Appendix — JIMMY L. SMITH v. FLORIDA (No. 81-6437)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

JIMMY LEE SMITH,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

APPENDIX

TABLE OF CONTENTS

APPENDIX

A. Smith v. State

B. Motion for Rehearing

Denial of Motion for Rehearing

E. Fifth Amendment

Fourteenth Amendment, Section 1

PAGE(S)

21

22

894 Fla.

been afforded ample opportunity to present

evidence in mitigation in the original sen-

tencing proceeding. The same reasoning

applies here.

[3] Defendant's third point is equally

unavailing. The trial court found that the

capital felony was committed while the de-

fendant was engaged in the commission of

a robbery and also that it was committed

for pecuniary gain. In its finding concern-

ing the “pecuniary gain” circumstance, the

court specifically stated that it was con-

sidered in conjunction with “robbery” cir-

cumstance. This is not contrary to the dic-

tates of Provence v. State, 337 So.2d 783

(Fla. 1976), cert. denied, 431 U.S. 969, 97

S.Ct. 2929, 53 L.Ed.2d 1065 (1977), wherein

we held that in all robbery-murders only

one of these two aggravating circumstances

can be found. We assume that the judge

had Provence in mind when he specifically

considered these two circumstances in con-

junction. The word “conjunction” itself

connotes a joining together to form one.

While it may have been better practice to

omit one of the factors completely in defer-

ence to the other, we cannot say that fail-

ure to do so is error.

14] Defendant's last point concerning

the presentence investigation report is

without merit. The trial court is entitled

by Rule 3.710, Florida Rules of Crimina!

Procedure, to draw its own conclusion from

information in the report in capital cases.

Swan v. State, 322 So.2d 485 (Fla.1975). In

accordance with the dictates of Gardner,

supra, the defendant was provided an op-

portunity to rebut.

Accordingly, the sentence of death is

hereby affirmed.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-

TON, ALDERMAN and McDONALD, JJ.

407 SOUTHERN REPORTER, 2d SERIES

Jimmy Lee SMITH, Appellant,

v.

STATE of Florida, Appellee.

— No. 55961.

Supreme Court of Florida.

Nov. 12, 1981.

Rehearing Denied Jan 28, 1982.

Defendant was convicted in the Circuit

Court, Jackson County, Robert L. McCrary,

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

to death. Appeal was taken. The Supreme

Court, Adkins, J., held that: (1) the trial

court did not improperly comment on the

weight of confession evidence; (2) although

the trial court failed to instruct the jury on

weight to be given the defendant's confes-

sions, that error did not warrant new trial;

(3) the defendant waived any claim of error

on the grounds that a complete record of

the proceeding below was not available

when it was his counsel that instructed the

court reporter not to report his final argu-

ment; (4) the death penalty statute does

not violate the Constitution by attempting

to govern practice and procedure; (5) de-

fendant was not entitled to new trial on the

ground of alleged mental deficiency; (6)

the exclusion of jurors who expressed oppo-

sition to the death penalty was proper; (7)

trial court did not err by allowing the de-

fendant to waive representation by counsel

at sentencing phase of his trial; (8) aggra-

vating and mitigating circumstances were

properly considered; and (9) when there

were two aggravating circumstances, even

if one was not supported by evidence, that

would not justify reversal of the sentence.

Affirmed.

Alderman, J., concurred specially with

an opinion in which Boyd, J., concurred.

‘Sundberg, C. J., dissented.

1. Criminal Law 65609)

In murder prosecution, comments made

by trial court that statement was freely and

—1—

SMITH v. STATE

Fla. 895

Che as, Fu. 407 So.2d 894

voluntarily given by defendant made at

various times during proceedings were not

improper comment on weight of confession

evidence during course of trial, since trial

judge was making, with unmistakable clari-

ty, finding for record that defendant's con-

fessions were voluntarily made. U.S. C. A.

Const.Amends. 5, 14; West's F.S.A.Const.

Art. 1, § 9.

2. Criminal Law @=1173.2(8)

In murder prosecution, although trial

court erred in failing to instruct jury on

weight to be given defendant's confessions,

that error did not warrant new trial where

there was other evidence upon which con-

viction could be based.

3. Criminal Law ¢> 1038.2, 1038.3

Trial court’s failure to instruct jury on

weight to be given defendant's confessions

in murder prosecution was not fundamental

error, cognizable for first time on appeal, in

light of defendant's failure to request that

instructions be given jury and to object

when court failed to do so.

4. Criminal Law 660

It was not necessary to vacate and

remand murder conviction and imposition

of desth penalty, for failure to record de-

fense counsel's closing argument at guilt

phase of trial where defense counsel in-

structed court reporter not to report final

argument, in that right to complete review

was waived by such instruction.

5. Criminal Law @1206(1)

Death penalty stutute does not violate

Florida Constitution by attempting to gov-

ern practice and procedure. West's F.S.A.

§ 921.141; West's F.S.A.Const.Art. 5, § Aa)

6. Criminal Law @1189

In murder prosecution, alleged evi-

dence of mental deficiency on part of de-

fendant did not compel new trial in interest

of justice where findings of psychologists

were considered by judge and jury and,

although psychologists recommended that

defendant undergo further tests, he specifi-

cally declined to do so.

2.

7. Homicide 348

In murder prosecution, psychological

findings were not so internally inconsistent

as to require reversal of imposition of death

penalty.

8. Jury 108

Three jurors who expressed opposition

to death penalty were properly excused for

cause in murder prosecution in light of tes-

timony of each juror that under no circum-

stances would he vote to put person to

death. U.S.C.A.Const.Amend. 6.

9. Criminal Law 641.4(1)

Self-representation by defendant in

criminal proceedings is not per se improper.

U.S.C.A.Const.Amend. 6.

10. Criminal Law = 641.4) 3

Waiver of one's right to counsel must

be intelligent and knowing relinquishment

of such representation. U.S.C.A.Const.

Amend. 6.

11. Criminal Law @>641.4(4)

In murder prosecution, trial court did

not err by allowing defendant to waive

representation by counsel at sentencing

phase of his trial where defendant was

closely questioned concerning his desire to

make closing argument himself, he was

warned of dangers of what he was doing

and discouraged from doing so. U.S.C.A.

Const Amend. 6.

12. Homicide 354

In murder prosecution, trial court did

not err in sentencing’ defendant to death

penalty by considering defendant's uncor-

roborated confessions to various crimes

when there was no showing of corpus delicti

for any prior offenses in order to negate

otherwise applicable mitigating circum-

stance of lack of significant history. West's

F.S.A. §§ 921.141, 921.141(6a).

13. Criminal Law ¢=1208(1)

Although consideration of all mitigat-

ing circumstances is required when death

penalty is imposed, decision of whether par-

ticular mitigating circumstance is proven

and weight to be given to it rest with judge

and jury. West's F.S.A. § 921.141; U.S.C.

896 Fla.

A. Const. Amends. 5, 14;

Art. 1. § 9.

