Petition — Aubrey D. D. Adams v. Florida (No. 82-5020)

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

> 82 5020

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

AUBREY DENNIS ADAMS, JR.

RECEIVED

Petitioner, ary 2 1Q@e2

ae JUE-7—-1982.

OFFICE OF THE CLERK

STATE OF FLORIDA, SUPREME COURT, US.

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

STEVEN L. BOLOTIN

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED

QUESTION PAGE(S)

THE FLORIDA SUPREME COURT, IN AFFIRMING PETITIONER'S

DEATH SENTENCE, APPLIED AN UNCONSTITUTIONALLY: BROAD AND

VAGUE CONSTRUCTION OF THE PROVISION OF ITS DEATH

PENALTY STATUTE ESTABLISHING AS AN AGGRAVATING CIRCUM-

STANCE THAT THE CRIME WAS COMMITTED FOR THE PURPOSE

OF AVOIDING OR PREVENTING A LAWFUL ARREST, IN VIOLATION

OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION. 5

TABLE OF CONTENTS

PAGE(S)

QUESTION PRESENTED i

TABLE OF CONTENTS ii

TABLE OF CITATIONS iii

CITATION TO OPINION BELOW 1

JURISDICTION .

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED 1

STATEMENT OF THE CASE 1

HOW THE FEDERAL QUESTIONS WERE RAISED AND

DECIDED BELOW 2

REASON FOR GRANTING WRIT 5

ESTION 5

THE FLORIDA SUPREME COURT, IN AFFIRMING

PETITIONER’S DEATH SENTENCE, APPLIED AN

UNCONSTITUTIONALLY BROAD AND VAGUE

CONSTRUCTION OF THE PROVISION OF ITS

DEATH PENALTY STATUTE ESTABLISHING AS AN

AGGRAVATING CIRCUMSTANCE THAT THE CRIME

WAS COMMITTED FOR THE PURPOSE OF AVOIDING

OR PREVENTING A LAWFUL ARREST, IN VIOLATION

OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION. 5

CONCLUSION 1l

CERTIFICATE OF SERVICE

o 48 =

TABLE OF CITATIONS

CASES:

Adams v. State, 412 So.2d 850 (Fla. 1982)

Addington v. Texas, 441 U.S. 418, 99 S.Ct.

1804, 60 L.Ed.2d 323 (1979)

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

Blair v. State, 406 So.2d 1103 (Fla. 1981)

Blake v. State, 236 SE.2d 637 (Ga. 1977)

Bullington v. Missouri, 451 U.S. 430, 101 S.Ct.

» 68 L.Ed.2d 270 (1981)

Demps v. State, 395 So.2d 501 (Fla. 1981)

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

Elledge v. State, 408 So.2d 1021 (Fla. 1981)

Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285,

50 L.Ed.2d 251 (1976)

Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759,

44 L.Ed.2d 398 (1980)

Halliwell v. State, 323 So.2d 527 (Fla. 1957)

Harris v. State, 230 SE.2d 1 (Ga. 1976)

Hitchcock v. State, 413 So.2d 741 (Fla. 1982)

In re Winship, 397 U.S. 358, 90 S.Ct. 1068,

25 L.Bd.2d 368 (1970)

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2450,

L.Ed.2d 39 (1979)

Lewis v. State, 337 So.2d 640 (Fla. 1979)

Menendez v. State, 368 So.2d 1278 (Fla. 1979)

Phippen v. State, 389 So.2d 991 (Fla. 1980}

Riley v. State, 366 So.2d 19 (Fla. 1978)

State v. Aiken, 370 So.2d 1184 (Fla. 4th DCA 1979)

aff'd 390 So.2d 1186 (Fla. 1980)

Surace v. State, 378 So.2d 895 (Fla. 3rd DCA 1980)

Vasil v. State, 374 So.2d 465 (Fla. 1979)

Vaught v. State, 410 So.2d 147 (Fla. 1982)

Washington v. State, 362 So.2d 658 (Fla. 1978)

White v. State, 403 So.2d 331 (Fla. 1981)

- iii -

PAGE (S)

8, 9,

TABLE OF CITATION

~ Continued -

STATUTES :

Florida Statutes (1973)

Section 921.141

Section 921.141(5) (e)

CONSTITUTIONS

United States Constitution

Eighth Amendment

Fourteenth Amendment

~ iv ~-

PAGE (S)

CITATION TO OPINION BELOW .

The opinion of the Supreme Court of Florida is Adams v. State,

412 So.2d 850 (Pla. 1982). and is set forth in Appendix A. The

motion for rehearing and denial thereof are set forth in Appendix

JURISDICTION

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

below was entered February 11, 1982, and petitioner's timely

motion for rehearing was denied on May 5, 1982.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the constitutionality of a death sentence

imposed pursuant to Section 921.141, Florida Statutes (1973), which

is set forth in Appendix C. This case involves the Eighth Amendment

to the United States Constitution [prohibition against cruel and un-

usual punishments, made applicable to the States through the Fourteentt

Amendment, see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d

251 (1976)}, and the Due Process Clause of the Fourteenth Amendment

to the United States Constitution.

STATEMENT OF THE CASE

Petitioner was convicted of first degree murder, and on

January 16, 1979 was sentenced to death. The trial court found

three statutory aggravating circumstances and three mitigating

circumstances. The Supreme Court of Florida, on February 11 , 1982,

affirmed the conviction and death sentence. Adams v. State, 412

So.2d 850 (Pla. 1982) [Appendix A]. The Court found that there was

sufficient competent evidence to support the trial court's finding

as to each of the three aggravating circumstances. Four justices

concurred in the opinion of the Court. Justice Boyd dissented as

to imposition cf the death penalty, and would have ordered a

reduction in the sentence to life imprisonment without eligibility

eS ae

for parole for 25 years. Justice McDonald also dissented as to

penalty. [Under Florida law, a death sentence cannot be carried

out unless at least four members of the Supreme Court agree that

it is warranted, notwithstanding the jury's recommendation, and

the trial court's imposition,of the death sentence. Vasil v.

State, 374 So.2d 465, 471 (Pla. 1979).] Petitioner's timely

motion for rehearing was denied on May %, 1982.

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

In his brief on appeal, petitioner contended that imposition

of the death penalty on the basis of unproven aggravating circum-

stances violated the Eighth and Pourteenth Amendments [Appendix

E-2, 4-5]. Petitioner challenged, inter alia, the trial court's

finding that the murder was committed for the purpose of avoiding

or preventing a lawful arrest [Appendix E-6-9]. He argued that

this finding was unsupported by the evidence, and inconsistent

with Plorida case law defining this aggravating circumstance

{Appendix E-7-8]. Petitioner pointed out that the trial court's

finding was based on a circumstance [discovery of the victim's

body seven weeks after her disappearance] which might tend to indicate

a motive for covering up the murder, but would not shed any light on

the motive for committing it [Appendix E-8-9]. It was suggested

that if the trial court's reasoning were upheld, it would result

in the type of mechanical application of the death penalty statute

that would render it unconstitutional in application, if not on

its face [Appendix E~-9].

The Florida Supreme Court rejected petitioner's argument on

this point as follows:

Defendant next argues that the trial judge

erred in finding that the capital felony

was committed for the purpose of avoiding

or preventing a lawful arrest or effecting

an escape from custody. §921.141(5)(e),

Pla. Stat. The trial judge made the

following finding of fact:

That the capital felony was committed

for the purpose of avoiding or preventing

a lawful arrest or effecting an

escape from custody is proven

beyond and to the exclusion of a

reasonable doubt by the facts

stated above anger kidnapping

and rape by the additional fact

that Trisa Gail Thornley was

found dead on March 15, 1978,

which prevented any testimony

on her part concerning kidnapping

and rape some seven weeks after

her disappearance while walking

home from school.

The record shows that the victim knew and

could have identified defendant; that he

encased the body white plastic garbage

bags and tied it with a rope; that he

disposed of the body in a desolate area;

that he concealed his crime effectively

for a period of time from January 23,

1978, to March 15, 1978.

In Riley v. State, 366 So.2d 17 (Fla.

1978), the robbery victim, who knew

and could identify the defendant, had

been bound and gagged. He was then shot

in the head after one of the perpetrators

expressed a concern for subsequent identi-

fication. This Court concluded that the

aggravating circumstance existed because

the defendant had killed the victim to

avoic identification and arrest. See also

Hoy v. State, 353 So.2d 826 (Fla. 1977),

cert. denied, 439 U.S. 920, 99 &.Ct. 293,

58 L.Ed.2d 265 (1978); Jackson v. State,

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

444 U.S. 885, 100 S.Ct. 117, 62 L.Ed.2d

115 (1979).

There was sufficient competent evidence in

the record from which the judge could

find that the defendant committed this

capital felony in an effort to avoid or

prevent a lawful arrest.

Adams v. State, supra, at 756 [Appendix A-7]

Petitioner's motion for rehearing was directed solely to the

issue concerning the finding that the murder was committed for the

purpose of avoiding arrest [Appendix B-1-6}. Petitioner pointed out

that the Florida Supreme Court had construed the aggravating

circumstance dealing with murders committed in order to avoid

arrest (at least where the victim is not a law enforcement officer)

to require a clear showing that the dominant or only motive for

the murder was the elimination of witnesses. Menendez v. State,

368 So.24 1278, 1282 (Fla. 1979) [Appendix B-2-3]. It was argued

- 3-

that in the present case there was no evidence of the motivation

(if any) for the murder, and that the finding of the aggravating

circumstance based on sheer speculation (i.e. “what other motive

could there have been?", see Appendix B-4-5, F-2-3) violated the

Eighth and Fourteenth Amendments to the United States Constitution.

See e.g. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 44 L.

Ed.2d 398 (1980); In re Winship, 397 U.S. 358, 90 S.Ct. 1068,

25 L.Ed.2d 368 (1970) [Appendix B-5-6]. The motion for rehearing

was denied without opinion on May 5, 1982 {Appendix B-8).

