Petition — DAVID L. FUNCHESS v. FLORIDA (No. 81-5329)

81-5329

RECEIVED

No. AUG 2 8 198)

IN THE SUPREME crc UERK

SUPREME COURT OF THE UNITED STATES

Octoper Term, 1980

DAVID LIVINGSTON FUNCHESS,

PETITIONER,

-V-

STATE OF FLORIDA.

RESPONDENT.

Petition For Writ Or Certiorari To

THe Supreme CourT oF FLORIDA

P, Douctas BRINKMEYER

Assistant PuBLic DEFENDER

Second Jupiciat CircuIT

Post OrFice Box 671

TALLAHASSEE. FioripA 32302

(904) 488-2458

(MemBper Of THe Bar OF THis Court)

QUESTIONS PRESENTED

PAGE(S)

QUESTION #1

WHETHER STANDARDLESS APPL{‘CATION OF A

MITIGATING CIRCUMSTANCE THAT “THE

DEFENDANT HAS NO SIGNIFICANT HISTORY

OF PRIOR CRIMINAL ACTIVITY" THAT BY

STATUTE IS ONE OF SEVERAL FACTORS TO

BE DETERMINATIVE OF THE SENTENCE

CONSTITUTES A VIOLATION OF THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT WHEN A SENTENCE OF DEATH IS

IMPOSED.

and

WHETHER ARBITRARY APPLICATION FROM

CASE TO CASE OF THE SAME MITIGATING

FACTOR, RESULTING IN PREJUDICIAL

APPLICATION TO THE PETITIONER, VIO-

LATES THE EIGHTH AMENDMENT'S BAN ON

CRUEL AND UNUSUAL PUNISHMENT. 3

QUESTION #2

WHETHER IT IS CONSTITUTIONALLY PER-

MISSIBLE FOR THE STATE TO PLACE THE

BURDEN ON THE DEFENDANT TO PROVE

BEYOND A REASONABLE DOUBT THAT HIS

IS NOT A DEATH PUNISHABLE CRIME. 7

QUESTION #3

WHETHER THE SUPREME COURT OF FLORIDA

HAS FASHIONED ADEQUATE RELIEF FOR

VIOLATIONS OF GARDNER v. FLORIDA,

and

WHETHER THE SUPREME COURT OF FLORIDA

HAS ENGAGED IN RUBBER-STAMP REVIEW OF

DEATH SENTENCES RE-IMPOSED BY TRIAL JUDGES. 10

TABLE OF CONTENTS

PAGE (S)

QUESTIONS PRESENTED i

TABLE OF CONTENTS ii

TABLE OF CITATIONS iii

CITATION TO OPINION BELOW

JURISDICTION

CONSTITUTION & STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOW

~ wn FY FY FY

REASONS FOR GRANTING WRIT

QUESTION #1

WHETHER STANDARDLESS APPLICATION OF

A MITIGATING CIRCUMSTANCE THAT “THE

DEFENDANT HAS NO SIGNIFICANT HISTORY

OF PRIOR CRIMINAL ACTIVITY" THAT BY

STATUTE IS ONE OF SEVERAL FACTORS TO

BE DETERMINATIVE OF THE SENTENCE

CONSTITUTES A VIOLATION OF THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT WHEN A SENTENCE OF DEATH IS

IMPOSED,

and

WHETHER ARBITRARY APPLICATION FROM

CASE TO CASE OF THE SAME MITIGATING

FACTOR, RESULTING IN PREJUDICIAL

APPLICATION TO THE PETITIONER, VIOLATES

THE EIGHTH AMENDMENT'S BAN ON CRUEL AND

UNUSUAL PUNISHMENT. 3

QUESTION #2

WHETHER IT IS CONSTITUTIONALLY PERMISSIBLE

FOR THE STATE TO PLACE THE BURDEN ON THE

DEFENDANT TO PROVE BEYOND A REASONABLE

DOUBT THAT HIS IS NOT A DEATH PUNISHABLE

CRIME. 7

QUESTION #3 ,

WHETHER THE SUPREME COURT OF FLORIDA HAS

FASHIONED ADEQUATE RELIEF FOR VIOLATIONS

OF GARDNER v. FLORIDA,

and

WHETHER THE SUPREME COURT OF FLORIDA HAS

ENGAGED IN RUBBER-STAMP REVIEW OF DEATH

SENTENCES RE-IMPOSED BY TRIAL JUDGES. 10

CONCLUSION 13

CERTIFICATE OF SERVICE 14

- fi- ie

TABLE OF CITATIONS

CASES:

Combs v. State, _‘ So.2d_ _—s (Fla. S.Ct. Case #59,425)

Dougan v. State, 398 So.2d 439 (Fla. 1981)

Funchess v. State, 341 So.2d 762 (Fla. 1977) cert. den.

434 U.S. 78 (1977)

Funchess v. State, 367 So.2d 1007 (Fla. 1979)

Funchess v. State, 399 So.2d 356 (Fla. 1981)

Furman v. Georgia, 408 U.S. 238 (1972)

Gardner v. Florida, 430 U.S. 349 (1977)

Godfrey v. Georgia, 446 U.S. 420, 423 (1980)

Hankerson v. North Carolina, 432 U.S. 233 (1977)

Hargrave v. State, 366 So.2d 1 (Fla. 1978)

Mullaney v. Wilbur, 421 U.S. 684 (1975)

Proffitt v. State, 315 So.2d 461, 466 (Fla. 1975),

aff'd, 428 U.S. 242 (1976)

Ross v. State, 386 So.2d 1191 (Fla. 1980)

Salvatore v. State, 366 So.2d 745 (Fla. 1978)

State v. Dixon, 283 So.2d 1 (Fla. 1973)

CONSTITUTION

United States Constitution

Eighth Amendment

Fourteenth Amendment

28 U.S.C. § 1257

STATUTES

Florida Statutes (1975)

Section 921.141

Section 921.141(5) & (6)

Section 921.141(6) (a)

- iii -

PAGE(S)

3, 5,11, 12

4

4,5,8,11

2, 3

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Florida is reported as

Funchess v. State, 399 So.2d 356 (Fla. 1981), and is set forth

in Appendix D. The motion for rehearing and the denial thereof

are set forth in Appendix E.

JURISDICTION

Review is sought pursuant to 28 U.S.C. § 1257(3).

Rehearing was denied below by the Supreme Court of Florida on

June 30, 1981 (Appendix E).

CONSTITUTION & STATUTORY

PROVISIONS INVOLVED

This cace ‘nvolves the constitutionality of a death sentence

imposed pursuant to Section 921.141, Florida Statutes (1975),

which is set forth in Appendix A. It involves the Eighth and

Fourteenth Amendments to the United States Constitution.

STATEMENT OF THE CASE

On July 18, 1975, two death sentences were imposed upon

petitioner by the Circuit Court of the Fourth Judicial Circuit

in and for Duval County, Florida (Appendix F). By its opinion

in Funchess v. State, 341 So.2d 762 (Fla. 1977), cert. den. 434

U.S. 78 (1977), the Supreme Court of Florida upheld the sentences

(Appendix B). Because of a violation of Gardner v. Florida,

430 U.S. 349 (1977), the death sentences were vacated and the

case remanded for resentencing by the judge. Funchess v. State,

367 So.2d 1007 (Fla. 1979).

On December 6, 1979, two death sentences were again

imposed upon petitioner by the trial judge (Appendix G). These

sentences were again upheld by the Supreme Court of Florida

(Appendix D).

HOW THE FELERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

Petitioner argued in the trial court and on appeal that the

failure of the trial or appellate court to find that petitioner

had no significant history of prior criminal activity, a miti-

gating circumstance as defined by Section 921.141(6) (a), Florida

Statutes (1975), rendered his death sentence unconstitutional,

in violation of the Eighth Amendment to the United States

Constitution. Petitioner argued in the appellate court that the

jury was improperly instructed concerning the burden of proof of

aggravating and mitigating circumstances, in violation of the

Fourteenth Amendment to the United States Constitution. Petitioner

argued on appeal that his death sentences were unconstitutional

if they were upheld only upon a cursory review by the Supreme

Court of Florida.

- REASONS FOR GRANTING WRIT

QUESTIONS PRESENTED

Question #1

THIS COURT SHOULD GRANT CERTIORARI

TO DETERMINE WHETHER STANDARDLESS

APPLICATION OF A MITIGATING CIRCUM-

STANCE THAT "THE DEFENDANT HAS NO

SIGNIFICANT HISTORY OF PRIOR CRIMINAL

ACTIVITY" THAT BY STATUTE IS ONE OF

SEVERAL FACTORS TO BE DETERMINATIVE

OF THE SENTENCE CONSTITUTES A VIOLA-

TION OF THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT WHEN A

SENTENCE OF DEATH IS IMPOSED,

and

WHETHER ARBITRARY APPLICATION FROM

CASE TO CASE OF THE SAME MITIGATING

FACTOR, RESULTING IN PREJUDICIAL

APPLICATION TO THE PETITIONER, VIO-

LATES THE EIGHTH AMENDMENT'S BAN ON

CRUEL AND UNUSUAL PUNISHMENT.

The death sentences imposed upon petition at the resenten-

cing resulted from findings that certain aggravating factors

were present in the case and that one mitigating factor existed,

to wit: that petitioner was under the influence of extreme

mental and emotional disturbance at the time of the commission

of the capital crimes (Appendix G).

The sentencing judge found inapplicable the mitigating

factor found in Section 921.141(6) (a), Florida Statutes (1975)

that "The defendant has no significant history of prior criminal

activity." Thus, the sentencing decision was made without regard

to that mitigating consideration (Appendix G 3-4).

The mitigating factor of lack of a significant history of

prior criminal activity has been applied in a standardless

manner by the courts of the State of Florida resulting in sub-

stantial prejudice to this petitioner. ~ In Proffitt v. State,

315 So.2d 461, 466, (Pla. 1975), aff'd, 428 U.S. 242 (1976)

the Supreme Court of Florida approved a finding that one

previous conviction for breaking and entering without permission

was sufficient to negate the mitigating factor. However, exami-

nation of certain other decisions reveals the standardless and

arbitrary application of that same mitigating factor,

NN

In Salvatore v. State, 366 So.2d 745 (Fla. 1978), the same

court held that a conviction for one burglary, for which the

defendant received probation, is not a significant history of

prior criminal activity. In Hargrave v. State, 366 So.2da 1

(Fla. 1978), the same court held that prior criminal activity

not resulting in a conviction is not to be considered as

significant. On the other hand, in Ross v. State, 386 So.2d 1191

(Fla. 1980), the court found “petty offenses" (Boyd, J., dissent-

ing at 1198) to constitute significant criminal activity.

Most recently, in Combs v. State, So.2d (Fla.

S.Ct. Case #59,425, Opinion filed July 30, 1981) (slip opinion

at 4), the court approved a finding that:

The trial court determined that ‘the

defendant, who is twenty years of

age, had no significant history of

prior criminal activity although he

had previously pled guilty to third

degree burglary and had been placed

on probation for two years’ and that

the defendant, thoughout the day

prior to the murder, had, by his own

account, consumed alcoholic beverages

and indulged in cocaine.

Petitioner, DAVID LIVINGSTON FUNCHESS, was denied any

mitigating consideration of the same mitigating factor by the

sentencing court although petitioner had not previously been

convicted of a felony nor ever been sentenced to prison

(Appendix G 3-4).

