Petition — McArthur Breedlove v. Florida

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

———ꝛ — — — —— — — — ————— —— —ͤ„— — — — ä—ä— — — —— —

: . (

* IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

wo. 89 5188

MCARTHUR BREEDLOVE,

Petitioner, AUG ß 1982

f OFFICE OF THE cit

vs. SUPRE: RK

— us.

THE STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of

Florida

1351 N.W. 12th Street

Miami, Florida 33125

(305) 545-3005

ELLIOT H. SCHERKER

Assistant Public Defender

KAREN M. GOTTLIEB

Assistant Public Defender

Counsel for Petitioner

a ME . ..

ET LT . ß FE ET TT I ee

es * N

ob_srr0N PRESENTED FOR REVIEW

WHETHER THE INTRODUCTION OF OUT-OF-COURT

STATEMENTS OF AVAILABLE AITNESSES

VIOLATES THE CONFRONTATION CLAUSE OF THE

SIXTH AMENDMENT TO THE CONSTITUTION OF

THE UNITED STATES WHEN SUCH STATEMENTS

ARE ADMITTED AS NON-HEARSAY BY A STATE

TRIAL COURT BUT THE PROSECUTION

SUBSEQUENTLY RELIES UPON SUCH STATEMENTS

AS SUBSTANTIVE EVIDENCE OF THE GUILT OF

AN ACCUSED.

WHETHER SECTION 921.141 (5) ch), FLORIDA

STATUTES (1977), ESTABLISHING AS A

POTENTIAL AGGRAVATING CIRCUMSTANCE IN A

CAPITAL CASE THAT R HOMICIDE WAS

“ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL"

WAS APPLIED IN AN OVERLY-BROAD MANNER BY

THE FLORIDA COURTS IN THIS CASE, IN

VIOLATION OF THE PRINCIPLES ESTABLISHED

IN GODFREY V. GEORGIA, 446 U.S. 420

(1980).

—— —

TABLE OF CONTENTS

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CON Los ION

TABLE OF AUTHORITIES

Ashe v. Swenson

397 U.S. 436 (1970)

Barber v. Page

390 U.S. 719 (1968)

Berger v. California

393 U.S. 314 (1969)

Brown v. State

367 80. 2d 616 (Fla. 1979)

California v. Green

399 U.S. 149 (1970)

Douglas v. Alabama

380 U.S. 415 (1965)

Dutton v. Evans

400 U.S. 74 (1970)

Pavre v. Henderson

464 F. id 359 (Sth Cir. 1972),

cert.denied, 409 U.S. 942 (1972)

Godfrey v. Georgia

446 U.S. 420, 100 s. ct. 1759 (1980)

v. Georgi

728 aR 153 (1976)

K sv ars

" th Cir. 1979)

Whe

* (Fla. 1981)

PAGE

8,9

9,11,13,

8,9,10

12,15

14,17,21

13,15

—

}

192 515 vs State (

a. ’ 80. 2d 168 (1943)

Lucas v. State

376 So.24 1149 (Fla. 1979)

Mancusi v. Stubbs

408 U.S. 204 (1972)

Moore v. United States

9.8. (1976)

McCumber v. State

So. (Fla. 3d DCA 1966)

Ohio v. Roberts

9.8. 7 0 S. ct. 2531 (1980)

Pointer v. Texas

Presnell v. Georgia

439 U.S. 14 (1978)

Provence v. State

0. (Pla. 1976)

cert. denied, 431 U.S. 969 (1977)

Proffit v. Florida

428 U.S. 242 (1976)

State v. Dixon

263 $0.24 1 (Pla. 1973)

cert. denied, 416 U.S. 943 (1974)

Stewart vy. Cowan

528 F. 2d 79 (6th Cir. 1976)

Tedder ». State

So. (Fla. 1975)

United States v. Check

5. ( r. 1978)

United States v. Da

192 U.S.App.D.C. 252, 591 F.2d 861 (1979)

United States », Johnson

439 F. Id 865 (5th Cir. 1971)

cert. denied, 404 U.S. 880 (1971)

United States v. Ragano

476 F.2d 410 (5th Cir. 1973)

Wilder v. State

355 80. 2d 188 (Pla. lst DCA 1978)

U.S. CONST.

Amendment VI

Amendment VIII

Amendment XIV

U.8- Code

28 U.S.C. §1257(3)

FLORIDA STATUTES

$921.141 (1977)

~iii-

14,16

8 9,10

8,9,14

15,17,19,

17,18,20

12,15

19,20

12,15

13,15,16

nee

2,4,5,-7,8

14,15,17,

18,20

Snel ss

—

IN THE SvPREME COURT OF THE UNITED (ates

OCTOBER TERM, 1981

NO.

