# Petition — Aubrey D. D. Adams v. Florida (No. 82-5020) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1262%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 ## Text > 82 5020 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1981 AUBREY DENNIS ADAMS, JR. RECEIVED Petitioner, ary 2 1Q@e2 a 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 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) l, 3, 10 10 10 10 10 10 10 10 8, 9, 10 1 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) 10 4, 5 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 se 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). fo 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 e 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? f i " &“-% 1 A i i : F i T i Q 3 ti iil * ii 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 ti E : Ck oe Boe at @, LA . 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 ze & E ; ; H i iF : z i z Fe H z x :? i 5 E $ He x rit ae i H 3 i | 4 z cE Es mee - aggncRSRNSeneonemtapegne - + : f* ee ee ee ae aa eee ee te foal ih 4 r ; ! B33 3 : 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 it att rape and a that it —— crimes which do not exist, to wit: an abominable and detestable nature. rages Ps, tee Hy Hiel sti Feap ghrsg seks! LRH HE BF 3 Hi | et pe: H Lp ie i tt 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. ie ree lh Hee sbiizil i [ f if 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 z FF ; fa! i i i 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, i rf 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. { i f zt : z F8 E ri é é : ny Hi ie a 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 rl il z i i reel ih bids a z| i f a0 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 ve ( 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 : i i i | re is 4 f ti fz Ht af ie if Fg ti Lt : ® ES ESete Hilr ti Tit E Hf i i F eg 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 3 to thu we autopsy showed . induced by tight State ii TT f if 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 te 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 a 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 1 * 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, / © fr NL. BOLOTIN 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 f 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 (c) Based on these considerations, whether 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 Hl af } | : fe f ‘ 4 Hl . ri f t Bs Pe #2 -— if 25 i > zc 18 = ij 2 z z i = 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. (c) The victim was 6 participant in the de 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 vs 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;, (c) The capital felony was especially beivioud atrocian * 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, (c) The Defendant knowingly created a great risk of Geats% <=> many persons, (d) The capital felony was committed for pecuniary gain, (e) The capital felony was committed to disrupt or hinder