Petition — Barclay v. Florida

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IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

October Term, 1981

ELWOOD BARCLAY,

Petitioner,

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

* *

INDEX

PAGE

OPINIONS BELOW 1

JURISDICTION 1

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED 2

STATEMENT OF THE CASE 2-3

MANNER IN WHICH THE FEDERAL QUESTIONS

WERE RAISED BELOW 3

REASONS FOR GRANTING THE WRIT

L THE FLORIDA DEATH PENALTY -

SENTENCING PROCEDURE WAS APPLIED

TO PETITIONER IN AN ARBITRARY AND

CAPRICIOUS MANNER WHICH VIOLATED

PETITIONERS POURTEENTH AMENDMENT

DUE PROCESS RIGHTS. 3-8

U. WHERE A DEATH PENALTY IS IMPOSED

ON A PLURALITY OF AGGRAVATING

CIRCUMSTANCES, OF WHICH THREE IS

INVALID AND ON A NONSTATUTORY

AGGRAVATING CIRCUMSTANCE, THE DEATH

PENALTY SHOULD BE SET ASIDE. 8-10

CONCLUSION 11

CERTIFICATE OF SERVICE 11

TABLE OF AUTHORITIES

Armstrong v. fiate

399 8.20 953 9

v. State

362 8.20 657 1

Barclay v. State

343 80.20 1266 1,2

v. State

343 So.26 1270 7

v. State

343 So.2¢ 1271 7

Barclay v. State

80.20 1,3,5

Beck v. Alabama

447 US. 625 (980) 9

oy State

359 501 (1981) 9

mee v. State

0.0 1270 7,9,10

Francos v. State

377 So.2d 640 (Fie. 1979)

Lockett v. Ohio

437 US. $86 (1978)

Mikenas v. State

367 80.20 606 (Fla. 1979)

Proffitt v. Florida

428 US. 242 (1976)

v. State

383 So.2¢ 680 (1975)

Sireci v. State

399 So.2¢ 964 (Fla. 1981)

State v. Dizon

283 So.2¢ $83 (1980)

v. Zant

631 F. 20 397 (1980)

Williams v. State

386 So.2d $83 (1980)

Zant v. Stephens

US. (1982)

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

ELWOOD BARCLAY,

Petitioner,

STATE OF FLORIDA

Respondent.

ON APPEAL FROM THE SUPREME COURT OF FLORIDA

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The original opinion of the Florida Supreme Court is reported as Barclay v.

State, 343 80.20 1266 (Fla. 1977), cert. denied, 439 U.S. 892 (1978). The opinion

remanding the case to the trial court for « Gardner hearing is reported as Barclay v.

State, 362 So.2¢ 657 (Fla. 1978). The opinion issued by the Florida Supreme Court

after resentencing, is not yet reported. See Barclay v. State,

1982). (Appendix the order denying a petition for rehearing is not yet reported.

See Barclay v. State, _—_—s $0.2 Cl. 1982). (Appendix J.

JURISDICTION

The judgment of the Florida Supreme Court was entered June 4, 1961. See

Barclay v. State, 8% — Ci. 1982). (Appendix X A timely petition

for rehearing was filed, and the Florida Supreme Court entered a judgment April 14,

1962. See Barclay v. State, _—s So.2d — is. 1982). (Appendix ). This

petition for certiorari has been filed within the allowable sixty Gays of that date. This

Court's jurisdiction is invoked under 28 U.S.C. & 1257(3).

80.20 (Fla.

CONSTITUTIONAL PROVERONS AND STATUTES INVOLVED

US. Cons. amend VI provides:

Excessive bell shal) not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

U.S. Cons, amend XIV povides:

Section 1. . . . nor shall any state deprive any person

of life, liberty or property without due process of

Fla. Stat. Am Section 921.141.

STATEMENT OF THE CASE

Petitioner, Elwood Barclay, was tried in the Circuit Court of Duval County,

Florida, for the murder of Steven Orlando and, on March 3, 1975, the jury returned «

verdict of guilty of first degree murder. During the sentencing phase, no additional

evidence was presented to the jury as to Barclay; the jury recommended that Barclay

be sentenced to life.

The trial court received a pre-sentence investigation to aid him in his sentencing

Getermination. On April 10, 1975, the trial court rejected the jury's recommendation

of life and imposed « sentence of death. Barclay appealed to the Florida Supreme

Court; however, Barclays counsel on that appeal did not brief nor argue the propriety

of the death sentence; whether the recommendation of life should have been followed;

whether the trial court's findings as to certain statutory aggravating circumstances was

correct.

On March 17, 1977, the Supreme Court of Florida entered its opinion affirming

the conviction and death sentence of petitioner. Barclay v. State, 343 8.20 1266 (Fie.

1977), cert. denied, 439 U.S. 892 (1978). The petition for certiorari did not raise the

issues of the invalidity of aggravating circumstances found by the trial court or any

other issues contained in this petition.

On September 7, 1978, the Jerich Supreme Court vacated the death sentence

of petitioner and ordered the trial court to hold « hearing as provided in Gardner v.

Florida, 430 U.S. 439 (1977).

After hearings in the trial court, the trial judge issued a written sentence

which contained the court's findings as to statutory aggravating and mitigatng

circumstances. The trial court found thet the aggrevating circumstances outweighed

the mitigating circumstances; the trial judge rejected the life recommendation and

sentenced the petitioner to death.

Barclay appealed to the Florida Supreme Court, and on Jume 4, 1981, that

court issued its judgment affirming the death penalty, on the basis that nothing hed

been presented to relent the information contained in a presentence investigation; the

Court adhered to its first opinion. Barclay v. State, So.2d Es (1:98).

(Appendix .

A timely petition for rehearing was filled, and, on April 14, 1982, the Florida

Supreme Court entered its judgmnt denying a rehearing by « three to three vote.

Barclay v. State, _—«sSo.2d Ss ie. 1982). (Appendix _).

MANNER IN WHICH THE FEDERAL

QUESTIONS WERE RAISED BELOW

Petitioner took a direct appeal from the trial court challenging the errneous

and arbitrary findings of three aggravatng circumstances and one nonstatutory

aggravating circumstance. After the affirmance, petitioner filed a petition for rehearing

raising the following issues:

WHERE A DEATH PENALTY & IMPOSED ON A PLURALITY OF

AGGRAVATING CIRCUMSTANCES, OF WHICH THREE SS INVALID

DEATH PENALTY SHOULD BESET ASD -A —

The Florida Supreme Court denied the petition for a rehearing by « three to

In Proffitt v. Florida, 428 U.S. 242 (1976), this Court examined the Flordia

death penalty sentencing procedures Fla. Stat. Ann. Sec. 921.141 (upp 1976-1977)

- and found the statute to meet the constitutional requirements that Florida death

penalties will not be imposed in an arbitrary or capricious manner. This Court placed

great reliance on Florida's procedure of appellate review by the Florida Supreme Court

to minimize the risk of arbitrary and capricious death sentencings. Although this Court

found the death penalty sentencing procedure constitutionally valid, that procedure has

been applied in an arbitrary and capricious manner in this case in violation of Petitioner's

Fourteenth Amendment Due Process Rights.

Section 971.141, Florida Statute Amn. (1976-1977 Supp.) sets forth eight

statutory aggreveting circumstances.

(a) The capital felony was committed by « convict under sentence of

imprisonm ent.

Aggrevating circumstances in Florida must be proved beyond a reasonable

doubt. State v. Dizon, 263 So.2¢ 1 (Fla. 1973) cert. denied, 416 U.S. 943 (1974). Again,

in the two appellant opinions, the Florida Supreme Court did not find that this was not

@ properly found aggrevating circumstance.

The trial court found the existence of another erroneous aggravating

ciroumstance - the defendant was previously convicted of another capital felony or «

felony involving the we of threat or violence to the person. Section 921.141(3X»).

The trial court determined:

)

11141

There was no proof introduced before the trial court as to the breaking and

entering conviction, this information appeared on the pre-sentence investigation.

In Williams v. State, 386 So.2¢ 538, (1980), the trial court found that the

defendant has previously been convicted of armed robbery and that this established the

aggrevating circumstance under section $41.121(3Kb). This information, as the conviction

information in this case, was gleaned from « pre-sentence investigation.

In Williams v. State, supra, the Florice Supreme Court held thet the finding a»

to the section 941.121(3Kb) aggravating circumstance was defective because the state

offered no evidence of the conviction in the trial of sentencing phase to prove the

pricr convictions. The Court held thet the State must prove every aggrevating

cireumstance beyond « reasonable doubt and that the trial judge should not heve

considered this circumstance in his sentence based solely on information contained in

the pre-sentence investgation.

In this case, the Florida Supreme Court, in its two opinions, neither discussed

nor found this aggrevating circumstance to be defective.

The trial court further found that the defendant created « great risk of death

to many persons and that the aggravating circumstance under section 921.141(3) existed.

(Appendix 9). The trial court concluded thet Barclay and the other defendants drove

around Jacksonville looking for a victim or victims and, therefore, exposed every citizen

to a great risk of Geath - on the trial court's theory that every person was « potential

() The defendant wis previously convicted of another capital felony or of «

felony involving the w threat of violence to the person.