14. Homicide 354

In homicide prosecution, trial court did

not err in sentencing by refusing to find as

mitigating circumstances that defendant

was under influence of extreme mental or

emotional disturbance and/or that his ca-

pacity to appreciate criminality of his con-

duct or to conform his conduct to require-

ments of law was substantially impaired.

West's F.S.A. § 921.141(6Xb, f).

15. Homicide 354

In murder prosecution, even if evidence

was insufficient to prove that defendant

murdered second victim to hinder law en-

forcement, imposition of death penalty

would be justified in light of proper finding

of aggravating circumstance of heinous,

atrocious, and cruel manner of killing.

West's F.S.A. § 921.141.

West's F.S.A.Const.

Michael M. Corin and John D. C. Newton,

II. Asst. Public Defenders, 92 — ſor

appellant.

Jim Smith, Atty. Gen. and Carolyn M.

Snurkowski, Asst. Atty. Gen., Tallahassee,

for appellee.

ADKINS, Justice.

Appellant, Jimmy Lee Smith, was con-

victed of the first-degree murders of Bonnie

Ward and her twelve-year-old daughter,

Donna Strickland. The trial judge imposed

the death sentence in accordance with the

jury's advisory sentence recommendation.

We have jurisdiction. Art. V. § bl).

Fla. Const.

Appellant had spent the night before the

murders as a guest in Mrs. Ward's home,

and during the course of the evening both

of his victims had spoken disparagingly of

his girlfriend and her mother. Appellant's

girlfriend was referred to as a whore and

her mother’s childrearing abilities criticized.

On the day of the murders, appellant rode

with Mrs. Ward, her three-year-old son,

two-year-old daughter, and Donna to run

several errands. During this trip, his girl-

*

407 SOUTHERN REPORTER, 2d SERIES

friend and her family were again criticized,

and at that time appellant evidently decid-

ed to kill Mrs. Ward and Donna. On the

way home from the errands, Mrs. Ward

complied with appellant’s request that she

drive down a deserted country road to a

spot where he claimed to have hidden a

bundle of clothing which he wished to re-

trieve. After arriving at the spot, appel-

lant ordered the children to stay in the car

and forced Mrs. Ward, who by then realized

that the request was a ruse, over her prot-

estations and pleas, to accompany him on

foot around a bend in the road. Once he

thought that they were out of the sight of

the children in the car, appellant began

choking Mrs. Ward, exhorting her to “Die,

Bitch.” After Mrs. Ward had lost con-

sciousness, Donna, who had left the car to

look for the two adults, came upon the

scene, whereupon appellant grabbed and

began choking her also. Encountering dif-

ficulty in choking Donna with his hands,

appellant held her by the neck with one

hand and with the other took from his

pocket a piece of cord which he then used to

choke her.

After Donna lost consciousness, appellant

undressed his still-living victims and

stabbed each repeatedly in the chest, inflict-

ing multiple wounds on both. Whatever it

was that drove him still not satisfied, he

proceeded to slit Mrs. Ward's throat and to

cut open Donna's chest and look at her

heart. Once he finished, appellant wrapped

the bodies in blankets, left them in the

brush, and drove the two younger children

home, where he fed them and put them to

bed. He was picked up the next day by an

officer who saw him hitchhiking.

Appellant now asks this Court to order a

new trial or, at least, a new sentencing

hearing to remedy the errors which he con-

tends occurred during his trial. We address

the issues on appeal in the order in which

he raises them.

First, appellant contends that he was de-

nied due process of law and equal protec-

tion of the laws within the meaning of the

Fifth and Fourteenth Amendments to the

United States Constitution and article I,

= =

SMITH v. STATE

Fla. 897

Che as, Fla. 407 So.24 894

section 9, of the Florida Constitution. In

support thereof, he asserts that the trial

court failed to properly instruct the jury on

the weight to be given his confessions, and

instead improperly commented thereon as

evidence during the trial.

{1} We do not agree with appellant's

argument that the trial court improperly

commented on the weight of the confession

evidence during the course of the trial.

The comments complained of are the fol-

lowing, made at various times during the

proceedings:

The Court has ruled that the statement

has been freely and voluntarily given by

the Defendant, Jimmy Lee Smith, and

admitted into evidence. It will be for

your consideration at this time.

@ @ 0 0 8 0

The Court will rule that this statement

was freely and voluntarily given. It will

be admitted into evidence at this time.

The Court will rule that that statement

was freely and voluntarily given and will

now be admitted into evidence.

We see the statements as attempts to com-

ply with the requirement expressed in Sims

v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17

L.Ed.2d 593 (1967), that the trial court

clearly indicate, in tke record, its conclusion

that an confession admitted into evidence

was voluntarily made:

IIR is not for the jury to make the pri-

mary determination of voluntariness.

Although the judge need not make for-

mal findings of fact or write an opinion,

his conclusion that the confession is vol-

untary must appear from the record with

unmistakable clarity.

Id. at 544, 87 S.Ct. at 643.

Referring to the same topic, this Court

stated as follows:

The requirement of the Fourtcenth

Amendment is that the trial judge make

a determination that a confession was

freely and voluntarily ‘given before he

allows it to be considcred by a jury. A

specific finding of voluntariness is neces-

sary to ensure that a judge has properly

met this requirement.

* McDole v. State, 283 So.2d 553, 554 (Fla.

1973) (citations omitted).

The judge in the case sub judice was

doing just that: making, with unmistakable

clarity, a finding for the record that appel-

lant's confessions were voluntarily made.

His comments, therefore, were not improp-

er.

121 Appellant's other argument, that the

court failed to instruct the jury on the

weight to be given his confessions, is a valid

point. We do not agree, however, that the

error warrants a new trial. Appellant cor-

rectly states that the “law of the case”

upon which the judge must charge the jury

includes the weight to be given confessions.

See § 918.10(1), Fla. Stat. (1977); Fla. R.

Crim.P. 3.290(a); Harrison v. State, 149 Fla.

365, 5 So.2d 703 (1942). Appellant then

cites several cases in which failure to so

instruct the jury was found to be grounds

for reversal and award of a new trial. The

cases cited are not, however, on “all-fours”

with the case at hand.

In Harrison v. State the defendant was

never placed on the stand and never testi-

fied before the jury. It was acknowledged

that there could have been no conviction

without the confession, and defendant's

counsel objected to the admission into evi-

dence of the confession. In its decision, this

Court held that the trial court had erred by

not instructing the jury on the law of the

case because it had a duty to do so “under

the circumstances of this case.” Id. 5 So.2d

707 (emphasis added).

Brown v. State, 124 So.2d 481 (Fla. 1960),

which was also cited by appellant and which

concerned the propriety of jury instructions

on degrees of homicide, simply cited Harri-

son as an example of how failure to advise

the jury on the weight to be given a confes-

sion could be fundamental error.

Bunn v. State, 363 So.2d 16 (Fla. d DCA

1978), cert. denied, 368 So2d 1373 (Fla.