* i

REASONS FOR GRANTING WRIT

QUESTION PRESENTED

QUESTION _

THE FLORIDA SUPREME COURT, IN AFFIRMING

PETITIONER'S DEATH SENTENCE, APPLIED AN

UNCONSTITUTIONALLY BROAD AND VAGUE

CONSTRUCTION OF THE PROVISION OF ITS

DEATH PENALTY STATUTE ESTABLISHING AS AN

AGGRAVATING CIRCUMSTANCE THAT THE CRIME

WAS COMMITTED FOR THE PURPOSE OF AVOIDING

OR PREVENTING A LAWFUL ARREST, IN VIOLATION

OF THE EIGHTH AND FOURTEFNTK AMENDMENTS TO

THE UNITED STATES CONSTITUTION.

In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d

398 (1980) this Court found that the State of Georgia had adopted

such a broad and vague construction of the provision of its death

penalty statute establishing as an aggravating circumstance that

the offense “was outrageously or wantonly vile, horrible or inhuman

in that it involved torture, depravity of mind, or an aggravated

battery to the victim", as to violate the Eighth and Fourteenth

Amendments to the United States Constitution.

In the present case, in affirming the imposition of the death

penalty, the Supreme Court of Florida has adopted an equally broad

and vague construction of a provision of its death penalty statute.

Without much exaggeration, a premeditated murder may now be found

to have been committed for the purpose of evoiding arrest, without

any evidence of such a motive, simply on the basis that the trial

or appellate court cannot discern any other logical reason for it.

Florida's death penalty statute provides that one of the

aggravating circumstances to be considered in determining whether

a death sentence should be imposed is that the capital felony

was committed for the purpose of avoiding or preventing a lawful

arrest or effecting an escape from custody. Fla. Stat. §921.141

(5) (e). The Supreme Court of Florida has construed this provision

to require (at least where the victim is not a law enforcement

officer) a clear showing that the dominant or only motive for the

- 5 -

murder was elimination of witnesses. Menendez v. State, 368 So.2d

1278, 1282 (Fla. 1979). See also Riley v. State, 366 So.2d 19

(Fla. 1978); Armstrong v. State, 399 So.2d 953 (Fla. 1981) (proof

of requisite intent to avoid arrest and detection must be very

strong). In numerous other cases in which the Florida Supreme

Court has upheld a finding that a murder was committed for the

purpose of avoiding arrest or detection, there has been at least

some concrete evidence that a motivation to avoid arrest precipi-

tated the killing. See e.g. Hitchcock v. State, 413 So.2d 741

(Pla. 1982) (defendant admitted to having choked and beaten victim

in order to keep her from carrying out her threat to tell her

mother of sexual battery); Vaught v. State, 410 So.2d 147 (Fla.

1982) (victim shot after pulling off assailant's mask and telling

him he knew who he was and where he lived); Elledge v. State, 408

So.2d 1021 (Fla. 1981) (rape victim threatened to call police);

Blair v. State, 406 So.2d 1103 (Fla. 1981) (defendant killed his

wife, who threatened to report to police that he committed a sexual

battery upon her daughter); White v. State, 403 So.2d 331 (Fla. 1981)

(three co-perpetrators discussed the need for killing victims

after mask of one of the perpetrators fell off; "“wheelman" was

later told not to worry because none of victims should live);

Riley v. State, 366 So.2d 19 (Fla. 1978) (victim executed after one

of perpetrators expressed concern for subsequent identification).

In the present case, there was no evidence that the killing

was motivated - solely, dominantly, or at all - by desire to avoid

arrest. The trial court merely found:

That the capital smnony was committed

for the purpose of avoiding or preventing

@ lawful arrest or effecting an escape

from custody is proven beyond and to the

exclusion of a reasonable doubt by the

facts stated above Pe kidnapping

and rape by the additional fact that

Trisa Gail peace ley was found dead on

March 15, 1978, which prevented any

testimony on her part concerning kidnapping

and rape some seven weeks after her dis-

appearance while walking home from school.

{Appendix A-7, D-4]

The observation that the victim's death had the effect of

preventing any testimony on her part regarding the kidnapping and

rape is obviously correct, but it begs the question of whether that

is why she was killed. If the trial court's analysis were valid,

then any felony murder would automatically support a finding of

this aggravating circumstance, since by definition there has been

a felony, by definition the victim is dead, and, as a logical

consequence, the death of the victim prevents him from testifying

about the felony.

The Florida Supreme Court expanded upon the trial court's

finding, relying on additional facts in the record.

The record shows that the victim knew

and could have identified defendant;

that he encased the body in white

plastic garbage bags and tied it with

rope; that he disposed of the body in

a desolate area; that he concealed his

crime effectively for a period of time

from January 23, 1978, to March 15,

1978.

Adams v. State, 412 So.2d 850, 856 (Fla. 1982);

ppe x A~

The problem with this reasoning is that while there may indeed

have been sufficient evidence to support an inference that petitioner

concealed the body of the victim for the purpose of avoiding arrest,

there was absolutely no evidence tnat avoiding arrest was his

motivation for killing her in the first place.?

With respect to the motive for the murder, the Florida Supreme

Court appears to have agreed with the state’s position [see Appendix

Tin Blair v. State, 406 So.2d 1103 (Fla. 1981), the defendant disposed

of the victim by burying her remains in the back yard and pouring a

concrete slab over the burial site. The trial judge did not rely on

concealment of the body as support for his finding that the murder

was committed for the purpose of avoiding arrest. Rather, that find-

ing was based on the fact that the victim (the defendant's wife) had

threatened to report to police that he had committed sexual battery

upon her daughter. Analysis of the Blair fact pattern indicates

that the murder there was committed for the purpose of avoiding arrest

for the sexual battery of the daughter, and the concealment of the

body was done in order to avoid arrest for the murder. The former

circumstance is valid 14 pera under Section 921.141(5)(e); the

latter is not. See Wash ngton v. State, 362 So.2d 658, 667 (Fla.

1978) (England, J. concurring); cf. Halliwell v. State, 323 So.2d

527 (Fla. 1975).

7-2-3], which was essentially “What other motive could there have

been?" It is submitted that this falls far short of the requisite

proof beyond a reasonable doubt. ” While it is true that it is

difficult to conceive of what would drive a person to kill an eight

year old child, it is also hard for most people for imagine what

would drive a person to commit a sexual battery on an eight year

old child. The Florida Supreme Court attempted to apply logic: to

determine the motive for a crime which by its nature is often highly

illogical. Sexual battery and irrational violence (including homi-

cidal violence) are psychologically intertwined [see Surace v. State,

378 So.2d 895 (Fla. 3rd DCA 1980); State v. Aiken, 370 So.2d 1184

(Fla. 4th DCA 1979}, aff'd 390 So.2d 1186 (Fla. 1980)}. A pre-

sumption that the killing of a rape victim (even a premeditated

killing of a rape victim who is acquainted with her assailant) is

necessarily motivated by the assailant's desire to avoid arrest

because “why else would he do it", ignores the strong possibility

that whatever unfathomable pyschosexual motivations precipitated

the sexual battery may have also motivated the killing.

In Godfrey v. Georgia, supra, 446 U.S. at 428, this Court

stated that *. . . if a State wishes to authorize capital punishment

it has a constitutional responsibility to tailor its law in a manner

that avoids the arbitrary and capricious infliction of the death

penalty." The Georgia Supreme Court, consistent with its obligation

to keep its death penalty statute within constitutional bounds,

had previously construed the aggravating circumstance regarding an

“outrageously or wantonly vile, horrible or inhuman" crime in such

a way as to prevent its arbitrary application. This Court

Florida requires proof of any aggravating circumstance found in

support of a death sentence to be established beyond a reasonable

doubt. Dixon v. State, 283 So.2d 1 (Pla. 1973); Phi v. State,

389 So.2d 9591 (Flia. 1980); Denpe Vv. State, 395 0-34 S01 (Fin, 1981) «

The reasonable doubt standar sa eral constitutional basis

as well, which should be applied with particular care to proof of

facts necessary to permit imposition of the death penalty. See mm re

Winship, 397 U.S. 35@, 90 S.Ct. 1068, 25 L.Ed.2d4 328 (1970); Jackson

¥. Virginia, 443 U.S 307, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979);

Addin ton v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d4 323 (1979)

Bullington v. Missouri, 451 U.S. 430, 101 s.ct. _, 68 L.Bd.2d 270

The Harris” and Blake’ opinions suggest

the Georgia Supreme Court had by 1977

reached three separate but consistent

conclusions respecting the §(b) (7)

aggravating circumstance. The first was

that the evidence that the offense was

‘outrageously or wantonly vile, horrible

er inhuman’ had to demonstrate ‘torture,

depravity of mind, or an aggravated

battery to the victim." The second

was that the phrase, ‘depravity of mind,’

y the kind of mental state

that led the murderer to torture or to

commit an aggravated battery before

killing his victim. The third, derived

from Blake alone, was that the word,

‘torture,’ must be construed in pari

materia with ‘aggravated battery’ so as

to require evidence of serious physical

abuse of the victim before death. Indeed,

the circumstances proved in a number

of the §(b)(7) death sentence cases affirmed

by the Georgia Supreme Court have met all

three of these criteria.

The Georgia courts did not, however, so

limit §(b)(7) in the present case. No

Claim was made, and nothing in the record

before us suggests, that the petitioner

committed an aggravated battery upon his

wife or mother-in-law or, in fact, caused

either of them to suffer any physical

injury preceding their deaths. Moreover,

in the trial court, the prosecutor repeatedly

told the jury - and the trial judge wrote

in his sentencing report - that the murders

did not involve ‘torture.' Nothing said on

appeal by the Georgia Supreme Court indicates

that it took a different view of the evidence.

The circumstances of this case, therefore,

do not satisfy the criteria laid out by the

Georgia Supreme Court itself in the Harris and

Blake cases. In holding that the evidence

supported the jury's §(b)(7) finding, the

State Supreme Court simply asserted that the

verdict waz ‘factually substantiated.’