(e) At the time the capital felony was committed the defendant also committed

another capital felony.

(@ The defendant knowingly created « great risk of death to many persons.

(e) The capital felony was committed while the defendant was engaged, or

was an eccomplice, in the commission of, or an atiempt to commit, or fight after

committing or attempting to commit, any robbery, rape, arson, burglary or kidnapping.

() The capital felony was committed for the purpose of avoiding or preventin

„ lewfw arrest of effecting an escape from custody.

(g) The capita! felony was committed for pecuniary gain.

th) The capital felony was especially heinous, atrocious, or cruel, manifesting

exceptiona! deprevity.

Section 971.141 and Florida case law provide thet the trial judge may consider

qnly statutory eggreveting circumstances; this was not done in this «use. Section

921.141(4Ma) provides that the fect that the defendant has no significant history of

prior criminal ectivity is a mitigating cire. nstance.

In its sentencing order, the trial court found that petitioner hed an extensive

criminal record and concluded that that fect created an aggrevating circumstance rather

thathan e mitigating circumstance (Appendix X This consideration by the trial

court was completely erroneous, for the Florida Supreme, in Mikenas v. State, 367

80.0 606 (Fla. 1979), cert. denied, US. (19 ) expressly held that the only aggrevating

circumstance thet « trial court may consider is deciding to impose the death penalty

are those contained in section 921.141(3). Although this finding is biatantly invelid, in

neither appellant decision did the Florida Supreme Court consider thet a nonstatutory

eggreveting circumstance had been placed in the weighing process by the trial court.

Barclay v. State, supra; Barclay v. State, after the Gardener remand. (Appendix *

The trial court found that « statutory aggrevating circumstance existed under

section 921.141(3Ma) - the capital felony was committed by e convict under sentence

of imprisonment. The trial court acknowledged that petitioner was not under sentence

of imprisonment at the time of the commission of the murder; however, the Court

found that the criminal record of petitioner was an aggravating circumstance. (Appendix

vietim. The trial court further found that tapes which were sent to the television

stations were an open call for racial war and revolution therefore, if the call for

revolution had been successful, countless numbers would have died - it “boggles the mind”.

The evidence in this case shows thet one person - Steven Orlando - was killed.

If the trial judge's reasoning is followed, every time e robber goes out to rob „

convenience store or gas station, the robber is creating e great risk of death to many

persons simply because every convenience store employee or every gas station employee

in the ares could be the potential victim. The construction placed upon this aggraveting

circumstance was not intended vy the legislature and has not been given that construction

in other cases by the Florids Supreme Court.

In Kampff_v. State, 371 So.24 1007 (Pia. 1979), this court reversed e death

sentence to Ufe where there was d recommendation of death by the jury. The wis

court found that the fect five shots were fired at the victim while two other employees

were near in e bakery and other employees were ir the building near e heavily treveled

intersection crested e greet risk of death to many persons.

The court found thet the trial court hed erred in making the finding thet the

defendant hed created d great risk of death of many persom. The Florida Supreme

Court Nel

When the legisieture chose the words with which to

establish this aggreveating circumstances, it indicated

clearly thet more was contemplated than e showing

of some degree of risk of bodily harm to « few

persons. “Great risk" means not @ mere possibility

but a likelihood of high probebility. yd - gh

of death created by the capital felon's must

be to “many” persons. By using the word “many”,

the legislature indicated thet « great risk of death

to a smell number of people would not estabi<h this

aggravating circumstance. We hold that the trial

1d at 1009-10

See also, Lewis v. State, 377 50.26 640 (Fla. 1979).

The trial court's reliance on the tape recordings as constituting « “greet risk

of death to many persons” ts misplaced bbecause the publication of the tape recordings

was not part of the res gestae of the Orlando murder. It ts only conduct surrounding

the capital felony for which « defendant is being sentenced which properly may be

considered in determining whether e defendant created « “great risk cf death to many

persone”. Elledge v. State, 346 So.2¢ 998 (Fla. 1977). In this case, the publication of

the tapes were remote in time, end therefor, should not have been considered as an

eggreveting circumstance.

The Florida Supreme Court, in its original decision in this case, found that

the trial court noted five aborted attempts to select « vietim from the streets of

Jacksonville before Orlando was chosen; the court approved the finding of the aggrevating

eireumstance. A renewed, thorough examination of the construction placed on this

ny Ay ure put the trial judges

of in the of the sentencing process

for capital cases.

. State,

343 8.0 1271

tt te critical for this Court to review the trial court's sentencing order to

understand the extent this trial judge allowed his personal feelings to intrude into the

setencing procedure. (See Appendix and U

The trial jury in this case recommended petitioner receive e life sentence;

the trial court and Florida Supreme Court did not follow that recommendation. In

in Proffitt v. Florida, supre, this Court found the Florids capital sentencing

procedure to meet the constitutional test; however, since Proffitt, the Florida Supreme

Court hes failed in its duty to “review and reweigh the aggravating and mitigating

circumstances to determine independently whether the witimate penalty is warranted.

It should be apparent that, in this case, there was no meaningfl review.

Where discretion is afforded « sentencing bcJy on e matter so grave as the

determination as to whether « human life should be taken or spared, that discretion

aSe

must be suitably directed and limited so as to minimize the risk of wholly arbitrary

and capricious action. Purman v. Georgia, 408 U.S. 238 (1972) Gregg v. Georgia, 428

US. 187 (976). one can perhaps understand the trial court's misapplication of the

three aggravating circumstances and the one norstatutory aggravating circumstance in

this case in his seal to give the petitioner the death penalty; but one cannot excuse

the Mende Supreme Court for its failure to correct the trial court's error and to

“suitably direct and limit the discretion” of trial judge's in Florida. In this case, the

Florida Supreme Court has engaged in precisely the “cursory or rubber stamp review"

that the joint opinion in Proffitt trusted would not occur.

The Hen courts, in the application of the Florida capital sentencing procedure

in this case, hes exhibited blatant disregard for the standards devised to regulate

imposition of the death penalty and hes called into question the very basis for this

court's approval of that procedure in Proffitt. This Court should grant the Petition

for Certiorari.

DEATH PENALTY SHOULD BE SET ASIDE.

This case presents « clear and direct conflict between the Florida Supreme

Court and this Court.

In Proffitt v. Florida, 428 U.S. 242 (1976), this Court upheld the constitutionality

of the Florida death penalty sentencing procedure. In footnote 8 of that opinion, this

Court stated:

;

ren

110

11115

—

The law in Florida is well settled that e death sentence will be affirmed by

the state supreme court so long as there is at least one statutory aggravating

eiroumstance and there ere no mitigating circumstances, although the sentence was

predicated in part upon nonstatutory aggravating circumstances and/or improperly foun’

statutory aggrevating circumstances. Elledge v. State, 346 So.2d 998, (Fle. 1977);

Margrave ©. State, 266 $0.24 1, (Fie. 1979), bes v. State, 359 $0.26 $01 (1981),

Armetrong v. State, 399 So.2¢ 953, (Fla. 1981) Sireci v. State, 399 So.2¢ 964 (Fle.

1961) Tafero v. State, 403 So.2¢ 355 (Fie. 1961) Francois v. State, 407 80.20 885, (Fie.

1982). This Florida rule is based on footnote 8 of Proffitt v. Florida:

"It appears that the United States Supreme Court

does not fault e deatn sentence predicated in part

upon nonstatutory cireumstances where

there are no circumstances. The absence

395 So.2d 506 (Fie. 1981).

In point one, petitioner has demonstrated that the trial court considered one

nonstatutory aggrevating fector - petitioner had e prior criminal record - and that the

trial judge erroneously found three statutory aggrevating circumstances to exist:

petitioner was under sentence of imprisonment; petitioner created e great risk of death

to many persons; petitioner had previously been convicted of « felony involving the use

of threat of viclence to another. The presence of the nonstatutory aggravating

circumstances and the erroneous application of three other aggravating factors permitted

arbitrary and discretionary influences into this sentence as to violate petitioner's

Fourteenth Amendment Rights.

Certain principles affirmed by this court establish the violation of petitioner's

constitutional rights. An unbroken line of cases since Purman v. Georgia, 408 U.S. 238

(1972), requires any state wishing to impose a capital sentence to channel the sentencer's

discretion by clear and objective standards that provide specifi. and detailed guidance,

and that make rationally reviewable the process for imposing death sentence. Godfrey

u. Georgia, 446 US. 420 (1980). Special capital sentencing requirements derive from

the Court's recognition that there is 6 significant constitutional difference between the

death penalty and lesser punishments. Beck v. Alabama, 447 US. 625 (1980) this

-9-

qualitative difference calls for e greater degree of reliability when the sentence of

death is imposed. Leskett v. Ono, 437 U.S. 586 (1978).