MCARTHUR BREEDLOVE, ‘

Petitioner,

vs.

THE STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner, McArthur Breedlove, respectfully prays that a

Writ of Certiorari issue to review the judgment and opinion of

the Supreme Court of Florida in this cause, rendered on May 19,

1982.

OPINION BELOW

The opinion of the Supreme Court of Florida is reported at

413 80. 2d 1. The full opinion is included in the appendix to

this petition at pages 1-14.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

$1257(3), to review the judgment and opinion of the Supreme Court

of Florida, issued on March 4, 1982 and rendered upon the denial

of a timely motion for rehearing on May 19, 1982. On July 6,

1982, Mr. Justice Powell issued an order extending the time for

filing this petition to August 17, 1982.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

AMEND. VI, U.S. CONST. |

In all criminal prosecutions, the

accused shall enjoy the right... to be

rg with the witnesses against

Me «© „

hs ae ae See ane + Uy eal

185 C)

AMEND. VIII, U.S. coms. ©

Excessive bail shall not be required,

nor excessive fines i sed, nor cruel

and unusual punishments inflicted.

AMEND. XIV, §1, U.S. CONST.

„„ «+ mor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

§921.141, Fla.Stat (1977)

(5) AGGRAVATING CIRCUMSTANCES. -

Aggravating circumstances shall be

limited to the following:

(h) The capital felony was especially

heinous, atrocious, or cruel.

STATEMENT OF THE CASE

Petitioner was charged by an indictment filed December 4,

1978 with first-degree murder, attempted first-degree murder,

burglary, grand theft, and petit theft. Appendix (hereinafter

designated by the symbol "A") at 55-58. The charges arose from a

burglary on November 6, 1978, during which one person was killed

and another allegedly assaulted (A. 1, 55-56). Post~arrest

statements were obtained from petitioner following his

apprehension on these charges, and were the only evidence of his

perpetration of the offenses (A. 5-6, 59-66, 313-15).

At the time that petitioner was interrogated, the police

1 he medical examiner who performed the autopsy on the homicide

victim testified that he had died as the result of a single stab

wound to his chest, and that he was unable to determine whether

the victim had been lying in bed or moving at the time that the

wound was inflicted (A. 72-79). Petitioner, in his post-arrest

statement, admitted having burglarized the residence, and stated

that he had taken a knife into the bedroom to open a jewelry box

when the following transpired:

A. Well, I started going throwgh a box

— a jewelry box, the dresser drawers,

and I made some noise, and the guy woke

up and grabbed me by the shirt, and 1

swung back with the knife, and I ran.

0 „ panicked. He just

grabbed shirt. I swung back with the

knife, like that, and then he turned

loose of my shirt and I ran. (A. 63-64).

officers were in 60e of information 4 obtained during

conversations with his mother and ~obrother -- which

circumstantially inculpated petitioner in these offenses (A. 7-8,

80-92, 98-101). Specifically, the officers had been told that

petitioner had had blood on his trousers when he returned home on

November 6, 1978, that he had been in possession of a black watch

on that date, and that he had been riding a blue bicycle (A. 84-

85, 88-92, 98-102). other evidence adduced at trial indicated

that a similar watch had been taken from the residence during the

burglary (A. 5, 94-96, 322), and established that a blue bicycle

had been taken from a nearby house during the night on which

these offenses occurred (A. 1, 5, 57, 315-16).

Petitioner was first interrogéted on November 9, 1978, and

denied any involvement in the burglary or the homicide (A. 80-

104). The inculpatory statement was obtained during a subsequent

interrogation approximately two weeks thereafter (A. 5-6).

During the testimony of one of the interrogating officers,

Detective Ojeda, regarding the questioning on November 9th, the

prosecutor elicited extensive testimony from the officer

concerning the statements of the mother and brother of

petitioner, as detailed above; he testified that he had

"confronted" petitioner with these statements when petitioner

denied involvement in the offenses (A. 80-94), but that

petitioner had not given inculpatory responses when he was so

"confronted", and had denied the truth of the most incriminating

of the statements (A. 04-93, 98).

Trial counsel for petitioner repeatedly objected to the

introduction of the out-of-court statements (A. 84-85, 88-93,

95). Although the prosecutor never requested that the statements

be admitted as non-hearsay, the court ruled that they were not

being introduced for the “truth of the matter to be asserted" but

to show “what the defendant heard" during the interrogation, and

the court overruled the objections of counsel (A. 93-96). 2 The

court so instructed the jury (A. 97-98).

2 The same sequence of events occurred during the testimony of

the other interrogating officer, Detective Zatrepalek (A. 8).

2 )

In his closing argument, counsel for seth clence remarked on

the failure of the prosecution to present the mother and brother

of petitioner at trial (A. 110-12). The prosecutor responded by

urging the jury to accept their statements as true:

They gave their statements back on

November the 9th. At that time, Mr.