Thus, the validity of the petitioner's death

sentences turne on whether, in light of the

facts and circumstances of the murders that

Godfrey was convicted of committing, the

Georgia Supreme Court can be said to have

applied a constitutional construction of the

phrase ‘outrageously or wantonly vile,

horrible or inhuman in that [they] involved

- « « Gepravity of mind ...* We conclude

that the answer must be no.

Godfrey v. Georgia, supra, 446 U.S. at 431-32.

SHarris v. State, 230 SE.24 1 (Ga. 1976).

‘siake v. State, 236 SE.23 637(Ga. 1977).

a 4 -

Similarly, the Florida Supreme Court has adopted a constitutional

construction of its §(5)(e) aggravating circumstance [Menendez v.

State, supra, at 1282, holding that the aggravating circumstance of

a murder committed for the purpose of avoiding arrest is not present,

at least where the victim is not a law enforcement officer,unless it

is clearly shown that the dominant or only motive for the murder

was witness elimination], applied this construction with some

consistency [see Hitchcock v. State, supra; Vaught v. State, supra;

Elledge v. State, supra; Blair v. State, supra; White v. State, supra;

Riley v. State, supra), but has now apparently abandoned it in favor

of an open-ended construction which allows the trial court to find

that the murder was committed for the purpose of avoiding arrest,

without any evidence of such motivation, on the basis of “Why else

would he do it?” As in Godfrey, such a construction is unconsti-

tutionally vague and overbroad, as well as violative of the reason-

able doubt standard.” This Court should grant certiorari, in order

to prevent the unchannelled and unreasoned application of this

aggravating circumstance to justify imposition of the death penalty,

now and in the future.

Scoafre could perhaps be distinguished from the present case on the

basis that in Godfrey the death penalty was imposed solely on the

basis of the §(b) (7) aggravating circumstance, while here there were

two other aggravating circumstances found. Such a distinction would

be illusory. In the present case there were also three mitigating

circumstances found. Under Florida law, if the Supreme Court had

invalidated the §(5)(e) aggravating circumstance, as it should have done,

it would have either ordered the penalty reduced to life imprisonment

without eligibility for parole for twenty-five years [see Vasil v.

State, 374 So.2d 465 (Fla. 1979); Blair v. State, 406 So.2d 1103 (Fla.

IS8I}; Halliwell v. State, 323 So.27d 557 (Pia. 1975)}, or at least

the case to the trial court for resentencing without taking

into consideration the invalid aggravating circumstance [see

Godfrey v. State, 387 So.2d 333 (Fla. 1980); Lewis v. State, 337 So.2da

640 (rte. 1575) )

« 36 «

CONCLUSION

WHEREFORE, the Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Petition for

Writ of Certiorari has been furnished by U.S. mail to the Honorable

Alexander L. Stevas, Clerk of the Supreme Court of the United States,

First and Maryland Avenue, Northeast, Washington, D.C. 20543;

Mr. Aubrey Dennis Adams, Jr., #067227, Post Office Box 747, Starke,

Plorida 32091; and by hand-delivery to the Honorable Sid White,

Clerk of the Supreme Court of Florida, Supreme Court Building,

Tallahassee, Florida; and the Honorable Jim Smith, Attorney General,

The Capitol, Tallahassee, Florida; on this Znd day of July, 1982.

wire le

{ {

vo. $2 5020

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

AUBREY DENNIS ADAMS, JR.,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

APPENDIX

STEVEN L. BOLOTIN

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

(MEMBER OF THE BAR OF THIS COURT)

Appendix

TABLE OF CONTENTS

Adams v. State, 412 So.2d 850 (Fla. 1982)

Motion for Rehearing dated March 26, 1982,

and Denial of Rehearing dated May 5, 1982

Section 921.141, Florida Statutes (1973)

Trial Court's Findings of Fact in Support

of Death Sentence

Excerpts from Initial Brief of Appellant in

the Supreme Court of Florida

Excerpt from Brief of Appellee in the

Supreme Court of Florida

PAGE (S)

1-8

iy?

&“-%

iil

Poa, cee eee ae

PSA.

850 Fis.

Aubrey Dennis ADAMS, Jr., Appellant,

¥.

STATE of Florida, Appeliece.

No. 56134.

Supreme Court of Florida.

Feb. 13, 1962

Rehearing Denied May 6, 1982

The Cireuit Court, Marion County, W.

F. Edwards, J., convicted defendant of mur-

der. in the first degree, and defendant ap-

pealed. The Supreme Court, Adkins, J.

held that: (1) although erroneous or unin-

vited felony-murder instruction was given,

evidence of premeditation was sufficient to

render error harmless; (2) trial court did

not err in admitting into evidence color

taken at scene where body was

discovered and other photograph of body

showing victim's hands taped together with

adhesive tape; and (3) sentence of death

was appropriate.

Affirmed.

Boyd, J., concurred in part and dissent-

ed in part with an opinion.

McDonald, J., concurred as to the con-

viction and dissented as to the sentence.

1. Homicide @ 181) - ’

Where indictment alle:jed that

ant murdered victim, unlawfully from pre-

meditated design by strangling, State could

prosecute under both theory of premedita-

tion and theory of felony-murder.

2. Homicide @236(1)

Evidese was sufficient to sustain find-

ing that death was caused by strangulation,

not by defendant placing his hand over

mouth of victim so as to keep her from

screaming or yelling.

432 SOUTHERN REPORTER, 24 SERIES”

versal of conviction of murder in the first

degree wes not warranted.

4. Criminal Law @= 1038.2, 1038.3

Request for an {nstruction or an objec-

tion over a failure to give an instruction is a

prerequisite to raising an alleged error on

appeal.

&. Criminal Law @=438(7)

If photograph is relevant to issue re-

quired to be proven in a case, fact that

evidence is gruesome and offensive docs not

ed ftiti|

ef err at.

Blake

Ck oe Boe

. ADAMS v. STATE

Fla 851

Cite an, Fla, 412 $0.34 650

10. Homicide e344

Trial judge did not err in finding that

defendant's acts constituted an aggravating

factor for purposes of determining whether

to impose death sentence, despite conten- .

tion that there was no crime of.rape in

Florida since rape statute was repealed and

nomenclature af offense was changed te

“sexual battery” or “attempt to commit

sexual battery.” West's FSA. §§ 794.011,

921.141(5Xd).

11. Constitutional Law @=258(1)

Due process requires only that law give

qufficient notice so that men may conform

their conduct so as to avoid that which is

forbidden. U.S.C.A.Const.Amend. 14. ©

12. Homicide = 354

There was sufficient competent evi-

dence from which judge could have found

that defendent commitied_capital felony in

an effort to avoid or prevent a lawful ar-

rest, la view of evidence that victim knew

and could have identified defendant, that

he encased body in white plastic garbage

bags and tied it with rope, that he disposed

of body in a desolate area, and that he

concealed his crime effectively for period of

time from January 22, 1978 to March 15,

1978. West's PSA. § 921.141(5Ke).

14. Homicide e354

In view of defendant's statement indi-

cating that eight-year-old victim was

screaming prior to her strangulation by de-

fendant, an adult, there was sufficient com-

petent evidence in the record from which

trial judge could have found that, for pur-

death sentence was appropriate, trial court

did not err in failing te find that capacity

of defendant to conform his conduct to re-

A-2

of law was substantially im-

paired as a result of his marital distress.

Jim Smith, Atty. Gen, and David P.

Gauldin, Asst. Atty. Gen., Tallahassee, for

appellee.

Michael M. Corin, Asst. Public Defender,

Second Judicial Circuit, Tallahassee, for ap-

pellant.

ADKINS, Justice.

This is a direct appeal from a judgment

on January 23, 1978, at about 2.30 PM.

wooded area near Ocala, Florida, by three

;

E $

rit

mee

- aggncRSRNSeneonemtapegne - +

f* ee ee ee ae aa eee ee te

foal

r ;

B33

a theory of premeditation and a

elony-murder.

both

of fi

accompanied defendant dur-

fatal ride. The evidence is suffi-

sustain a finding that the death

record shows that defendant

caused by strangulation, not by the

in the home of the victim and

wag

Auda

by circumstantial

2 Larry

1958).

may he estab

evidence.

v. State, 104 So.2d 352, 354 (Fia.

er factual

lished

being in com-

The killing of a human

the evidence was sufficient to

show # premeditated

design on the part of

In Knight v. State of

er or not

ava mone arson, ,

mable and devest. 997, 1002 (Fia.1961),

laa cae

Ee, ven theagh hr ne rome

Florida, 994 So.24

we considered that

deztpes

Hie

eae

att

rape and

that it

——

crimes which do not exist, to wit:

an abominable and detestable

nature. rages Ps,

tee

Hiel sti

Feap ghrsg seks!

LRH HE

et pe:

ov oy

ADAMS v. STATE Fila. 853

Che ap, Pin, 412 Sar 650

it is clear that in both Robles and Jones cert. dlenied, 284 So.2d 218 (1973); Flagler

the primary charge was felony murder

and the state in neither case contended

showing of prejudice. See Frazier v.

ree

Hee

sbiizil

[

We are satisfied beyond 0 rensonsble

v. State, 198 So.2d 313 (Fia.1967).

[5-7] Defendant says that the trial

court committed reversible error in admit-

ting into evidence, over defendant's objec-

tion, two photegraphs of the victim. One

photograph in color, was taken at the scene

where the body was discovered. The other

photograph, apparently taken somewhere

else, is of the body and shows the victim's

hands taped together with adhesive tape.

The guidelines to be followed in determin-

ing the admissibility of photographie evi-

dence were set forth by this Court in State

v. Wright, 265 So.2d 361, 362 (Fia.1972), as

follows:

pri

;

fa!