The consideration by the trial judge in this case of the nonstatutory

aggravating fector and the three invalid statutory circumstances viclated each of these

procedura)] requirements. The erroneous consideratiun by the trial judge here is identical

with the consideration by the jury in Zant . Stephens, v.a. (1982) of

—

an unconstitutional aggreveting circumstance. The Fifth Cireuit Court of Appeals found

that because of tis consideration by the Stephens jury of the unconstitutions! rating

ciroumstance, it could not be determined with the degree of corte: uin

capital case: that the evidence of those convictions together with the | 10

not make a critical difference inthe jury's decision to impose death. Stepre.. a,

631 F. % 397 (1980). The same cori dere ti o apply to the death sentence imposed on

As can be seen by the sentencing order and the Florida Supreme Court's opinion

in this case, this Court's confidence in the Florida capital sentencing procedure was

misplaced. The adoption of the rule of Elledge v. State, supra, has introduced

arbitrariness and capriciousness into the Florida death - sentencing procedure. Unlike

the situation in Zant d. Stephens, ss U.S. ee this Court does not have

to question whether the Florida Supreme Court will sustain « death penalty as long os

one of e plurality of aggrevating circumstances found by e judge is valid and supported

by the evidence.

Although this Court has not decided the Zant v. Stephens, supra, issue on the

merits, the sentencing infirmities addressed in Zant by this Court are identical to the

infirmities in the Florida capital - sentencing procedure es applied to this case. This

Court should grant this petition for writ of certiorari.

CONCLUSION

For the foregoing reasons, the Court should grant this Petition for Writ of

Certiorari.

CERTIFICATE OF SERVICE

1 HEREBY CERTIFY thet « true and correct copy of the foregoing Petiton

for Writ of Certiorari has been furnished to the Attorney General's Office by mail this

14th day of June, 1982.

In person

437 East Monroe Street

Jacksonville, Florida 32202

INDEX TO APPENDIX

—

nn RECEIVED

Opinion after resentencing of JUN 1 6 1962

unreported * OF THE CLERK

. US.

Order denying Petition for Rehearing,

Barclay v. unreported 12

“ee

n Clark BARCLAY snd Jeced Joho

Deagan. Jr. Appetian's

STATE of Florida. Appellee.

Ne éTiee.

Supreme Court of Flerce

March 17, 1977 —

Rehearing Den Apri’ 7, 297°

— ũũ— —

ren Ce se Tuns

neee

ccwe te enen :

Alturas’.

Boyd, J, concurred qecially with an

Hates „ e in part and die

aud „ pert with a8 opine.

„ oe 35!

— authorizing imposition

of deat” »* Oly os these convicted of firet-

‘ogres murder ond adopting new

2 Criminal Lew — 1126)

Defendants were properly tried fur

firstciegree murder im county © wiveh

hitehhher victim get inte thew car, even

though he was billed in gnother county

West's FSAConst art 1, . Wes

PSA § #1005.

3. Criminal aw @ 7060)

Defendants convated of first-degree

murder were sot Genwd fair and impartial

ura! on base vhs! prosecutor failed to re

ves! on direct ox .m nation complete Getails

of ples bargain agreement wih witness in

exchange for he westumeny, where de/ense

„ ne! a'though eware of agreement. did

fe’ e whether any bergen hed

een mace ont dt fot cremcaamine bom

te shake his credibly because of plea lur-

ger agreement

4. Homicide @ 3

W of death pre "ty for firet-

dern. Mer * Sas appropriate, where ce-

fondant. «> was age 27 at he ume, wee

“er ee

Ate LAY 6 MPAPR Of

thi

in the crime and Vere wr

wet Semina, «4

age difference. Wests F5.\ i

Wen D. „ Be. of Jacke 4

Miche, Jachounvilin, for ayyn are

Meet l. Wee Atty fm, aeet We!

the Cen Court of Duws! County. jude-

ments of guilty of murder in the firs de-

gree and center: of death We have jur-

iediction pursuant to Article V, Serine

MAI Pleride Consiniutor

Appellants were incete! for oe Foret he

gree munier of Soyer Aniinny Cet .

wore fund guilty by = jury abe after

judge charecterited as 8 rendum. en ats

murder are as fu lows

Ann facts as brows! ow! ©

the wel and by the evidence «ore thet

the four defendants were »orl of & group

that termed itecif Ue “BLACK LIB? “A-

- "Warning Ww the oppressive siste

Neo ‘onger ©! your etrecitees and brv-

talnong of black poeple be uapunw-!

Tre beck man @ no longer asleep

The reveivtion has begun and the op

prvened wil tx vetorous The revolu-

tee will end when we are free. The

Bleck Revo! vuenrary Army. All power

to Une prope |

“Early tne following morning the dead

bedy of Stephen Anthony Oriendo was

1. bn sere

' ‘

ore

expert compares’ the death aule # it"

other haadwrung of Lewgar am! tert

fled that they were both eritren hy th

Hitt |

i eite

dered, by ne means He we erin «

enecuied .

“Americans,” just ee ee three he

tand of one C. you know, like „ Ku

Kies Kian You know white pew.

you can't do right, your nature & ev!

Bet you gonns my snyee, wl

lack mas freedum must be gulicn fe

matier whet it tahes We can't depo’

on you for our freedom Wy red that

You freed » wit) put ole Ale

He gave us the Emancyator Srna

mation, That was the first time &e

were free Then ee dream. « Ue

loager, suffered a whule let more, wh!

decided “I'm gunna free th ~

agus Then you gave we ie

Civil Rights Bit! ‘flow many Limes

you have te free & poopie before Ue»

are free? You know, the, ence you

fread ws, twice you freud we The third

263 SOU TYRMN SPURTE, af SIS

w that of @ white man due te the fect

nat pow have a stz-ounce bran and the

bleach man has» seven-and-e-half ounce

brain N

~The reason Stephen was valy shot

twee on Uhe hood was Lecnuee we Rad 8

we pistol. ft only chet tone and then

* james’. you can it must have

an made oo Amerce teceuee

wan't eer a <ht He eas stabbe!

on the tech, i” Une chest an! Une stom-

ach. ab, it was leautiful Vou shucld

have sewn it Ah, | enjoyed every mn

ute of it I bowed watching the Bled

gush frum he eyes

“He Gael in style, though, begring.

begs ng and pleading for mercy, jum os

beck peuple dal when you tow them

umd hung them tw the trees, burned

Uncir houses cuen, Unrww bombs in the

same church thet practices the same

Se forced on these pow

. ™y tm» ple.

Cree on, Phe, 243 wee tee”

Nat LAN ©. STATE 8 Pia 1269

ay pe'-

Aft

rtf 111

gt af

114171

11 |

1117

1211

5111

Ii Hey] E

“Such of the defendants were of

the basest, most callous, homes!’ Lx

and shriek

2, 1976

“wet COURT: Insufar as the

County: reed the specific statete with

further inetrvetions to the jury as to that

partewler eapect of the lew. There has

wen ne mution for change of venue inso

far as St. Johne County was concerned or

muta for change of venue We any other

comtemly The evebk-ney cheers! thal thr

cs femdant gut mm Uw car, whether 1 was

en alatucton, Exdnapping or whatever, it

starved bee County and Unen culm

nated in St. Johns County ~

{2} The indeetment charged thet appe!-

torts “ie the County of Duval and the

wonty of St. Johns, State of Plerida, un-

lawfully and from as premeditated dengn

etc boll ime esd Stephew Anthony

Uriande” The State cites the Court

Arie 1, Wees 16, Ploreta Constitution,

proveting

“If Une county i get heown, the indat-

ran! uf cofuermalon May charge venture in

tee of more countas cunjuncuvely and

pree’ that UNe crime was committed in

that ares sha! be cuffiewet”

wad Section 910.05, Pleride Sistutes, provid-

“If the n constituting one offense

are comin .ted in (wo OF more counties,

the offender may be wed is any cuunty

in wha! any of the acts covurred”

Ab- „ were proyerly tried in Duval

County. for Un reasune well expremed by

we ha»

ont

“29 Ps 25

2 „„

Sedge Smith with eee to ee ee

en's and Rarclay’s coeventurers ee ee

©. Slate, SEF He Bt MeO eqenem Sort th tm

beer 11, W (hte tet tH AD

oe thom thal thes @ +

digt

Tibet

he knows it and be had « perfect nigh te

cress examine on e didn't open the

door een be ewes «week! pre

that bis man wae ge’), of tee eee

ute of ene te the mete pry, aml PT

qalenstt that tte a heel ten „n

Although completely aware of the saree:

ment, defense couns:! never inquire! uf ihe

gubject State witness as te any Serger

dea) oF representations made We him by (he

ty of thie witness becnew of Ue ple bor

Gein agreement MenLurns OF difert eter

nation. Defense couns!, on em- csemine

tien, did not even mention ihe agreement

that hed been clicited on direct exer ine

tien. As is clearly evidenord by the rover’,

withest question, defense was fully «+ are

of the fell ples bargeie agreement. A‘ the

ane of Gelense counas!. Lhe depres) on

of Meare wee taken of Janvary 31, 19°... ot

1020 & @ in Ube Duval County Courthous

BI SOUTP ES eee. d SERIES

e fea [angen he rer i=

ten ieee * „len war e

neee.

We ente tet beth be encewted.

