Opposition — MARK MIKENAS v. FLORIDA (No. 81-6419)

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2 Case No, 81-6419

IN THE

SUPREME COURT OF THE UNITED STATES

ORIGINAL

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RECEIVED

HAY 10 1982

OFFICE OF THE CLERK

SUPREME COURT, US.__|

MARK MIKENAS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI IN THE

SUPREME COURT OF FLOKIDA

JIM SMITH

ATTORNEY GENERAL

PEGGY A, QUINCE

Assistant Attorney General

and

ROBERT J. LANDRY

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSELS FOR RESPONDENT

TABLE OF CONTENTS

PAGE

OPINION BELOW 1

STATEMENT OF Tuk CASE D PACTS 1-2

ARGUMENT 3-5

REASONS VOR DENYING THE PETITION FOR WRIT

OF CERTIORARI

CUNCLUS ION 5

CERTIFICATE OF SERVICE 2

TABLE OF CITATIONS

PAGE

Armstrong v. State, 399 So.2d 953 (Fla. 1981) 3

Brown v. State, 381 So.2d 690 (Fla. 1980) cert, denied 4

449 U.S. 1118, 101 S.Ct. 931, 66 L. Ed. 2d 847 (1981)

Drake v. Zant, 449 U.S. 999, 66 L.. Ed. 297 5

Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 398 (1980) 3

Lamadline v. State, 303 So,2d 17 (Fla. 1974) 4

Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973 3

Maggard v. State, 399 So.2d 973 (Fla. 1981) 4

Martin v. Louisiana, 449 U.S. 998, 66 L. Ed. 2d 197 5

Mikenas v. State, 367 So.2d 606 (Fla. 1979) 2

Mikenas v. State, 407 So.2d 892 (Fla. 1982) 1

State v. Dixon, 238 80. 2d 1 (Fla. 1973) 4

State v. Shaw, 255 Se.2d 799 (S.C. 1979) cert. denied

444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1979)

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Wainwright v. Stone, 414 U.S. 21, 38 L. Ed. 2d 179 (1973) 4

Westbrook v. Balkcom, 449 U.S. 999, 66 L.Ed.2d 298

on

OPINION BELOW

The Opinion of the Florida Supreme Court sought to be

reviewed is reported as Mikenas v, State, 407 80. 2d 892 (Fla.

1982)

STATEMENT OF THE CASE AND PACTS

On November 3, 1975, the appellant, Mark Mikenas, his

brother, Vito Mikenas, and a friend, Mark Rinaldi, robbed a

convenience store in Tampa, Florida, During the robbery the

appellant carried a .38 caliber revolver, There were no

customers in the store during the robbery. Upon entering the

store, the appellant and his co-felons forced the lone store

clerk into a back room of the building. Unknown to the robbers,

Gary Baker, an auxiliary deputy sheriff, observed the robbery

from a hidden position in the store, When an automobile un-

expectedly arrived at the front of the store, appellant and

his co-felons tried to exit the store through a back door,

Baker, with drawn pistol, stopped them and placed them under

arrest.

Seconds later, Anthosy Williams, an off-duty Tampa police-

man in civilian attire, came into the store through the front

door, Baker called to Williams for help and informed him that

a robbery was underway. Immediately thereafter, appellant and

Baker fired at each other with both missing. Baker later killed

Vito and wounded the appellant as they ran towards the front of

the store. As appellant was falling to the floor, he shot and

killed Anthony Williams, the Tampa police officer. Ann Williams,

the wife of Anthony Williams, herself a police officer in uniform,

arrested appellant, Baker arrested Rinaldi.

The indictment charged the appellant and Rinaldi, in two

counts, with first-degree murder of Anthony Williams and with

second-degree murder of Vito Mikenas who "was killed by a

person or persons other than the person or persons engaged in

the perpetration or attmept to perpetrate said robbery..."

The appellant pleaded guilty to murder in the first-degree

for the death of Anthony Williams and pleaded nolo contendere to

the charge of second-degree murder of his brother, Vito.

Appellant reserved the right to appeal the applicability of

Section 782.04(3), Florida Statutes (1975), the second-degree

felony murder statute, to the facts of this case, The judge

adjudged appellant guilty, and jury selected for the sole pur-

pose of recommending sentence, rendered a recommendation of

death. The judge sentenced appellant to death.

The Florida Supreme Court affirmed petitioner's conviction

but remanded for resentencing, without further jury de.iberations,

ecause the trial judge considered a nonstatutory aggravating

factor, Mikenas v. State, 367 S0. 2d 606 (Fla. 1979) Petitioner

was again sentenced to death and he appealed alleging a new Jury

should have been impanelled. Both the judgment and sentence were

affirmed, Mikenas v. State, 407 So.2d 892 (Fla. 1952)

This petition follows,

an

ARGUMENT

REASONS FOR DENYING THE

PETITION FOR WRIT OF CERTIORARI

The Petition for Writ of Certiorari should be denied ve-

cause no substantial federal constitutional question is presented.