Breedlove was being interviewed by Ojeda

and Zatrepalek. They ron their

statements to another detective.

They did not know he was being charged

at that point with first degree murder.

They told the truth at that point.

You can rest assured of one thing; you

can be as certain of this as you can that

you are sitting in those seats right now:

If the statements of Mary Gibson and

Elijah Gibson did not say exactly what

Detective Ojeda and Detective Zatrepalek

told you they said, Mr. Zenobi [counsel

for petitioner] would have brought it out

to you. He would have brought Mary

Gibson in here and Elijah Gibson in here,

and they would have told you, "We did not

say those things."

* 2 —

Now, with respect to Mary Gibson and

— 4 Gibson, who would be in a better

position to testify for the defendant

than his own mother and brother, if they

had anything helpful to say, and that is

why I would ask you to use common sense

a your ordinarily good judgment. do

not

+ „ Do not have any doubt whatsoever

about what Mary Gibson and Elijah Gibson

told the police, because if there was a

conflict, they would be in here telling

you about it (A. 115-17).

A motion for mistrial, on the ground that the prosecution had put

the truth of the out-of-court statements into issue despite the

introduction of those statements as non-hearsay, was denied by

the trial court (A. 118-21).

Petitioner was acquitted of the charge of attempted murder,

and convicted of the other offenses charged (A. 1). During the

course of the subsequent penalty hearing, the prosecution sought

to introduce the testimony of a medical examiner concerning “the

amount of suffering that the victim did suffer", asserting that

the testimony was relevant to establish the aggravating

circumstance specified in Section 921.141(5) ch, Florida

5 4 1 *

I Lie

Statutes tern ene (1805.3 Objections to this cestimony on the

ground that it was not relevant to establishing this aggravating

circumstance were overruled (A. 138-41), and the witness was

permitted to testify that the wound which had been inflicted on

the victim had caused him “considerable” pain, and that he would

have been conscious and aware of this pain prior to his death (A.

146-49).

Petitioner presented the testimony of three expert

witnesses, two psychologists and a psychiatrist, who testified to

the following conclusions: that petitioner suffers from “chronic

paranoid schizophrenia” (A. 196, 198), that he has significant

neurological dysfunction (A. 155, 170), and that, as a result, he

has “definite impairment" of his ability to conform to the

requirements of the law (A. 156, 175, 199-200). The prosecution

presented two court-appointed psychologists who had examined

petitioner prior to trial, and who testified that he did not

suffer from schizophrenia or brain dysfunction; however, these

witnesses did testify that petitioner “has long-standing

behavioral and personality difficulty", that he has had

emotional problems for a prolonged period of time, from childhood

or adolescence, which has been manifested by his misuse of

drugs", that he had a “certain amount of impairment", and that it

was possible that petitioner “had a diminished capacity as a

result of drug and alcohol intoxication" (A. 224, 226-27, 236-38,

242).

Counsel for ‘ petitioner requested that the following

definition of the aggravating factor of an “especially, heinous,

atrocious, or cruel" homicide, see §921.141(5)(h), Fla.Stat.

(1977), be given:

3 his witness, Dr. Wright, did not perform the autopsy on the

victim in this case (A. 143); the prosecutor represented to the

trial court that the pathologist who performed the bag (and

who testified during ve, gett e ase of the trial) was

"out of the country“, that Dr. Wright would testify based

upon his review of the autopsy notes (A. 130). Dr. Wright, on

voir aire by counsel for petitioner, testified that his

conclusions were based upon his review of the autopsy reports and

raphs (A. 139). The trial court permitted the witness to

testify, over objection of counrel (A. 139).

—

il alg a * 9 * —

r W rr

mt ravati leiréumsbente/ that

the capital felony was especially

heinous, atrocious, or cruel, applies

only where the actual commission of the

— tal felony was accomplished by such

itional acts as to set the crime apart

from the norm of capital felonies -- the

consciousless [sic) or pit{iJless crime

which is unnecessarily tortuous to the

victim. (A. 68).

The court refused to give this instruction (A. 213).

In its instructions to the jury,

aggravating

follows:

the court defined the

circumstance specified in subsection (5)(h) as

- « « that the crime for which the

defendant is to be sentenced was

especially heinous, atrocious, or cruel.

Now, “heinous” means extremely wicked

or shockingly evil.

„Atroctous“ means outrageously wicked

or vile.

"Cruel" means designed to inflict a

high degree of pain, utter indifference

to, or enjoyment of, the suffering of

others, pitiless. (A. 2868).