1979), addressed the propriety of a trial

court's refusal to give the jury instructions

regarding evaluation of certain admissions

which the defendant had made. The dis-

6

898 Fila.

trict court reversed the conviction, empha-

sizing that a request for instructions had

been made:

[T]he failure of the trial court, pursuant

to appellant's request for such an instruc-

tion prior to the time the jury retired, to

give either the Florida Standard Jury

Instruction (criminal) 2.13(i) or another

appropriate instruction constituted re-

versible error.

Id. at 17 (emphasis added).

The case sub judice is distinguishable

from those cited by appellant. The state

did not rely entirely on appellant's confes-

sion to obtain a conviction. There was evi-

dence presented, other than appellant's con-

fession, upon which the conviction could be

based. On Monday morning Bonnie Ward,

Donna, and the two small children were in

the Ward vehicle with defendant. They

went to a hospital and visited another

daughter, Dana, at about 11:30 a.m. Bon-

nie Ward was wearing hcr watch.

In mid-afternoon defendant went to a

bank and attempted to cash a check. He

was alone in Bonnie's automobile. When a

policeman approached, defendant fled in

the car. After a high speed chase, he elud-

ed the officer.

On Tuesday defendant was arrested

while hitchhiking. He had abandoned the

vehicle, but had a knife and Bonnie's watch

in his possession.

On Wednesday the small child was able to

communicate with the officers so that they

were led to the scene of the crime. This

evidence was sufficient to show, beyond a

reasonable doubt, that defendant was with

the victims at the time of the murder.

This, considered with the theft of the

watch, possession of a knife suitable for use

in committing the homicides, and the flight

of the defendant, amounts to clear proof of

the guilt of defendant.

We have held that where there exists

other evidence, in addition to a confession,

sufficient to sustain a conviction, failure by

a court to, of its own motion, charge a jury

regarding the consideration to be given said

confession is not error requiring a new trial.

See Brunke v. State, 100 Pla. 43, 33 So.2d

226 (Fla. 1948).

407 SOUTHERN REPORTER, 2d SERIES

Nor contrary to the cited cases, does

there seem to be any reason to doubt the

validity and voluntariness of appellant's

confession. During the sentencing phase he

personally addressed the jury, admitted to

having committed the murders, and asked

for imposition of the death penalty.

{3} It also bears note that appellant did

not request that instructions be given the

jury and did not object when the court

failed to do so. In the cases cited, either a

request for instructions was made or an

objection raised to the absence thereof.

We therefore do not find the trial court's

failure to instruct the jury regarding appel-

lant’s confessions to be “fundamental er-

ror,” cognizable for the first time on appeal

and requiring reversal of the trie! court's

decision. Unlike the cited cases, whatever

error that may have occurred here was

harmless error, and the circumstances of

this case do not warrant a new trial as a

result thereof.

{4} Appellant next argues that because

a complete record of the proceeding below

is not available for review by this Court

(appellant’s counsel's closing argument at

the guilt phase of the trial was not record-

ed), the decision should be vacated and re-

manded. We decline to de so because it

was appellant's counsel that instructed the

court reporter not to report his final argu-

ment. Clearly, had the appellant been de-

prived the opportunity of a complete review

through no fault of his own, there would be

precedent for vacating the trial eourt's deci-

sion. Delap v. State, 350 So.2d 462 (Fla.

1977). But the right to review by an appel-

late court of the whole record may be relin-

quished, hence, our observation in Delap

that ſiln the absence of a waiver, the de-

fendant has a right to complete review.”

Id. at 463, n. 1. (emphasis added). The

right to a complete review here was waived

when appellant's. counsel instructed the

court reporter not to record his closing ar-

gument, and appellant is not entitled to a

new trial on the basis of the reporter's

compliance with those instructions.

3

SMITH v. STATE a

Fla. 899

Che as, Fu. 407 S

On the same point, appellant also argues

that Rule 2.070(b), Florida Rules of Judicial

Administration, mandates vacation of the

trial court’s decision. That rule provides:

(b) Record When trial proceedings are

being reported, no part of the proceed-

ings shall be omitted unless all of the

parties agree to do so and the court ap-

proves the agreement.

While there is no showing that the parties

agreed to omit recordation of appellant's

counsel's closing argument, or that the

court approved of such, it was, nevertheless,

appellant's counsel that instructed the court

reporter not to record his closing argument,

and in the absence of fundamental error

appellant may not now raise the matter on

appeal. °

{5} Contrary to appellant's argument in

his third point on appeal, we have held that

section 921.141, Florida Statutes, does not

violate the requirements of article V, sec-

tion 2(a), Florida Constitution, by attempt-

ing to govern practice and procedure. See

Dobbert v. State, 375 So.2d 1069 (Fia.1979),

cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64

L.Ed.2d 862 (1980).

Is] We are not convinced, as appellant

next contends, that heretofore unconsidered

evidence a mental deficiencies on his part

compels a new trial “in the interest of jus-

tice.” Appellant was examined and tested

by two psychologists whose findings were

then considered by the judge and jury. Al-

though the psychologists recommended that

appellant undergo further tests, he sj2cifi-

cally declined to do so, and, at the sentenc-

ing portion of his trial, tendered no evi-

dence regarding a possible mental deficien-

cy.

{7} Furthermore, despite appellant's

contention to the contrary, the psychologi-

cal findings which were considered are not

80 internally inconsistent as to be almost

useless. The psychological report stated, in

part:

Even if an organic disorder were found to

be present, we feel that it would not

minimize the long standing maladaptive

features of his personality nor would it

~6<

render him legally insane. The critical

aspect is that Jimmy has a chronic history

of difficulty in being aware of l.] accept-

ing [,] and dealing with his feelings of

anger. In fact, the personality evolution

points to a profound deficiency in charac-

ter development and the associated prob-

lems in impulse control. Should, how-

ever, an organic disorder be detecteu, we

would be willing to render an opinion

regarding possible mitigating circum-

stances.

The doctors’ report is unequivocal; appel-

lant was not legally insane.

The supplemental report which appellant

now seeks to have considered was never

before the trial court because at that stage

of the proceedings appellant refused to un-

dergo further testing. Now he seeks to

undo his prior action. Appellant charted

his own course, willingly and knowingly,

and the psychological report weighed by the

judge and jury was definite, proper and

consistent. - There was no error.

Is] Appellant's next point on appeal is

that the exclusion of three jurors who ex-

pressed opposition to the death penalty vio-

lated his Sixth Amendment right to a jury

chosen from a random cross-section of the

community. More specifically, appellant

contends that the excusal of the three did

not comport with the United States Su-

preme Court's ruling in Witherspoon v. Illi-

nois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d

776 (1968). In light of the testimony by

each of the jurors in question that under no

circumstances would he vote to put a person

to death, we are of the opinion that the

Witherspoon holding was complied with,

and that they were properly excused for

cause. See Fleming v. State, 374 So.2d 954

(Fla. 1979); Foster v. State, 369 So.2d 928

(Fla. ). cert. denied, 444 U.S. 885, 100 S.Ct.