14) The judge before „„

eure toe! metevlowsly sleatified in writ-

gal ng Orcumstance pertained to hy Lene

ft. and that one of these factegy’ actually

yreor comune! acuvity, was not (end did not

tens to be) emer © mental or emvtions!

dwtarbance was not (and did not clam we

we) wader durees ur the dominance of amoth-

1270 re WACO, „ eRe

24 „e Seaith with rempeet tw ome of theme: „ which time Hearn testified fully to the

en's and Barciag’s coves eee Ou detaiie of the ee

neues

agreement with & wilness in exchanee for in tight of the ansignments of errer

2 — ere tete fled, and bree to eee,

rr bre Arete Rules, we Rave alee re

Geliberetaly end intenuena!’'y eithne! ors viewed the evidence to determine whether

ef wanes Meare's setemest Me f . che interests of justion require & Gee Wisi,

testineny wes given in this regard oe with the resah thet we find se gure

4 suggested by appellants During he mr error is made to — and the evr

ee fer are trent, ayywtinnts carers! tho „ the evenrd befere oo Gem net re

? ter Mantes willfully eefeat te dewber the rr

dn eee „

0 emination „„er Having determined that ae reversible er-

Austin enyremty chyerted, a fellow» wor has tne make to appear which would

“MR AUSTIN: Your Honor, Fe —je' require & new Wrinl, we mast proceed We

oe minke I'm jest going to make o” cane whether the death sentences i

ghjection that that's « ted faith anew — boy the Uren! jockee were apqruprinte

gent; thet thir lewyer knows if Hearn r

RD a

—

„6K e was found by the vial

fell eapesity both ww apprecmts the erm jute not we be miner, as he Was the first to

a of bis conduct ond we cunlorm te eeceull the vietin ond thes stab him re

conduct te lew. The wie! juee fortier peatetly The jury ebviously weighed

found thet Dougan + vertem was mei spor fteee differences somewhat differenciy

„„ „„ 2

err, 2 beiwern the

It was Jougen — . should generally —

Brier (acter which e dee’

documented im the record .! wugers nn — 1 —

N. de ireiom eho partcpeted equally in Ure

to Dewges, Ube ine) judge cowie Une! four crume would have disparete senteness were

factors 20 had me relevaner — the Jur) ) recommendations — The

Pour ethers were premret te come rgre.. verison letewes defemtants being so

mamely that Dougan’s crime had crested! « = nemine’ (a miner age difference but no

@reat risk of deat’ We many persons’ te’ e e.

been commited while „ §=facts here do mot warrant the dapensetion

pang. het «adesvured to daruyi goverrms of umqua! peste See Miaser + Siste, 330

tal feecuens and lew enforcement’, aod Sead Is? (Pin 1976) Biever © Siete, 516

hed bees coperia’ly heinous, sirecrww: ond Sead S89 (Fin 1875) “Bqual Justice Under

arvel® These fading: are she wel ww Low” i carved ever the deerway to the

mented ie the record before we Un te’ «= United States Supreme Court buslding io

ence, there © ne Gowlt hel the recommen Washngion ft ewwid here @ hollow ring

Gation of the jury and the wentence of th oe he Belly of that building if the sentences

Wiel judge are apprepricte © be cee Ne

Ae vegerds Barclay, whe he! rw — % and

0 le nnn ‘sue [rom the jer) the tal jotge e ene of

virtually the came consideretions am) 0 Rare. 2

n e paring u ew ordered

a1 „% 4 „„ Or

„% „% rr

„% „„ e corre fee

„„ 295 be RA ——— ————ů the heed

„ Teer + Seer, B22 Sede we (Pe 1975)

atest © cum „„ ie og Tie tric! mais Bese pentatchongly &. eth

— - œͥw—nF“— — 4 — ny

„% meade wo wns Jer teenie cn) Covers KL frum ihe — —

„„ —— ——ů ů er — —ů prem »

— we (Ne Uppe we — from mature —

„32 %% Nh egqgeeete hy oe

„ 3 ee 3 ̃ v—k—2x— —— ů ¶ů —ð—r

— — „ ee ee

— —V— L — — —

— MI tli ll

11˙ 1 R 111

3 jj it th) F 1111

it 1 e i} (HH

ul 1 rails |

pl ee Ji. ; ‘ Af Til

1 ie W ee

. bl, Hit Fat 10 big Ai sf ual

„

r „ r

Aobo CLARE BARCLAY, Appellant. 0

° .

. erate OF FLORIDA. Appelics.

(June 4, 1981)

remand, Barclay’s conviction and sentence for first Cegree surder

— by this Court," and review of that ection hed

meen denied by the United States Supreme Court.”

on remand Berciay wes efforded severe) evidentiary

hearings and ergunent of counsel. Only one witness was called or

Baccley’s behelf et the first hearing. principally to portray

berclay"s lesser role in the events surrounding the surder, snd

co comment on & second suréer with which he wes sot involved. ac

@ second hearing. Barclay's counse] argued extensively egeinst

the reiaposition of the death penalty, but offered virtually se

2 evidence is dere es of the eee tee contained is the PSI.

The trial judge concluded during « later sentencing proceeding

: * 1. Sarclay ¥. State, 343 % 1266 (Fis. 1977).

) * 2. Barclay *. , 439 0.5. 892 (2978).

—

— — :

| 2

* > od

4 — by arguncnt egainet che findings previously

qugqeetion that we abrogate the “law of the ones’. fee Qousen ‘,

„ dan Be. 47-260 (Fie. n % 901). ‘The dictates of Gardner

* n 420 0-9. 200 . 2.22887

. —

Supreme Court ol Florida

WEDNESDAY, APRIL 14, 1982

moo CLARK BARCLAY, .

Appellant, — CASE 0. 7, 26%

. 0 Circuit Court Mo: 74-4139-CF

— 0 (Duval)

STATE OF FLORIDA, :

Appellee. *

e#eeee#s# % % *

There not being four (4) votes to rehear, the Motion for

Rehearing filed in the above case is hereby denied.

ADKINS, Acting C.J., BOYD and ALDERMAN, JJ., would — rehearing

OVERTON, McDONALD and EHRLICH, JJ., would grant rehearing

’

—

A True Copy tc

cc: Son. 8. Morgan Slaughter, Clerk

TEST: ion. R. Hudson Olliff, Judge

3 Wallace k. Allbritton, Esquire

. Kenneth Vickers,

fey *

— Or

“*s *

INDEX

1. SUMMARY OF PROCEEDINGS - from date of crime to date

. &. SENTENCE TECINIQUE

t 3. cours OF JUDG:

4. OUTLINE OF THE KSSENTIAL FACIS

5. EXPLANATION

6. MITIGATION LLL U).Nis

7. AGGRAVATING EH

s. COSNIENT

9. CONCLUSION OF COUT

10. AUTHORITY ron SENTENCE

11. CONTENTS OF NOTE STUCK TO VICri‘l'S BODY

42. CONTENTS OF TAPES SENT TO DIA AND VICTIN's NOTHER

13. Ser

Pages

Page

Pages

Pace

Pages

Page

Pages

Page

2-5

7-9

10-14

16-22

SUUIAKY OF _PROCHELDINGS

Tat because there bas been a lapre of approximately five years

since I originally imposed sentence upon this defendant - it

“may be woll to suwmarixe the facts from indictment to the date

„ bervof - fur the benefit of review by the Florida Supre Court.

1. On Septouder 26, 1974, the defcadasts, EIN OO CLARE

BARCLAY, JACOB JOUN DOUGAN, DEYKE CRITTENDON and

BRAD W. EVANS, wore indicted for murder in the first

degree, as fullows:

"IN THE CIRCUIT COURT OF THE rourri

JUVICIAL CIRCUIT OF THE STATc O!

FLORIDA, IN AND FOR DUVAL COUNTY,

SPRING TERM, ONE THOUSAND NINE

ako dD AND SEViNTY-TOUR

STATI OF FLORTL.

INDICT'ENT FOR

va.

MURDER IN THE FIRST Diserit

JACOKR JOUN POUGAN, IX..

ELWOOP CLARK BARCLAY, 74-4139

DWYNt CRIITINDON and a

GRAD @. LVANS

IN TIE Want OF AND BY Tilt AUTHORITY CF Tite STATE

OF FLORIDA:

The Gand Jurors of Lis State of Floaida and

County of Duval, emparcte! and swo wm fo dnquire

5 . and tut pacsentwsant wake 4½ aud gor the body of

. : the County 7 Duval, upon theda caths, de present

and charge that JACOG Je DOUGAN, IR., ELWOOD

CLARK BARCLAY, af CRITTENDON and BRAD W. EVANS,

on the 17th day of June, one Thousand Nine Hundred

ae Seveuty-Feur, da the County of Duval and the

ounty of 54. Johas, State of Floaida, unlawfully

and {20m a premeditated desigu to effect the death

of Steven Anthony Orlando, did kill the said Steven

. > Anthony Oalaudo, by shouting him to death with a

Se . * contaary te the provision of Section 782.04,

: tend da Statutcs."

ene

2. On March 8, 1975, the defendants, Barclay, Dougan, Crittendon

4 and Evans were convicted by Jury, as follows:

—

Barclay - guilty of murder in the

first dre

Dougan - guilty of murder in the

net degree

Crittenden - guilty of murder in tha

scceeud cepgree

Evaus - guilty of murder in the

seccond deyrev

The jury in its rdvisory Sentence - recommended life

imprisonment for Barcley by a vote of seven to five.