854 Fis. 412 SOUTHERN REPORTER, 24 SERIES

fendant was engaged in or attempting to

commit or flight after committing or at-

nd tempting to commit @ rape or kidnapping

(Fla Stat. § 921.141(5\(d)), the judge stated:

In Lindberg v. State, 134 Pia. That the capital felony was committed

So, 662, we quoted the above authority while the Defendant was engaged in or

and approved exhibition to the jury of a itempting to engage in or in the flight

pacers Sawing, the Sely of the murder sn cocamiee Mitadiiin te preven

beyond and to the exclusion of a reasona-

ble doubt by Defendant Adams’ admis-

sion, States Exhibit # 49, in which he

{8} We now turn to the propriety of the

death sentence. The trial court found three

aggravating circumstances: 1) that the cap-

ital felony was committed while defeadant

was engaged in or attempting to engage in,

ADAMS v. STATE

Fis. 855

Cite an, Mla, 412 Sa.26 650

Thornley, did not return home from

school that day as she usually did.

{

In Brown v. Wainwright, 392 So.2d 1327,

1331 (Pia), cert. denied, —— U.S. ——, 102

S.Ct 542, 70 L.Ed. 2d 407 (1981), we deserib-

ed our function in reviewing a death sen-

tence:

This Court's role after a death sentence

jury and judge acted with procedural rec-

« The second aspect of our review process

is to ensure relative proportionality

among death sentences which have been

statewide. After we have con-

cluded that the judge and jury have acted

with procedural regularity, we compare

the case under review with all past capi-

tal cases to determine whether or not the

punishment is too great. Proffitt v. Flor-

ida, 428 US. U2 (96 S.Ct. 2060, 49

L.E4.2d 913) (1976); State v. Dixon, 283

~Sofd 1 (Fia.1973), cert. denied, 416 US.

943 (94 S.Ct. 1951, 40 L.Ed.2d 295) (1974).

In those cases where we found death to

be comparatively inappropriate, we have

reduced the sentence to life imprison-

ment. See Malloy v. State, 382 So2d

1190 (Fia.1979); Burch v. State, 343 So.2d

ree

reel

bids a

856 Fis

trial judge used a non-statutory aggravat-

ing factor in imposing the death sentence.

The statute penalizing rape, section 794.01,

Fiorida Statutes (1972), was repealed by

chapter 74-121, section 1, Laws of Florida.

Acts which would have constituted rape or

attempied rape would constitute a sexual

battery or attempt to commit sexual bat-

tery by virtue of section 794.011, Florida

Statutes (1977). The word “rape” in section

921.141(5d) had not yet been changed to

“sexual battery”. Due process requires

to avoid that which is forbidden. The act

itseif, rather than its nomenciature, consti-

tutes the aggravating circumstances. The

trial judge did not err in finding defend-

ant's acts constituted an aggravating fac-

tor.

[12] Defendant next argues that the tri-

exclusion of a reasonable doubt by the

facts stated above kidnapping

and rape by the additional fact that Trisa

Gail Thornley was found dead on March

nett

Tat Us

eptepl +

iit fH

Ti ref

tartei itil

(

412 SOUTHERN REPORTER, 24 SERIES

gagged. He was then shot in the head

after one of the perpetrators expressed a

concern for subsequent identification. This

Court concluded that the aggravating cir-

cumstance existed because the defendant

had killed the victim to avoid identificatica

ESete

Hilr

Tit

showed seven coils of rope with a circum-

ference of nine and three-fourths inches

around the neck of Trisa Gail Thorniey as

shown in evidence by State Exhibit # 16,

and that the child's body was placed in a

[ef

BEETERIETAEDE TEER

EpLahagcqengpee

to thu

we autopsy showed

. induced by tight

State

that Trise Gail

mur-

gt Oe ce BP eg IN wy,

ADAMS v. STATE

Cr eas, Pia, 412 Sold 886 =

[13,14] The fear and emotional strain

a victim's almost instantuneous

death may be considered as contributing to

the heinous nature of the capital felony.

Knight v. State, 338 So.2d 201 (Fia.1976).

A homicide committed through strangula-

tion has been held to be especially heinous,

atrocious, and cruel. Alvord v. State, $22

’ So.2d 533 (Pia.1975), cert. denied, 428 US.

923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976).

From defendant's statement we find that

el. There was sufficient competent evi-

dence in the record from which the trial

judge could find the presence of this aggra-

vating circumstance.

{15} Although the trisl-judge found, as

a mitigating factor, that the capital felony

was committed while defendant was under

right. and wrong on the date of the commis-

sion of the offense. The trial court did not

_ err.in failing to find that the capacity of

to conform his conduct te

Pia. 857

The findings of the trial judge were suf-

ficient to show that the sentence of death

resulied from reasoned judgment. This

reasoned judgment comports with our con-

sideration of other cases and the sentence

SUNDBERG, ©. J., and OVERTON and

ALDERMAN, JJ., concur.

BOYD, J., concurs’ in part and dissents in

part with an opinion. :

I concur in that part of the majority

opinion affirming appellant's conviction of

murder in the first degree.

One of thé principal functions of this

nepagare qoeser ha gir gar pwede

it js my opinion that the law requires this

IN THE SUPREME COURT OF FLORIDA

AUBREY DENNIS ADAMS, JR., :

Appellant, £

vs. : CASE NO. 56,134

STATE OF FLORIDA, : -

Appellee. :

MOTION FOR REHEARTNG

COMES NOW the appellant, AUBREY DENNIS ADAMS, JR., 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. The trial court, in imposing a death sentence upon

appellant, found three aggravating circumstances and three miti-

gating circumstances. He found, as one of the aggravating

circumstances, that the capital felony was committed for the

purpose of avoiding or preventing a lawful arrest. As support

for this finding, the trial court stated:

That the capital felony was committed

for the purpose of avoiding or preven-

ting a lawful arrest or effecting an

escape from custody is proven beyond

and to the exclusion of a reasonable

doubt by the facts stated above proving

kidnapping and rape by the additional

fact tat Trisa 1 Thornley was found

dead on March 15, 1978, which prevented

any testimony on her part concerning

kidnapping and rape some seven weeks

after her disappearance while walking

home from school.

On appeal, this Court concluded that there was sufficient competent

evidence to support the trial court's finding, and said:

The record shows that the victim knew

and could have identified defendant;

that he encased the body in white

plastic garbage bags and tied it with

ropes; that he disposed of the body

in a desolate area: that he concealed

his crime effectively for a period of

time from January 23, 1978,.to March... . ...,

In Riley v. State, 366 So.24 19 (Fla.

39787; the wobbery victim, who knew

and could identify the defendant,

had been bound gagged. He was *

Ohl bP ie

oO C

then shot in the head after one

of the perpetrators expres

a concern for subsequent identifi-

cation. This Court concluded that

the aggravating circumstances

existed because the defendant had

killed the victim to avoid identifi-

cation and arrest. See alse Hoy

v. State, 353 So.2d 826 (Fla. 1977);

nae ental 499 U8. 920 (397003

cert. denice: sto, 366 So.2d 752 (Fla.

1978), cert. denied, 444 U.S. 885s

(1979).

2. Appellant believes that this Court may have overlooked

or misapprehended the fact that, while there may indeed have been

sufficient evidence to support an inference that appellant

concealed the body of the victim for the purpose of avoiding

arrest, there is absolutely no evidence whatsoever: that avoiding

arrest was his motivation for killing her in the first place.

According to appellant's confession, he had tried to have sexual

relations with the victim but couldn't bring himself to do it.

The victim was screaming, appellant put his hand over her mouth,

and she quit breathing. This Court found that the circumstantial

evidence, including the fact that a rope was around the victim's

neck and her hands were bound, was sufficient to sustain a

finding that the killing was premeditated and caused by strangu-

lation rather than by suffocation. However, while these circum-

stances may indicate that the killing may have been premeditated,

they de not in anyway indicate what the motive for the killing

may have been. The fact that no particular motive is apparent

does not preclude a finding of premeditation, see Lowe v. State,

90 Fla. 255, 105 So. 829 (1925), Matthews v. State, 130 Fla.

53, 177 So. 321 (1937). But unless the evidence showed beyond

a reasonable doubt that avoiding arrest was appellant's sole or

dominant motive for killing the victim, the aggravating factor

cannot be cnatenlanil See Menendez v. State, 368 So.2d 1278

(Pla. 1979) (aggravating circumstance of intent to avoid arrest

is not present, at least where victim is not 4 law enforcement

officer, unless it is clearly shown that the dominant or only

motive for the murder was elimination of witness); Riley v. State,

366 So.2d4 19 (Fla. 1978); Armstrong v. State, 399 So.2d 953 (Fla.

1981) (proof of requisite intent to avoid arrest and detection

C5 C

must be very strong); Dixon v. State, 283 So.2d 1 (Pla. 1973);

389 So.2d 991 (Fla. 1980); Demps v. State,

Phippen v. State,

395 So.2d 501 (Fla.

1961) (evidence must establish existence of

the aggravating circumstance beyond a reasonable doubt). Florida

Statute Section 921.141(5) (e) establishes an aggravating circum-

stance only where “(t]he capital felony [i.e. the murder) was

committed for the purpose of avoiding or preventing a lawful

arrest or effecting an escape from custody". The fact of con-

cealment of a murder victim's body may support an inference that

the concealment was done for the purpose of avoiding detection,

but it certainly does not support an inference that the murder

itself was done for that reason. See Washington v. State, 362

1978) (England, J., concurring); cf. Halliwell v.

So.2d 658 (Pla.

323 So.2d 557 (Fla. 1975); Blair v. State, 406 So.2d 1103

State,

(Fla. 1981).

3. In prior cases in which this Court has upheld a finding

that a murder was committed for the purpose of avoiding arrest

or detection (where the victim was not a law enforcement officer),

there has been at least some concrete evidence that a motivation

4 the killing. See e.g. Hitchcock v.

to avoid arrest precipitate

State, So.2d (Fla. 1982) (Case No. 51,108, opinion filed

1982) (1982 FLW 99) (defendant admitted to having

February 25,

choked and beaten victim in order to keep her carrying out her

f sexual battery); Vaught v. State,

threat to tell her mother ©

1982) (Case No. 52,835, opinion filed January

a otc aon nae aR =

7, 1982) (1982 FLW 13) (victim shot after pulling off assailant's

mask and telling him he knew who he was and where he lived);

Elledge v. State, 408 S$o.24 1021 (Fla. 1981) (rape victim threatened

State, 406 So.24 1103 (Pla. 1981)

to call police); Blair v.

killed his wife, who threatened to report to police

(defendant

~ i ae a — lame aa.