178, 62 L.Ed.2d 116 (1979); and Jackson v.

State, 366 So.2d 752 (Fla. 1978), cert. denied,

444 U.S. 885, 100 S.Ct. 177, 62 L-Ed.2d 115

(1979). ;

19. 100 Appellant's sixth point on appeal,

that the trial court erred by allowing him to

waive representation by counsel at the sen-

tencing phase of his trial, is also without

*

900 Fla.

merit. At the outset, we note that self - rep-

resentation by a defendant in a criminal

proceeding is not per se improper. “{I)n the

absence of unusual circumstances an ac-

cused who is mentally competent and sui

juris has the right to conduct his own de-

fense without counsel by virtue of Section

11, Declaration of Rights, Florida Constitu-

tion.” State v. Capetta, 216 So.2d 749, 750

(Fla. 1968), cert. denied, 394 U.S. 1008, 89

S.Ct. 1610, 22 L.Ed.2d 787 (1969). The

waiver of one’s right to counsel must, how-

ever; be an intelligent and knowing relin-

quishment of such representation. This

Court, when faced with a question regard-

ing the propriety of such a waiver in Goode

v. State, 365 So.2d 381 (Fla. 1978), cert. de-

nied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d

1074 (1979), cited the decision of the United

States Supreme Court in Faretta v. Califor-

nia, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d

562 (1975), which noted:

Although a defendant need not himself

have the skill and experience of a lawyer

in order competently and intelligently to

choose self-representation, he should be

made aware of the dangers and disadvan-

tages of self-representation, so that rec-

ord will establish that “he knows what he

is doing and his choice is made with eyes

open.”

Here, weeks before trial, Farctta clear-

ly and unequivocally declared to the trial

judge that he wanted to represent him-

self and did not want counsel. The rec-

ord affirmatively shows that Farctta was

literate, competent, and understanding

and that he was voluntarily exercising his

informed free will. The trial judge had

warned Faretta that he thought it was a

mistake not to accept the assistance of

counsel, and that Faretta would be re-

quired to follow all the “ground rules” of

trial procedure. We necd make no as-

sessment of how well or poorly Faretta

had mastered the intricacies of the hear-

say rule and the California code provi-

sions that govern challenges of potential

jurors on voir dire. For his technical

legal knowledge, as such, was not rele-

vant to an assessment of his knowing

exercise of the right to defend himself.

27.

407 SOUTHERN REPORTER, 2d SERIES

Id. at 835-36, 95 S.Ct. at 2541.

and footnotes omitted.)

{11} Applying the Faretta criteria in the

case sub judice, we do not find appellant's

waiver of counsel to have been improperly

permitted. The record makes it quite clear

that appellant wanted to make the closing

argument at the sentencing phase of his

trial himself rather than have his attorney

do so. It also makes it clear that he was

literate, competent, and understanding. He

was apprised of the danger of what he was

doing, of the seriousness thereof, and that a

very real result might be imposition of the

death penalty. He was warned that the

prosecutor would not “back up,” regardless

of who made the closing argument for the

defense, and would vigorously seek the

death penalty. He was strongly urged to

allow his attorney to make the closing argu-

ment, but insisted on doing so himself.

(Citation

We need not inquire whether appellant

knew all of the specifics regarding aggra-

vating and mitigating circumstances and

the like. Paraphrasing the opinion in Far-

etta, we need make no assessment of how

well or poorly appellant mastered the intri-

cacies of the sentencing process, for his

technical legal knowledge, as such, was not

relevant to an assessment of his knowing

exercise of the right to defend himself.

The trial judge questioned appellant closely

concerning his desire to make the closing

argument himself. Appellant was warned

of the dangers of what he was doing and

discouraged from doing so. He was not

lightly allowed to follow the course which

he chose. The court fulfilled its obligation,

as enunciated in Faretta, and no reversible

error occurred.

{12} In the seventh point on appeal, ap-

peliant contends that the trial court erred

in sentencing by considering his uncorrobo-

rated confessions to various crimes when

there was “no showing of a corpus deiicti

for any prior offenses.” Appellant argues

that the trial judge's finding of * signifi-

cant history of prior criminal activity, when

there was no evidence of such other than

statements made by appellant, violated the

SMITH v. STATE

Fla. 901

Cite as, Fla., 407 S. 20 894

corpus delicti principle. However, that

principle, which requires some independent

proof of a crime other than a confession

before one may be convicted, does not man-

date the reversal suggested, for the follow-

ing reasons.

Section 921.141, Florida Siatutes (1979),

lists the aggravating and mitigating cir-

cumstances to be considered in determining

an appropriate sentence in a capital case.

Section 921.141(6)(a) provides that lack of a

significant history of prior criminal activity

is to be considered a mitigating factor.

Noting that aggravating circumstances

must be proven beyond a reasonable doubt,

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

denied, 416 U.S. 943, 94 S.Ct. 1950, 40

L.Ed.2d 295 (1974), and the particular need

for accuracy when a life is at stake, appel-

lant argues that there must be competent,

independent proof of significant prior crimi-

nal activity in order to negate the mitigat-

ing circumstance established by section

921.141(6X(a). We have, however, specifical-

ly held otherwise.

In Washington v. State, 362 So.2d 658

(Fla.1978), cert. denied, 441 U.S. 937, 99

S.Ct. 2063, 60 L.Ed.2d 666 (1979), a death

sentence was appealed from in part on the

basis of an allegedly improper refusal by

the court to consider lack of a significant

history of prior criminal-activity as a miti-

gating circumstance. The trial court had

refused to recognize the alleged mitigating

circumstance because the appellant had

carried on a course of burglaries, had stolen

property for a significant period of time,

and had confessed and testified to such in

open court. The appellant asserted that the

trial court had acted improperly, that on

the basis of our decision in Provence v.

State, 337 So.2d 783 (Fla. 1976), cert. denied,

431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065

(1977), previous convictions are required to

n gate section 921.141(6Xa). We upheld the

trial court, however, observing:

[Appellant] misconstrues the holding of

Provence. That case construed Section

921.141 5b) which requires previous con-

viction of another capital felony involving

the use or threat of violence. See-

tion 921.141(6)a) makes no reference to

conviction and, hence, Provence has no

application to the instant case.

Washington, at 666-67.

Thus in the case sub judice, as in Wash-

ington, the trial court, on the basis of con-

fessions made by the appellant, properly

found that the appellant had a significant

history of prior criminal activity which ne-

gated the otherwise applicable mitigating

circumstance of section 921.141(6Xa).

[13] Nor, proceeding to appellant's

eighth point on appeal, did the trial court

err in sentencing by refusing to find as

mitigating circumstances that the appellant

was unde the influence of extreme mental

or emotional disturbance and/or that his

capacity to appreciate the criminality of his

conduct or to conform his conduct to the

requirements of law was substantially im-

paired. See sections 921.141(6\b) and (f).