Although in State v. Dixon, 283 So.2d 1 (Fla. 1973), the

court set some guidelines for utilization by sentencing courts

of the statutory mitigating factor at issue here, that standard

has been abandoned in application of the law in Florida. In

State v. Dixon, supra, at 9 the court stated:

As to what is significant criminal

activity, an average man can easily

look at a defendant's record, weigh

traffic offenses on the one hand

and armed robberies on the other,

and determine which represents signi-

ficant prior criminal activity. Also,

the less criminal activity on the

defendant's record, the more consi-

deration should be afforded this

mitigating circumstance.

It is plain from analysis of the above cases that any

standard which may have existed originally has been negated by

application of the statute in petitioner's case. Consistency

by the sentencer is essential to constitutional application of

a death penalty procedure. In Godfrey v. Georgia, 446 U.S.

420, 423 (1980), the Court stated that the issue was whether a

broad and vague construction of an aggravating circumstance

in Georgia's capital sentencing law had been adopted that

violated the Eighth and Fourteenth Amendments. The court so

found in citing to Furman v. Georgia, 408 U.S. 238 (1972),

"that the penalty of death may not be imposed under sentencing

procedures that create a substantial risk that the punishment

will be inflicted in an arbitrary and capricious manner.”

Godfrey v. Georgia, supra, at 427.

The Florida death penalty scheme was upheld as facially

constitutional in Proffitt v. Florida, 428 U.S. 242 (1976),

where this court noted that the Florida Supreme Court held as

its function te "[guarantee] that the [aggravating and mitigating]

reasons present in one case will reach a similar result to that

reached in another case... ." Id. at 251. The abdication

of that function in the present case controverts the notion

that Plorida does not engage in “only cursory or rubber-stamp

review of death penalty cases... ." Id. at 259.

If, as stated by the Florida Supreme Court in State v.

Dixon, supra, that anyone can tell the difference between petty

offenses and a significant prior history of criminal activity,

then this petitioner's death sentense rests upon an impermis-

sible basis because it has been imposed by a procedure that

has failed to eliminate a high risk of arbitrary application

by virtue of the absence of adequate standards to ensure uni-

formity and consistency in application of the controlling

legal criteria. Since death is presumed to be the proper

sentence under Florida law upon proof of the existence of a

- §-

single aggravating circumstance, the application of the mitiga-

ting factors required by the statute to be considered must meet

the same standards of consistency applicable to use of the

aggravating factors in determining a proper sentence. Thus the

decision in Godfrey v. Georgia, supra, should apply equally to

application of the statutory mitigating factor which petitioner

has asserted throughout these proceedings that he is entitled

to have considered by the sentencer in determining a proper

sentence for his crimes.

In his petition for rehearing filed in the Florida Supreme

Court, petitioner prayed consideration by that court of the fact

that the mitigating circumstance of lack of a significant prior

history of criminal activity would have established that he was

not a career criminal who would be unamenable to correction by

society. Since the death penalty represents the utter rejection

of rehabilitation, the rational and consistent application of

statutory guidelines is required by the Due Process Clause of

the Fourteenth Amendment to the United States Constitution.

Petitioner prays this Court will issue its writ of certiorari

to review the decision of the Supreme Court of Florida.

Question #2

THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER IT IS CONSITITUTION-

ALLY PERMISSIBLE FOR THE STATE TO

PLACE THE BURDEN .ON THE DEFENDANT TO

PROVE BEYOND A REASONABLE DOUBT THAT

HIS IS NOT A DEATH PUNISHABLE CRIME.

Petitioner submits that the instruction given to his

jury at the penalty phase of his capital trial violates the

Fourteenth Amendment to the United States Constitution as

interpreted in Mullaney v. Wilbur, 421 U.S. 684 (1975).

Petitioner's jury was instructed as follows concerning its

recommendation of whether petitioner should be sentenced to

death or to life imprisonment:

The aggravating and mitigating circum-

stances must be proved beyond a reason-

able doubt.

In Mullaney, this Court held that the Due Process Clause

of the Fourteenth Amendment prohibited a state from placing

the burden on the accused to bear the burden of persuasion, and

risk of non-persuasion, in order to reduce the crime and the

punishment to a lesser degree. In the present case, petitioner

met the burden of production of evidence and does not complain

of the burden to produce mitigating evidence. However, peti-

tioner asserts, as he did below, that the constitution forbids

placing upon him the same burden that is placed upon the state

as prosecuting party. Petitioner was saddled with the burden

of proving that his evidence in mitigation proved the existence

of mitigating circumstances beyond a reasonable doubt. Moreover,

the instruction that the jury, upon finding a single aggrava-

ting circumstance, should then determine whether mitigating

circumstances which were proved were sufficient to outweigh

aggravating circumstances resulted in placing the ultimate

burden upon the petitioner in exactly the same manner that this

declared unconstitutional in Mullaney v. Wilbur.

In State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), it was held

that Plorida's capital sentencing law, Section 921.141(5) and

(6), Florida Statutes (1973) defines the category of capital

crimes to which Plorida's death penalty may be applied. As

such, the statutory elements, although defined as sentencing

criteria, a part of the state's required proof for imposition

of a death sentence. The court likewise held in the same case

that aggravating circumstances must be established beyond a

reasonable doubt. Id. The court did not hold that migitating

circumstances must be established beyond a reasonable doubt,

and to that extent the instructions given to the trial jury

in this case were erroneous under both Florida law and federal

law. However, the Supreme Court of Florida affirmed this death

sentence and totally rejected the arguments petitioner has made

concerning the fundamentally erroneous instructions to his jury

at the sentencing phase of the trial.

The shifting of the burden to the defendant to bear the

burden of persuasion as to the degree of culpability and punish-

ment erodes the basic premise of due process of law under our

constitution that the burden of proof on the ultimate matters

to be proved always remains with the state in criminal matters.

Hankerson v. North Carolina, 432 U.S. 233 (1977) held that the

decision in Mullaney is fully retroactive. Accordingly, it is

applicable to this case.

The failure of the Supreme Court of Florida to apply the

fundamental principle at issue here should warrant granting

of the within petition for certiorari review of the decision

below.

Question #3

THIS COURT SHOULD GRANT CERTIORARI

TO DETERMINE WHETHER THE SUPREME

COURT OF FLORIDA HAS FASHIONED ADE-

QUATE RELIEF FOR VIOLATIONS OF

GARDNER v. FLORIDA,

and

WHETHER THE SUPREME COURT OF FLORIDA

HAS ENGAGED IN RUBBER-STAMP REVIEW

OF DEATH SENTENCES RE-IMPOSED BY

TRIAL JUDGES.

Petitioner was originally sentenced to death by a trial

judge who based his sentence in part upon consideration of a

non-disclosed presentence investigative report. In Funchess

v. State, 367 So.2d 1007 (Fla. 1979), petitioner's death

sentences were vacated and the cause was remanded to the trial

court for resentencing. The trial court reimposed death

sentences but upon dramatically different findings of fact.

The present death sentences rest upon fewer aggravating cir-

cumstances, and the trial judge found the presence of one

mitigating circumstance while the original death sentences

were imposed upon a finding that no mitigating circumstances

existed. The aggravating circumstances found by the court

in support of the present death sentences are that the capital

felonies were committed during commission of a robbery, that

the capital felonies were committed for the purpose of avoid-

ing lawful arrest and that the capital felonies were “heinous,

atrocious and cruel" (Appendix G-6-8). The mitigating circum-

stance found by the trial court at resentencing was that the

defendant suffered from extreme mental and emotional distur-

bance at the time of the capital crimes (Appendix G-4). Thus,

originally the court found four aggravating circumstances

(Appendix F-8-10) while at the resentencing the court found

three such circumstances. At the original sentencing the

trial court found no mitigating circumstances (Appencix F-5-7)

while at the resentencing the court found the existence of one

mitigating circumstance under Florida's statute.

@ 169 -

Depsite the significantly different findings of fact, the

Supreme Court of Florida gave these re-imposed death sentences

less than the full review to accorded death sentences under

Proffitt v. Florida, supra, and State v. Dixon, supra. The

Florida Supreme Court regards the scope of review on appeal

from a Gardner remand at which the death sentence is re-imposed

as a limited review, consisting solely of determining whether

the trial judge complied with the remand order. Dougan v.

State, 398 So.2d 439 (Fla. 1981). As stated by the Supreme

Court of Florida in its decision below, the scope of review

is technically limited. The court stated in Funchess v. State,

399 So.2d 356, 357 (Fla. 1981):

The only proper question now pre-

sented is whether there is substan-

tial competent evidence to support

the express findings of the trial

judge that sentences of death are

appropriate for Funchess. We are

satisfied from our review of the

evidence presented at the resenten-

cing procedure, and from the record

of the original sentencing proceed-

ing: first, that the trial judge

properly performed his weighing

function with respect to the one

new mitigating circumstance developed

at the resentencing proceeding and

the aggravating factors which had

been established at the original

proceeding (all but one of which were

unchallenged on remand); and second,

that there was substantial and compe-

tent evidence to support the findings

of the trial judge with respect to

the aggravating and mitigating cir-

cumstances articulated in his resen-

tencing order.

If the new sentencing hearing is not a “full blown senten-

cing proceeding” then the new death sentence suffers infirmities

identified in Furman v. Georgia, supra. That that is exactly

what the Florida Supreme Court Court has said -- that the

resentencing proceedings is not a full new sentencing hearing.

See Dougan v. State, supra, at 400.

“Ss

Thus, the relief fashioned by the State of Florida pursuant

to Gardner v. Florida is inadequate because neither the resen-

tencing hearing nor the review of the newly imposed death

sentence meets the standards articulated in Proffitt v. Florida,

supra, because neither the sentencing proceeding itself nor the

review by the Florida Supreme Court are adequate to afford the

defendant an adequate opportunity to be heard as to why he should

not receive the death penalty. As Justice McDonald of the

Florida Supreme Court stated, dissenting, in Dougan v. State,

supra, at 441:

Just because it is the same as a

prior affirmed sentence does not

necessarily make this one correct;

it must pass constitutional muster

on its own.

Since petitioner could not be heard in either the trial

court or the appellate court concerning the propriety of the

sentence, could not have legal issues decided affecting that

sentence and could not challenge the jury's death recommen-

dation even on grounds of fundamental constitutional error, this

court should grant certiorari to determine whether the relief

fashioned by the State of Florida and the procedure employed

for violations of Gardner v. Florida, is sufficient to erase

the constitutional error that affected the decision to impose

death as the sentence.

- 12 -

CONCLUSION

WHEREFORE, the petition for writ of certiorari should

be granted.

Respectfully submitted,

SC. Norgl Som

P. DOUGLAS BRINKMEYER

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

e 13 =

—

RECEIVED

AUG 28 1981

Orrwt OF THE CLERK

£ COURT, US.

CERTIFICATE OF SERVICE ] _ SUPREME C

I HEREBY CERTIFY that a copy of the foregoing Petition

for Writ of Certiorari to the Supreme Court of the United States

has been furnished by U.S. mail to the Honorable Michael Rodak,

Jr., Clerk of the United States Supreme Court, First and

Maryland Avenue, Northeast, Washington, D.C. 20543; Mr. David

Livingston Funchess, #047886, Florida State Prison, Post Office

Box 747, Starke, Florida 32091; and by hand-delivery to the

Honorable Sid White, Clerk of the Supreme Court of Florida,

Supreme Court Building, Tallahassee, Florida; and the Honorable

Jim Smith, Attorney General, The Capitol, Tallahassee, Florida;

on this 2S wy of August, 1981.