The jury in its advisory seniconce - recommended death

for dofendint Dougan by a vote of ten to tro.

That the defendants Crittenden and Evans were sentenced

by this Court to one hungen! and ninety-nine years in the

Florida State Prison in cas + 74-1139. The defendonts,

Crittendon and Evans #lse pleaded guilty in case 71-4140

and were sentence’ by this Court for that case also. That

subsequently the conviction and sentence of Crittendon was

affirmed. (Sec 388 80. 2d 1088.) Evans did not pursue

appeal.

On April 10. 1975, this Court sentenced both Barclay and

Dougan to death.

— „ 2

On March 17, 1977, the Florida Supreme Court affirmed the

conviction and scntence of both Barclay and Dougan. (See

343 80. 2d 1266.)

On September 7, 1978, the Florida Supreme Court vacated

the death sentences and ordered this Court to hold a

‘hoaring (us provided in Garduer v. Vlorids, 439 U.S. 349)

at shich the defendants would have an opportunity te rebut

any inforwation contained in the presentunce invesiigation

report - including wy confidential or other parts thercof.

. (See 362 80. 2d 657.)

§ 8. On October 30, 1978, the United States Supreme Court dented

9 certiorari te defendants harc lan and ubau. (See 99 Supreme

Court Reporter 219.)

10. That after the case was reminded to this Judge in September

of 1978, Mr. Ernest Jackson, altorney for both deferdants,

Barclay and Dougan, vas granted a nusber eof continuauces

due to his terminal i) Iness - and eventually he withdrew

from repre atation of defondan.s.

11. This Court then appointed private atlerncy cr. hen Vickers

to represent relay and Me. Rondelyh Fallia to rep.csent

Dougan. Thet both Ur. Vickers oud ‘tr. Fallin are skilled

attorneys with wide crapericuce in cepital cases. ‘that

several continusances were created deiendants while ‘ir.

Pallin and Mr. Vickers represented thom,

12. That eventually the defendaat Nwgan dismissed his Court

appointed attorney, Randetp) Yallin, and retained tie

. services of Joseph kursey of the Team Defense Project, Inc.,

* of Atlanta, Georgia. That such late entry of Ur. kurse

7 : caysed additional delay as tv both defendants. -

13. Subsequently both the defendants, Barclay and Dougan, filed

* motions to sever their cases one from the other. Such motions

‘

were granted and each responded to the presentence invest 16

tion report in separate procueding= on different dates.

Bubucquently the defewdant Deusen was resentenced and

this Court now sentvnces dc fendant Barclay. .

or 4

5 : sn

. 2

— — — = E i ” 2 ——

NELNCE TECUNLOUL

In the sentence of April 10, 1975, this Court ventenced both

the dofendauts, Marcla: and Dougeu, in one written Beutecace.

During the Cui dat relic! procemtiags, both a lend int wade

motion for - and were granted - a severance so that their

responses to VS! and seuteaces vould be Separate and „part

from one another.

That, according?y, this Court Los senateuced cach nepor ly.

However, because both vere invotseu in and qvovicted of the

same crime and their participstion ves Co entwined - one with

the other that a therovg) and cor lete seutence could not

be imposed on either withoul por folic reference to the other.

CO NTS UF JUNG),

This present cree is one of the rarest typos of crines to com

before thix Court or un: Court. The facts at trial proved that

e* was a PREMEDITATID - RACIAL. - HAVRED MURDEK., The hates

victim was chosen at rande., wtalked and brutally wurderced ONLY

6 because he was defenseless and because he was of —

—

@ raciul group than his murderers.

After the crime, tapes were mace by the wurderors wherein they

described the killing snd the wrony of the victim. These boasi-

ful tapes were cruelly wailed to the mother of the murdered boy

and to luca) 1 v. and rediv stations - bragging of the murder

and aungunc int tet it was the etart of a revolution and promtsed

further violence. One part of the tapes said “White people pre-

pare yourself to dio". It was a call for, and on atten >t to

Start un racin! war.

Such ravings could only be from a depecaved hovicidal mond.

Similar sentiments vere violently uttered on another continent

in our own recent history. During torld Var II, I was among some

of the firsi American Combat Parachulty Infantry Soldiers to enter

Nazi German;, and 1 was present at the liberation of several

slave labor and concentration camps. Particularly, the concen-

5 a 4 tration camps made a vivid and looting impression upon we. I

* 8 sew human corpse, stacked ihe cord wood - to be buried or burned

in thg.ewens. ,

Those people bad been wurdored in various ways, by sturvation,

torture, gassing or they were shot. They were murdered because

o they were all guilty of the sare crime - they were different from

those people who surdered thom. They were either of a difforeut

race, culture, religion or pelitiont be ‘tel, That was their

only crim: - they sere Mffercat. Surely we must have learned

some lasting Iesnon from the! tragic holocaust.

The law does not reyguire that we Dike each other - nor in it

IIIa to have prejudices - but it is un len tt (0, d0 injur

to another person b. an of thet hate and prejudice.

This type of random, racial - hate purder, in almost im sstble

to believe. A n e huat ant kill for food and, in time of war,

men kill in well defense thors whe would hill them. Dut, to

premeditatedly pach a victim at random - a persen not coven kavove

to his murderers and whe was cen for death only beceue he

was guilty of being of « different race ~ is helaovws, atro. ious,

crue) and an un tte he cvime. The crime titelt was horrible,

but the attempt to incite raci:.!) war and « mass bloodletting -

compounded the heinous quality of the murder.

Be do not have to like cach other - but we must rompect th

rights of others avd te aust elther live together - or surely

we will dic together.

Jacksonville and, indeed, the nation has made great progress in

race relations and undersiandiag over the last few yeors. But

you, ho have committed this racie! - hatred murder, have done

. more to disrupt those good relations and progress than any other

one factor in recent tim.

— 5

You have dune a gross disservice to both the black and white

citizens of this City. You have given fuel to those who want

d to think the worst of the people of your race - and you have

caused consteraation and disgust umonzst both blacks aud whitos

ot good will who are most anxtovs to help us achieve a society

of equality.

Until your arrest - terror stalked the streets of this City -

and it was only duc to the f, «d will of both our black and ‘

white citizens that order prevailed and further violence and

retaliatory acts fore nel coevi Licd.

nothing good hes, or ever will, co from the wurdet of Stephen

Anthony Orlando, but the tragic sloughtes of this eightcen year

old youth can be vad #* ar cxaeple of the monumental stupidity

of racial - hatred aurder.

OUTHANK_OF TH ESSENTIAL FACTS

The essential facts as browght cut in the trial and by the

evidence were that the four defencants wore part of a group

ust termed iteelf tho “WLACK LIBERATION AY" (BLA) and whose

. apparent sole purpose wus to indiscriminately kill white persons

° aed to start a revolution and a racial war.

The tostiwony shows that on the evening of June 17, 1974, Barclay,

Dougan, Crittends, Evans sad Hearn set out in a car armed with

a twenty-two caliber pistol and » knife with the intent to kill

a “devil” the devil being any white person that they came upon

under such advents«ous circumstances that they could murder bin,

ber or then.

That as they drove sround the City of Jacksonville they made

several stops ond observed a nucver of white personas ay possible

victia:, but d-cided that the cirewmestances vere not rdvountageous

and that they mipht be observed or thwarted tu their evil purpose

by possible witnesses. At one setup, Dougan wrote a note - which

was to be placed on the body of the victin ultimately chosen for

death.

Bventually the five men beaded for Jacksonville Beach where they

— picked up « hitchhiker, ciphicen pear old Stephen Anthony Orlando.

*. 4 inet bis will and over his protest they drove ated

1 trash dump, ordered him out of the car, threw bim down and Barclay

homicidal blow by repeatedly stabbing hin with a

: keife. Dougan then put bie foot on Orlando's head and shot him

: twice ones in the cheek and once in the ear. Crittendon and

8 Evans played a lesser dogree in the murder and were thus convicted

8 of Arder in the second degree.

The evidence showed that son of the defendants knew or had

ever secn Or lande befere they murdercd hin, The note, which 0

Dougan bad previously written, ven stuck te Orlando's budy by

the knife of the surdervwrs. The note read:

“Waaning to the eppressive state. We

fonger will — etrocitics and bia

fatizive ef black peepte be unpunished.

The bLact wan 46 we Longer asleep. The

acvotution hes bryan and the oppressed

will be viederiows. The acveltution will

eud when we are gree. The Glack Revoluticunary

Away. Al poss to the peepte.”

Barly the following mornin, the doad body of Stephen Anthony

Orlando was discovered. Pulicw were called to the scene and

the knife aud note were preserved for evidence and photos were

taken of the dead body ond surrounding aren.

Subsequent to the murtes - the de tcadmts, barclay and Dougan,

by their own admission, and sup, orted by the testimony of state's

witnesses, ence a number Of tape recerdings concerning the murder.