The jury subsequently returned an advisory

verdict

recommending the imposition of a death sentence (A. 299-300). In

imposing a death sentence, the court found in pertinent part:

The murder was especially heinous,

atrocious or cruel. The victim, Frank

Budnick, was asleep in bed aiong with

Carol Meoni when the defendant entered

the bedroom with a large butcher knife.

The evidence indicated that the defendant

1 the bed and began stabbing and

Slashing with the knife at Frank

Budnick. There was a large slash tear

found in the pillow slip where the victim

had been sleeping. Carol Meoni, who was

sleeping next to the victim, was stabbed

in the face (Ms. Meoni survived the

attack). Both the victim and Ms. Meoni

sustained “defensive” wounds on their

hands. The victim's right hand had five

(5) distinct wounds. The fatal blow

resulted when the defendant plunged the

knife into the victim's upper chest with

tremendous force. The knife fractured

the clavicle (collar bone) as it entered

the body and pr to sever the

subclavin vein. The knife punctured the

left lung and came to rest in the muscles

of the shoulder blade. The medical

examiner described the injury as a

penetrating knife wound 11

five and one half (5 1/2) inches 0

which would result in considerable

pain. The victim out of bed, stated

I'm bleeding," walked outside into

the front yard where he tried to call for

help and then collapsed. The medical

examiner stated that while he was

conscious the victim would have

;

) Th

„ . A r

—

3 the additional senb.cion of

drowning as fluid flowed into his N:

The mechanism of death vas that

victim drowned in his own blood. (A. 50).

The court rejected the mitigating evidence, imposed a

sentence of death on the murder count of the indictment, and

prison terms on the cemaining counts (A. 53-54). A timely appeal

was taken to the Supreme Court of Florida, on which it was

asserted, in pertinent part: 1) that the admission into evidence

of the out-of-court statements of the mother and brother of

petitioner, and the reliance by the prosecution upon the truth of

those statements, violated the Confrontation Clause of the Sixth

Amendment; and 2) that the application in the trial court of

Section 921.141(5)(h) violated the Eighth and Fourteenth

Amendments in that the court permitted the introduction of

irrelevant and prejudicial evidence on this factor, provided the

jury with insufficient guidance for applying it, and improperly

found it to be applicable to this case. (A. 311-50).

In ruling on the first claim, the Court held that the out-

of-court statements were properly introduced at trial:

At trial Detective Ojeda and Zatre-

palek testified regarding Breedlove's

statement of the 21st. In relating what

he said to them toth recited or alluded

to the substance of a conversation they

had with Breedlove's mother and broth-

er. Neither the mother nor the brother

testified at trial, and Breedlove now

Claims improper introduction of hearsay

and violation of the confrontation

clause.

The court properly admitted’ the

detectives’ testimony about what the

Gibsons said because it came in to show

the effect on Breedlove rather than for

the truth of those comments. The

informal statements, therefore, were not

hearsay and covld be admitted into

evidence. The judge cautioned the jury

on how to use this testimony. (A. 7, 9).

The court did find that the argument of the prosecutor that

the mother and brother had “told the truth in those statements",

was “improper” (A. 8-9). However, because counsel for petitioner

had referred to the absence of de witnesses from the trial prior

to the improper prosecutorial argument, and to the substance of

their testimony after the prosecutor injected the truth of those

-7-

statements into 100. {and the court N an objection to

_ that argument), the court held that "“(clonsidering the totality

of the circumstances, we find the prosecutor's statements not so

prejudicial as to require a new trial." (A. 9-10).

The court further held that the trial court had properly

found the homicide in this case to be within the scope of Section

921.141(5) (h)s

+ « « The trial court properly found the

murder to be heinous, atrocious, and

cruel. Although death resulted from a

single stab wound, there was testimony

that the victim suffered considerable

pain and did not die immediately. While

pain and suffering alone might not make

thie murder heinous, atrocious, and

cruel, the attack occurred while the

victim lay asleep in his bed. This is

far different from the norm of capital

felonies and sets this crime apart from

murder committed in, for example, a

street, a store, or other public place.

(A. 12-13).

REASONS FOR GRANTING THE WRIT

THE CIRCUMVENTION OF THE CONFRONTATION

CLAUSE OF THE SIXTH AMENDMENT IN THIS

CASE BY INTRODUCING PREJUDICIAL OUT-OF-

COURT STATEMENTS IN THE GUISE OF on-

HEARSAY AND THEN ASSERTING THE TRUTH OF

THOSE STATEMENTS PRESENTS CONSTITUTIONAL

QUESTIONS or CONT INUING IMPORTANCE

CONCERNING THE INTERPLAY OF STATE HEARSAY

RULES AND THE CONFRONTATION CLAUSE, AND

THE APPROVAL OF THAT PROCEDURE BY THE

SUPREME COURT OF FLORIDA IS IN CONFLICT

WITH HOLDINGS OF THE UNITED STATES COURTS

OF APPEALS, WARRANTING REVIEW OF THE

DECISION IN THIS CASE BY THIS COURT.