_—— er ee oe

me cate die

° oe oe

- a

feed

R-2

ee atl C ¢

that he committed sexual battcry upon her daughter) ;~ White v.

State, 403 So.2d 331 (Fla. 1981) (three co-perpetrators discussed

the need for killing victims after mask of one of the perpetrators

fell off; “wheelman" was later told not to worry because none of

victims should live); Riley v. State, 366 So.2d 19 (Pla. 1978)

(victim executed after one of perpetrators expressed concern of

subsequent identification).

4. In the present case, there was no evidence that the

killing was motivated - solely, dominantly, or reg at.all ~ by

appellant's wish to avoid detection or arrest. Conceding arguendo

that his concealment of the body was indicative of a desire to

avoid arrest for the murder, there is absolutely no indication

of what may have motivated the murder itself (assuming that it

was premeditated). The trial court's observation that the victim's

death had the effect of preventing any testimony on her part

regarding the kidnapping and rape is obviously correct, but it

begs the question of whether that is why she was killed. If the

trial court's analysis were valid, then any felony murder would

automatically support a finding of this aggravating circumstance,

since by definition there has been a felony, by definition the

victim is dead, and, as a logical consequence, the death of the

victim prevents him from testifying about the felony. Even

considering the additional circumstances emphasized by this Court,

that premeditation ouutt ta intecead from the physical evidence,

that the victim and appellant knew each other, and that the body

had been placed in a plastic bag and enaneaien in a desolate

area, there is still no evidence that the killing was motivated

by desire to avoid arrest. Concealment of the body, as previously

argued, only indicates the mtive for concealing the body, not

the motive for committing the murder. With respect to

tin Blair, the defendant disposed of the victim by burying her

remains in the back yard and pouring a concrete slab over the

burial site. The trial judge did not rely on concealment of the

body as support for his finding that the murder was committed for

the purpose of avoiding arrest. Analysis of the Blair fact pattern

indicates that the mur there was committed for the purpose of

avoiding arrest for sexual battery of the daughter, and the con-

cealment of the body was done in order to avoid arrest for the

murder. The former circumstance is valid aggravation under

Section 921.141(5)(e); the latter is not.

’ C) i

premeditation, the Court appears to have agreed with the state's

position (sec Brief of Appellee at 43-44) which was essentially

“what other motive could there have been?" It is submitted that

this falls far short of na requisite proof beyond a reasonable

doubt. While it is true that it is difficult to conceive of

what would drive a person to kill an eight year old child, it

is also hard for most people to imagine what would drive a person

to commit a sexual battery on an eight year old child. The

Court is attempting to apply logic to determine the motive for

a crime which by its natiire is often highly illogical. Sexual

battery and irrational violence (including homicidal violence)

are psycholcgically intertwined {see Surace v. State, 378 So.2d

895 (Fla. 3rd DCA 1980); State v. Aiken, 370 So.2d 1184 (Pla.

4th DCA 1979), aff'd 390 So.2d 1186 (Fla. 1980)]. A presumption

that the killing of a rape victim (even a premeditated killing

of a rape victim who is acquainted with her assailant) is

necessarily motivated by the assailant's desire to avoid arrest

because “why else would he do it", ignores the strong possibility

that whatever unfathomable pyschosexual motivations erecipitated

| the sexual battery may have also motivated the killing. Where,

| as here, there is evidence of premeditation but absolutely no

evidence tending to indicate motivation one way Or the other,

to simply assume that appellant “must have" decided to kill the

SS victim because she knew him and could identify him is patently

insufficient to prove this aggravating circumstance beyond a

reasonable doubt. See Demps v. State, supra, at 505 n.5 and 506.

In Menendez v. State, supra, at 1282, this Court said, “we cannot

assume Menendez's motive; the burden was on the state to prove

4¢.*

5. Por the reasons stated above, the death penalty imposed

upon appellant, based in part on the trial court's finding that

the capital felony was committed for the purpose of avoiding

arrest, is violative of the Eighth and Fourteenth Amendments to

the United States Constitution._ See Godfrey v- Georgia, 446 U.S. |

420 (1980) (overly broad and vague construction of a statutory

ah Sen ' “*

' & CO

aggravating circumstance violates Righth and Fourteenth Amendments) ;

see also In re Winship, 397 U.S. 358 (1970); Jackson v- Virginia,

443 U.S. 307 (1979); Addington v. Texas, 441 U.S. 418 (1979);

Bullington v. Missouri, __ U-S- __s 16% $.Ct.- 74 68 L.Ed.2d

270 (1981) (constitutional basis of reasonable doubt standard).

6. In view of the invalidity of the aggravating circumstance

that the murder was committed for the purpose of avoiding arrest,

two aggravating circumstances and three mitigating circumstances

would remain. Appellant submits that it would be appropriate

for this Court to remand this case to the trial court with

instructions to reduce the penalty to life imprisonment without

eligibility for parole for twenty five years. See Blair v. State+

supra; Halliwell v. State, Supra. In the alternative and at

the least, appellant submits that this Court shovld remand the

case to the trial court for the purpose of resentencing appellant

without taking into consideration the aggravating circumstance

delineated in Florida Statute Section 921.141(5)(e). See Gafford

v. State, 387 So.2d 333 (Fla. 1980); Lewis v. State,,’377 So.2d

640 (Pla. 1979).

WHEREFORE, appellant respectfully requests that this Court

grant his motion for rehearing.

Respectfully submitted,

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Motion for

Rehearing has been furnished by hand-delivery to David P.

Gauldin, Assistant Attorney Gereral, The Capitol, Tallahassee,

Florida; and by U.S. mail to Aubrey Dennis Adams, #067227

Post Office Box 747, Starke, Florida 32091; on this 26th day of

March, 1982.

y y dry lo fra hemp

jo VEN L. BOLOTIN

be a Alan a a ice me ee me ae

~——e me

as ‘2 . CF ar

IN THE SUPREME COURT OF FLORIDA

WEDNESDAY, MAY 5, 1982

AUBREY DENNIS ADAMS, JR.,

Appellant, mach CASE NO. 56,134

belied Circuit Court Case No. 78-366

vs.

(Marion) CF-A-01

STATE OF FLORIDA,

Appellee.

On consideration of the motion for rehearing filed by

attorney for appellant, and response thereto

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

same is hereby denied.

SUNDBERG, C.J., ADKINS, OVERTON and ALDERMAN, JJ., Concur

BOYD and McDONALD, JJ., Dissent

ECHVE

MAY 10 1962

— PUBLIC DEFENDER

2nd JUDICIAL CixCUIT

A True Copy c

cc: Hon. Frances E. Thigpin, Clerk

TEST: Hon. William F. Edwards, Judge

Steven L. Bolotin, Esquire

David P. Gauldin, Esquire

Sid J. White

Clerk Supreme Court

meh Comerraye

B-8

ited ae

wat.iat

ment fer cagein

determine wertlenee,.<—

“dp SEVAKATE PROCEEDINGS ON Is-

SUE OF PENALTY.—Upen conviction or seal

jon of guilt of a demlant of a capital

y, the court shall cumdact a separate sen

tencing proceeding to determine whether the de-

fendant should be sentenced to death of life im-

prisonment 28 authorized by 8775092. The pro-

ceeding shall be conducted hy the tral judge be-

fore the trail jury as sven 6 practicable, If the

trial jury has been waived of f the defendant

— guilty, the sentencing proceeding shall

conducted betere a jury impaneled for that

purpuse unless waived by the detendant. In the

proceeding, erdulenes epats_ te tscmentes as to any

matter that the court deems relevant te sentence,

and shall include matters relating to any of the

aggravating of mitsating circumstances enu-

merated in subsections ir and 17) of this sec

tion, Any such evidence which the court deems

to have probative value may be received, regard:

less of its admissiluiny under the exclusionary

rules of evidence, provided the defendant is

accorded a fair opportuninv rebut any hearsay

statements. liowever, this subsection shall not

be construed to authorize the introduction of any

evidence secured in violation of the cunstitutions

of the United Ststes or of the State of Florida.

The state and the defendant or his counsel shali

Sentence of death or Lifer serngret sente-

I felemes: farther preoveedinge te

be permitted to t argument for or against

sentence of death.

m@ ADVISOKY SENTENCE BY THE

JURY.—After hearing all the evidence, the jury

shall deliberate and render an advisury sentence

based upon the following matters:

(a) Whether sufficient aggravating circum-

(b) Whether sufficient mitigaung circum.

stances exist 2% enumerated in subsection (7),

which outweigh the aggravating circumstances

found to exist; and

the defendant should be sentenced to life “lim

prisonment| or death.

3%) FINDINGS IN SUPPORT OF SEN-

CE OF DEATH.—Notwithstanding the

tion of a majority of the ee! the

after weighing the aggravating 3 miti-

nage circumstances shall enter a sentence of

imprisonment or death, but if the court im-

poses a sentence of death, it shall set forth in

writing its findings upon which the sentence of

}

‘

-—

18 =

days after certification by the sentencing court

af the entire record uniess the me es extended

for an additional penud not to execed 0 davs

by the supreme court fur good cause shown. Such

review by the supreme court shall have prionty

over all other caves and shall be heard in ac:

cordance with rules promulgated by the supreme

court.

(5) AGGRAVATING CIRCUMSTANCES.

—Aggravating circumstances shall be limited

to the following:

(a) The capital felony was committed by a

person under sentence of unprixonment.

(ob) The defendant was previously cunvicted

of another capital felony or of a felony involving

the use or threat of violence to the person.

(ce) The defendant knowingly created a great

risk of death to ory | persons.

id} The capital felony was committed while

the defendant was engaged, of was an accom

plice, in the commission of, of an attempt to cum-

mit, or flight after committing or atternpting to

commit, any robbery, rupe, arson, burglury, kid-

napping, or aircraft piracy or the unlawful

throwing, placing, or arging of a destruc

tive device or bomb.

