Opposition — Florida v. Coler

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

STATE OF FLORIDA,

Petitioner,

vs.

DANIEL LOWELL COLER,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

MICHAEL E. ALLEN

PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

P. DOUGLAS BRINKMEYER

ASSISTANT PUBLIC DEFENDER

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA, 32302

(904) 488-2458

ATTORNEYS FOR RESPONDENT

CASE NO. 82-754

IN THE

SUPREME COURT OF THE UNITED STATIS

OCTOBER TERM, 1982

STATE OF FLORIDA,

Petitioner,

vs.

DANIEL LOWELL COLER,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

QUESTION PRESENTED

Whether the imposition of the death penalty upon a

person of 18 years or older for the sexual battery of a

child of 11 years or younger is disproportionate to the crime

in violation of the Eighth and Fourteenth Amendments to the

United States Constitution?

TABLE OF CONTENTS

OPINION BELOW

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

CONCLUSION

APPENDIX

1. Mandate of Florida Supreme Court ordering a

new trial for Respondent, dated October 4, 1982

2. FPla.R.Crim.P. 3.191 (q)

3. Section 90.404(2) (a), Plorida Statutes (1981)

CERTIFICATE OF SERVICE

PAGE NO.

TABLE OF CITATIONS

Vv t ca » 431 U.S. 209,

Buford v te, 403 So.2d 943 (Fla. 1981), cert.den.,

1 Led ia as (1982)

California v. Green, 399 U.S. 149 (1970)

Coker v. Georgia, 433 U.S. 584 (1977)

Coler v. State, 418 So.2d 238 (Pla. 1982)

Collins v. State, 550 $.W.2d 643 (Tenn. 1977)

Enmund v. Florida, U.S. _, 73 L.Bd.2d 1140 (1982)

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

Huckaby v. State, 343 So.2d 29 (Pla.), cert.den.,

U.S. (1977) ——

party v. State, 343 So.2d 4 (Fla.) cert.den., 434 U.S.

Williams v. State, 110 So.2d4 654 (Fla.), cert.den.,

U.S. 84 39)

CONSTITUTIONS AND STATUTES

Art. I, $17, Fla.Const.

Eighth Amendment, U.S. Const.

Fourteenth Amendment, U.S. Const.

$794.011(2), FPla.Stat. (1975)

$90.404(2) (a), FPla.Stat. (1981)

$97-3-65, Miss.Code Ann. (1974)

$39-3702, Tenn.Code Ann. (1974)

28 USC $1257(3)

MISCELLANEOUS

Rule 3.191 ig), Pla.R.Crim.P.

OPINION BELOW

The opinion of the Supreme Court of Florida has been

reported as Coler v. State, 418 So.2d 238 (Pia. 1982).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

A

The Eighth Amendment to the United States Constitution:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishments inflicted.

B

The Fourteenth Amendment to the United States Constitu-

tion:

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 juris-

diction the equal protection of the laws.

c

Article I, Section 17, Florida Constitution:

Excessive punishments. --Excessive fines,

cruel or unusual punishment, attainder,

forfeiture of estate, indefinite

imprisonment, and unreasonable detention

of witnesses are forbidden.

D

Section 794.011(2), Plorida Statutes (1975):

(2) A person 18 years of age or older who

commits sexual battery upon, or injures

the sexual organs of, a person 11 years of

age or younger in an attempt to commit

sexual battery upon said person commits

a capital felony punishable as provided

in ss. 775.082 and 921.141. If the

offender is under the age of 18, that

person shall be guilty of a life felony,

punishable as provided in s. 775.082,

s. 775.083, or s. 775.084.

STATEMENT OF THE CASE

Respondent accepts Petitioner's Statement of the Case,

with the following additions:

The Florida Supreme Court not only unanimously vacated

the death sentence; it also vacated the judgments of guilt

because of a violation of the rule of similar fact evidence

as promulgated by its previous opinion in Williams v. State,

110 So.2d 654 (Fla.), cort .den.. 361 U.S. 847 (1959), and as

codified after Respondent's trial by Section 90.404(2) (a),

Florida Statutes (1981) (A-3).

The Florida Supreme Court ordered a new trial on all

counts (Petitioner's appendix at 7a; 418 So.2d at 239). The

mandate of the Florida Supreme Court issued on October 4,

1982 (A-1). Petitioner must bring Respondent to retrial

within 90 days thereof as required by the state speedy trial

rule, Florida Rule of Criminal Procedure 3.191(g) (A-2).

Petitioner sought a stay in this cause, but it was

denied by Justice Lewis F. Powell on September 24, 1982.

A

THE SUPREME COURT OF FLORIDA DID NOT

DECIDE A FEDERAL QUESTION WARRANTING

THIS COURT'S REVIEW.

The Supreme Court of Florida was confronted with the

issue of whether death is cruel and unusual punishment for

the rape of a child under eleven years of age by a defendant

who is over eighteen. Respondent asserted in the trial court

and the Florida Supreme Court that both the United States

and Florida Constitutions prohibited such a severe punish-

ment for the crime. Relying upon its prior decision in

Buford v. State, 403 So.2d 943 (Fla. 1981), cert.den., 71

L.Ed.2d 319 (1982), the Florida Supreme Court held that death

was indeed cruel and unusual punishment for the rape of a child

eleven years old or younger. Howevvr, this decision does not

present a federal question warranting this Court's review.

Article I, Section 17 of the Florida Constitution, like

the Eighth Amendment to the United States Constitution,

forbids cruel and unusual punishment. It reads:

Excessive punishments.--Excessive fines,

cruel or unusual punishment, attainder,

forfeiture or estate, indefinite

imprisonment, and unreasonable detention

of witnesses are forbidden.