This Court has frequently addressed the complex relationship

between the Confrontation Clause of the Sixth Amendment and state

hearsay rules. See, e.g., Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.

2531 (1980); Dutton v. Evans, 400 U.S. 74 (1970); California v.

Green, 399 U.S. 149 (1970). Indeed, Pointer v. Texas, 380 U.S.

400 (1965), the decision in which this Court held that the

confrontation requirement of the Sixth Amendment is made

obligatory on the States by the Fourteenth Amendment, arose from

the introduction of prior recorded testimony -- generally held to

be admissible as an exception to the common-law hearsay rule --

in a state trial. Pointer held that the introduction of such

testimony e e violated the Sixth Amend. .t since the out-

of-court statements in that case “had not been taken at a time

and under circumstances affording petitioner through counsel an

aAequate opportunity to cross-examine” the absent witness. 380

U.S. at 407.

Subsequent decisions of this Court, while recognizing that

the confrontation guarantee and the common-law hearsay rule “stem

from the same roots“, Dutton v. Evans, supra at 86 (footnote

omitted), have also rejected any contention that “the overlap is

complete." California v. Green, supra at 155. Rather, the

function of the Confrontation Clause in this context “is to

advance a practical concern for the accuracy of the truth-

Getermining process in criminal trials by assuring that ‘the

trier of fact [has] a satisfactory basis for evaluating the truth

wf the prior statement.'" Dutton v. Evans, supra at 89 (citation

omitted). The applicaticu of this rule requires a balancing of

the constitutional preference for face-to-face confrontation of

adverse witnesses, and the interest of the states in formulating

rules of evidence in state criminal trials; consequently, the

principles established by this Court have been developed on a

case-by-case basis:

This Court, in a series of cases, has

sought to accomodate these competing

interests. True to the common-law

tradition, the process has been gradual,

building on past decisions, drawing on

new experience, and responding to

changing conditions. This Court has not

sought to i out a theory of the

Confrontation Clause that would determine

the validity of all. . . hearsay

*exceptions.'" Ohio x. Roberts, supra at

2538.

Nonetheless, as this Court recognized in Roberts, “a general

approac.. to the problem is discernible.” Ibid. Three basic rules

are laid down in the line of decisions which begins with

Pointer. First, if an out-of-court statement is introduced,

there must be an adequate opportunity for cross-examination of

the declarant, either at the time that the out-of-court statement

was made, or at trial. California v. Green, supra at 157-61; see

also Douglas v. Alabama, 380 U.S. 415, 419-20 (1965); Pointer v.

Texas, supra at 406-08. If such an opportunity exists, there is

an additional nia predicate which Fa be met by the

_ Prosecution:

The Confrontation Clause operates in

* two separate ways to restrict the 3

of admissible hearsay. First, n

conformance with the Framers’ preference

for face-to-face accusation, the Sixth

Amendment establishes a rule of

necessity. In the usual case (including

cases where prior cross-examination has

occurred), the prosecution must either

produce or demonstrate the unavailability

of the declarant whose statement it

wishes to use against the defendant.

The second aspect operates once 4

witness is shown to be unavailable,

Reflecting its underlying purpose 8%

augment accuracy in the fact-finding

process by ensuring the defendant au

effective means to test adverse evidence,

the Clause countenances only hearsay

marked with such trustworthiness that

there is no material departure from the

reason of the general rule." Ohio v

Roberts, supra at 2538-39 (citations and

footnote omitted).

See also Mancusi v. Stubbs, 408 U.S. 204, 212-13 (1972); Dutton

v. Evans, supra at 87-89; Berger v. California, 393 U.S. 314,

315-16 (1969); Barber v. Page, 390 U.S. 719, 722-24 (1968).

The third prong of this test, whether the statement bears

sufficient “indicia of reliability", is not reached until the

first two are satisfied. Ohio v. Roberts, supra; Mancusi x:

Stubbs, supra. In the present case, it is indisputable that the

first two predicate requirements were not and cannot be

satisfied; the out-of-court statements were made to a police

officer during the course of his investigation and the declarants

did not testify at trial, so there was obviously no opportunity

for cross-examination, and not only were the declarants not shown

to be unavailable as witnesses, it was expressly conceded that

they were available (A. 113-17). Accordingly, had the

prosecution in this case sought to straightforwardly introduce

the out-of-court statements, there is no question but that the

previous decisions of this Court would have barred their

admission.