(ce) The capital felony was committed for the

purpose of avoiding or sty a lawful arrest

or effecting an escape from custody.

(0 The capital felony was committed for

pecuniary gain.

(g) capital felony was committed to dis-

rupt or hinder the lawful exercise of any gov-

ernmental function or the enforcement of laws.

th) ‘The capital felony was especially hein-

ous, atrocious, or cruel.

_ ) MITIGATING CIRCUMSTANCES.—

‘-

Mitigating circumstances shall be the following:

(a) The defendant has no significant history

of prior criminal activity.

b) The capital felony was committed while

the defendant was under the influence of ex-

treme mental or emotional disturbance.

fendant’s conduct or consented to the act.

(d) The defendant was an accomplice in the

omen felony connie’ ays 6 person and

participation was relat minor.

(e) The defendant under

ate the criminality of his conduct or to conform

his conduct to the requirements of law was sub

stantially impaired.

() The age of the defendant at the time of

crime.

Hivtary.—$otia. ch row, 10), CUL 19450 Rapp Me le6 9118,

ch. Tecee, G1, che F272, we oh, TET

"Neto. weurd umaetied by the editere.

Rete. —Sew turmer pris £5

== i

extreme |

duress or under the substantial domination of

another i é

in the capacity of the defendant to appreci-

IN THE CIRCUIT COURT OF THE FIFTH

JUDICIAL CIRCUIT OF THE STATE OF

FLORIDA, IN AND FOR MARION COUNTY —

STATE OF FLORIDA 78-474 CP

AUBREY ==NNIS ADAMS, JR. os

Defendant, . a

FINDINGS OF FACT

THIS CAUSE coming on to be considered pursuant to the

provisicns of Section 921.141, Florida Statutes, after (a) the

conviction of the Defendant, Aubrey Dennis Adams, Jr., of Murder

in the First Degree, by a duly impaneled jury, and (b) the rendition

by such jury at the conclusion of the sentencing proceeding of an

Advisory Sentence recommending the imposition of the death sentence,

and after carefully considering and weighing the evidence presented

during such trial and sentencing proceeding, the arguments of the

attorneys as to the sentence to be imposed and the pre-sentence

investigation report submitted by the Florida Parole Commission, the

undersigned concludes and determines: :

1, That the State proved beyond and to the exclusion of a

reasonable doubt the following aggravating circumstances, to wit:

{a) The capital felony was committed while the

Defendant was engaged or was an accomplice in the commission of, or

an attempt to commit, or flight after committing or attempting to

commit any robbery, rape, arson, burglary, kidnapping, aircraft

piracy, or the unlawful throwing, placing or discharging of a

destr=zcztive device or bomb,

(b) The capital felony was committed for the purpose

of avoiding or preventing a lawful arrest or effecting an escape from ~—

‘

custoai;,

if" CLNES Y

And the State failed to prove beyond and to the exclusion of

}

i : 3

« svasOnable doubt the following aggravating circumstances, to wits

D-1 --

- State v. Aubrey Dennis Adams, Jr. Page 2

Findings of Fact

(a) The capital felony was committed by a person

under sentence of imprisonment,

(b) The Defendant was previously convicted of another

capital Zelony or of a felony involving the use or threat of violence

to the serson,

Geats% <=> many persons,

(d) The capital felony was committed for pecuniary

gain,

(e) The capital felony was committed to disrupt or

hinder <he lawful exercise of any governmental function or the

enforce-ent of laws,

That the Defendant, Aubrey Dennis Adams, Jr. established the

following mitigating circumstances, to wit:

(a) The defendant has no significant history or

prior criminal activity,

(b) The capital felony was committed while the

Defendant was under the influence of extreme mental or emotional

disturbance,

crime,

And that the Defendant failed to establish by evidence any -

other mitigating circumstances, including, but not limited to ‘

921.141 (7) c, 4, e, f£, Florida Statutes.

FINDINGS OF FACT

That the capital felony was committed while the Defendant was

engaged in or attempting to engage in or in the flight after committing

kidnapping, is proven beyond and to the exclusion of a reasonable

doubt by Defendant Adams’ admission, States Exhibit #49, in which

he says: ¥

After getting off work as a prison guard at Lowell Prison, he

. p-2 * ae

2. << F 4

spectre ww

State v. Aubrey Dennis Adams, Jr. Page 3

Findings of Fact

went to check his mail at his old residence, which is approximately

two blocks from the residence of the victim, Trisa Gail Thornley,

age 8, end saw her walking home from school about one and a half

blocks ‘rom her home. He knew the victim and offered to give her

a ride =cne. She got into Defendant's car and he started towards

her hire then turned away towards the Pine Street Shepp ing Center

then c:z State Road 200 towards the Central Florida Community College.

He re-exrered being stopped somewhere when she started screaming

and he sut his hand over her mouth and she stopped breathing.

Te above fact of kidnapping is also supported by the testimony

at the trial of the Defendant by police officers S.H. Stephenson,

John E. Fluno and W.R. Pugitt regarding the written statements made

by the Defendant and the oral statements concerning her death and

her disappearance that he gave the three officers. *

Kidnapping is also evidenced by the testimony of Trisa Gail

Thornley's third grade school teacher, Carélyn Andrews, who observed

Te Seer oP ora

the victim leave school at approximately 2:20 P.M. on January 23, 1978

and by Trisa Gail Thorniley‘s aunt and uncle, Lawson and Theresa Hopper,

and the victim's sister, Tracy Thorniey-., who stated that the victim,

Trisa Gail Thornley did not.return home from school that day as she

usually did. /

For additional support that 921.141 (6) (d), Florida Statutes,

is proveé beyond and to the exclusion of a reasonable doubt, is the

evidence proving that the capital felony was committed while the

Defendart was engaged in or attempting to engage in or flight after

committing rape is proven beyond and to the exclusion of a reasonable

doubt by the testimony of Officer Stephenson who was present at the

Defendants interview, who stated that Defendant Adams said that he

thought he tried to but couldn't do it, or couldn't bring himself

to do it, and that her body was found nude with her hands taped behind

her back, such tape applied to the victim, by Sucks tiebinony of

pathologist, Doctor Gertrude Warner of Ocala, Florida, as being

applied around the wrists while the victim, Trisa Gail Thornley, was

still alive.

—_—

D-3 —-

ull

State v. Adams Page 4

Findings of Fact

' That the capital felony was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape from

custody is proven beyond and to the exclusion of a reasonable doubt

by the fac-s stated above proving kidnapping and rape by the additional

g repe

fact tha= Trisa Gail Thornley was found dead on March 15, 1978, which

preventes sany testimony on her part concerning kidnapping and rape

some seven weeks after her disappearance while walking home from school

* that the capital felony was especially henious, atrocious

or cruel is proven beyond and to the exclusion of a reasonable doubt

by expert medical testimony that the autopsy, performed by Doctors

Gertrude “earner and William Shutze, showed a bruise on one arm, inflicted

prior to Geath, that thz autopsy showed swelling in the hands induced

by tight binding with tape prior to death, State Exhibit $17, that the

autopsy showed that the body was a nude body of an eight year old girl

whose hands were tightly taped behind her back prior to death, which

showed that Trisa Gail Thornley had time to gnticipate her murder and

that the autopsy and photographs showed seven coils of rope with a

circumference of nine and three-fourths inches around the neck of Trisa

Gail Thornley as shown in evidence by State Exhibit #16, and that the

childs body was placed in a plastic garbage bag and thrown in a wooded —

area some three miles from Pei home. ° |

Based exclusively and only upon (1) the records and the evidences

properly introduced and admitted during the trial, sentencing proceeding

and pre-sentence investigation and (2) the sufficient aggravating

circumsterces set forth above and finding that three mitigating cir-

cumstances, the fact that the Defendant was only 20 years of age at the

time of the crime, and that the Defendant was under the influence cf

extreme mental or emotional disturbance, in that Defendant and his wife |

were getting a divorce, and (3) that the Defendant had no significant0Z4

prior criminal activity are insufficient to outweigh the aggravating

circumstances, the undersigned accepts and agrees with the Advisory

Sentence by the jury,’ recommending that the death sentence should he :

Mma Ow eS

State v. Adams Page 5

Findings of Fact

imposed on the Defendant, AUBREY DENNIS ADAMS, JR.

WILLIAM F. EDW

CIRCUIT JUDGE, Fifth Judicial Circuit

if D-5 ‘ ba rs git scat

IN THE SUPREME COURT OF FLORIDA

AUBREY DENNIS ADAMS, JR.,

Appellant,

CASE NO. 56,134

Vv.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE

PIFTH JUDICIAL CIRCUIT

IN AND FOR MARION COUNTY, FLORIDA

INITIAL BRIEF OF APPELLANT

MICHAEL M. CORIN

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302

(904) 488-2458

ATTORNEY FOR APPELLANT

Re Ue ee te ewe

lhe Pat

Ree ae

ia ie Oa a nat He PANO Be a a ee

ISSUE III |

THE TRIAL COURT ERRED BY IMPOSING THE i

DEATH SENTENCE UPON THE APPELLANT WHICH

IMPOSITION, IF SUSTAINED AND CARRIED OUT,

WILL DEPRIVE HIM OF HIS LIFE WITHOUT DUE

PROCESS OF LAW, DENY HIM EQUAL PROTECTION

OF THE LAW AND SUBJECT HIM TO CRUEL AND/

OR UNUSUAL PUNISHMENT IN VIOLATION OF

THE CONSTITUTIONS OF FLORIDA AND THE

UNITED STATES.