Respondent raised the Plorida constitutional provision in

the trial court and on appeal. Reliance upon its prior

decision in Buford does not mean that the case was decided

solely on the federal constitution. Adopting the reasons

of a federal court's interpretation of the federal constitu-

tion in interpreting similar provisions of the Plorida

Constitution does not raise a federal question for this

Court to review.

Assuming the Florida Court's decision was based only

upon the federal constitution, there is still no reason for

this Court to review the question. Coker v. Georgia, 433

U.S. 584 (1977) gives more than adequate guidance regarding

the constitutionality of a death sentence for rape. 8!*houch

this Court's holding in Coker was limited to the rape of an

odult woman, the rationale behind the decision indicates that

a death sentence for any rape runs afoul of the cruel and

unusual punishment provisions. This Court's two step

disproportionality analysis demonstrated that the values of

contemporary society and the nature of the crime of rape

cannot justify death as a penalty for any rape.

Society's values are mirrored in the various state's

legislatures. As Petitioner noted (page 7 of petition), only

Florida and Mississippi have statutes authorizing death for

rape of a child. Petitioner's assertion that other states

may have hesitated in enacting a death penalty statute for

child rape because of confusion generated by Furman v.

Georgia, 408 U.S. 238 (1972) is pure speculation. Florida,

Mississippi and Tennessee (id not hesitate. Section

794.011 (2), Plorida Statutes (1975); §97-3-65, Miss.Code

Ann. (1974); $39-3702, Tenn.Code Ann neve). Additionally,

the frequency of imposition of a death sentence for rape of a

child shows jury's and court's reluctance to exact such an

extreme jn

Turning to the nature of the crime, this Court's

reasoning in Coker continues to supply adequate guidance.

is abhorrent as the rape of a child may be, it still “does

not compare with murder, which...[involves] the unjustified

taking of human life." Coker v. Georgia, 433 U.S. 584,598

(1977). The majority opinion in Coker summarized this

distinction as follows:

Life is over for the victim of the

murderers; for the rape victim, life may

not be nearly so happy as it was, but it

1/ Tennessee's statute has since been invalidated. Collins

v. State, 550 S.W.2d 643 (Tenn. 1977).

2/ The Plorida Supreme Court has reversed death sentences in

three cases of capital rape prior to Respondent's case.

» 343 So.2d4 4 (Pla.) . -, 434 U.S. 847

tate, 343 So.2d (Pla.), cert.den.,

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Based upon the foregoing rqument, reasoning, and

tation ‘ authority, Responcent requests that this Court

leny the Petition for Writ f Certiorari.

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Pr’. IUGLAS BRINKMEYER

Aesistant Public Defender

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WHEREAS. in thet etow "T fale tise —— _

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DANIEL LOWELL COLI vs. STATE OF FLORIDA

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(2) OTHER CRIMES, WRONGS, OR

(a) Similar fact evi lence of

ther crimes, wrongs, OF acts is

admissible when relevant to prove

a material fact in issue, such as

pr f of motive, opportunity,

intent, preparation, in, Know.ecge,

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sccident, but it is inadmissibie

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HEREBY CE

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that a copy of the foregoing Respo

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ida have been hand delivered to M

istant Attorney General, The Capit

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Sa ler, Duval County Jail,

nville, Florida, 32202, this 3

rther certif that all parties neces

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FILED

NOV 22 1962

CASE NO. 82-754

CLERK

Court, U.S.

ALEXANOER L. STEVAS.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

STATE OF FLORIDA, :

Petitioner, :

v.

DANIEL LOWELL COLER,

Respondent.

al

a

MOTION FOR LEAVE TO PROCE

IN FORMA PAUPERIS

ANT wt LER, respondent in the above-styled

cause, hereby moves this irt, by his un jersiqned counsel,

for leave ¢t ceed in forma pauperis and in support

hereof shows as ! we:

nN affid it signed by respondent has been filed,

with the brier in of sition ¢ the petition, where:n

respondent sets forth the fact that he is indigent and unable

to pay r give securit for the fees and costs attendant

to this proceecing.

2. Respondent was ad)ju iged insolvent for the purpose

of appeal in the Supreme Court of Florida and was representec

there by appointed counsel.

WHEREFORE, it is respectfully requested that respondent

be permitted to proceed in forma pauperis in this matter.

Respectfully submitted,

A ro Sa

i/ V/imban la, /@ it. tt. -

P. DOUGLAS BRINKMEYER y

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida,

(904) 488-2458

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32302

Counsel for Respondent

CERTIFICATE OF SERVICE

I PREBY CERTIFY that a copy of the foregoing Motion

for t Proceed in Forma Pauperis a5 well as the

sttac ,ffidavit in Support € Motion for Leave to Pr ceed

in For superis, have been hand lelivered to Mr. Gregory

Cc i? , ~ istant Aer -ney ener sl, The Capit ol,

Talliaha So, i rida, ana pies have been mai ed to tne

Re : tc, Mr Dani¢ Lowe | ler, Duval inty Jail,

; ‘ ?, ack t lie, Florida, 32202, tnis IS

la ember, LF? r further ertify that 111 parties

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4 “BRINKMEYE! 4

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1982

“ase No.

STATE OF FLORIDA,

h

Petitioner

DANIEL LOWELL COLER,

Respondent.

I, ‘ ‘R, being duly sworn, lepose and say, 4n

rt of motion for : to proceed without being

requiré t ny t : ; and to proceed in forma

super

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I am the é lent n the ab

4 . 4 ‘ my ye I am

‘ . 1 ™ wé ¥ or

, at at af ‘ oe tr

I able ¢t

STATE IDA

a’ At R

Tih eaoing affidavit ANIEI TOLER, was sut scribed

/

NOTARY P

MY COMMI

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