1364. The Court accordingly concluded

that the evidence at trial "as to the

direction of fire and the position of the

victims when shot [was] ... equivocal at

best.” A. 55, 399 So. 2d at 1373, incor-

porating Armstrong v. State, supra, 399 So.

2d at 963; see also R. 1104-05, 1112, 1114.

And there was no testimony at petitioner's

trial concerning the severity of Jeanette

Armstrong's wound.

More fundamentally, none of the trial

judge's factual premises, even were they

correct, contradict Sampson and Jeanette

Armstrongs' separate admissions to both Jay

B. Neal and Ida Jean Shaw that they alone

went to the Kerseys home, or Sampson

Armstrong's separate admissions to both Jay

B. Neal and Ida Jean Shaw that he alone

killed the victims after Mrs. Kersey fired

on Jeanette. See Brief for Petitioner at

52 n.69.

- 40 -

degree murder and his sentence of death

solely on a theory of accessorial liability

based upon his participation in a robbery

during which, and outside of petitioner's

actual presence, Sampson Armstrong killed

the Kerseys. The court found that “the

only evidence of the degree of [Earl En-

mund's] 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." It nonetheless concluded that

this evidence

was sufficient to find that

the appellant was a principal

of the second degree, construc-

tively present [19/] aiding

and abetting the commission

19/ According to the court, one is “con-

structively present" if he does not commit

the robbery "with his own hands" but is

""sufficiently near and so situated as to

abet or encourage, or render assistance to

the actual perpetrator in committing the

felonious act or in escaping after its

commission. '" A. 49; 399 So. 2d at 1370

(emphasis added).

» 41 -

of the crime of robbery. This

conclusion supports the verdicts

of murder in the first degree on

the basis of the felony murder

portion of [Fla. Stat. Ann.]

section 782.04 (1)(a).

A. 49-50; 399 So. 2d at 1370 (emphasis

added).

Further, the Supreme Court expressly

disapproved two of the four aggravating

circumstances on which the trial court had

relied. The court first held that the

"pecuniary gain" circumstance could not be

relied upon in addition to the robbery-

murder aggravating circumstance. A. 55;

399 So. 2d at 1373. It then rejected

the trial court's conclusion that the

capital felony was "especially heinous,

atrocious or cruel," together with the

factual findings on which that conclusion

had rested. It found that "the shootings

were ... spontaneous and were precipitated

by the armed resistance of Mrs. Kersey,"

@ 42 -

and that "[i]t simply cannot be said that

there was proof that the robbers killed in

order to assure that there would be no

witnesses against them." A. 55; 339 So. 2d

at 1373, incorporating Armstrong v. State,

399 So. 2d 953, 963 (Fla. 1981).

Despite its repudiation of two of the

trial court's aggravating-circumstance

conclusions and several of the trial

court's factual predicates for petitioner's

sentence of death, the Supreme Court upheld

that sentence on the ground that there were

two remaining aggravating circumstances

(the commission of a homicide “in the

course of a robbery," and petitioner's

"previous conviction of a violent felony"

-- the 1957 robbery for which he received

a one-year sentence) and, in the court's

view, no mitigating circumstances. A. 55;

@ 43 <

399 So. 2d at 1373.27

Finally, the Supreme Court of Florida

rejected petitioner's claim that "the

trial court erred in sentencing appellant

to death where the evidence failed to show

he actually caused the death of the

victims, or intended to cause their death,

and at best showed appellant minimally

involved in the felony-murder." Supple-

mental Brief of Appellant, at 7-12. The

Court held:

gape» contends that since

the evidence does not estab-

lish that he intended to take

life the death penalty is

impermissible under the

eighth amendment ban on cruel

20/ Justice Overton dissented. In his

opinion, the court's “finding" that peti-

tioner "did not actually participate in the

shooting" so substantially undermined the

trial court's premise for sentencing

petitioner to die -- i.e., that petitioner

"was present and assisted in the commission

of the murder" -- that resentencing was

necessary. A. 56; 399 So. 2d at 1373. See

Petr. Br. 53.

- 44 -

and unusual punishment. Ap-

pellant offers us no binding

legal authority that directly

Supports this proposition,

and we therefore reject

it.

A. 51; 399 So. 2d at 1371.

CONCLUSION

On this record, petitioner's death

sentence cannot constitutionally be sus-

tained. The judgment of the Supreme Court

of Florida, insofar as it leaves the

sentence of death undisturbed, should be

reversed. |

Respectfully submitted,

WILLIAM C. McLAIN

Assistant Public Defender

Hall of Justice Annex

495 N. Carpenter Street

Bartow, Florida

33830-3798

(813) 533-6715

ATTORNEY OF RECORD

- 45 «-

JACK GREENBERG

JAMES M. NABRIT, III

JOEL BERGER

JOHN CHARLES BOGER

DEBORAH FINS

JAMES S. LIEBMAN