Although consideration of all mitigating

circumstances is required by the United

States Constitution, Lockett v. Ohio, 438

U.S. 586, 98 S.Ct. 2954, 57 L. Sd. 2d 973

(1978), the decision of whether a particular

mitigating circumstance in sentencing is

proven and the weight to be given it rest

with the judge and jury. Lucas v. State,

376 So.2d 1149 (Fla. 1979).

114] The appellant cites several cases in

which the mitigating circumstances of sec-

tions 921.141(6Xb) and/or (f) were applied

as a result of evidence pertaining to the

defendant's state of mind. In two of these

cases, Burch v. State, 343 So.2d 831 (Fla.

1977), and Shue v. State, 366 So.2d 387

(Fla. 1978), we reversed death sentences be-

cause the trial judges had ignored the ju-

ries’ recommendations of a life sentence.

Although both cases demonstrate that evi-

dence regarding 2 defendant's mental state

may be taken in mitigation, their greater

emphasis seems to be on the deference

which is to be accorded a jury's sentencing

recommendation. The jury here recom-

mended imposition of the death penalty.

Also cited is our decision in Huckaby v.

State, 343 So.2d 29 (Fia.), cert. denied, 434

U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977),

902 Fis.

in which we vacated a death sentence for

failure by the trial court to recognize the

existence of certain mitigating circumstanc-

es. Explaining why the lower court ought

to have recognized the mitigating circum-

stances, we noted:

The trial judge ignored every aspect of

the medical testimony in this case when

he found that no mitigating circumstanc-

es existed. There was almost total agree-

ment on Huckaby's mental illness and its

controlling influence on him. Although

the defense was unable to prove lega!

insanity, it amply showed that Huckaby's

mental illness was a motivating factor in

the commission of the crimes for which

he was convicted. Our review of the

record shows that the capital felony in-

volved in this case was committed while

Huckaby was under the influence of ex-

treme mental or emotional disturbance,

and that while he may have comprehend-

ed the difference between right and

wrong his capacity to appreciate the

criminality of his conduct and to conform

it to the law was substantially impaired.

These findings constitute two mitigating

circumstances which should have been

weighed in determining his sentence.

Id. at 33-34.

While the situation in Huckaby warrant-

ed an invasion of the trial court's domain,

such is not the case here. The trial court

here did not ignore every aspect of the

medical testimony regarding the appellant;

rather, it found that the medical testimony

simply did not compel application of a miti-

gating factor in sentencing. Unlike the

court in Huckaby, the trial court did not

improperly refuse to recognize certain miti-

gating circumstances; rather, it considered

the evidence presented regarding the de-

ſendant's mental state and then made its

decision, which we are not to disturb unless

absolutely required to do so.

Relevant to this situation is our decision

in Lucas v. State, wherein we refused to

interfere with the trial court’s decision re-

garding mitigating circumstances, noting:

Appellant next argues that the evi-

dence supports the existence of at least

407 SOUTHERN REPORTER, 2d SERIES

two mitigating circumstances which the

trial court failed to take into considera-

tion. During the sentencing hearing, de-

fense counsel produced a psychiatrist who

testified that appellant knew right from

wrong, but suffered from a sociopathic

personality resulting in defective judg-

ment. Other witnesses testified to appel-

lant's abnormal appearance and behavior

on the evening of the shooting. Appel-

lant coniends that this testimony proves

that he was under extreme mental or -

emotional disturbance at the time of the

commission of the offense (section 921.-

141(6)(b)) and could not appreciate the

criminality of his conduct. (Section 921.-

141(6)(f)). In response, the state argues

that it lies within the province of the

trier of fact to weigh the evidence

presented. We agree. The jury and the

judge heard the testimony, and apparent-

ly concludec that the testimony should be

given little or no weight in their deci-

sions. We find nothing in the record

which compels a different result.

376 So.2d at 1153-54.

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

1978), cert. denied, 444 U.S. 919, 100 S.Ct

239, 62 L.Ed.2d 176 (1979), we considered a

similar question and held:

Returning to appellant’s argument that

the trial judge erred in failing to find the

mitigating circumstances delineated

above, we respond that the jury and the

judge could have resolved the evidence in

favor of appellant's position, but neither

was compelled to do so. We are not here

dealing with a case where either the jury

or the court considered matters it should

not have considered or failed to consider

matters it should have considered. Ap-

pellant simply disagrees with the force

and effect given to the testimony of a

psychologist and a psychiatrist at the sen-

tencing hearing... [The trial judge

did not ignore or fail to consider the

psychological evidence bearing on mitiga-

tion. Obviously, he and the jury were

not persuaded that it provided a sound

-9- or

SMITH v. STATE

Fla. 903

Che as, Flu. 407 So.24 694

basis for establishment of the statutory

mitigating circumstances.

Id. at 5-6 (emphasis added).

Clearly then, we are not warranted to

disturb the trial court's findings. There

was nothing improper in the conclusions

reached nor in the method by which they

were reached. The decision was one within

the domain of the judge and jury, and a

reversal thereof is not justified simply be-

cause appellant draws a different conclu-

sion from the testimony presented than did

the jury.

1151 The final point raised on appeal by

appellant is that the evidence presented

was insufficient to prove that he murdered

Donna Strickland to hinder law enforce-

ment. He objects to the trial court’s first

finding of fact as to aggravating circum-

stances, which reads, in part:

The capital felony charged in Count II

of the Indictment was committed to dis-

rupt or hinder the lawful exercise of a

governmental function or the enforce-

ment of laws.... The Court specifically

finds that the defendant than killed Don-

na Lynn Strickland to keep her from

testifying against him for the murder of

Bonnie Myrle Ward which she saw the

defendant commit.

Appellant suggests several reasons why

the above finding is improper, but, because

of the court’s second finding we need not

address the merits of appellant's argument.

In his second finding of fact as to aggra-

vating circumstances, the trial judge found

that the murders for which appellant was

convicted were committed in an especially

heinous, atrocious, and crue] manner. The

finding also noted that the manner in which

appellant cut open the chest of Donna

Strickland was particularly heinous, atro-

cious, and cruel and that “even were there

no other aggravating circumstances in this

case, this circumstance alone warrants the

imposition of the death penalty.” Although

we agree that appellant's action in cutting

open his younger victim's chest was particu-

larly loathsome and reprehensible, we are

of the opinion that the more heinous, atro-

cious, and cruel aspect of the killings was

the manner in which he strangled his vic-

tims. Appellant described how both women

struggled, shook spasmodically and looked

into his eyes as he choked them. Both

strangulations were prime examples of the

“conscienceless or pitiless crime which is

unnecessarily torturous to the victim”

which we have established as heinous, atro-

cious, and cruel. See State v. Dixon, at 9.

Discussion of the proper basis for finding

the killings heinous, atrocious, and cruel

aside, the important point is that the trial

court found two aggravating circumstances.

Thus even were we to rule that Donna’s

murder was not committed to keep her

from testifying against appellant, there

would remain the aggravating circumstance

of the heinous, atrocious, and cruel manner

of the killings, and the imposition of the

death penalty herein would still be justified.