- 14 <

APPENDIX

TABLE OF CONTENTS

Section 921.141, Florida Statutes

Funchess v. State, 341 So.2d 762 (Fla. 1977)

Funchess v. State, 367 So.2d 1007 (Fla. 1979)

Funchess v. State, 399 So.2d 356 (Fla. 1981)

Motion for Rehearing Dated April 15, 1981,

and Denial of Rehearing Dated June 30, 1981

Original Sentencing Order Dated July 18, 1975

Revised Sentencing Order Dated December 6, 1979

Excerpts of Jury Instructions at Penalty

Phase of Trial (T-519-522)

Ch. 921 SENTENCE Ch. 921

CHAPTER 921

SENTENCE

921.09 Feesof physicians who determine sanity at cable. If, through impossibility or inability, the trial

time of sentence. jury is unable to reconvene for a hearing on the issue

921.12 Fees of physicians when pregnancy is al- of penalty, havi determined the guilt of the ac-

leged as cause for not pronouncing sen- cused, the trial j may summon a speci*! juror or

tence. jurors as provided in chapter 913 to determine the

921.141 Sentence of death or life imprisonment for issue of the imposition of the penalty. Ifthe trial jury

capital felonies, further proceedings to has been waived, or if the defendant pleaded guilty,

determine sentence. the sentencing proceeding shall be conducted efore

921.15 Stay of execution of sentence to fine; bond 8 jur impaneled for eped nce unless waived by

and ings. the defendant. In the p ing, evidence may be

921.16 When sentences to be concurrent and presented as to any matter that the court deems

when consecutive. relevant to sentence, and shall include matters relat-

921.161 Sentence not to run until imposed; credit ing to any of the aggravating or mitigating circum-

for county jail time after sentence, cer stances enumerated in subsections (6) and (7). Any

tificate of sheriff. such evidence which the court deems to have proba-

921.18 Sentence for indeterminate period for non- tive value may be received, regardless of its admissi-

capital felony. bility under the exclusionary rules of evidence,

921.185 Sentence, restitution a mitigation in cer- provided the defendant is accorded a fair opportuni-

tain crimes. ty to rebut any hearsay statements However, this

921.20 Classification summary, Parole and Proba- subsection shall not construed to authorize

tion Commission. introduction of any evidence secured in violation of

921.21 Progress reports to Parole and Probation the constitutions of the United States or of the State

Commission. of Florida. The state and the defendant or his coun-

921.22 Determination of exact period of imprison- sel shall be permitted to present argurnent for or

ment by Parole and robation Commis against sentence of death.

sion (2) ADVISORY SENTENCE BY THE JURY.—

921.231 Presentence investigation reports. After hearing all the evidence, the jury shall deliber-

921.241 Felony judgments, fingerprints required ate and render an advisory sentence to the court,

in record.

921.09 Fees of physicians who determine san-

ity at time of sentence.—The court shall allow rea-

sonable fees to physicians appointed

determine the mental condition of a defendant who

has alleged insanity as & cause for not pronouncing

sentence. The fees shall be paid by the county in

which the indictment was found or the information

or affidavit filed.

History —* 255. > laste

70 339

1998, CGL 1940 Supp eeeh284), © 121.

921.12 Fees of hysicians when pregnancy is

alleged as cause for not pronouncing sentence.

_The court shall! allow reasonable fees to the vq

cians appointed to examine a defendant who

alleged her pregnancy a5 & cause for not pronounc-

ing sentence. The fees shall be paid by the county in

which the indictment was found or the information

or affidavit filed.

Mistery. —« 258, ch 19684, 1999, OGL 1860 Supp Q66%267), & 122, ch

921.141 Sentence of death or life imprison-

ment for capital felonies; further ings to

determine sentence.—

ay) SEPARATE PROCEEDINGS ON ISSUE OF

PENALTY.—Upon conviction or adjudication

guilt of « defendant of » capital felony, the court

shal! conduct a separate sentencing ing to

determine whether the defendant should be sen-

tenced to death or life imprisonment as authorized

by s. 775.082. The proceeding shall be conducted

the trial judge before the trial ry as soon as pract

based = the following matters:

(a) hether sufficient aggravating circum

stances exist as enumerated in subsection (6r,

(b) Whether sufficient mitigating circumstances

exist as enumerated in subsection (7), which out-

—_ the aggravating circumstances found to exist;

a

(c) Based on these considerations, whether the

defendant should be sentenced to life *[imprison-

ment] or death.

(3) FINDINGS IN SUPPORT OF SENTENCE

OF DEATH _.Notwithstanding the recomme

tion of a majority of the jury. the court, after weigh-

ing the aggravating and mitigating circumstances

shall enter a sentence of life imprisonment or death,

but if the court imposes a sentence of death, it shall

set forth in writing its findings upon which the sen-

tence of death is based as to the facts:

(a) That sufficient aggravating circumstances

exist as enumerated in subsection (6), and

(b) That there are insufficient mitigating circum

stances, as enumerated in subsection (7), to outweigh

the aggravating circumstances.

In each case in which the court imposes the death

sentence, the determination of the court shall be

supported by specific written findings of fact based

in subsections (6) and (7) and

trial and the sentencing pro

requiring the death sentence,

sentence of life imprisonment in with 6.

775.082

(4) REVIEW OF JUDGMENT AND SEN-

2210

Ch. 921

TENCE.—The judgment of conviction and sentence

of death shall be subject to automatic review by the

Supreme Court of Florida within 60 days after certi-

fication by the sentencing court of the entire record,

unless the time is exte for an additional period

not to exceed 30 days by the Supreme Court for good

cause shown. Such review by the Supreme Court

shall have priority over all other cases and shall be

heard in accordance with rules promulgated by the

supreme court.

(5) AGGRAVATING CIRCUMSTANCES —Ag.

pong circumstances shall be limited to the fol-

a’ The capital felony was committed by a person

under sentence of imprisonment.

(b) The defendant was fiously convicted of

another capital felony or of a felony involving the

use or threat of violence to the person.

(c) The defendant knowingly created a great risk

of death to many persons.

(d) The capital felony was committed while the

lefendant was engaged, or was an accomplice, in the

commission of, or an attempt to commit, or fight

ifler committing or attempting to commit, any rob-

ery, rape, arson, burglary, kidnapping, or aircraft

iracy or the unlawful Guavien placing, or dis-

harging of a destructive device or bomb.

(e) capital felony was committed for the pur-

ose of avoiding or preventing a lawful arrest or

ffecting an escape from custody.

if The capital felony was committed for pecu-

jiary gain.

(g) The capital felony was committed to disrupt

r hinder the lawful exercise of any governmental

unction or the enforcement of laws.

th) The capital felony was especially heinous,

trocious, or cruel.

(6) MITIGATING CIRCUMSTANCES. —Miti-

ating circumstances shal! be the following:

(a) The defendant has no significant history of

rior criminal activity.

(b) The capital felony was committed while the

efendant was under the influence of extreme men-

al or emotional disturbance.

‘c) The victim was a participant in the defend-

nt's conduct or consented to the act.

(d) The defendant was an accomplice in the capi-

tl felony committed by another person and his par-

Cipation was relatively minor.

(e) The defendant acted under extreme duress or

nder the substantial domination of another person.

(f) The capacity of the defendant to appreciate

ve criminality of his conduct or to conform his con-

uct to the requirements of law was substantially

npaired.

(g) The age of the defendani at the time of the

Ime.

History 7s. ch. 19554_ 1999, COL 1940 Supp e6en 206) 1 ch

309 ¢ ich T2720 Bch M2 eh8 bch th dee :

Note Bracketed word inserted by jin essiors

Note. Former « $1923

i C quention of sentence to fine;

proceedings.—

(1) When a defendant is sentenced to pay a fine,

Shall have the right to give bail for payment of the

ne and the costs of tion. The bond shall be

ecuted by the defendant and two sureties ap

__&. 821

proved by the sheriff or the officer charged with exe-

cution of the judgment.

(2) The bond shall be made povable in 90 days to

the governor and his successors in office.

(3) If the bond is not paid ai the expiration of 90

days, the sherif! or the officer charged with execu-

tion of the judgment shall indorse the default on the

bond and file it with the clerk of the court in which

the judgment was rendered. The clerk shall issue an

execution as if there had been a judgment at law on

the bond, and the same proceedings shal! be followed

as in other executions. After default of the bond, the

convicted person may be proceeded against as if bond

had not been given.

History.—« 26s ch {9554 1999, COL #426 S477. COL 1900 Supp

66770 6 123. ch 70-399

921.16 When sentences to be concurrent and

when consecutive.—A defendant convicted of two

or more offenses charged in the same indictment.

information, or affidavit or in consolidated indict

ments, informations, or affidavits, shall serve th:

sentences of imprisonment concurrently unless the

court directs that two or more of the sentences be

served consecutively. Sentences of imprisonment for

offenses not charged in the same indictment. infor-

mation, or affidavit shall be served consecutively un-

jess the court directs that two or more of the

sentences be served concurrently.

wae 281, ch 19554. 1999. COL 1900 Supp 86607710 6 120 cd

921.161 Sentence not to run until imposed;

credit for county jail time after sentence; certifi-

cate of sheriff.—

(1) Asentence of imprisonment shall not bezin to

run before the date it is imposed, but the court im-

posing a sentence shall allow a defendant credit for

all of the time he spent in the county jail before

sentence. The credit must be for a specified period of

time and shall be provided for in the sentence.

(2) In addition to other credits, a person sen-

tenced to imprisonment in custody of the '|Depart-

ment of Offender Rehabilitation] shall receive credit

on his sentence for all time spent between sentenc-

ing and being placed in custody of the ‘(Department

of Offender habilitation) When delivering a pris-

oner to the ‘| rtment of Offender Rehabili-

tation}, the sheriff shall certify in writing to the

‘[department}

(a) The date the sentence was imposed and the

date the prisoner was delivered to the ‘[depar: ment}.

(b) The dates of any periods after sentence the

prisoner was at liberty on bond.

(c) The dates and reasons for any other times the

prisoner was at liberty after sentence.

The certificate shall be prima facie evidence of the

facts certified.

Wistery.—« 1, ch €3-457, an 19, 35. ch €9-108 « 125, ch 70.339, « 1. ch

7441, © ich 737

"Nate.-Sees DS) ch zoe, Ker powere Gution ond functions of the Divi

wou @f Corrections U enslerred to department

921.18 Sentence for indeterminate period for

noncapital felony.—The court in its discretion may

sentence a defendant convicted of a noncapital felo-

ny to the custody of the "(Department of Offender

2211

762 Fla

rights and remedies known at common law

obviously affords no basis for the award of

attorneys’ fees in actions brought under

them.

Accordingly, the judgment below is re-

versed insofar as it awards an attorney's

fee to appellee, Fairchild-Florida Construc-

tion Co. In every other respect, the judg-

ment is affirmed.

OVERTON, C. J., and ROBERTS, AD-

KINS, BOYD, ENGLAND and SUND-

BERG, JJ., concur.