The trial judge found three (3) aggravating circumstances:

(1) that the capital felony was committed while the appellant

was engaged or was an accomplice in the commission of, or

attempt to commit, or flight after committing or attempting

to commit a rape and/or kidnapping; (2) pat the capital

felony was committed for the purposes of avoiding or pre~

venting a lawful arrest or effecting an escape from custody,

and; (3) that the capital felony was especially heinous,

atrocious or cruel. The trial judge found three (3) miti-

gating circumstances: Qy that the appellant had no signi-

ficant history or prior criminal activity; (2) that the

capital felony was committed while the appellant was under

the influence of extreme mental or emotional disturbance, end;

(3) the fact cf the appellant's age in that he was only twenty

(20) years old at the time of the crime. (TS-8-14; R-143-147)

with a three on three balance achieved, the judge concluded

that the mitigating circumstances were insufficient to out-

weigh the aggravating circumstances and sentenced the appellant

to die. In so doing, the judge commenced a process which, if

not interrupted, will result in an unconstitutional punishment

of irreparable proportion under the Eighth and Fourteenth |

Amendments to the Constitution of the United States and under

2. .

E-2

Section 9 and Section 17 of Article I of the Constitution

of the State of Florida.

As will be seen shortly, the trial judge not only

erronenously found that certain of the above-enumerated

aggravating circumstances existed beyond a reasonable doubt,

he failed to find, consider, and weigh the existence of

a mitigating factor which is established in Section 921.141,

Florida Statutes, and which was fully supported by the evi-

dence adduced at the penalty phase of trial. It will thus be

conclusively demonstrated that the judge engaged in a “mere

counting process” in deciding that the mitigating circumstances

did not outweigh the aggravating circumstances. A numerical

summing is impermissible. State v. Dixon, 283 So.2d 1 (Pla.

1973) The factors must be intelligently and comprehensively

weighed. Huckaby v. State, 343 So.2d 329 (Fla. 1977) Reasoned

judgment as to what factual situations require the imposition

of death and which can be satisfied by life imprisonment is

the keystone of the constitutionality of capital punishment.

Proffit v. Florida, 428 U.S. 242, 49 L.Ed., 2d 913, 96 S.Ct.

2960 (1976) and Dixon, supra. The question of whether a death

sentence is grounded on reason is one for this Court to decide.

Indeed, when the death penalty has been imposed, this Court has

a separate responsibility to determine independently whether

the imposition of the ultimate penalty is warranted. Songer

v. State, 322 So.2d 481 (Fla. 1975). isin

Meaningful appellate review by this Court requires a

reweighing of the factors relevant to the sentence imposed.

«32 «

E-3

’

fe yee ee a eee en

— ee ee

eee ee

Halliwell v. State, 323 So.2da 557 (Fla. 1975) Meaningful

appellate review has seen this Court find mitigating circum-

Stances to exist where none were found by the trial court.

Huckaby v. State, supra. Meaningful appellate review has seen

this Court vacate a jury recommended, trial judge imposed,

Geath sentence when the aggravating and mitigating factors

were numerically equal but the aggravating circumstances were

outweighed by the mitigating circumstances. Huckaby, supra.

Meaningful appellate review of each death sentence may be long

and laborious but unless at least four members of this Court

agree that it is warranted, it cannot lawfully be carried out,

notwithstanding, that the sentence was jyry advised and trial

judge imposed. Vasil v. State, So.2d _, opinion filed

June 14, 1979, Case No. 46,654. Meaningful appellate review

of the appellant's death sentence should cause this Court

to vacate it and remand the matter to the trial court for

imposition of a life sentence. This is true, even if similar

judicial assessment, does not require a new trial with regard

to the appellant's guilt.

To facilitate the disposition of this argument, the :

appellant's complaints with the trial judge's imposition of

the death sentence will be specifically and separately discussed

below. Before entering into this discussion it might be wise

to note that this Court and other appellate courts in Plorida

have long been committed to the doctrine that a verdict of

guilt of a felony should not be upheld when based on quesswork,

suspicion or speculation. Where the evidence, considered as a

whole, entirely fails to disclose any substantial proof

E-4

of material fact necessary to be alleged and proved a

judgment of conviction will be reversed. Armstrong v. State,

107 Florida 494, 145 So.212, (Fla. 1932); Smith v. State, 228

So.2d 440 (2d DCA 1969); Williams v. State, 308 So.2d 595 (1

DCA 1975), cert. den., 321 So.2d 555 (Pla. 1975), and Horn-

brook v. State, 321 So.2d 127 (1 DCA 1975). Due process of

law requires no less a standard be applied to penalty findings

made by trial courts in death cases. Presnell v. Georgia,

U.S. 58 L.Ed., 207 99 S.Ct. _. (1978). As will be

shown, these time honored standards were not met nor were

they even approached in the present case.

THE TRIAL COURT ERRED IN FINDING THAT THE

STATE HAD PROVED BEYOND AND TO THE EXCLUSION

OF A REASONABLE DOUBT THAT THE CAPITAL FELONY

WAS COMMITTED WHILE THE APPELLANT WAS ENGAGED

IN OR ATTEMPTING TO FNGAGE IN OR FLIGHT AFTER

COMMITTING KIDNAPPING.

lca

In support of his Pinding of Fact with regard to this

kidnapping issue, the judge stated:

ing is proven beyond and tc the exclusion

- « « kidna

of a ae doubt by Defendant Adams‘ admission,

States Exhibit #49, in which he says:

After getting off work as a prison guard

at Loweli Prison, he went to check his mail

at his old residence, which is approximately

two blocks from the residence of the victim,

Trisa Gail Thornley, age 8, and saw her

walking home from school about one and a

‘half blocks from her home. He knew the

victim and offered to give her a ride home.

She got into Defendant's car and he started

towards her home then turned away towards

the Pine Street Shopping Center then out

State Road 200 towards the Central Florida

Community College. He remembered being

stopped somewhere when she started screaming

and he put his hand over her mouth and she

stopped breathing.

- 34 -

E-5 ;

a ee ee

* * io * “0 ie ae ws

0 On ee tte

practice of using non-stautory aggravating factors in the

weighing process. Under the provisions of Section 921.141,

Florida Statutes, aggravating circumstances enumerated in

the statute must be found to exist before a death sentence

may be imposed. The specified statutory aggravating circum-

stances are exclusive: no others may b® used for that purpose.

Purdy v. State, 343 So.2d 4, 6 (Pla. 1977) Regardless of the

existence of other authorized aggravating factors, this Court

has repeatedly held that it must *. . . guard against any

unauthorized aggravating factor going into the equation which

might tip the scales of the weighing process in favor of

death." Elledge v. State, 346 So.2d 998, 1903 (Fla. 1977)

See also: Miller v. State,3]2 S0-24 V7 opinion filed May

10, 1979, Case No. 50,606. The aggravating circumstances in

Section 921.141(5) (fi, Florida Statutes, which actually

define the crimes for which the death penalty is applicable,

Dixon, supra, cannot be expanded to include crimes that do not

exist.

¢.

THE TRIAL COURT ERRED IN FINDING THAT THE

STATE HAD PROVED BEYOND AND TO THE EXCLUSION

OF A REASONABLE DOUBT THAT THE CAPITAL FELONY

WAS COMMITTED FOR THE PURPOSE OF AYCIDING OR

PREVENTING A LAWFUL ARREST OR EFFECTING AN

ESCAPE FROM CUSTODY.

On this issue the court below found as follows:

That the capital felony was committed for the

purpose of avoiding or preventing a lawful arrest

or effecting an escape from custody is proven

beyond and to the exclusion of a reasonable doubt

by the facts stated above proving kidnapping and

rape by the additional fact that Trisa ert Thornley

was found dead‘ on March 15, 1978, which prevented

- 38 -

nea nee a te

a’,

‘6 (9

any testimony on her part concerning kidnapping

and rape some seven weeks after her disappearance

while walking home from school.

(R~146)

This finding by the court is not only unsupported by the

evidence in the case, but also, it is unsupported by the case

authorities which have construed Section 921.141(5){e), Florida

Statutes. To conclude otherwise would be to convert ipse dixit

into procf beyond a reasonable doubt.

Section 921.141(5) (e), Florida Statutes hes been narrowly

construed to apply only to those circumstances where, when the

victim is not a law enforcement officer, there is clear evidence

that the dominant or only motive for the murder was the elimi-

nation of a witness. Proof of the requisite intent to avoid

arrest must be very strong. Such a motive for a killing cannot

be assumed, the burden is on the State to prove it. Menendez’

v. State, 368 So.2d 1278 (Fla. 1979) and Riley v. State, 366

So.24 19 (Fla. 1978) In Riley the victim, who could have

identified the appellant, had been immobilized and rendered

helpless. He was, nevertheless, executed after one of the

perpetrators expressed a concern for subsequent identification.

On these facts, this court stated and cautioned as follows:

We caution, however, that the mere fact of a

death is not enough to invoke this factor when

the victim is not a law enforcement officiai.

Proof of the requisite intent to avoid arrest

and detection must be very strong in these cases.

363 So.2d at 22.

Thereafter in Menendez, supra, it was said:

There is also considerable doubt that this

murder was committed for the purpose of

avoiding arrest within the contemplation of

our statute. The state urges (with some logic)

‘

that any murder committed by means of a pistol

fitted with a silencer indicates a motivation

to avoid arrest and detection. The presumption

accorded the instrument of murder by this

reasoning, however, carries us too far. Were

this argument accepted, then the perpetration

of murder witha knife would similarily add an

~ aggravating circumstance to the life/or death

equation, since it is less detectable than a

firearm. This mechanical application of the

statute would divert the life-and-death choice

away from the nature of the defendant and the

deed, as the statute seems to require. In Rile

v. State, 366 So.2d 19 (Pla. 1978), we hel at

an intent to avoid arrest is not present, at -

least when the victim is not a law enforcement

officer, unless it is clearly shown that the

dominant or only motive for the murder was the

elimination of witnesses. Here, unlike Riley, we

do not know what events preceded the actua

killing; we only know that a weapon was brought

to the scene, which, if used, would minimize

detection. We cannot assume Menendes’s motive;

the burden was on the state to prove it.

368 So.2d 1282. Footnotes omitted.

Compare also the trial court's Findings of Fact in Gibson

v. State, 351 So.2d 948 (Fla. 1977) at page 951, footnote #5. ,

As applied to the facts of the pceiahk case, Riley and

Menendez compel a rejection of this aggravating circumstance.