As we noted in Dixon:

When one or more of 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 provided in Fla.

Stat. § 921.141(7), F.S.A. [Now § 921.-

141(6))

Id. at 9. Because there are two aggravat-

ing circumstances, and no mitigating ones,

the sentence of death would not have to be

overturned even if we were to find the first

aggravating circumstance improper. The

second finding alone is sufficient basis for

imposition of the death penalty. Considera-

tion of the merits of the first finding would

be for naught, and so we decline to do so.

In light of the foregoing, we find that the

trial court's decision was proper. Accord-

ingly, the conviction and sentence imposed

by the trial court are affirmed.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ.,

concur.

ALDERMAN, J., specially concurs with

an opinion, with which BOYD, J., concurs.

SUNDBERG, C. J. dissents.

-10- 1

904 Fla.

ALDERMAN, Justice, concurring special-

ly.

Although I concur with the affirmance of

the conviction and sentence and the ration-

ale of the majority for this affirmance, I

would not avoid the issue of whether the

trial court properly found the aggravating

circumstance that Smith murdered Donna

Strickland to hinder law enforcement. The

majority finds it unnecessary to resolve this

question because there is at least one viable

aggravating circumstance and no mitigat-

ing circumstances, and therefore under

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

denied, 416 U.S. 943, 94 S.Ct. 1950, 40

L.Ed.2d 295 (1974), death is presumed to be

the proper sentence.

In my view, the trial court properly found

that Smith murdered Donna to hinder law

enforcement. In its sentencing order, the

trial court explains its justification for this

finding:

1. The capital felony charged in Count

II of the Indictment was committed to

disrupt or hinder the lawful exercise of a

governmental function or the enforce-

ment of laws. The evidence shows that

the defendant coolly and calmly lured

Bonnie Myrle Ward and her twelve year

old daughter, Donna Lynn Strickland, to

drive their automobile down a lonely dirt

road through the use of a lic that the

defendant had clothing cached in said lo-

cation which he needed to retrieve. The

defendant then caused Bonnie Myrle

Ward to leave the car with him and was

in the process of killing her through the

means charged in the Indictment when

Donna Lynn Strickland attempted to

come to the ‘aid of her mother. The

Court specifically finds that the defend-

ant then killed Donna Lynn Strickland to

keep her from testifying against him for

the murder of Bonnie Myrle Ward which

she saw the defendant commit.

Accordingly, I would find that the trial

court properly found two aggravating cir-

cumstances.

BOYD, J., concurs.

-ll-

407 SOUTHERN REPORTER, 2d SERIES

Amos Lee KING, Jr., Appellant,

v.

STATE of Florida, Appellee.

* No. 61406.

Supreme Court of Florida.

Dec. 2, 1981.

Defendant appealed from the denial by

the Circuit Court, Pinellas County, John S.

Andrews, J., of his motion for postconvic-

tion relief. The Supreme Court held that

defendant was not denied effective assist-

ance of counsel.

Affirmed.

Criminal Law ¢=641.13(2)

Where defendant's attorney did not

make any single act of omission or commis-

sion that was substantial and serious defi-

ciency measurably below that of competent

counsel, even though only 11 days inter-

vened between end of his previous case and

defendant's trial during which most of

preparation for defendant's case occurred,

defendant was not denied effective assist-

ance of counsel. West's F.S.A. Rules Crim.

Proc., Rule 3.850.

Baya Harrison, III of Fuller, Johnson &

Harrison, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Michael J.

Kotler, Asst. Atty. Gen., Tampa, for appel-

lee.

PER CURIAM.

This is an appeal from a final order of the

Circuit Court of the Sixth Judicial Circuit

in and for Pinellas County, dated November

13, 1981, denying King’s motion for post-

conviction relief filed pursuant. to Florida

*

IN THE SUPREME COURT OF FLORIDA

JIMMY LEE SMITH,

Appellant, :

v. : CASE NO. 55,961

STATE OF FLORIDA, :

Appellee. s

MOTION FOR REHEARING

COMES NOW the appellant, JIMMY LEE SMITH, pursuant to

Rule 9.330(a) of the Florida Rules of Appellate Procedure, and

moves this Court for rehearing in the above-styled case. As

grounds therefor, appellant states:

1. In addressing the issue concerning the absence of

any instruction to the jury on the weight to be given the de-

fendant's confessions, this Court concluded that the trial

court's failure to give such an instruction was error. Her-

ever, the Court determined that this error did ses conten

reversal, since there was neither a request for such an instruc-

tion nor an objection to the trial court's failure to give it.

The Court distinguished Harrison v. State, 149 Fla. 365, 5

So. 2d 703 (1942), in which absence of a jury instruction on the

weight to be accorded a confession was held to be fundamental

under the circumstances of that case, on the basis that here,

unlike Harrison, there was sufficient evidence apart from the

confessions to sustain the conviction. Appellant believes that,

in reaching this conclusion, this Court may have misapprehended

the nature of the independent evidence in this case.

2. In Harrison v. State, supra, at 707, it was noted

that the conviction in that case “necessarily rest[ed] on the

confess ion“. The omitted charge on the weight to be given the

confession was part of “the law of the case“ (see Bunn ». State,

363 80. 2d 16 (Fla. 3d DCA 1978)), and it was incumbent on the

trial court to charge the jury accordingly, whether requested to

do so or not. Harrison v. State, supra, at 707. An error of

this kind is fundamental where the prosecution depends entirely

upon the confession as the basis for conviction. Hamilton v.

State, 88 So.2d 606 (Pla. 1956). Thus, Harrison has been distin-

guished in a number of cases which hold that failure to instruct

on the weight to be given a confession is not fundamental error -

when there exists evidence independent of the confession which

would be sufficient to sustain the conviction. See Hamilton v.

State, supra; Brunke v. State, 160 Fla. 43, 33 So.2d 226 (Fla.

1948); Miles v. State, 160 Fla. 423, 36 So.2d 182 (Fla. 1948);

Sineffia v. State, 100 So.2d 937 (Fla. 1958); Brown v. State,

124 So.2d 481 (Fla. 1960); Robles v. State, 188 So.2d 789 (Fla.

1966); Kinchen v. State, 297 So.2d 341 (Fla. 3d DCA 1974). In

the instant case, this Court found Harrison not to be controlling

for this reason.

J. It has also been noted that the fact that Harrison v.

State, supra, was a capital case provided a further basis for

the conclusion of this Court that the omission of any instruc-

tions on the weight to be given a confession was fundamental

errorin that case. See Brunke v. State, supra; Miles v. State,

supra. In Harrison

the defendant had been sentenced to death,

and upon a review of the evidence the court

concluded that his conviction rested on his

confession. Despite the fact that this ~

testimony against himself was indispensable

to a conviction, no charge was given with

reference to the manner in which the confes-

sion should be received and considered by the

jury. The importance of this omission is

magnified in the light of Section 924.32(2)

Florida Statutes, 1941, F.S.A., where the

appellate court is admonished to review the

evidence, in a case resulting in a sentence

of death, “to determine if the interests of

justice require a new trial, whether the suf-

ficiency of the evidence is a ground of

appeal or not”.