BROWARD COUNTY, Florida, Appellant,

v.

Constance D. COE et al, Appellees.

Ne. 49049.

Supreme Court of Florida.

Nov. 30, 1976.

Rehearing Denied Feb. 15, 1977.

Appeal from District Court of Appeal,

Fourth District.

Betty Lynn Lee, Gen. Counsel, Edward J.

Williams, Asst. Gen. Counsel, and Alexan-

der Cocalis, Deputy Gen. Counsel, Fort

Lauderdale, for appellant.

Barry Scott Richard, of Snyder, Young,

Stern, Barrett & Tannenbaum, North Mi-

ami Beach, for appellees.

ENGLAND, Justice.

The constitutional challenge in this case

with respect to Chapter 74-434, Laws of

Florida, involves the same point of law as

was raised and rejected in prior decisions of

this Court. See Wilson v. Hillsborough

County Aviation Auth, 138 So.2d 65 (Fla.

1962). As to appellant's other contentions,

we adopt the views expressed by Judge

Owen in the decision below, reported at 327

So.2d 69 (Fla. 4th DCA 1976).

The decision below is affirmed.

341 SOUTHERN REPORTER, 2d SERIES

OVERTON, C. J., and SUNDBERG,

HATCHETT and DREW (Retired), JJ., con-

cur.

ADKINS and BOYD, JJ., dissent.

a

© pn

David Livingston FUNCHESS, Appellant,

v.

STATE of Florida, Appellee.

No. 47828.

Supreme Court of Florida.

Dec. 9, 1976.

Rehearing Denied Feb. 15, 1977.

Defendant was convicted in the Circuit

Court, Duval County, Gordon A. Duncan,

Jr., J., of two counts of first-degree murder.

Consecutive sentences of death were im-

posed and defendant appealed. The Su-

preme Court held that, on considering all

the mitigating and aggravating circum-

stances and carefully reviewing the entire

record in the case, the trial court was justi-

fied in imposing the death penalty for the

commission of atrocious and heinous mur-

ders in the course of a robbery.

Affirmed.

England, J., concurred with an opinion.

Homicide © 3M

Upon Supreme Court's consideration of

all mitigating and aggravating circum-

stances and careful review of entire record |

in case, trial court was justified in imposing |

consecutive death sentences for commission

of two atrocious and heinous murders in

course of robbery.

FUNCHESS v. STATE

Fla. 763

Cite as, Fla. 341 So.2d 762

Louis G. Carres, Asst. Public Defender,

for appellant.

Robert L. Shevin, Atty. Gen., and Carolyn

M. Snurkowksi, Asst. Atty. Gen., for appel-

lee

PER CURIAM.

We here review on direct appeal the first

degree murder convictions and consecutive

sentences of death imposed upon appellant

by the Circuit Court in and for Duval Coun-

ty, Florida. Article V, Section %b\(1), Con-

stitution of Florida.

Appellant was indicted in a two count

indictment for the stabbing death of Anna

Waldrop and for the stabbing death of

Clayton Ragan. He was cunvicted on both

counts of murder in the first degree, and

was sentenced to two consecutive sentences

of death after recommendation by the jury

that appellant be sentenced to death. Ap-

pellant’s motion to dismiss the indictment

on the ground that the death penalty stat-

ute is unconstitutional was denied. Pursu-

ant to Rule 3.210, Florida Criminal Proce-

dure Rules, the trial judge granted appel-

lant's motion suggesting that he was insane

and ordered a psychiatric examination. A

sanity hearing was held and appellant was

adjudged sane.

Three persons, two of whom died, were

discovered seriously stabbed at Avondale

Liquors in Jacksonville, Florida. At the

time of the murders, appellant was in the

act of .ommitting robbery.

The trial juég- <refully <valuated in de-

tail each of the mitigating and each of the

aggravating circumstances set out in Sec-

tion 921.141, Florida Statutes, and stated,

inter alia:

“The robbery and the murders commit-

ted by the Defendant were premeditated.

The Defendant selected the place for a

robbery and like a cobra, he carefully

chose the time to strike while casually

drinking a cup of coffee across the street

from the scene of the crimes. The State

has proven beyond a reasonable doubt

that the robbery and the murders were

premeditated. The objective of the De-

fendant was to obtain money and he was

dg a

willing to take the lives of others in order

to do so. By stabbing and cutting

throats, he killed two people and pitifully

mangled a third person who, at this writ-

ing, has not recovered consciousness and

after seven months, remains in a coma

hardly more than a vegetable. The vic-

tims were all practically twice the age of

the Defendant and two of the victims

were women, one of whom was left gasp-

ing for breath at the scene of the crimes.

“These are truly some of the most

senseless, heinous and horrible murders

that have ever taken place in the City of

Jacksonville.”

We would agree that these were truly

senseless, atrocious and heinous crimes.

We have listened carefully to oral argu-

ment, examined and considered the record

in light of the assignments of error and

briefs filed and we have also, pursuant to

Rule 6.16(b), Florida Appellate Rules, re-

viewed the evidence to determine whether

the interests of justice require a new trial,

with the result that we find no reversible

error is made to appear and the evidence in

the record before us does not reveal that

the ends of justice require that a new trial

be awarded.

Upon considering all the mitigating and

aggravating circumstances and carcful re-

view of the entire record in the cause, the

trial court imposed the death penalty for

the commission of the afore-described atro-

cious and heinous crimes.

Accordingly, the judgment and sentence

of the Circuit Court are hereby affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD,

SUNDBERG, HATCHETT and ROBERTS

(Retired), JJ., concur. .

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice (concurring).

While I concur with the majority of the

Court that David Funchess had a fair trial

and was properly sentenced, one of the is-

sues raised in his defense warrants discus-

sion. Funchess ssserts that certain photo-

764 Fla.

graphs introduced into evidence by the

state, which depict the scene of the crimes

and the victims, served no legitimate evi-

dentiary purpose, but rather were put be-

fore the jury solely to shock them by the

horror of the victims’ deaths.

We have previously indicated that one

who perpetrates a horrible crime is not

privileged to have a completely antiseptic

trial at which a jury of his peers is immu-

nized from the gruesome details his acts

produced. Menninger v. State, 251 So.2d

862, 865 (Fla.1971). We have also indicated

that photographic evidence which is likely

to inflame or shock a jury is inadmissible

unless it is relevant to establish at least

some aspect of the crime. Bauldree v.

State, 284 So.2d 196 (Fla.1973); State v.

Wright, 265 So.2d 361 (Fla.1972); Henning-

er, above; Young v. State, 234 So.2d 341

(Fla.1970). Our adoption of a “relevance”

test, rather than a “necessary” test, creates

troublesome distinctions which obviously

will require a case-by-case analysis by trial

and appellate judges. My separate discus-

sion of this issue here is written with the

hope that prosecutors in Florida will con-

sider in each case the possibility of proving

guilt with evidence which includes photo-

graphs well under the upper limit of judi-

cial acceptability.

The photographs introduced into this trial

were extremely large (16" x 19"), and they

were in some cases closeups of the victims

and their wounds. | do not have serious

@ abts as to the propriety of admitting 12

of the 13 photographs introduced, in light

of the circumstances of the crime and the

testimony which surrounded their introduc-

tion. As to state's exhibit 13, however, I

seriously question the state's need to intro-

duce the photograph in light of the ex-

tremely gruesome expression which was

portrayed on the victim's face in death.

This photograph was introduced after the

only medical witness had testified as to the

1. I reject any suggestion that errors of this type

can be overcome when an appellate court finds

ample other evidence in the entire record to

demonstrate that a particular defendant has

committed the crimes with which he or she

341 SOUTHERN REPORTER, 2d SERIES

causes of death and the state had intro-

duced during his testimony the photographs

which he had taken of the victim and

wounds. Those photographs were allowed

into evidence without objection by the de-

fense. The asserted justification for intro-

ducing state's exhibit 13 after his testimony

was concluded hinged on a short exchange

between defense counsel and the medical

examiner to the effect that lacerations on

one of the victim's arms were probably pro-

duced while she was defending herself

against her assailant’s attack. Defense

counsel timely objected to the introduction

of this photograph on the ground that it

Was so gruesome in its entirety, showing in

detail her facial expression in death, and

that the arm wounds it depicted were in-

consequential in comparison to the total

impact it produced. It was also argued

that her arm wounds were irrelevant to the

cause of death.

State's exhibit 13 does show lacerations

to the victim's arm, and the arm is posi-

tioned in a way which would suggest an

attempt at selfdefense. However, the

medical testimony was uncontroverted that

death occurred from multiple stab wounds

to the victim's chest. It seems rather ap-

parent that the state introduced this photo-

graph in an effort to emphasize the grue-

some nature of this crime and to portray,

more vividly than words could describe, the

helpless horror this victim must have felt

while attempting to defend herself from

brutal assault. I can see no reason why this

photograph was necessary in the guilt or

innocence phase of this trial, and I am not

persuaded by the assertion that defense

counsel's cross-examination of the medical

examiner developed some discussion con-

cerning an effort at self-defense. In my

view, the state went to the limit of what

would be permissible without tainting the

entire triai.!

Given the imprecise nature of our rule

regarding relevant but inflammatory photo-

was charged. That formula is too simple. If

that were the rule of law, there would be no

reason to limit the bounds of permissible evi-

dence.

ADAMS v. STATE

Chee as, Pla, 41 S026 765

graphic evidence, and the fact we have

recently upheld several cons ictions in which

photograph evidence was to my mind as

and unnecessary as this ;hoto-

graph, I find no basis to reverse the convie-

tion in thi, case. I echo an earlier sugges

tien from this Court, however, that prosecu-

tors “« this state should be more circum-

sp ct in their endeavors and should remove

{om the courtrooms of this state, to the

t. ‘est extent possible, the elements of pas-

sia and emotion? We must all strive for a

sy? em in which juries convict alleged crim-

j-als solely on the basis of proof, without

resort to the horror of particular crimes.

Our Code of Professional Responsibility re-

quires no less”

“The responsibility of a public prosecutor

differs from that of the usual advocate;

James ADAMS, Appellant,

¥.

STATE of Florida, Appelice.

No. 45450.

Supreme Court of Florida.

Dec. 16, 1976.

Rehearing Denied Feb. 14, 1977.

Defendant was convicted in the Circuit

Court, St. Lucie County, Wallace Sample,

J., of first-degree murder and was sen-

tenced to death, and he appealed. The Su-

preme Court held that liability for second-

degree felony-murder occurs only when the

individual perpetrates the underlying felo-

ny as an accessory before the fact but does

not personally engage in it; that the trial

2. Young v. State, 234 So.2d 341, 348 (Fia.1970).

Fla. 765

court did not err because its instructions on

second-degree murder did not track the

statute; and that, under the circumstances,

the sentence of death was appropriate.

Affirmed.

Boyd, J, dissented and filed an opinion.

Hatchett, J., dissented.

1. Homicide & 18(1)

Under felony-rmourder rule, state of

mind is immaterial and even accidental kill-

ing during felony is murder; malice afore-

thought is supplied by felony, and in this

manner rule is regarded as constructive

malice device. West's FSA. §§ 782.04,

782.041), (1 Ma), (3).