These recordings were wailed te the wother of Stephes Authony

Orlacdo and to radio nud television etations. Al) of the tapes

costained much the same in content and intent. The following two

pages are cxcerpts of several tapes which were typical of all -

as follows:

—

"Stephen A. Oxtenty was not murdered,

ne means. We was pivee 8 Ese triat,

e samc 1 al ta ai gen gave

black 3 Ghose sane black Xr

eceupy 15 cent of the Ameadcan pepula-

tion aud 75 per ceat of the American prison

tion. We was fried and found guilty

and was cxecufed...”

— von want to know hew to spelt

„Ae ende, just spelt it with three K's q

Instead of one c, you tucw, Lite in Ku

Klux Klan. You Las white peopte, you

can't do aight; your ratare 46 evit. But

u gonna pay anyway se that black man's

(recom ud t be gotten we wmatten wiat 44

bes. We can't depend cx you for our

freedom. We tried that once. Yeu prose

us with geod ofc Abe. die gave us the

Emancipation Prockasation. That was the

ft time we were (rec. Then we dacamed

a Litile engen, 4 gered a whole Lot more,

until you decided ‘I'm gonna free those

22. again’. Then you gave us the

Civil Rights Bill. Wow mrny times do you

have 4% face a peeple before they are

free? Vou tnow, Lite, ounce you frecd us,

fedice ven greed as. The tainrd tame you

= free us for goed, just wipe us out

Like you're faying to do our ace as 42

is, pusting genoedce e on black momen,

ftaying to eliminate eur Lace, pushing

these jive pitts off en thee. Vou don“

74 thed off dnto ven orbau whdte,

dly white neighbortwods..."

“ary Aun Seitery (Oriaude’s mothers),

don’t feet % bad. Vou hewea’d Cost 4 b0n;

ou got a lee. Vout sou will ge down dn

Tack histony. Me ct be cushained when

black people get thcit geen.

"You tate advantage of us. Vou

comets as Au out black abettes, then

en we acbel, ther vou cowe du with your

fants aud your Katicual Cus.ds and gou

spray bea people with aff that fear gas

and you just face advantage ef black peeptc...”

bea tired, wife mau. Ge'ae

nee being as tet, pushed around,

told what te dv av! thea having to send

our bids fo school with * aud gour funky

white 2.7 these things, those

etringy-haized things wou catl gour kids...”

ewe

"You ce, Ven white Jevil, our minds

ane jar superdes de that ef @ white man

due fo the fact that gen have a ain-ounce

baaiu and the bene wan bas a sever-and-a-

hal{ ounce brain...”

"The acaseo. Stephen e endy shot

twice dn the head was because we had a

gre pas tet. If ent sict detee and then

t jamacd; you can tell ii must have been

made du America because d asd“ t weath a

hit. We wes s ahbe dv the back, dn the

chest and the stomach, ah, it was beautigal.

You shoutd have seen if. Au, 1 eujoyed every

minute ef 4¢. 1 Coved watching the bleed

gush grow his eyes...”

"He dicd dn style, though, begains,

begginy aud pleading for werey, gust as

black poapee did whea you tec. fhm aud

hung them to the traces, burucd thein houses

down, thrice bowbs du the some chureh that

practices the sace aeliqion that you feaced

on these peoplc, wy peepte...”

"We sic evetyehere; von cannet hide

from wt. Vou have tod your peeple te

get off the atecets cud fe stay ewe «

That wilt net help, ger cre aight they

wilt come how end we witi be there waiting.

It has been said, teeth fer ud ao! you cannot

eee us; Listen for as A you causot hear us;

feel for ws and you cane! tout“ us. These

ere the characteristics of en urban guerilla.”

All of the tapes ended with the words "Signed, Your Black

Liberation Aimy”.

William Nourn, owe of the five peravns present at the murder

of Orland», testified that he «elinenwd the wurder aut told

of the porticipytion of Barcley, Dougan, Lans and Crittendon -

and ho, together with witnheww-. June Mattison, Madre Diack and

ot in Beas, Ir. slated that they were prescat When the boastful

tapes vere made and thoy identified the voteos of Bayelay and

Dougan then the tapes were played te the jury.

1a defenre, Davelay ad ted naling the tapes for political

reasons but denied any participation in the murder. Dougan

4180 denied the murder and the death note - but admitted he

made the tape: based on newspayor accounts of the erine. He

said that the argen of the tapes was to dramatize the plight

of black people. Lach defendant had alihbis as tu his whereabouts

at the time of the murder, but the jury found thew all guilty

of murder.

The jucy found both Dane lay . d Dougan guilty of murder in the

first degree and in ite advisery sentence the jury recureeaded

death for Dougan by a vote of ten to two, In its advisory

sentence the jury recaunended life imprisonment for Darclay by

a seven to five vote.

That thereafter this Court dented motions for a sew trial and

adjudged each guilty of surder in the firet degree.

3 ＋ 1 ee 3 „ 89 A, Ae

EXPLAKATIVS

Before imposing the sentence for under in the First Degree,

this Judge has cousivered those matters brought out by the

Gefendaut, Ur. barely, in bis responses to the PSI. The

Court hax also closely examined and written its findings as

to each of the clewents of gi vat lon end/or mitigation which

are set forth in the Plorida Statutes and which were guidelines

for the jury in considering its advisery senterces.

The Court ban ieee the facts us brought out in the trial,

in the preseutenes ropeoris, fe defendant's respoase tu the pro-

Sentence report and Ln, apyliod them to cach clement of aggra-

vation and witigation there wo, licable.

The clowents of Agyravaiion aad “itigation have been summarized

below in reverse order.

SUWIALIZATION OF MITIGATION

a r

— —— —

A. WHETUFR murder MAD NO SIGNIFICANT HISVOKY OF

é. PRIOK CRIMINAL ACTIVITY

FACT:

“te

The defondant, Barclay, has an extensive

criminal record of seven prior arrests.

It shows that he hu’ previously been on

probation for the crime of uttering a

forgery, and that subsequently that proba-

tion wax revoked and he was sentenced to uw

terw of six months County Jail. It also

Ge, e that he had previously been on five

yoars probation for the crime of Drea.ing

4 and Entering and Crand Larceny. There are

u tic a numbor of misde.caner crimes charged.

(See 181)

CONCLUSION:

There is an acgrevniing, rather than a

mitigating (ire e defendant

—

Barclay because of his extensive record

showing at least one prior felony conviction

and one prior felowy probation.

— 3

B. YHETHER THE KURDER YAS COWJITTED WHILE DEPENDANT vas

UNDER THE INFLUENCE OF FEXTREYE MENTAL OR EMOTIONAL

DISTURBANCE

That Barclay raised no defense of insanity

er emotional instability. Ue had an alibi

: .

* .

for the time of the erte and proclaimed

his innecence. Nor was there any evidence : e

from the PS) that he .uffered emotional dis-

turbances in the past or at the time of trial.

In the proceedings for response to the PS!

there was no evidenc« or testimony that he

was under the influcnce of extreme mental

or emotional disturbance at the time of the

murder.

CONCHAIS | ON:

There in no mitigating circusstaace under

this paragraph because here ts no evidence

of extrem teatal or emotional disturbance

in the past, at the tim of the murder - or

at the time of tria!.

c. YSHETHER Tih? VICVIU LAS A PALTICIPANT IN THE CONUVCCT

OF THE DEY EADVGT OF GUNS, ATED TO THE ACi

FACT:

The dufendant Rarcley, tonether with Dougan,

Crittendun and Evans, bad previously decided

upon « course of howicide and were Looking

for a victia when th spotted Stephen Anthony

Orlando and offered hie a ride. _ There was

— evidence and testirwny that the victim ur ed

they take him to a house - so that he could

get out and away from his abductors. Instead,

be was taken to a trash dump and there the un-

armed youth was ordered out of the car - knocked

to the ground stabbed repeatedly by Barclay

and shot by Dougan.

CONCIA'S1 0%:

There is no witigatiast cireumstence under

this paragraph became the defendont Rarclay

and the others inteadsd to kill Orlando at

the tim: he got inte the car. Orlando could

not, and woul? not, in nz way, consent to

his own wurder, and in fact, begged for mercy -

all in vain.

CHETHER DEFEXDANT CAS AN ACCOMPLICE IK THE NURDER

Comrie» BY ANOTHER PERSON, AXD THE DEFENDANT'S

PARTICIPATION CAS RELAT/VELY Aion

FACT:

The participation by Crittendoa and Evans

wax lesser in dg e and they have been ad-

judged guilty of wurder in the second degree

and cach sentenced to 199 years imprisonment.

FACT:

Both Barclay aud Doucan vere the major and

primary participants in the murder. The

evideace shows that the homicidal assault

was initiated by Parcluy who threw the victim

to the ground and repentedly stabbed him in

the chest with e kite - as Orlando pleaded

— gor his life. men Dougan rendered the Loup

De Grace by shooting the victim twice in the

head. 4

A close attention to Barclay's boastful remarks

on the tapes will lead any listener to conclude

that he was a major participant and proud of that

participation. nad Pou,an been the only major

,§ >

Participant - then perhaps Orlendo, who was

Struga ling fer hin tife, might have been able .

to escape. Put Barctsy and Dougan acting in

concert overpewere)], stabbed and shot their

4 comaun prey. ‘

. = ,

eo. 4

bs ;

7 * 2 The evidence showed that Barclay struck the

first bos. cidal bien of the murder by repeatedly

Stabbing the victim. Dougan was the originator

of the plan and twice shot the helpless captive

after Barclay put the hilling in motion — but it

wes the two of thew acting in concert - who were

the primary culprits. Crittenden and Evans were

lew.er participants - which fact was recognixed

by the jury finding Ponyan and Darclay guilt) of

mur d in the firet degree und the others guilty

of See cond depres eure sa.