Miles v. State, supra, at 36 So.2d 184.

See Fla. R. App. P. 9.140(f), which includes the principle

formerly expressed in Fla. Stat. §924.32(2). The instant case,

like Harrison, is a capital esse.

4. This Court in the instant case, wrote:

The case sub judice is distinguishable from

those cit y appellant. The state did not

*

-13- .

rely entirely on appellant's confession

to obtain a conviction. There was evi-

dence presented, other than appellant's

confession, upon which the conviction

could be based. On Monday morning Bonnie

Ward, Donna, and the two small children

were in the Ward vehicle with defendant.

They went to a hospital and visited another

daughter, Dana, at about 11:30 a.m. Bonnie

Ward was wearing her watch.

In mid-afternoon defendant went to a bank

and attempted to cash a check. He was alone

in Bonnie's automobile. When a policeman

approached, defendant fled in the car. After

a high speed chase, he eluded the officer.

On Tuesday defendant was arrested while

hitchhiking. He had abandoned the vehicle,

but had a knife and Bonnie's watch in his

possession.

On Wednesday the small child was able to

communicate with the officers so that they

were led to the scene of the crime. This

evidence was sufficient to show, beyond a

reasonable doubt, that defendant was with

the victims at the time of the murder. This,

considered with the theft of the watch, pos-

session of a knife suitable for use in commit-

ting the homicides, and the flight of the

defendant, amounts to clear proof of.the guilt

of defendant.

We have held that where there exits other

evidence, in addition to a confession, suffi-

cient to sustain a conviction, failure by a

court to, of its own motion, charge a jury

regarding the consideration to be given said

confession is not error requiring a new trial.

See Brunke v. State, 160 Fla. 43, 33 So.2d

226 (Fla. 1948).

5. In reaching this con is ion, appellant respectfully

submits that this Court may have misapprehended or overlooked

the fact that while the independent evidence detailed above would

arguably have been sufficient circumstantial evidence to support

a conviction of second degree murder, it would not have been

sufficient to support a conviction of first degree murder. Yet

appellant was convicted of first degree murder, solely on the

basis of his confession. The jury received absolutely no guidance

as to how to evaluate the confession; thus, for all intents and

purposes, it was as conclusive as a guilty plea.

6. Aside from the confessions, the circumstantial evidence

in this case would have been insufficient to establish premedi-

tation. See Hall v. State, 403 80. 2d 1319 (Fla. 1981). The

-14- „

theft of the watch, possession of the knife, and flight upon

approach of a police officer are all equally consistent with

second degree murder. See McAffee v. United States, 105 F.2d

21,28 (D.C. Cir. 1939). The theft of the watch could not have

supported the conviction on a felony murder theory, both be-

cause there was nothing to show whether the intent to take the

watch was formulated at the time of the killing, cf. Gafford

v. State, 387 So.2d 333 (Fla. 1980), and because there was no

jury instruction on the definition or elements of robbery or

any other potential underlying felony, see Vasil v. State, 374

So.2d 465 (Fla. 1979); State v. Jones, 377 So.2d 1163 (Fla.

1979).

7. Since, in the absence of the confession, the defendant

could have been convicted of no more than second degree murder

(and thus could not have been subject to the death penalty, see

Harrison, Brunke, Miles, supra), the independant evidence was

not sufficient to sustain the conviction. The prosecution re-

lied entirely on the confessions to obatin a first degree murder

conviction, and therefore it was fundamental error for the trial

judge to fail to advise the jury on the weight to be given a

confession, even though no such charge was requested. Brown

v. State, supra, at 484.

8. In addition, the error in failing to instruct the jury

on the weight to be given a confession was compounded by the

trial court's statements, on three separate occasions, in the

presence of the jury, that he found the confessions to have been

freely and voluntarily given. A finding that a confession was

freely and voluntarily given must be made by the trial court

before the confession may be considered by the jury. As noted

by this Court in the instant case, such a finding must appear

on the record with unmistakable clarity. McDole v. State, 283

So.2d 553 (Fla. 1973); Peterson v. State, 382 So.2d 701 (Fla.

1980). Appellant respectfully suggests, however, that in con-

cluding that it is proper for the trial court to announce his

finding of voluntariness to the jury, this Court may have mis-

apprehended the applicable legal principles.

-15-

9. Evidence regarding the voluntariness of a confession

may be presented first to the trial judge, who determines

admissibility, and then to the jury, which determines the

weight to be accorded the confession considering, inter alia,

the circumstances under which it was made. See Palmes v. State,

397 So.2d 648 (Fla. 1981). The initial inquiry into voluntari-

ness, to determine admissibility, must be held in the absence

of the jury. See Allen v. State, 239 So.2d 33 (Fla. Ist DCA

1970). Since the jury must also consider the voluntariness of

the confession, among other factors and circumstances, in de-

termining what weight to give it, it is inherently unfair to

permit the jury's assessment to be influenced, if not effec-

tively dictated, by the trial court's announced finding that

he has found the confession voluntary. (This problem is even

more pronounced in the instant case, since the jury was not

even instructed as to what, if anything, its role was in deter-

mining the weight to be given the confession. The jury could

easily and reasonably have believed that the trial court's

finding of voluntariness was binding).

10. Several federal decision have expressly stated that

the trial court’s finding of voluntariness should not be dis-

closed to the jury. See United States v. Inman, 352 F.2d

954, 956 (4th Cir. 1965); Clifton v. United States, 371 F.2d

354,360 (D.C. Cir. 1965); United States v. Fayette, 388 F.2d

728,736 (2d Cir. 1968); United States v. Barry, 518 F.2d 342,

348 (2d Cir. 1975); United States v. Bear Killer, 534 F.2d 1253,

1259 (8th Cir. 1976) “Disclosure places upon the in-custody

statements the imprimatur of the court which, it must be pre-

sumed, influences the jury”. United States v. Bear Killer,

supra, at 1259.

ll. In United States v. Barry, supra, the trial court

failed to instruct the jury to weigh the defendant's admissions

in the light of all the surrounding circumstances. No request

for such an instruction, or objection to failure to give it,

was made. The jury was given a general admonition that it was to

determine the facts, adjudicate credibility, and weigh the

-16-

evidence, but no specific reference to the confession was made.

The appellate court held that, even in the absence of a proper

objection, the jury must be instructed as to the precise nature

of its role in considering a confession, and that failure to so

charge is plain error. The court addressed the Government's

contention that the standard “boiler plate” charge on credibi-

lity was sufficient as follows:

But where, as here, such a general charge

is not even supplemented by a limiting

instruction at the time the evidence is

introduced, the jurors are all too apt to

conclude that the judge has made a binding

determination that the confession was in

fact and law voluntary or, perhaps more

serious, true. We have previously held

that the judge must not disclose to the

jury his conclusions as to voluntariness.