2. Homicide = 18(1)

Language in second-degree felony-mur-

der provision, “except as provided in subsec-

tion (1),” which refers to first-degree felo-

ny-murder provision, limits liability for

second-degree felony-murder to occurrences

when individual perpetrates underlying fel-

ony as accessory before fact but does not

personally engage in it. West's FSA.

§ 782.041, 3).

3. Homicide © 18(1)

Under 1972 felony-murder statute, in-

dividual who personally kills another during

perpetration or attempt to perpetrate one

of enumerated felonies is guilty of first-de-

gree murder, and in such circumstances

statutory scheme does not allow for convic-

tion of second-degree murder. West's

FSA. § 782.041, 3).

4. Homicide @=30(1)

Liability for first-degree felony murder

extends to all of perpetrator’s cofelons who

are personally present since, as perpetrators

of underlying felony, they are principals in

homicide; felony-murder rule and law of

principals combines to make felon generally

responsible for lethal acts of his cofclons.

West's FSA. § 782.04.

3. Fla Bar Code Prof Resp. EC. 7-13.

FUNCHESS v. STATE

Fla. 1007

Cite as, Pla, 367 So.26 1007

David Livingston FUNCHESS, Appellant,

¥.

STATE of Florida, Appellee.

No. 47828.

Supreme Court of Florida.

Feb. 8, 1979.

Defendant was convicted in the Circuit

Court, Duval County, Gordon A. Duncan,

Jr., J., of first-degree murder, sentenced to

death, and he appealed. The Supreme

Court, 341 So.2d 762, affirmed. Pursuant

to the dictates of the United States Su-

preme Court's Gardner decision, the Florida

Supreme Court ordered the trial judge who

imposed the death sentence to advise the

Court whether he imposed the sentence af-

ter consideration of any information not

known to appellant. The Supreme Court

then held that where the trial judge, at the

time he imposed sentence, had before him a

confidential portion of the presentence in-

vestigation report, and where defendant, by

affidavit, asserted that he was not shown

that report, the sentence of death would be

vacated and the case remanded for resen-

tencing.

Remanded for resentencing.

Criminal Law o> 1188

Where the trial judge, at the time he

imposed death sentence, had before him a

confidential portion of the presentence in-

vestigation report, and where defendart, by

affidavit, asserted that he was not shown

that report and requested relief pursuant to

the United States Supreme Court's Gardner

decision, the sentence would be vacated and

the case remanded for resentencing.

West's F.S.A. § 921.141.

Louis G. Carres, Asst. Public Defender,

Tallahassee, for appellant.

Carolyn M. Snurkowski and Charles W.

Musgrove, Asst. Attys. Gen., Tallahassee,

for appellee.

ORDER

Pursuant to the dictates of Gardner v.

Florida, 430 US. 349, 97 S.Ct. 1197, 51

L.Ed.2d 393 (1977), this Court ordered the

trial judge who imposed the death sentence

to advise the Court whether he imposed the

death sentence after consideration of any

information not known to appellant. His

initial response stated that no information

undisclosed to appellant was considered.

Upon order for clarification, however, the

trial judge advised the Court that he had

before him « confidential portion of the

presentence investigation report on appel-

lant. Appellant asserts, by affidavit, that

he was not shown that report and requests

relief pursuant to Gardner.

On consideration of appellant's petition

and the trial court's responses to our Gard-

ner order and our order for clarification,

and pursuant to the decision of the United

States Supreme Court in Gardner v. Flori-

da, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d

393 (1977), appellant's sentence of death in

this cause is vacated. The case is remanded

to the trial court for resentencing, without

the necessity of an advisory jury, but with

directions to provide counsel for the state

and the defendant an opportunity to ex-

plain, contradict, and argue regarding the

relevance, materiality, and import of the

confidential information, as well as other

matters properly considered by the trial

court concerning appellant's sentence under

section 921.141, Florida Statutes (1977).

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD,

OVERTON, SUNDBERG and HATCHETT,

JJ., concur.

NEP nn I i il ELIE ERS OO APL ear, SOT 5 0 em ect

le OL LL IE

356 Fla

® .

David Livingston FUNCHESS, Appellant,

¥.

STATE of Florida, Appellee.

No. 47828.

Supreme Court of Florida.

April 2, 1981.

Rehearing Denied June 30, 1981.

After death sentences imposed or de-

fendant, who was convicted on two counts

of first-degree murder, were affirmed, 341

So.2d 762, and subsequently vacated, 367

So.2d 1007, the death sentences, on remand,

were again ordered by the Circuit Court,

Duval County, Gordon A. Duncan, Ie., 4.

and defendant appealed. The Supreme

Court held that: (1) on remand, reconven-

ing of an advisory jury was not required,

and (2) there was substantial competent

evidence to support express findings of trial

judge that death sentences were aj >ropri-

ete for defendant.

Affirmed.

McDonald, J., dissented.

1. Criminal Law ©1192

Trial court, on remand for resentencing

of defendant after his death sentences had

been vacated in light of United States Su-

preme Court decision, was not required to

reconvene an advisory jury.

2. Criminal Law @ > 1208(1)

On remand for resentencing after de-

fendant’s death sentences had been vacated,

substantial competent evidence supported

express findings of trial judge that defend-

ant's death sentences were appropriate, and

trial judge properly performed his weighing

function with respect to mitigating and ag-

gravating circumstances.

Louis G. Carres, Asst. Public Defender,

Tally hassee, for =ppellant.

i. Funchess v. State, 341 So2d 762 (Fla. 1976),

cert. denied, 434 US. 878, 98 S.Ct 231, 4

L.E42d 158 (1977).

399 SOUTHERN REPORTER, 2d SERIES

Jim Smith, Atty. Gen., and Carolyn M.

Snurkowski and Charles W. Musgrove,

Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

David Livingston Funchess was tried and

convicted of two counts of murder in the

first degree and was sentenced to death in

trial court proceedings affirmed by this

Court! Following a subsequent United

States Supreme Court decision in Gardner

v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51

L.Ed.2d 393 (1977), we vacated Funchess’

death sentences and remanded his case to

the trial court for resentencing without an

advisory jury proceeding?

On remand, an evidentiary hearing was

conducted by the trial court at which Fun-

chess presented evidence in mitigation of

his sentences. Nonetheless, the trial court

in due course entered an order again sen-

tencing Funchess to death, following which

Funchess brought this case to us for review.

[1] Funchess makes a number of legal

attacks on the propriety of instructions giv-

en to the jury at the sentencing i

of his first trial, arguing that the order

remanding for so-called “Gardner relief”

should have included a mandate for recon-

vening an advisory jury. We reject all of

these contentions. The purpose for our re-

mand was to comply with the dictates of

the United States Supreme Court in Gard-

ner v. Florida; it was not to provide an

entirely new sentencing proceeding at

which a new advisory jury could be recon-

vened. Songer v. State, 365 So.2d 696 (Fla.

1978), cert. denied, 441 US. 956, 9 S.Ct

2185, 60 L.Ed2d 1060 (1979). Complying

with our mandate, the trial court properly

rejected all legal points raised by Furchess’

counsel.

[2] The only proper question now

presented is whether there is substantial

competent evidence to support the express

finding» of the trial judge that sentences of

2. Funchess v. State, 367 So.2d 1007 (Fla 1979).

- THE FLORIDA BAR v. G. B. T. Fla. 357

Cite as, Fla. 399 So.26 357

death are appropriate for Funchess. We

are satisfied from our review of the evi-

dence presented at the resentencing proce-

dure, and from the record of the original

sentencing proceeding: first, that the trial

judge properly performed his weighing

function with respect to the one new miti-

gating circumstance developed at the resen-

tencing proceeding and the aggravating

factors which had been established at the

original proceeding (all but one of which

were unchallenged on remand), and second,

that there was substantial and competent

evidence to support the findings of the trial

judge with respect to the aggravating and

mitigating circumstances articulated in his

resentencing order.

The dictates of Gardner v. Florida have

been faithfully met by the trial court in this

case, and sentences of death were properly

imposed. We affirm the trial court's new

death sentences.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD,

OVERTON, ENGLAND and ALDERMAN,

JJ., concur.

McDONALD, J., dissents.

THE FLORIDA BAR, Petitioner,

¥.

G. B. T., Respondent.

Neo. 593M.

Supreme Court of Florida.

April 23, 1981.

Rehearing Denied June 30, 1981.

In disciplinary proceeding, the Supreme

Court, England, J., held that failure for six

months to deliver to client status report and

refusal to respond to client's inquiries re-

garding an unemployment claim, for which

statute of limitations had elapsed prior to

date of retention of services, constitute ne-

glect of legal matter and warrant repri-

mand.

Order accordingly.

1. Attorney and Client 48

Nowhere in Florida Integration Rule is

bar counsel empowered to charge an ethical

violation without a finding of probable

cause by either grievance commitice or

Board of Governors of the Florida Bar; on

the contrary, the Integration Rule provides

mechanisms by which bar counsel can pro-

ceed if he deems the finding of y-rievance

committee technically deficient, or if he

chooses to recommend to Board of Gover-

nors that it make a finding of probable

cause against the attorney. 32 West's

F.S.A. Rules of the Florida Bar, Art. 11,

Rules 11.01 et seq. 11.04(6Xb), 11.05(2).

2 Attorney and Client = 44(1), 58

Failure for six months to deliver to

client a status report and refusal to respond

to client's inquiries regarding an unemploy-

ment claim, for which statute of limitations

had elapsed prior to date of retention of

services, constitute neglect of matter and

warrant reprimand. 32 West's PSA. Code

of Professional Responsibility, DR6-

101(AX3).

Wallace N. Maer, Bar Counsel, Miami, for

petitioner.

Hugh F. Quinn, Coral Gables, and Louis

M. Jepeway of Jepeway & Jepeway, Miami,

for respondent.

ENGLAND, Justice.

The Florida Bar brought a disciplinary

action against G.B.T., resulting in a refer-

ee’s report recommending a six-month sus-

pension from the practice of law, payment

of the proceedings’ costs, and his making

restitution to his client. Both The Florida

Bar and G.B.T. have asked us to review the

report of the referee.

IN THE SUPREME COURT OF FLORIDA

DAVID LIVINGSTON FUNCHESS,

Appellant, :

vs. : Case No. 47,828

STATE OF FLORIDA, :

Appellee. $

MOTION FOR REHEARING

COMES NOW the appellant, DAVID LIVINGSTON FUNCHESS,

pursuant to Rule 9.330(a) of the Florida Rules of Appellate

Procedure and moves this Court -or rehearing in the above-

styled cause. As grounds for same, the appellant would show

as follows:

1. In the opinion rendered by the Court on April 2,

1981, appellant's sentences of death were upheld after a remand

to the trial court for resentencing.

In deciding that the trial judge properly performed his

weighing function and that there was substantial and competent

evidence to support his findings it would appear that this Court

may have overlooked the possible existence of a statutory mitiga-

ting circumstance that was not considered by the trial judge.

2. Even though appellant has never served a term of

imprisonment nor been convicted of a felony, the trial judge

found that the mitigating factor of no significant history of

prior criminal activity did not apply. It was noted that appel-

lant had prior arrests, prior misdemeanor convictions, and had

admitted to previously taking money from his murder victims and

using drugs. In light of appellant's history which was presented

to the trial court and formed the basis for the trial judge's

finding that the capital crimes were committed by appellant while

he was under the influence of extreme mental and emotional

-_ <— <r eee —

E-10

disturbance, it should have been clear that the crimes admitted

by appellant concerning the theft of money from his victims and

his use of drugs were all part of his ongoing mental problems.