First of all, it must be noted that, as the Florida Supreme

Court held, no improper evidence was submitted to the Jury,

407 So.2d 892, at 893. The defect found in the first appeal

requiring 4 remand was the trial judge's erroneously placing

on the weighing scale as an aggravating factor the defendant's

substantial history or prior criminal activity. 367 So.2d 606,

at 609-610; 407 So. 2d 892, at 893. The information itself was

not nonstatutory or unconstitutional. Florida Statute 921.141(1)

(1975) provides:

"In the proceeding, evidence may

be presented as to any matter

that the Court deams relevant to

the nature of the crime and the

character of the defendant and

shall include matters relating

to any of the aggravating or

mitigating circumstances enumer-

ee

A consideration of the character of the accused, good or bad,

presumably 15 constitutionally required, Lockett x. Ohio, 438

U.S. 586, 57 L. Kd. 2d 973 (1978)!

Any alalogy to Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 24

398 (1980) must fail. There the death penalty rested on a single

aggravating factor which this Court found to have been to broadly

defined to pass constitutional muster. In the instant case the

sentencing trial judge found multiple statutory aggravating

factors and a single possible mitigating factor. 407 S0. 2d 892,

at 893.2

1/ Even nonstatutory factors relevant to the character of the accused may be

considered by the sentencer. State v. Shaw, 255 Se.2d 799 (S.C. 1979)

cert. denied 444 U.S. 957, 100 S.Ct. 437, 62 L. Fd. 2d 329 (1979)

2 Cf. Anmtrong v. State, 399 So.2d 953 (Fla. 1981) holding that a possible

mitigating factor is not a sufficient finding of the presence of that

factor.

Even assuming arguendo an improper aggravating circumstance

was considered, the Florida Supreme Court has held death is

appropriate where there are other good aggravating circumstances.

See Brown v. State, 381 So.2d 690 (Fla. 1980), cert. denied 449

U.S. 1118, 101 S.Ct. 931, 66 L. Ed. 2d 847 (1981).

Petitioner argues that the jury improperly considered such

matters as aggravating factors. In Florida, it is the trial

judge who imposes sentence, the jury only recommends. State v.

Dixon, 283 So. 2d 1 (Fla. 1973); Lamadline v. State, 303 80. 2d 17

(Fla. 1974) In addition, the jury did not consider as an agera-

vat ing factor petitioner's prior history of criminal activity.

A review of the jury instructions showing that they were informed

that the aggravating factors to be considered were limited to

the eight statotory aggravating factors. (R492-494). We do not

presume the jury violated their oath to consider the case without

obeying the trial court's instruction on the law.

Mikenas then attempts to have this Court act as a supple-

mental reviewer of state law questions by suggesting that the

Florida Supreme Court misapplied Maggard v. State, 99 So.2d

973 (Fla. 1981). In reply, respondent answers that questions of

state law are resolved by state courts. Wainwright v. Stone,

414 U.S. 21, 38 L. Ed. 2d 179 (1973) And Maggard, supra., Is

inapplicable, That case stands for the proposition that where

a defendant stipulates that a certain mitigating factor is

specifically waived and will not be asserted the state may not

introduce rebuttal evidence to show the absence of that miti-

gating factor. In the instant case, trial defense counsel did

not specifically stipulate that he would waive the applicability

of mitigating circumstance 6(a) of F.S. 921.141. Without such

a stipulation the state may offer evidence to rebut the presence

of a potential mitigating factor, especially where such evidence

is highly relevant to the character of the accused.

The evidence pertaining to petitioner's prior history of

criminal activity was properly admissible because relevant to

Mr. Mikenas's character and tending to rebut potential statutory

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mitigating factor 921.141(6)(a). The trial court did not err in

the weighing process following the remand from the Florida Supreme

court. 3

CONCLUS ION

The Petition for Writ of Certiorari should be denied for the

failure to demonstrate the existence of a substantial federal

constitutional question,

Respectfully submitted,

JIM SMITH

ATTORNEY GENERAL

—. 2 1

PEGGY“ As Disc *

Assistant Attorney General

* , ona! 42

25 of 5.70 LD

Assistant Attorney General

1313 Tampa Street, Suire 804

Park Trammell] Building

Tampa, Florida 33602

(813) 272-2670

Counsels for Respondent

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

has been furnished by U.S. Mail to William C. McClain, Esq. 495

N. Carpenter Street, Bartow, Florida on this 6th day of May, 1982,

fey LL. — .

Of Counsel for Respondent

3 Even if the sentencing judge did cammit an error in the calculas, where,

as here, the appellate court can determine that such error is insignificant

affirmance of the death sentence would be appropriate. Brown v. State, supra.

See also Westbrook v. Balkcan,449 U.S, 999, Ore Zant,

- , 66 L.Ed. 297; Martin v. Louisiana, 449 U.S. 998, 66