There was croof that the appellant knew the victim and that he

picked her up to take her home but thereafter took her in a

different direction. They stopped somewhere and she was

screaming and the appellant put his hand over her movth and

she quit breathing. The fact that her body was not found until

some seven weeks after her disappearance does not prove that al

she was killed with the intent to avoid a lawful arrest. This

after-the-fact factual finding by the trial judge is irrelevant.

Indeed, if the trial court's reasoning were to be adopted, it

would result in the.very type of mechanical application of the

~ 40 =

‘E8

aes ee ee ee ee eee Le a

Se PRRESAE NG sacreameat ain eS Ae: et, “i é . r “4 mt Me

int

A 4

avn ne re ~~ “ae '

lm * ek Ne le! tine a = me

‘6 (f

statute which this Court has sought to avoid, lest the

statute become unconstitutional in its application, if

not on its face. Even if the appellant sought to cover

up the death of the victim, such cover up cannot and does

not provide a dominant or sole motive for the killing. This

Court cannot assume the appellant's motive and it is certain

that the appellee did not fulfill its burden of proof in

this regard.

THE TRIAL COURT ERRED IN FINDING THAT THE

STATE HAD PROVED SEYOND AND TO THE EXCLUSION

OF A REASONABLE DOUBT THAT THE CAPITAL: FELONY

WAS ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL.

The trial judge made the following observations in

support of his finding that the crime was especially heinous,

atrocious or cruel:

That the capital~félony was especially

heinous, atrocious, or cruel is proven beyond and

to the exclusion of a reasonable doubt by expert

medical testimony that the autopsy, performed by

Drs. Gertrude Warner and William Shutze, showed

a bruise on one arm, inflicted prior to death,

that the autopsy showed swelling in the hands

Y induced by tight binding with tape prior to

i death, State Exhibit #17, that the autopsy

Ko showed that the body was a nude body of an

te eight year old girl whose hands were tightly

4 taped behind her back prior to death, which

showed that Trisa Gail Thornley had time to

anticipate her murder and that the autopsy

and photographs showed seven coils of rope 3

with a circumference of nine and three-fourths

inches around the neck of Trisa Gail Thornley

as shown in evidence by State Exhibit #16, and

that the childs body was placed in a plastic

garbage bag and thrown in a wooded area some

three miles from her home. 7"

- (R146)

A close look at the actual facts of this case will amply

demonstrate that the trial judge erroneously concluded that the

‘

IN THE SUPREME COURT OF FLORIDA

AUBREY DENNIS ADAMS, JR.,

Appellant,

im CASE NO. 56,134

STATE OF FLORIDA,

Appellee.

BRIEF OF THE APPELLEE

JIM SMITH

Attorney General

DAVID P. GAULDIN

Assistant Attorney General

| ay THE CAPITOL

Tallahassee, Fl 32301

sei (904) 488-0600

get Counsel for the Appellee.

r-1 oes :

have a hew name.

In Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190,

38 L.Ed.2d 179 (1973) the Supreme Court noted that the existence

of previous applications of a particular statute to one set of

facts forecloses lack-of-fair warning challenges to subsequent

prosecutions of factually identical conduct. See also Rose Vv.

§.Ct. 243, 46 L.Ed.2d 185 (1975) [Due

y that the law give sufficient notice

Locke, 423 U.S. 48, 96

Process Clause requires onl

so that men may conform their conduct so as to avoid that which

is forbidden. ]

The trial court harmlessly erred when it called the

crime Appellant committed rape or attempted rape; but it did

not err in finding the Appellant's acts constituted an aggravating

factor.

A REASONABLE DOUBT THAT THE CAPITAL FELONY WAS

COMMITTED FOR THE PURPOSE OF AVOIDING OR PRE-

VENTING A LAWFUL ARREST OR EFFECTING AN ESCAPE

FROM CUSTODY.

The ‘Appellant concedes that he knew the victim,

that he picked the victim up after she left school, thet he

committed the acts detailed in his confession. (Appellant's

The Appellant, 4s demonstrated by the arguments

brief at 40).

infra, had committed or had attempt to committ sexual battery

upon the victim and had kidnapped the victim. What possible

concealment of his crimes, one of which car-

page 43

ee aes See ee. tee gee Ee

motive other chan

g's Re Stes,

as F sige:

Ne ee ee

De ee a a es

“i

~“

, PO ide Rete ee N69 he AO ‘rege e

. cr * a i ee ie nN A

ried with it 4 possible death sentence, could there have

been?

in Riley v. State, 366 So.2d 19 (Fla. 1978), the

robbery victim, who knew and could identify the defendant,

had been bound and gagged. He was then shot in the head after

one of the perpetrators expressed a concern for subsequent

identification. This Court concluded that the circumstance

existed because the defendant had killed the victim to avoid

identification and arrest. fe

Compare the facts of this case with the following,

all of which found the pati Pras RASS State, 353 So.2d

626 (Fla. 1977) (Rape victim and witness killed to avoid de-

tection.}; Jackson v- State, 366 So.2d 752 (Fla. 1978) (Robbery

victin was transported from robbery scene to & desolate area

and shot.).

The facts in the instant case show that the Appellant

kidnapped and sexually assaulted an eight year old girl who knew

and could have identified him; that he encased the body in black

plastic garbage bags and tied it with rope; that he disposed of

d his crime effectively

the body in a desolate area; that he conceale

for a period of time that encompassed January 23, 1978 to March

15, 1978.

Clearly, the trial court did not err in finding beyond

and to the exclusion of a reasonable doubt that the Appellant

comaitted his capital felony in the effort to avoid or prevent

a lawful arrest.

page 44

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

AUBREY DENNIS ADAMS, JR.

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

MOTION FOR LEAVE TO PROCEED

In FORMA PAUPERIS

AUBREY DENNIS ADAMS, JR., petitioner in the above-styled

cause, hereby scves 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 Plorida 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,

tive L Polit

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 468-2458

COUNSEL FOR PETITIONER

(MEMBER OF THE BAR OP THIS COURT)

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

Case No.? 5020

AUBREY DENNIS ADAMS, JR., :

Petitioner, :

APPIDAVIT OF FILING BY

we : FIRST CLASS UNITED STATES

STATE OF FLORIDA, MAIL PURSUANT TO RULE 28.2

Respondent. :

CAME AND APPEARED BEFORE ME, the undersi¢ned authority,

STEVEN L. BOLOTIN, Assistant Public Defender, attorney for

petitioner, who first being duly sworn, deposes and says:

That on July 2, 1982, he placed in a United States Post

Office box, with first class postage prepaid, an original

and one copy of the Petition for Writ of Certiorari to the

Florida Supreme Court in the above-referenced case, anc said

Petition was duly and properly addressed to the Clerk of the

United States Supreme Court. Further, he is a duly sworn

and authorized member of the Bar of this Court.

Steen L tA

Assistant Public Defender

Attorney for Petitioner

STATE OF FLORIDA

COUNTY OF LEON

SWORN TO AND SUBSCRIBED to before me this 2nd day of

July, 1982, at Tallahassee, Leon County, Florida.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been

furnished to Honorable Jim Smith, Attorney General, The

Capitol, Tallahassee, Florida, and to Mr. Aubrey Dennis

Adams, Jr., #067227, Post Office Box 747, Starke, Florida,

32091, this 2nd day of July, 1982.

Stiven L- Foobar

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671 |

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

Pa ak ao ik i ei Be Sw ars Seo aN a

SI ca Beam i ig Se aa a a aah ee a

oe ‘e ie Fi

Pe ae, < Tae

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

AUBREY DENNIS ADAMS, JR.

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

AUBREY DENNIS ADAMS, JR., 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,

Cire L Folk

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)

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

AUBREY DENNIS ADAMS,

Petitioner, :

vs.

STATE OF FLORIDA,

Respondent.

I, AUBREY DENNIS ADAMS, being duly sworn, depose and say, in

support of my motion for leave to proceed without being required

te prepay costs or fees and to proceed in forma pauperis:

1. I 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 personal property; I am incarcerated

and receive no income from earnings. v4

3. I am unable to give security for said cause.

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

said cause.

on LA bog Fe cv re Siw

D IS ADAMS

STATE OF FLORIDA

COUNTY OF bie =

The foregoing affidavit of AUBREY DENNIS ADAMS was subscribed

and sworn to before me this 3 day of Quene, 1982.

( lu (6-4.

LIC, . RIDA

MY COMMISSION EXPIRES:

NOTARY PUBLIC, STATE OF FLORIDA AT LARGE

we “MrsxiSSON DPIRES OCT. 4, 1962

CERTIFICATE OF 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. Aubrey Dennis Adams, Jr., #067227, Post Office

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

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

Court Building, Tallahassee, Florida; and the Honorable Jim Smith,

Attorney General,The Capitol, Tallahassee, Florida; on this 2nd

day of July, 1982.

Sliven L Fabia

STEVEN L. BOLOTIN

hee eae ae See ee

(ae Nig setae fe OP

ee ae

wo. 82 5020

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

AUBREY DENNIS ADAMS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

I, AUBREY DENNIS ADAMS, 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. I 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 personal property; I am incarcerated

and receive no income from earnings.

3. I am unable to give security for said cause.

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

said cause.

PO og

STATE OF FLORIDA

COUNTY OF

The foregoing affidavit of AUBREY DENNIS ADAMS was subscribed

and sworn to before me this 3 day of Sent. 1982.

\ (V96.44.....,

MY COMMISSION EXPIRES:

NOTARY PUBLIC, STATE OF FLORIDA AT LARGE

WY COMMISSION EXPIRES OCL @, 1862

YUL 7 1902

OPircc wT Th! 4 CLERK

SUPREME “nuaTt ne

g2 5020

CERTIFICATE OF 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. Aubrey Dennis Adams, Jr., #067227, Post Office

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

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

Court Building, Tallahassee, Florida; and the Honorable Jim Smith,

Attorney General,The Capitol, Tallahassee, Florida; on this 2nd

day of July, 1982.

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.