3. In light of the fact that the only major things noted

in the trial judge's finding of significant prior criminal

activity involved the problems which contributed to appellant's

mental state and subsequent capital offenses, it is ludicrous to

find these a negating factor for the mitigating circumstance

when they did not result in any convictions and indeed may all

be part of the incident which culminated in the capital offenses.

4. Appellant asserts that the mitigating circumstance

of no significant prior criminal activity should always be

applied to people such as appellant who have not shown a history

of criminal incidents that indicate a career criminal who is

not amenable to correction by society. In appellant's case he

was never imprisoned nor convicted for more than minor incidents

and such, coupled with the factors which led to the instant

capital offenses could never be considered significant.

5. Appellant would assert that the trial judge had no

objective eittesioake on which to we his findings concerning

this mitigating factor since none have ever been established in

previous case law that could assure uniformity throughout the

range of capital cases. Without such it cannot be said that

the criteria for imposition of capital punishment is applied

uniformly throughout the courts of this state in every capital

case.

WHEREFORE, appellant prays that this Honorable Court

will grant his motion for rehearing and thereafter alter its

opinion and decision, remanding this case to the trial court

with directions that appellant's sentence be reconsidered with

the finding of an additional mitigating circumstance of no signi-

ficant history of prior criminal activity.

E-11

—— me

Respectfully submitted,

THEODORE E. MACK

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR APPELLANT

—

I HEREBY CERTIFY that a copy of the foregoing Motion

for Rehearing has been furnished by hand-delivery to the

Carolyn Snurkowski, Assistant Attorney General, The Capitol,

: P oe

Tallahassee, Florida; on this /: day of April, 1981.

KAGE E. MACK

E-12

IN THE SUPREME COURT OF FLORIDA

TUESDAY, JUNE 30, 1981

DAVID LIVINGSTON FUNCHESS, af

Appellant, ee CASE NO. 47,828

vs. ae Circuit Court Case No.

75-169 CF Div. R

STATE OF FLORIDA, ee (Duval)

Appellee. ee

On consideration of the motion for rehearing filed by

attorney for appellant,

IT IS ORDERED by the Court that said motion be and the

same is hereby denied.

SUNDBERG, C.J., ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ.,

Concur

MCDONALD, J., Dissents

A True Copy c

cc: Hon. S. Morgan Slaughter, Clerk

TEST: Hon. Gordon A. Duncan

Theodore E. Mack, Esquire

Carolyn Snurkowski, Esquire

Sid J. White

Clerk Supreme Court

pbb. Corrrarer is

THIS ISTRUMSNT

i COMPUTER

IN THE CIRCUIT COURT

FOURTH JUDICIAL CIRCUIT, IN

AND FOR DUVAL COUNTY, FLORIDA

CASE NO. 75-169 CF DIVISION "R"

STATE OF FLORIDA

iee- ) SENTENCE

DAVID LIVINGSTON FUNCHESS )

FILED

JuL 1 8 1975

SUMMARY | Sh

An indictment containing two separate

counts of Murder in the First Degree was re-

turned by a Grand Jury in Duval County, Florida,

on the 7th day of January, 1975, against the

Defendant, David tivingston Funchéss, wherein

the Grand Jurors found and charged that David

Livingston Funchess did, on the 16th day of

December, 1974, in the County of Duval, State

of Florida, unlawfully and from a premeditated

design to effect the death of Anna Waldrop,

kill the said Anna Waldrop by stabbing her to

death, contrary to the provisions of Section

782.04, Florida Statutes; and for a second

count in said indictment, the Grand Jurors

aforesaid found and charged that the said

David Livingston Funchess did, on the 16th

520. = day..of December 1974. in the County of Duval, ¥: om

State of Florida, unlawfully and from a pre-

meditated design to effect the death of

Clayton Keaton Ragan, kill the said Clayton

Keaton Ragan by stabbing him to death, con-

trary to the provisions of Section 782.04,

Florida Statutes.

Subsequently thereto, 4 Motion to

Dismiss said indictment was filed herein on

February 18, 1975 and said Motion to Dismiss

the indictment was denied by the Court on

February 28, 1975.

On April 18, 1975, the Defendant's

attorney filed a Motion, pursuant to Rule 3.210,

Florida Rules of Criminal Procedure, suggesting

that the Defendant was insane and that he be

examined. The Court thereupon granted said

Motion and ordered an examination and the

Defendant was psychiatrically examined. Sub-

sequently thereto, a sanity hearing was held

on May 2, 1975, and the Defendant, David

Livingston Funchess, was adjudged sane by the

Court on said date.

The Defendant's trial on the charges

contained in the indictment was begun on May 15,

1975 and completed on May 15, 1975, at which

time the Trial Jury returned a verdict finding

the Defendant guilty on both counts in the

indictment of Murder in the First Degree.

F-15

s

—— — -

On May 16, 1975, a sentencing pro-

ceeding was held pursuant to Section 921.141,

Florida Statutes, and on said date, a majority

of the jury, to-wit: ten (10) of the twelve

(12) members thereof, rendered an advisory

sentence to the Court finding:

1. That sufficient aggravating

circumstances existed to justify a sentence

of death; and

2. That sufficient mitigating

circumstances did not exist which outweighed

any aggravating circumstance so as to justify

a sentence of life imprisonment rather than

a sentence of death; and

3. That based upon those considera-

tions, the Defendant should be sentenced to

death. ; 7 ’ /

The Defendant, David Livingston Funchess,

is now before the Court for sentencing.

The Defendant testified at the trial

in this cause and admitted therein that he was

physically at the scene of the crimes on the

date said crimes occurred but he denied that he

was guilty of either of said crimes of which the

jury found him guilty, to-wit: two separate

counts of Murder in the First Degree.

At the sentencing proceeding, evidence

was presented relating to the aggravating and

“witigating circumstances enumerated in subsec-

tions § and 6 of Section 921.141, Florida

Statutes. All evidence received at said

sentencing proceeding was deemed by the Court

to have probative value and the Defendant was

afforded a fair opportunity to rebut all hearsay

Statements. The State and the Defendant were

each permitted to present arguments for or

against a sentence of death and for or against

a sentence of life.

FINDINGS OF FACT

Upon my review of the evidence pre-

sented at the trial and the sentencing pro-

ceeding, together with my review of my notes

taken at both the trial and sentencing pro-

ceeding, together with a presentence investi-

gation report made by and received from the

Florida Parole and Probation Commission, I

do make the following specific written find-

ings of fact, based upon the circumstances

cited in subsections 5S and 6 of Section 921.141,

Florida Statutes, to-wit:

MITIGATING CIRCUMSTANCES

(a) The Defendant, David Livingston.

Funchess, has a significant history of prior

mn]

criminal activity, as follows:

1. On June 27, 1970, the Defendant

was charged with Grand Larceny. He was allowed

to plead guilty to Petit Larceny and was sen-

tenced to a term of six (6) months in the County

Jail.

2. On September 19, 1973, the |

Defendant was charged with a Breach of the

Peace and was fined $50.00. The sentence

was suspended.

3. On February 14, 1974, the

Defendant was fined $50.00 for Loitering.

4. On March 14, 1974, the Defendant

was charged with Breaking ‘and Entering and the

case was dismissed on March 22, 1974.

/

5. On April 29, 1974, the Defendant

was arrested for Public Intoxication and

Obstructing Traffic. He was fined $26.00 on

both charges; and

6. On August 20, 1974, the Defendant

was arrested on a charge of Trespass after

Warning. The charge was dismissed.

The Court therefore finds that this

circumstance of the case is not a mitigating

_ circumstance.

te sist,

|

i:

'

ft

- * ’ * = *

= aS EBS. o°.ide “ceo -* - _

P-18 ‘

~- - - = : - . ——— Soqnow., ==, ‘322.-"s2."

(b) The capital felonies committed

by the Defendant were not committed while the

Defendant was under the influenge of extreme

—_— — —-— —

mental or emotional disturbance. The Defendant

was adjudicated sane at a sanity hearing prior

“ to trial; and there was no evidence produced

at the trial or at the sentencing proceeding

that would show the Defendant to be mentally

unbalanced or emotionally disturbed. The

Court therefore finds that this circumstance

_

of the case is not a mitigating circumstance.

. (c) The.victims in this case were not

participants in the Defendant's conduct nor did

any of them consent to his acts. The Court

therefore finds that this circumstance of the

case is not 4 mitigating circumstance,

(d) The Defendant was not an accomplice :

in the commission of the capital felonies and the |

capital felonies were not committed by any person |

| other than the Defendant. The Court therefore

finds that this circumstance of the case is not

a mitigating circumstance.

(e) The Defendant did not act under

extreme duress nor did he act under the sub-

stantial domination of any other person. He

acted completely on his own and his acts were

of his own free will. These murders were his

- decision alone. The Court therefore finds

—_——_---

—_————

P-19 . -

: ' that this circumstance of the case, is not a

mitigating circumstance.

(f) The examination and evaluation

by Dr. Ernest C. Miller of University Hospital,

~ Jacksonville, Florida, revealed that in the

opinion of the doctor, the Defendant was able

to understand the nature, quality and wrongful-

ness of his acts. The capacity of the Defendant

to conform his conduct to the requirements of

law was not substantially impaired. The Court £.

does not recall any evidence that would show '

otherwise. The Defendant had no physical or.

mental impairment that would prevent him from

obeying the law. The Court therefore finds

that this circumstance of the case is not a

mitigating circumstance. |

(g) The apse was twenty-seven

(27) years ‘of age at the time he committed

these murders. He was a high school graduate |

and had served in the armed forces. He was ;

sophisticated. The Court therefore finds

that this circumstance of the case is not a

mitigating circumstance.

AGGRAVATING’ CIRCUMSTANCES

(a) The Defendant was not under any

sentence of imprisonment when he committed the

.

ais =e se ~~. ; sean —~ 6. = >" edie. hae

~* - = = ; Fatt 4 . ad

: i ; ee See SOs eee Tr

> . ** ~

2.

capitel felonies of Murder in the First Degree.

The Court therefore finds that this circumstance

_of the case is not an aggravating circumstance.

(b) The Defendant has not been pre-

viously convicted of another capital felony or

a felony involving the use or threat of violence

to a person. The Court therefore finds that

this circumstance of the case is not an aggra-

vating circumstance.

(c) The Defendant did not knowingly

create a great risk of death to many persons.

The Court therefore finds that this circumstance

of the case is not an aggravating circumstance.

(d) The capital felonies were committed

while the Defendant was engaged in the commission

of the life felony of Robbery. The Court there-

tte i ai ee & . Ae eee ~~ >

fore finds that this circumstance of the case is

an aggravating circumstance.

(e) The capital felonies were committed

for the purpose of avoiding or preventing a lawful

a a ee i, i

arrest. The Defendant, David Livingston Funchess,

is a former employee of Avondale Liquors where the

victims were murdered and he knew that he would

be recognized by thea. He was not wearing a

mask.nor was he disguised in any manner. The

Defendant acted accordingly; in an effort to

'

avoid or prevent a lawful arrest for the crime —

—- _-

:

. - . . > -

>> ’ oe

-of robbery, he committed the crimes of premeditated

ag

P-21 5 A :

© ween Camaes e.2 = oe ee ee ee ee

- - . :

¢ *

murder. The Court therefore finds that this

circumstance of the case is an aggravating

circumstance.