There is wo witigating cirewnstance under this

paragraph as to Darcluy - who initiated the

bomicidal frenzy and was a major participant

in the murder while acting in concert with

Dougan.

ats *

E. @@METHER DEFENDANT ACTED UNDER EXTREME DURESS- OF

_UMDER THE SUBSTANTIAL DOAINATION OF ANOTHER PERSON

ner, at any time, in any way, was it shown

that aay of the defendunts acted under duress

of any kind. The defondwt, Barclay, had

a criminal recerd of sevew arrests - showing

a felony conviction, a misdencanur conviction

and u felony prebativn.. Me in, or was, 4

married wan with soyoral childrea. ne had

gone through senior hich school aad was of

average, or ebove, intelligence. It Was not

contended by Barclay that he was under sub-

stantial dowination of Dougan oF any other

per- Had such dominance been apparent,

then perhaps the Jury would have found Barcluy

guilty of » crime le-s than first degree murder.

PACT:

That in the respons. to the presentence report

the defense wttorney adduced testimony from the

Jexd investigating officer in the murder and

that offices bed here tax as Beco’ in coscaand

of the members of th: Diack Liberation Army. He

stated that in his eoinion both Barclay aad Dougan

exericd influcnce over the other members of the

gang. He further stated on cross examination by

the State Attoracy that Darclay had leadership

traits, was intellicent, acted of his own free

will and was not under the dumination of anyone

at the time of the murder.

FACT: 7

That neither Barclay or Dougan were under the

substantial domination of the other as they com-

mitted the dastardly murder - and each vyed to

outdo the othor in homicidal ferocity.

1 .

CONCLUS 108;

—— 2

There is no witisatin: circumstance. as to the

Gefendant under this paragraph.

r. WHETHERK Tih CAPACITY OF THE DOTENDANT TO APPRECIATE

i THE CRIINALIVY OF HIS CONDUCT on TO CONTOR! MIS

2 CONDUCT TO THE returns OF LAY CAS SUBSTANTIALLY

Iain

FACT:

The defendant Barclsy had boen through the

criminal justice system and was a« convicted

felon. Ue well understood the criminality

of his conduct.

Ire Vas no er any suggestion or clain of

insanity or any hing, by any evidence -

at trial or in resporse to the PSI - that

Barclay did not appreciate the criminality

of his acts or that he could net conform his

conduct to the requirements of the law. The

7 evidence showed that upon setting out on a

> homicidal course thal there was ample oppor-

re o% tunity for Barclay to withdrew from the plot,

re but be aad the others calculatedly and pre-

| " geeemeoditatedly stalked their victim and pro@uced

1 , his death - knowing the full consequences

There is no cvidence or tostimony in trial,

im response to PSI or at any other place that

_—

ever suggests thal Barclay fas incapable of

apyrectatiog the criminality of his act® or

conforming his conduct te the requirements

of the luw.

CONCLA'S TON:

N There is no ritigvtin, cirewmetance under

this par reh a to Ears lay

G. un AGH OF rr er AT md OF THE CRIAL

PACT:

The dvicadaut Barclay was twenty tiree years

of aye, had fintehed center high cvchool, had

married in 1969, fathered five children and

he and his wife were barten at the time o!

tie crime. Acceur@iay to the PS! hv had sub-

sequentiy fathered another child by another

woman, and had worked, not tov successfully,

| at various fobs. o was a mature male, in

good health, standias five feet ten inches

tall and wei,hing oo huad. od and sixty pounds.

Hoe also had some expertise in karate. He was

: five yoars older and larger than his eighcieen

fe “$ . year old victiw.

g or CONCLUS 108: a

. There is no witicatin« circumstance as to

defendant under this paragraph.

ae ET eS Oe Se 1 * = > *

— ~

SUMMARTZATION OF AGGRAVATING

—

A. HETHER THE DEF) SVANT LAS Nun SENTENCE or

IMPRISONMENT GUN ME COSUTTTLD TH) unn or

SHICH NE nas Ex CONVICTTD

PACT: .

The defendant, Raurcluy, Was not under

sentence of imprison ent at the tine of

the cents on of this murder. His rnp

wheet shows seven prior arrests and he

had previously been convicted of a felwny

and bad been on felony probation.

CONCHUSTON:

Althouch not imprisun-J, the criminal record

of Barclay ts an egycuvatiag circumstance.

B. CHEYNEK TUK DEFENDANT 140 VEEVIOUSLY DEEN ConvicreD

OF ANOVMER CAPITAL FELONY On OF A FRLOKY IXVOLV ING

TNE USE OX THREAT OF VIOLENCE TO THE PERSON

FACT:

? The defendant, Burclay, was proviously convicted

. * -* of breakiog and entering with intent to commit

: 4 * gue the felony of grand larceny. It is sot known if

such prior fcloiy involved the use or threat of

violence in the crime. However, auch crime can

N As and often does involve violence or threat of

violeace - if thore is # person in the building

broken into.

CONCLEIO’:

This is wore of an ayytravating than a

nogative cirewnstance.

CHETHEK, IN CONUTIING Tun AWRDER or Flic HE MAS

RAI. co wien, THE Dt) OWT LN INGLY CHLATED A

GREAT nis OF lam TO “ANY PLESONS

FACT:

Toe testimony aad evidence chewed that

Barclay and the other defendants drove

sroved various areas of the City looLing

for a victim or victims - thus potentially

Nl ien unebers of poople to a great risk

of death. Ov at ler t twee oecasions the

detondants pred their car - and cued areas

where they hal choveu poten viel victims - but

were thwarted by the circus<tences that for-

tuitously «cxisted. Five pe sous tere exposed

to their planned murder and it sas not out of

concern for the lives of wan persons that

only a single Victtii tee Ch - but rather

out of concern for their ow: detection and

capture.

The tapes mds by Darcla) and Dougan - which

ow were sent to the median - were a declaration of

war by the wurderors egainst white people. It

was a call for other. to juin in their homicidal

echemes and it was « call for revolution and

racial war between a biuck aud white population -

if confined to Jacksunville - of over one-half

million persons.

„

51 7

Naa. ~¥ —

‘+.

* 1

265

Barclay and th. oth-« defendsenis did, in

fact, knowtacly create a great risk of

dvath to many persons. The extent of that

dancer - had they low successful to any

degree - bosglon the wind by contemplating ,

the monsiro.. couwrseyrences.

CORCLUG 10%:

There 1s an ier vet int clrewestance here

becawie met only did Doreclay and the other

defen tants rurder Steen Anthony Orlando -

they also created e great risk of death to

Others, before, durin, and after the wurder.

CHET? BHR MURR OF Li'CH DEFLNUVAST GAS CONVICTLD

CAS COUT VILE Me LAS RNGAGLD IN THE COLISSION

OF, on AN AV? wt TO CU ir, OR FLIGHT ATER co rr

On AVP rin: TO CONMUT, AW ROR, RAPE, ANSOs,

BURGLARY, Kian nee, AMMCRAPT PIRACY, OR Tie U)..AN FUL

und. 1, PLACING Of PISS ANCIAG OF A DISTROCCTIVE DEVICE

OR hon

FACT:

The only clement of this agyrevating circumstance

applicable to thin case is the crime of kidnapping

which - as applicable te this case - is defined in

. S. 787.01 as:

ow -

"(1)(a) Foréibly, secretly, or by

threat confining, abducting,

or imprisoning another person

against his will and without

lawful authority, with inatont

to:

2. Commit or facilitate

commi>esiou of any fclony.

J. Inflict bedily bare upon

or terrorize the victia or

another person.”

. ; The facts of this wurder were that the

G. tendanta picked up the hitehhikiag j

victim with iptent to murder him, They

refused to tele him io the place requested

¢ and by teres and/or tireats kept him in

their car until they found an appropriate

4 Place for the murder. Tae viciim was then

romoeved Irae the car - bruielised and nur

dered. ach essential clement of kiduapping

won certainly proseet in this case.

COUNCILS 10%:

There in an aggravating circumstance as to

the defendant under this par» graph.

BE. tutte Tae huevo OF len Tih De PENDANT HAS be

CONVICT.) CAS COMMITTED bo. THE PURPOSE OF AVOID LAG

on PREVENTING A LAVFUL ARREST Oi BPFLCTING AN ESCAP:

FMO CUSTODY

CONCINSIO:

This paragraph does nul «vem to apply to

the present case.

„ „ũ„. WHETHER THE MURDER OF wl, DEPENDANT MAS DEEN

CONVICTED GAS court FOR PECUNIARY GAIN

2. CONCLUSION :

2 This paragraph does not seem to apply to

the present case.