But this case has a unique twist to it, one which this Court

has not previously addressed, and one which, i: applied to its

logical extent, would vitiate the rules established by this Court

in its confrontation-hearsay decisions, The out-of-court

DEC ETT EP — r —— —„— ſõY————ůů·⁵³è —

e in ent 3 were introduced ad ostensible non-

hearsay, that is, not for the “truth of the matter to be

asserted" therein, but to show “what the [petitioner] heard"

during the interrogation (A. 93-96).4 With the objections to

these statements having been overruled, counsel for petitioner

addressed the absence of the witnesses in his opening argument to

the jury (A. 110-12), and the prosecutor responded by flatly

asserting that these statements were in fact true and should be

taken as such by the jury (A. 113-17).5

Accordingly, the situation presented in this case is as

follows: otherwise inadmissible -- and prejudicial -- testimony

ia admitted in the guise of non-hearsay; counsel for the accused

comments before the jury on the absence of the declarants; the

prosecutor responds by asserting the truth of the out-of-court

statements to the undeniable prejudice of the accused; and the

Confrontation Clause is held not be violated because counsel

addressed the testimony. Such sleight-of-hand cannot mask a

violation of the Sixth Amendment.

This Court had occasion to address an analogous series of

4 Florida hearsay law permits the introduction of out-of-court

statements which in fact produce a confession by an accused as

non-hearsay — Brown v tate, 367 80. 2d 616, 624 (Fla.

1979); McCumber v. Sta 0.24 627, 6286 (Fla. 3d DCA

1966). ‘The application oF this rule in this case is, at the very

least, highly questionable, in that the out-of-court statements

of the mother and brother of petitioner die not produce

incriminating statements by petitioner; after being confronted

with these statements, petitioner continued to deny his

involvement in these offenses, and the trial court, in overruling

the objections to the statements, recognized as much but

nonetheless admitted the statements (A. 93-94). And the Supreme

Court of Florida seems to have ignored this rather critical fact,

holding that the statements “came in to show the effect on

Breedlove rather than for the truth of those comments." (A. 9).

5 The Supreme Court of Florida did not hold that the arguments

of the 1 were fair reply to the statements of counsel

for petitioner, and no such holding was possible under well-

established Florida law. Flor ide adheres to the general

4 — — that addressing evidence which is admitt over

objection does not 1 any claim that the evidence was

pg ey admitted. ee $a — 9 kor e. Flor kde 12 152 Fla. 495,

12 8.24 1 68, 174 (19 urthermore, Florida law provides that

it is entirely 1 both for counsel for an accused to argue

the absence of potential prosecution witnesses and for a

prosecutor to res by asserti that the accused could have

presented these witnesses, but that it is totally babe eh, for a

prosecutor to go beyond such response and to argue at the

absent A would have testified favorably for the

prosecution. Wilder v. State, 355 80. 2d 188 (Fla. ist DCA 1978).

events in Douglas * Alabama, supra, in hide the prosecution

presented as a witness a co-defendant who had previously been

convicted of the charges against him but whose conviction was to

be appealed; the co-defendant accordingly relied on the privilege

against self-incrimination and refused to answer any questions

concerning the offenses. 380 U.S. at 416. The prosecutor, in the

guise of cross-examining a “hostile witness", read into evidence

the entirety of a post-arrest statement given by the witness

which “recited in considerable detail the circumstances leading

to and surrounding the alleged crime", and which was highly

prejudicial to the defendant. Id. at 416-17.

This Court held that this procedure violated the Sixth

Amendment:

In the circumstances of this case,

petitioner's inability to cross-examine

Loyd as to the alleged confession plainly

denied him the right of cross-examination

secured by the Confrontation Clause.

+ « « Although the Solicitor's reading of

Loyd's alleged statement, and Loyd's

refusals to answer, were not technically

testimony, the Solicitor's reading may

well have been the equivalent in the

jury's mind of testimony that Loyd in

fact made the statement; and Loyd's

reliance upon the privilege created a

situation in which the jury might

improperly infer both that the statement

had been made and that it was true.

Since the Sol'citor was not a witness,

the inference from his reading that Loyd

made the statement could not be tested

eross-examination. Similarly, Loyd could

not be cross-examined on a statement

imputed to but not admitted bis.

380 U.S. at 419 (citations omitted).

In accordance with this holding, the Courts of Appeals have

consistently held that the admission into evidence of damaging

out-of-court statements in the guise of non-hearsay nonetheless

violates the Confrontation Clause where the probable purpose

and/or impact of the statements is founded upon the truth of the

matters asserted therein. See, ¢.g., United States v. Day, 192

U.S.App.D.C. 252, 591 F.2d 861, 881-83 (1979); United States v.

Check, 582 F.24 668, 678-81 (24 Cir. 1978); Stewart v. Cowan, 528

F.2d 79, 85-87 (6th Cir. 1976); Favre v. Henderson, 464 F.24 359,

361-64 (Sth Cir. 1972), cert. denied, 409 U.S. 942 (1972); United

States v. Johnson, 439 F.2d 885, 888 (Sth Cir. 1971), cert.