(f) The capital. felonies of Murder

in the First Degree were committed by the

Defendant for pecuniary gain. “The Defendant

was endaged in the act of committing the

life felony of Robbery for the purpose of

personal pecuniary gain. As a former employee

of Avondale Liquors, he well knew thdt the

receipts for the weekend's business were there

for the taking and he was willing to and did

commit several murders in order to get that

money without being identified. The Court

therefore finds that this circumstance of the

case is an aggravepine circumstance.

? /

(g) The capital felonies were not

commit ed to disrupt or hinder the lawful exer-

cise of any governmental function or the

enforcement of laws. The Court therefore

finds that this circumstance of the case is

not an aggravating circumstance.

‘(h) The capital felonies committed

by this Defendant were heinous, atrocious

and cruel.

The robbery and the murders committed

by the Defendant were premeditated. The » . L tee oii

Defendant selected the place for a robbery and

like a cobra, he carefully chose the time to

strike while casually drinking a cup of coffee

across the street from the scene of the crimes.

The State has proven beyond a reasonable doubt

that the robbery and the murders were premeditated.

The objective of the Defendant was to obtain

money and he was willing to take the lives of

others in order to do so. By stabbing and

cutting throats, he killed two people and piti-

fully mangled a third person who, at this writing,

has not recovered consciousness and after seven

months, remains in a coma hardly more than a

vegetable. The victims were all practically

twice the age of the Defendant and two of the

victims were women, one of whom was left gasping

for breath at the scene of the crimes.

These are truly some of the most

senseless, heinous and horrible murders that

have ever taken place in the City of Jacksonville.

The Court therefore finds that this

circumstance of the case is an aggravating cir-

cumstance.

It is the feeling of this Court that

if our society is to survive and continue to

exist as a society of people dependent upon

each other for that existence, we must do what- .

ever is necessary to stop the rapidly increasing

P-23

oe mo re —— ee ee ee re

. ** .* . ° -

crime rate and it goes without saying that the

primary responsibility in this regard rests

upon the shoulders of the Criminal Justice |

System.

The merchants of Jacksonville have a

right to and should be able to operate théir

businesses without constantly being apprehensive

or fearful of assault; robbery or murder.

The Court has received and has been

guided by the advisory sentence of the sentencing

jury rendered in this cause. After weighing the

aggravating and mitigating circumstances of this

case, the Court finds and determines that:

(a) sufficient aggravating circumstances

exist as enumerated in subsection 5 of Section

921.141, Florida Statutes, and that/

(b) there are insufficient mitigating

circumstances as enumerated in subsection 6 of

Section 921.141,° Florida Statutes, to outweigh

the aggravating circumstances.

It is, therefore, the reasoned judgment

of the Court and finding by this Court that the

circumstances and the facts of this case justify

and require two (2) separate sentences of death

for the Defendant.

i

-——* } er) eee o rerre Geman - _———— -* wegyece-s ° . oF ee ere wee » GPP ee Tr rs een ee Loe

2 . . .

The Court hereby adjudges the Defendant,

David Livingston Funchess, to be guilty of Murder

in the First Degree on each of the separate counts

—_—_—_—_—

found in the indictment herein.

ae —-—- iex—<——-

The Court hereby sentences the Defendant,

David Livingston Funchess to death on the first

count of the indictment herein; and |

The Court also hereby sentences the

Defendant, David Livingston Funchess to a separate,

additional sentence of death on the second count of

the indictment herein. It is hereby further ordered

that this additional sentence of death on the second

count of the indictment shall run and be consecutive

to the aforesaid death sentence imposed on the first

count of the indictment herein.

It is the further Order of this Court

that the Defendant, David Livingston Funchess, be

taken by the proper authorities to the Florida

State Prison, to be securely confined until his

execution, on a date to be subsequently determined.

The Court now advises the Defendant,

David Livingston Funchess, that it is your right

to appeal from this judgment and sentence within

thirty (30) days from this date. You are further

advised that you are entitled to assistance of

counsel in taking an appeal. Upon your request,

Tatas? 2 “zg: ane showing that you are entitled to an attorney

at the expense of the State, the Court will

appoint one for you.

DONE AND ORDERED AND SENTENCED in Open

Court, at the Duval County Courthouse, Jacksonville,

Florida, on the 18th day of July, A. D., 1975.

y 3

ANY Gp bo [?

CIRCUIT JuDGe,

F-26

IN THE CIRCUIT COURT OF THE

FOURTH JUDICIAL CIRCUIT, IN

AND FOR DUVAL COUNTY, FLORIDA.

CASE NO. 75-169-CF DIVISION "R"

STATE OF FLORIDA )

)

-vs- ) SENTENC EUW,

)

DAVID LIVINGSTON FUNCHESS ) alle

) Soc UTE?

SUMMARY

The Defendant, David Livingston Funchess, was indicted

on two separate counts of murder in the first degree, was tried

by jury on both counts and found guilty on both counts. A motion

for new trial was denied.

In a separate sentencing proceeding, the sentencing jury

rendered an advisory sentence of death and the court sentenced the

Defendant to a sentence of death on each of the two separate

counts found in the indictment.

Upon review, the Supreme Court of Florida agreed with

this court that the murders committed by the Defendant were sense-

less, atrocious and heinous and upon finding no reversable error,

affirmed the judgment and sentence of this court.

On October 3, 1977, the Supreme Court of the United

i States denied Defendant's Petition for 2 Writ of Certiorari.

Several years later, pursuant to the dictates of the

United States Supreme Court in the case of Gardner vs. Florida,

430 U.S. 349 (1977), the Supreme Court of Florida vacated the

. death sentences imposed by this court and remanded this case for

resentencing, without the necessity of an advisory jury, but with

directions to provide counsel for the state and the Defendant an

opportunity to explain, contradict and argue, concerning the

relevance, materiality and import of the confidential information

‘contained in the presentence investigation report as well as other

G-27 !

matters properly considered by the trial court concerning Defend-.

'

ant's sentence under Section 921.141, Florida Statutes (1977).

In full compliance with the Order of the Supreme Court

}. of Florida, this court has conducted resentencing proceedings,

has considered and ruled upon numerous motions by the Defendant,

and has afforded the Defendant the benefit of all court pro-

cedures and substantive rights available to an unsentenced

Defendant.

~~

At the request of the Defendant and over the objection

-

of the State, the court permitted a series of four psychiatric

interviews of the Defendant, using an Amytal induction Technique

(a type of narcosynthesis). The examining psychiatrist, Dr.

— —oe_—oeo

Ernest G. Miller, M. D., testified at one of the sentencing

hearings and his report to the court, with copies to the Defend-

ant and the State, was filed in evidence.

a — ed

The State and the Defendant were each furnished a copy

of the presentence investigation report, including the confiden-

| tial portion thereof, as well as with a copy of the psychiatrist's

i report, dated April 24, 1975, both of which reports were con-

- sidered by the court prior to its previous sentence. The cou:t

* nee provided a full and complete sentencing hearing, entertaining

a1] submissions and evidence of the State and the Defendant rele-

vant to sentence, as requested by Defendant. The court has also

reviewed the testimony adduced at trial. The findings and judg-

ment of this court are not based upon any information not known

4 to the Defendant or the State.

The Defendant, David Livingston Funchess, now stands

. before this court unsentenced. Ny

G-28

ad

act?

that he went to the Avondale Lounge in December, 1974, to rob it.

FINDINGS IN SUPPORT OF SENTENCE

°

Pursuant to the reauirements of law, the:court now

makes and sets forth in writing the following findings of fact

<ctas, Ae A, Al A e. ate le ee ae

in support of sentence.

MITIGATING CIRCUMSTANCES

(a) The Defendant, David Livingston Funchess, has a

significant history of prior criminal activity. The record re- |

flects as follows:

(1) On June 27, 1970, the Defendant was charged

with Grand Larceny, plead guilty to Petit Larceny and was sen-

tenced to six months in jail.

(2) On September 19, 1973, Defendant was charged

with a Breach of the Peace and fined $50.00, with sentence sus- .

pended.

4

(3) On February 14, 1974, the Defendant was fined

$50.00 for Loitering. :

(4) On March 14, 1974, the Defendant was charged

with Breaking and Entering. The charge was dismissed on March 22,

1974.

(5) On April 29, 1974, Defendant was arrested

for Public Intoxication and Obstructing Traffic and was fined

$26.00 on both charges.

(6) On August 20, 1974, Defendant was arrested

on a charge of Trespass After Warning. The charge was dismissed.

(7) On July 3, 1979, Defendant admitted to this

court that he stoie money from Avondale Lounge in the approximate

amount of eight hundred dollars; that he was fired because of the

theft and that his employer was justified in firing him for that

reason.

(8) On July 3, 1979, Defendant told this court

G-29

‘ !

(9) On July 3, 1979, Defendant admitted using

heroin and marijuana. |

The court finds that this circumstance of the case

t

is not a mitigating circumstance.

(b) The capital felonies committed by the Defendant

were committed while the Defendant was under the influence of

extreme mental and emotional disturbance.

h ° This finding of the court is based upon the expert

The court, therefore, finds that this circumstance of

the case is a mitigating factor.

‘

’

| medical testimony adduced at the sentencing hearing.

(c) Neither of the murdered victims in this case

¢ participated in any way in the Defendant's corduct nor did either -

i of them consent to his acts. ‘

aE TZ.

The court, therefore, finds that this circumstance of

‘the case is not a mitigating circumstance.

J j

\ (d) The Defendant was not an accomplice in either of

—s

these capital felonies committed by another person and his par-

ticipation was not relatively minor.

The Defendant was charged with the sole commission of

each of these murders and was found guilty by the trial jury of

l each of these murders. The Defendant shares his guilt with no

“one. He gave assistance to no one. He was the sole perpetrator

of these crimes.

The court, therefore, finds that this circumstance of

the case is not a mitigating circumstance.

ae

(e) The Defendant did not act under extreme duress

nor did he act under the substantial domination of another person.

The Defendant was not threatened with bodily harm or

, any other type harm by anyone or anything. Wo one did anything

; against the Defendant that would amount to coercion of, or that

would even tend to coerce the will of, the Defendant, thereby

G-36

ta

inducing Jefendant to commit any acts contrary to his own free

will. Defendant committed each of these murders of his own

free will. ,

——~--—“the “court, therefore, finds that this circumstance of

the case is not a mitigating circumstance.

(f) The Defendant had the capacity to appreciate the

criminality of his conduct and his capacity to conform his con-

duct to the requirements of law was not substantially impaired.

Although the psychiatrist speculated at the sentenci=;

hearing that, in his opinion, the Defendant was high on heroin

at the time he committed these murders. It was also the psychia-

trist's opinion that there was a certain thread of logical pro-

gression in these criminal acts, that is to say, that the Defend-_

ant planned and put it all together then took certain evasive

steps all of which meant to the psychiatrist that all of the De-

fendant's cognition certainly was not suspended by the effect of

heroin if, indeed, heroin was involved. The psychiatrist furt*ler

testified that in his opinion, the Defendant had the ability to

conform his acts to the requirements of law whether he was usiz¢

’ heroin or not and that "overall", Defendant's ability in this

=F

regard was not substantially impaired.