CI YAR MUIR OF enten TUR DEYENDANT

WAS BEEN CoAVICTED SAS (tren TO DISRUPT

OR BINDER THR LASPUL uncl, OF AXY GOVERR-

MENTAL UNO, OL TH. PPORCRIENT OF THE

LAGS

FACT:

Wore thou any other factor, this paragraph

together with the ractal hatred murder -

aeons to have been one of the primary nolives

for the murder. The stalking of an innocent

victia und slauchteriog him only because he

was ul « different race than his murderers

ead thew using 3 kuife to stick a note

his busty - which reed:

"warning to the cpp resadve state.

Ko enge will wour atweltces end

ben fact 4g of backt peepic be un-

prnidhed. The black wan 48 ve kenge “

asfecp. We wai desivey oar chewy

theraciv’. gou wns dic. The aevelation

has begun aud te epprsased will be

victoriovs. The acvotutdon will end

when we are grec.”

This. was a call to ,evolution. The tapes male

by Barclay and the others nad sent to the me.lia

was d further and were toten call for a rece

war and for rovolut on Typical excerpts of

the tapes are a follows on the next two pages.

—— — —— — — —

n rare

"Te the eppiestive State: This ds

disected te excws Mary Ann (tg.

tt. t. 4. e (the wietin's

wether avd fatect) and etpeciatiy

pia Garret. N 4e. A. Ostande

ts net 1e % he was eacented

aad mad. fe pew [.° the political

cas thal save bees pete tente

wpon bisct pee ie. Re douges tt

nenne 30 ao panishe’d. A neve-

„tien has bogie aud yeu are the

Cucny.

"You lite tacit Awsideens, because

geurt wnatace is Uet ef « white devil

You can ver. Co tight. Se dhe black

man's £ivedew Cop uds auen gout de-

beat ot woms @octh. The sevetadiden

wiki cu! eaty eee goa ate Coad 04

Whee black poopie ate gree.

"Harry Aus Mallory, ben should be

proed at you seu, Stephen, was

the f4as? te cre for our black cause.

Hany weste wile jello 4 1 1 er we

ade fee. Iten that pig Garrett

did wet tnt te publicize the eva

dewts of the evccutionw nets found

ou Steps dea body, bue „ tuows

fhat revetut@des (5 vety setdens. We

Send . talen fee rev ke ters

a4het be end pects (ite hie will have

4% pay fer % eines. Blach poopie

have giver es nee de easel we ate

doing becants rou wlll net Listen te

wothing (del efse but that wheel.

Comes fren dae bactel ef @ gue.

“the ease Steen was culy shet

tedce du the het was because the

gun feed. te wis stabbed de the

ack, chest an! ae stemaca te u-

botize the 4232 wears of hangings

cat tiefes, brutatitics and rapings

of wy black poopie. de begard, ob

yes, he begged for meren as did my

people wher vou Ade ted them, and

we gave hin ne merey, that’s right,

no mercy, gor cverty time 1 puiied

frigget, every fia? 1 saw the kndge

go anside kis body, satisfaction came

ante me because ! Lace, T tre, that

the people who died because 4 him,

because of Lis avcestors and because

of you werc now being zepaid.

ere , white tacdst Aeta,

this contd dete te you alse as

te at Elec. „ente aie oppressed.

Ve cs bac peer are ne Longe

began neee, Lucu we ieee fake

what 48 ents, thes 4s adghtly ours.

We cer €f se oe Should have At.

Tue Biae’ Iten ation AA wait destacy

you, Thew witl destroy everything

taat stan'’s fu the way of the black

man's g eden, Te ale wy biact peepee,

black wertiets hove emerged en the

secene te ther gee te the way te gree-

dow aad ing destruction ef our chen.

the white moe. White pepe, prepare

„unser, te dic. tach gout back

éberutivn Away.”

Nut:

The WA rc ane) deten of Barctoy aad the

Other defendants: were, in 11 weys, a call

to disrupt d hinder the lawful exercise

of goveramental funciions aad the cnforcerent

of ths laws. It was „ 11 to deetroy our

goverpment and its less by violent racial

Fevolution.

CON 14 SON:

This in an cunravatiag cirecwastunce,

CUrThs": THE une OF LU.CH D. FiNUANT BAS BEEN

CONVICT. SAS PGPLCIAUL) HINO Ss, ATROCIOUS OR

Cho.

PACT

The d fend, Maveleys, together with the

Other d- end ente, prerm-ditstedly and deltb-

erately Stalled thelr victin and brutally

murdsced hi: t*

the victin’s only crime vas thet he was of

a Gifferent recial grovp than his murderers.

He in no wey ofionded them -~ except by being

white - nor did he cen know thes before that

fatal evenin.

The victim, Stephen Anthuny Orlando, was

knocked to the ground snd repeatedly stabbed

by Barclay as he writhed in pain begging for

mercy. Then Dougan shot him twice in the

head at close range.

99 E ye

In addition to aw unprovoked, premeditated

murder it was a declaration of var against

a racial mop - rith the promise of more

Violence, doeuth and revolution te cone.

Such acts of Mareloy und the other defondants

were Of the besext, most callous hoalcidal

type and shrick out for the severest punish-

mont and the termination of the existence of

the morpetrecor.

COSCLUS ION:

That the murder of which the defendant Barclay

was comvicted was expecially heinous, atroctous

and crue).

Inet the defoadant Barclay did not present any

matters in his respon.es to the PS] which miti-

gated the beinous, atroctous aud crue] nature

of this crime.

That the passage of cyoruximately five yeurs

from the date of thi: murder until the date

of this sentence - hes not diminished the

— nature of this crim. Stephen Anthony Orlando

was murdered and the facts of the crime and the

— 4 call for bloodshed and revolution are the same.

CURCHI HON OF TYE COUT

TUERE ARC SUFFICIENT ANY GREAT ar CIRCUMSTAZCLS

a _ WHICH EAIST TO JUSTIFY DE Se en OF DEW AS TO TH:

DEFENDANT ELWOOD CLAYK Hii2CLAY.

That under Florida Law the dude sentences a defendant,

Convicted of Murder in the First Degree, either to death

or life iupriseuesnt. This in „% avesome burden to be

placed upon the Judge - but in the landet Florida case

of State vy. Diwen, 283 So. 2d 1, the Pleridsa Supreme Court

Said that when such discretion can “ve Sv to be reasonable

and controlled, rather than capricious and discriminant ..cy%

then it meots the test of Furs: „ Gooegin, 408 U. 8. 258.

My twenty-cight von r. o legal experience have been almost

exclusively in tha field of Criwins! Law, 1 have been oa

defense attoracy in criminal exces, an Advisor to the Public

Defender s Office, a prosecutor for cight and one-half years

„ and a Criwinal court wad Cirevit Court Judge - Felony Division -

. for almost ten yvars. During these twenty-eight yoars I have

GefcuGed, prosecuted and held tyre in almost every type of

serious crim.

Because of thin cxtensive experience, I belicve I bave cone

to know and wadersatand “when, or when not, „ crime is heinous,

atrocious and cruel and deserving of the maximum possible

sentence.

Uy expericnce vith the sordid, tragic and violent side of life

hes not been confined to the Courtroom. I, like 80 mans

American Combet Infantry Soldiers, walked the battlefields

of Europ“ and saw the thousands of dead American erd Cermaun

soldiers and I witnessed the concentration camps where innocent

civilians and children vere musdered in u war of racial and

religious exturmins tion.

To attempt to initiate such « rece war iu this country is too

2 Pa horrible to contemplate for both our black and white citizens.

* Buch an attempt must be dealt with by just and swift legal

2 * *

< ° proceggsand when justified by Jury verdict of guilty - then

1 to terminate and romove permani-ntly from society those who would

choose to isitiate this diabolical course.

1 DAD un DEFENDANT DEEN EXPOSNY YO u CARNAGE OF vu

BATTLETININS AND TH: O OP N CONCENY.2VN1UN c

INSTEAD OF MOVIFS, TELEVISION MM AND REVOLUTIONARY

TRACTS CIORIFYING VIOLENCE AND KACTAL Sunn - TEN

PERNAPS WIS THOUGHTS AXD ACTIONS \.OULD HAVE ‘TAKEN A LESS

VIOLENT COURSE.

Having s°t forth my personal experiences above, it is

understandable that I aw not ca tz shocked or moved by

tragedy - but this present murd«r and cull for racial

war is especially shocking and ett every dofinition of

beinous, atrocicus and cruel. The perpetrator thereby

forfeits further right to life - for certainly his life

is no more sacred than that of the innucont eighteen your

old victin, Ste: hen Anthony Orlando.

SEKRTENCE

Having adjudved ENU CIARK BAKCIAY guilty of Murder in

the First Degree, I hereby sentence you to death. I order

gthat you be taken by the proper suthoritics to the Florida

State Prison and there kept in close confinement until the

Mate of your cut on be sot.

That on such day, as sei, you h put to death by having

electrical current, passed throwgh your body in such amounts

and frequency until you are rendered dead.

I advise you that you hove thirty days from today to take

an appeal from the sentence which I have just imposed upon

5 you and I hereby appoint Bartley K. Vickers to represeat you

on such appeal).

May God have sere wror your soul.

DONE ALD ond Al) SENTEACEL in Open Court et the Duval

County Courthouss:;, Jachkeonville, lbiorida, on this 18th day

of April, 1980.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.