-12-

denied, 404 U.S. (.) (1971). The same concl{ on has also been

reached where the out-of-court statements were only referred to

on cross-examination, and the declarant was never presented as a

witness at trial. Harris v. Spears, 606 p. 2d 639, 640-41 (5th

Cir. 1979).

Of course, the resolution of this case does not turn upon

whether the jury might have inferred the truth of the out-of-

court statements on its own; the jury was urged to do so by the

prosecutor, with the apparent approval of the trial court. A

similar situation was addressed in United States v. Ragano, 476

5. 2d 410 (Sth Cir. 1973), in which the defendant was charged with

having falsely declared income received from the sale of certain

stock. Id. at 412. The defendant had been questioned by a

revenue agent during the course of the investigation, and the

agent had recounted the statements of another individual, S.A.

Rizzo. Id. at 414-15. Rizzo had been involved in the stock

transactions with the defendant, and his statements were critical

to the issue at trial, which was whether the defendant had

received the stock as a legal fee or in exchange for a promissory

note. Id. at 412, 414.

As in this case, the trial court instructed the jury not to

consider the testimony for its truth, but only in evaluating the

statements of the defendant to the agent. 476 F. zd at 414 n.6.

Thus, as in the present case, the testimony in Ragano was

admitted as non-hearsay, in connection with the statements of the

defendant to a law enforcement officer. However, as in this

case, the defendant “flatly denied the truth" of the out-of-court

statements, and, as here, the prosecutor in Ragano argued to the

jury that the alleged non-hearsay was in fact true. 476 F.2d at

415. The Court held that the statements were not properly

introduced as non-hearsay, but further held that the

Confrontation Clause was violated by the manner in which the

statements were utilized by the prosecution:

The confrontation clause of the Sixth

Amendment is not violated as long as “the

declarant is testifying as a witness and

subject to full and effective cross-

examination.” But here Rizzo did not

testify, and, of course, was not subject

-13-

to Bp ae aa In abel) the

prosecutor succeeded in getting Rizzo's

testimony before the jury and in

exploiting it in his closing argument

without calling Rizzo as a witness. 476

F. zd at 415 (citation omitted).

Douglas and the line of authority discussed above thus

condemn the procedure employed in this case and approved by the

Florida courts. This Court has addressed the propriety of

relying upon alleged non-hearsay as substantive evidence of guilt

in the context of a federal criminal trial, see Moore v. United

States, 429 U.S. 20 (1976), but has not had occasion to address

such a procedure under the Confrontation Clause. The conflict

between the holding in this case and the decisions of the federal

courts on this issue warrants review by this Court, and the need

to enforce the constitutional principles announced in Pointer,

and consistently adhered to by this Court, mandates such review.

THE SGVERLY-BROAD APPLICATION OF SECTION

921.141(5)(H), FLORIDA STATUTES (1977),

PROVIDING AS AN AGGRAVATING CIRCUMSTANCE

IN CAPITAL CASES THAT A HOMICIDE WAS

"ESPECIALLY HEINOUS, ATROCIOUS, on

CRUEL", BY THE STATE TRIAL COURT AND

SUPREME COURT IN THIS CASE, PRESENTS

CONSTITUTIONAL QUESTIONS OF CONTINUING

IMPORTANCE CONCERNING THE APPLICATION OF

THE PRINCIPLES ESTABLISHED IN GODFREY V.

GEORGIA, 446 U.S. 420 (198

FLORIDA DEATH PENALTY STATUTE.

Section 921.141(5)(h), Florida Statutes (1977), establishes

as a potential aggravating circumstance in capital cases that

"“[t]he capital felony was especially heinous, atrocious, or

cruel." In its first decision construing the Florida death

penalty statute, the Supreme Court of Florida rejected a

challenge to this circumstance on vagueness grounds, and

construed it in the following manner:

- « Ile feel that the meaning of such

terms is a matter of common knowledge, so

that an ordinary man would not have to

uess at what was intended. It is our

nterpretation that heinous means

extremely wicked or shockingly evil; that

atrocious means designed to inflict a

— degree of pain with utter

ifference to, or even enjoyment of,

E e Gare

the. nem acts as to set on Ire -

. Os which is

un St Tit a urous e victim.

** a.

enied 416 U.S. 943

(1974) (empha sis supp ed).