The court, therefore, finds that this circumstance o:

the case is not a mitigating circumstance.

(g) The age of the Defendant at the time of these

crimes was twenty-seven years.

The record reflects that the Defendant had graduated

' from high school and thereafter served a period of years with

the armed forces before committing the two murders for which he

was found guilty as charged. He was old enough to abide by adult

_gtandards of conduct. °

The court, therefore, finds that this circumstance o?

the case is not a mitigating circumstance.

G-31

oe of

—— =

_Was under sentence of imprisonment at the time he committed the

AGGRAVATING CIRCUMSTANCES

(a) The record does not reflect that the Defendant

.capital felony murders.

The court, therefore, finds that this circumstance of

’ the case is not an aggravating circumstance.

(b) The record reflects that the Defendant has not

been previously convicted of another capital felony or a felony

involving the use or threat of violence to a person.

,

The court, therefore, finds that this circumstance of |

| the case is not an aggravating circumstance.

| (c) Im committing these murders, the Defendant did not |

Kl knowingly create a great risk of death to many. | |

H The court, therefore, finds that this circumstance of

" the case is not an aggravating circumstance.

tl (d) The capital felonies of murder were committed by

the Defendant while he wis engaged in the commission of robbery.

X At his sentencing hearing, the Defendant admitted to

1 the court that he had gone to the Avondale Lounge on December 16,

_ 1974, to rob the place and, further, that he did rob the place on

, that day.

| The court, therefore, finds that this circumstance of

the case is an aggravating circumstance.

(e) These murders were committed by the Defendant for

the purpose of avoiding or preventing lawful arrest.

The Defendant is a former employee of the liquor store

‘where the murders were committed and the people working there

=. sss~

" knew him because they were working there when he worked there.

. The Defendant wore no mask and he knew that he would be recognized.

“He was willing to and did commit murder to prevent recognition.

The court, therefore, finds that this circumstance of

| the case is an aggravating circumstance.

i G-32

__j|- that -this-circumstance of the case should be merged with the

-- Saetw:-

“aspect of a Defendant's crime.

(f) Although the capital felonies of murder were

committed by the Defendant for pecuniary gain, the court finds

circumstance contained in subparagraph (d) above, inasmuch as

in all robbery - murders, both subsections refer to the same

The court, therefore, finds that this circumstance

of the case is not an aggravating circumstance.

(g) The capital felonies of murder committed by the

Defendant were not committed by him in order to disrupt or hinges

the lawful exercise of any governmental function or the enforce-

mént of laws.

The court, therefore, finds that this circumstance of

the case is not an aggravating circumstance.

(h) The capital felonies of murder committed by the

Defendant were “heinous”, “atrocious” and “cruel”.

= The Supreme Court of Florida has said that as used in

the statute relating to “Aggravating Circumstances", the word,

"heinous" means extremely wicked or shockingly evil; “atrocious”

means outrageously wicked and vile; and that "cruel" means de-

signed to inflict a high degree of pain, with either indifference

to or even enjoyment of, the suffering of others. The Defendant's

murders in this case were each, in some degree, all of the afore-

said.

The Defendant's victim, Mr. Ragan, died as a result of

multiple stab wounds in his chest and massive internal bleeding.

His throat was slashed, leaving a gaping four inch iong hole in

his neck. One stab wound cut through the pulmonary artery leading

from the heart - he was stabbed from the front and from the back -

both lungs being punctured - a total of six different stabs. His

upper left arm even had four separate contusions.

The Defendant's victim, Anna W. Waldrop, a middle aged

woman who weighed a mere one-hundred-and-fifteen pounds, also dicd

as the result of multiple stab wounds and massive internal bleed-

ing. Her throat was slashed in two places and she was stabbed

in the chest four different times, one stab wound included a

puncture of her right lung and another perforated a large artery

leading from her heart. There were also several cuts on her

right arm, possibly indicating that she tried to defend herself

from the Defendant's vicious attack.

The court, therefore, finds that this circumstance of

the case is an aggravating circumstance.

Since the Defendant's murders in 1974 and his death

is sentences in 1975, the legislature of the State of Florida has

a Chapter 921 of the Florida Statutes, adding an addi-

tional aggravating circumstance, to-wit: subsection (e) of

subsection (5) of Section 921.141, Aggravating Circumstances,

which reads as follows:

committed in a cold, calculated and

premediated manner without any pre-

tense of’moral or legal justifica-

i ; tion”. ,

i

‘ "“(e) The capital felony (homicide) was

i

}

However, inasmuch as the Defendant's murders were

committed in 1974, the court is of the opinion that Section

. 921.141 (5)(e), Florida Statutes (1979), is not applicable to

i this case and should not be considered by the court in this case.

Since the court is not considering same in this case, the court

» finds that this circumstance is not a circumstance of this case.

Upon consideration of the evidence presented at De Ze=3-

ant's trial, the advisory sentence of the “sentencing jury" axe

the evidence presented at the sentencing hearings, and after

weighing the foregoing aggravating and mitigating circumstances.

‘coca. =

this court finds that sufficient aggravating circumstances eN1is-

| as enumerated in subsection (5) of Section 921.141, Florida

Statutes, and this court further finds that there are insufficient

f mitigating circumstances to outweigh the aggravating circumstances.

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oc

—_— +

_-*

It is, therefore, the reasoned judgment of and the

finding by this court that the circumstances and facts of this

‘case justify sentences of death for the Defendant.

The court, therefore, hereby finds and adjudicates

the Defendant, David Livingston Funchess, to be guilty of murder

in the first degree on each of the two counts found in the indict-

ment herein. 7

By pronouncement, this court hereby sentences the De- |

fendant, David Livingston Funchess, to a sentence of death on

the first count of murder in the first degree of the indictment

herein and this court further hereby sentences the Defendant,

David Livingston Funchess, to a separate and additional sentence

of death on the second count of murder in the first degree of

the indictment herein, and it is further, hereby ordered and

adjudged that this said additional sentence of death on the

second count of murder in the first degree of the indictment

herein shall run and be consecutive to the aforesaid sentence

of death hereby imposed on the first count of murder in the first

degree of the indictment herein.

The Sheriff of Jacksonville, Duval County, Florida, is

hereby ordered and directed to immediately transport the Defend-

ant, David Livingston Funchess, to the Florida State Prison,

Starke, Florida, where he shall be securely confined until his

execution by electrocution on a date to be subsequently deter-

mined.

ORDERED, ADJUDGED nt SENTENCED a t, Jacksonville,

ial -¢ ,-1979.

ig ded eee)

abide aed :

Duval County, Florida, this f= day of

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519

1 erroneous copy that I had, my own copy was in error and

9 I ask you not to treat my error against Mr. Funchess.

3 MR GREENE: Your Honor, I'd like the record to

4 show that I appreciate the acknowledgment and that it

5 was not at the request of the State, nor did I request

P that he correct it and the delay hasn't been brought on

7 by the State. :

3 THE COURT: Thank you, gentlemen. Are there any

5 further arguments or questions concerning this case at

10 this time?

= MR. GREENE: No, Your Honor.

- MR. ROHAN: No, Your Honor. |

- MR. AUSTIN: The State has nothing further, Your Honor.

- THE COURT: All right. Thank you.

- INSTRUCTIONS TO THE JURY

_ BY THE COURT:

- Ladies and gentlemen of the jury, please give me your

= undivided attention. You have heard the evidence and

= arguments of counsel necessary to enable you to render

- an advisory sentence to the Court as to whether the

defendant should be sentenced to death or life imprison-

7 ment. Your advisory sentence will have three pa:ts:

Number One, whether sufficient aggravating circumstances

: exist to justify a sentence of death when one or more of

JACKSONVILLE. FLORIDA

3

21

24

520

the aggravating circumstances is found, death is presumed

to be the proper sentence unless it or they are overridden

by one or more of the mitigating circumstances.

Number Two: Whether sufficient mitigating circum-

stances exist which outweigh any aggravating circumstances

to justify a sentence of life imprisonment rather than

a sentence of death.

And Number Three: Based on those considerations,

whether the defendant should be sentenced to life imprison-

ment or to death.

Number Four: The aggravating and mitigating circum-

stances must be proved beyond a reasonable doubt.

Your advisory sentence may be made by a majecrity of

the jury, it does not have to be unanimous. The Court is

Sot required to follow your recommendation.

In considering whether sufficient aggravating

circumstances exist to justify a sentence of death,

you shall consider only the following: (A) Whether

the defendant was under sentence of imprisonment when

the defendant committed the murders of which the

defendant has been convicted; (B) whether the defendant

has previously been convicted of another capital felony

or of a felony involving the use of threat of violence

to the person; (C) whether in committing the murders in

DOROTHY S. PETREE

Orrician Covet #crortee

Fouate Juorcias Cimeuit

JACKSONVILLE, FLORIDA

"7. — oo 7

ee ee wwe fe ere * . e ~~ © ~rne

H-37

3

21

24

or Tr ogee pp eee Ls 7

521

which the defendant had been convicted, the defendant

knowingly created a great risk of death to many persons;

(D) whether the murders of which the defendant had been

convicted of was committed while the defendant was

engaged in the commission of or an attempt to commit,

or flight after committing or attempting to commit any

robbery, rape, arson, burglary, kidnapping or aircraft

piracy or the unlevful throwing, placing or discharging

of a destructive device or bomb; (E) whether the murders

of which the defendant had been convicted was committed

for the purpose of avoiding or preventing a lawful arrest

or effecting an escape from custody; (F) whether the

murders of which the defendant had been convicted was

committed for pecuniary gain; (G) whether the murders

‘of which the defendant had been convicted was committed

to disrupt or hinder the lawful exercise of any govern-

mental function or the enforcement of laws; and (H) whether

the murders of which the defendant had been convicted was

especially heinous, atrocious or cruel.

In considering whether sufficient mitigating circun-

stances exist which outweigh any aggravating circumstances,

to justify a sentence of life imprisonment rather than a

sentence of death, you shall consider the following:

(A) Whether the defendant has no significant history

DOROTHY S. PETREE

Orriciay Cover Revonten

Fovats Juorcias Cracurt

JACKSONVILLE. FLORIDA

' H-38

warr re *

° was

522

of prior criminal activity; (3) whether the murders were

committed while the defendant was under the influence of

extreme mental or emotional disturbance; (C) whether the

victims were participants in the defendant's conduct or

consented to the act; (D) whether the defendant acted

under extreme duress or substantial domination of another

person; (E) whether the defendant was an accomplice in

the murders committed by another person and the defendant's

participation was relatively minor; (F) whether the

capacity of the defendant to appreciate the criminality

of the defendant's conduct or to conform the defendant's

conduct to the requirements of law was substantially

impaired; and (G) the age of the defendant at the time

of the crime.

Gentlemen, are there any other advisory recomendations

MR. GREENE: The State has none, Your Honor.

MR. ROHAN: None, Your Honor.

THE COURT: Or instructions, rather.

All right. Ladies and gentlemen of the jury, at this

time I am going to give you a copy of these instructions and

ask you to retire to the jury room to consider your advisory

sentence and also I have here an advisory sentence which

has been prepared with the joint agreement of both the State

and the defendant and I will read you this advisory sentence

DOROTHY S. PETREE

Orriciay Covet Merortee

“+ «© eee erm

ne te ony pe ey eae , Oe oe eee ee ep ere ee ee

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