United States v. Fayette, 388 F.2d 728,

736 (2d Cir. 1968). And we must recognize

that a judge's silence may under some cir-

cumstances have as much impact as his words.

United States v. Barry, supra, at 347-48.

In the instant case, a capital case in which the only evidence

of premeditation was supplied by the confessions, the jury was

not only entirely left to its own devices in considering the

confessions as in Barry, but also the trial court affirmatively

stated to the jury that he had found the confessions voluntary.

Under these circumstances, the jury had no reason to believe

that the confessions could be anything other than conclusive.

Each error was harmful; combined they were devastating.

12. The jury must be properly instructed on the weight

to be given a confession not only because the confession may

be involuntary, but also because, even if voluntary, it may be

untrue or only partially true. See Palmes v. State, supra. In

Smith v. United States, 348 U.S. 147, 153 (1954), quoted in

Knight v. State, 420 80. 2d 435 (Fla. Id DCA 1981), it was ob-

served:

.. a long history of judicial experience

with confessions and in the realization

that sound law enforcement requires po-

lice investigation which extends beyond

the words of the accused. Confessions

may be unreliable because they are coerced

or induced, and although separate doctrines

exclude involuntary confession from consi-

deration by the jury [citations omitted],

further caution is warranted because the

accused may be unable to establish the

involuntary nature of his statements.

Moreover, though a statement may not be

‘involuntary’ within the meaning of this

exclusionary rule, still its reliability

may be suspect if it is under the pressure

of a police investigator - whose words may

reflect the strain and confusion attending

his predicament rather than a clear reflec-

tion of his past. Finally, the experience

of the courts, the police and the medical

profession recount a number of false con-

fessions voluntarily made [citation omitted].

These are the considerations which justify

a restriction on the power of the jury to

convict, for this experience with confessions

is not shared by the average juror.

Consequently, it is submitted that a complete failure to advise

the jury on the weight to be given a confession, especially when

coupled with a finding by the judge in the presence of the jury

that the confession was freely and voluntarily made, cannot be

harmless error. Again, it is emphasized that without the confes-

sions, appellant could neither have been convicted of first de-

gree murder nor sentenced to death.

13. Moreover, the Court in the instant case did not con-

clude that the trial court's disclosure to the jury of its find-

ing of voluntariness was harmless or non-fundamental, but rather

held that it was not error. The effect of such a holding,

as precedent, would be to permit and possibly encourage trial

judges to inform the jury of a ruling that a confession was

freely and voluntarily made, even in cases in which the volun-

tariness of the confession is hotly disputed.

WHEREFORE, based upon the foregoing reasons and authcri-

ties, appellant respectfully requests that this Court grant

his Motion for Rehearing, and thereafter reverse its decision

to affirm his conviction.

Respectfully submitted,

L. (Soter.

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

Attorney for Appellant

-18-

CERTIFICAT®? OF SERVICE

I HEREBY CERTIFY thac 1a copy of the foregoing has been

hand delivered to Ms. Carolyn Snurkowski, Assistant Attorney

General, The Capitol, Tallahassee, Florida; and a copy mailed

to Mr. Jimmy L. Smith, #035167, Florida State Prison, post

Office Box 747, Starke, Florida 32091, this 25 day of Novem-

ber, 1981.

Stiven L. Torben

STEVEN L. BOLOTIN

Supreme Court of Florida

THURSDAY, JANUARY 23, 1982

JIMMY LEE SMITE,

Appellant, CASE NO. 33,961

v. Circuit Court Mos. 78-200 6 78-201

„ ef tte „ „% „ „ „ „

(Jackson) * 5

STATE OF FLORIDA, .

5 2

Appellee. ie . i

* © W W W © W à»ů © © * „ *

re... os

2n4 JoLiial CIRC

Upon consiceration of the Motion for Rehearins filed in

the above styled cause by attorney for Appellant,

IT IS ORDERED that said Motion be and the same is hereby

denied.

—

ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur

SUNDBERG, C.J., dissents

/

A True Copy Tc

cc: Hon. Daun Crews, Clerk

TEST: Hon. Robert L. McCrary, Jr.

Chief Judge

Steven L. Bolotin, Esquire

Sid J. White Carolyn Snurkowski, Esquire

Clerk, Supreme Court

AMENDMENT 5

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for

public use, without just compensation.

= 22 -

1

AMENDMENT 14

Section 1

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

e 23 <

e 7s

RECEIVED

MAR 2 6 1982

nwo J- 0, er OF THE dtex

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

JIMMY LEE SMITH,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

JIMMY LEE SMITH, petitioner in the above-styled cause

hereby moves this Court, by his undersigned counsel, for leave

to proceed in forma pauperis and in support hereof shows as

follows:

1. An affidavit signed by petitioner is attached hereto,

wherein petitioner sets forth the fact that he is indigent and

unable to pay or give security for the fees and costs attendant

to this proceeding.

2. Petitioner was adjudged insolvent for the purpose of

appeal in the Supreme Court of Florida and was represented there

by appointed counsel.

WHEREFORE, it is respectfully requested that petitioner

be permitted to proceed in forma pauperis in this matter.

Respectfully submitted,

gh L. BOLOTIN

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

COUNSEL FOR PETITIONER

(Member of the Bar of this Court)

—

RECEIVED |

106483

3 7 MAR 2 6 1982

wea

ative | Sion covet. vS_|

SUPREME COURT OF THE UNITED STATES

October Term, 1981

JIMMY LEE SMITH,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

I, JIMMY LEE SMITH, being duly sworn, depose and say, in support

of my motion for leave to proceed without being required to prepay

costs or fees and to proceed in forma pauperis:

1. 1 am the petitioner in the above-entitled case.

2. Because of my poverty I am unable to pay the costs of said

cause; I own no real or personal property; I am incarcerated and

receive no income from earnings.

J. I am unable to give security for said cause,

4. I believe that I am entitled to the redress I seek in said

cause.

STATE OF FLORID

county or

/

4

*

/

Tie foregoing affidavit of JIMMY LEE SMITH was subscribed ana

sworn to before me on this /s day of 22 „ 1982.

, ir Mf

— . Hf

Z 4’: . 5 toy,

NOTARY PUBLIC, STATE OF FLORIDA

MY COMMISSION EXPIRES:

nö PUBLIC, STATE OF FLORIDA

My Commession Lopes Aug. 19, 1088

*

CERTIFICATE OFT SERVICE

I HEREBY CERTIFY that a copy of the foregoing Motion for

Leave to Proceed in Forma Pauperis has been furnished by U.S.

mail to the Honorable Alexander L. Stevas, Clerk of the United

States Supreme Court, First and Maryland Avenue, Northeast,

Washington, D.C. 20543; Mr. Jimmy Lee Smith, #035167, Post Office

Box 747, Starke, Florida 32091; and by hand-delivery to 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 24th day of March, 1982.

wre L. BOLOTIN