In approving subsection (5) (h) as constitutional in Proffitt

v. Florida, 428 U.8. 242, 255-56 (1976), this Court relied upon

this construction:

That court has recegnized that while

it is arguable that all killings ate

atrocious . . . [s]till, we believe that

the Legislature intended prong

‘especially’ heinous, atrocious or crue

when it authorized the death penalty for

first degree murder." As a consequence,

the court has indicated that the eighth

statutory provision is directed only at

"the conscienceless or pitiless crime

which is unnecessarily torturous to the

victim." We cannot say that the

rovision, as 80 construed, provides

nadequate guidance to those charged with

the duty of recommending or L. ing

sentences in capital cases. (citations

omitted).

At every level of the three-step Florida capital sentencing

procedure, this aggravating circumstance was applied far beyond

these narrowly-drawn parameters. Before the jury, the

prosecution was permitted to elicit speculative testimony

concerning the pain which would theoretically have been

experienced by the victim (A. 130-49). And, despite a specific

request by counsel for petitioner to instruct the jury that

subsection (5)(h) was limited to cases in which the homicide “was

accompanied by such additional acts as to set the crime apart

from the norm of capital felonies", State v. Dixon, supra at 9

(A. 6-8), the court refused to do so (A. 213). Rather, the

entirety of the definition of this aggravating circumstance

provided to the jury was as follows:

„„ that the crime for which the

Gefendant is to de sentenced was

especially heinous, atrocious, or cruel.

Now, “heinous” means extremely wicked

or shockingly evil.

*“Atrocious* means outrageously wicked

or vile.

"Cruel" means designed to inflict a

high degree of pain, utter indifference

to, or enj nt of, the suffering of

others, pitiless. (A. 288).

The sentencing order of the trial court, which finds

-15-

‘ gubsection (5) 6 to this ok J, is based in

’

rr enen

significant part upon the testimony that the victim would have

suffered great pain (A. 30). on appeal, this finding was

affirmed on the following basis:

„ « Although death resulted from a

single stab wound, there was testimony

that the victim suffered considerable

pain and did not die immediately. While

pain and suffering alone might not make

this murder heinous, atrocious, and

cruel, the attack occurred while the

victim lay asleep in his bed. This is

tar different from the norm of capital

felonies and sets this crime apart from

murder committed in, for example, a

street, a store, or other public place.

(A. 12-13).

The court thus rejected, at least implicitly, the reliance

by the trial court upon the theoretical expert testimony

presented by the prosecution at the sentencing hearing, in accord

with its own prior precedent in Tedder v. State, 322 80. 2d 908,

910 (Fla. 1975), one of the decisions relied upon by this Court

in its approval of the Florida statute in Proffitt v. Florida,

supra. 428 U.S. at 255. However, rather than reversing the

finding of the trial court, the Supreme Court substituted a new

rationale for applying subsection (5) (h); regardless of the

validity of this rat fonale, it was clearly improper for it to be

injected for the first time on appeal. Presnell v. Georgia, 439

U.S. 14 (1978).

Moreover, the holding of the state supreme court in this

6 Also indicative of the standardless application of subsection

(5)(h) by the trial court are its findings that “defendant

pega the bed and began stabbing and slashing with the

knife" at the victim, and its reliance upon wounds allegedly

inflicted upon the victim of the attempted murder 33 in count

II of the indictment (A. 50, 55-56). With regard to first of

these findings, the only direct evidence of the circumstances of

the homicide was the statement of petitioner that he had stabbed

the victim once as the latter awoke and seized him (A. 63-64).

There was no evidence that he had “approached the bed and began

stabbing and slashing with the knife" (A. 50); indeed, the

medical examiner who performed the autopsy testified that he

could not determine the position of the victim at the time of the

stabbing (A. 72-79).

With regard to the reliance by the court upon the alleged

assault upon ano individual, the court apparently overlooked

the fact that pe oner was t of is offense (A. 1).

See 397 U.S. ). In addition, Florida

aw provides that assaults upon other persons are irrelevant to

determining the applicability of subsection (5) (h). Lucas v.

State, 376 80. 2d 1149, 1153 (Fla. 1979). *

ao!

‘ case is totally Uebel ie under its own dell.) precedent. The

primary thrust of the finding of the court is that the homicide

occurred in a private home, “while the victim lay asleep in his

bed. Not only has this reasoning never previcusly been

articulated by the Supreme Court as a basis for applying

subsection (5)(h), but its own precedent establishes that it is

not.

In Tedder v. State, supra, the defendant fired at his wife

and mother-in-law, pursued them into their home, fatally shot his

mother-in-law, and forced his wife to leave with him, refusing to

allow her to attend to her dying mother. 322 So.2d at 909. The

court nonetheless held that this homicide was not “especially

heinous, atrocious, or cruel":

It is apparent that all killings are

atrocious, and that appellant exhibited

cruelty, by any standard of decency, in

allowing his injured victim to languish

without assistance or the ability to

obtain assistance. Still, we believe the

Legislature intended something “espe-

cially” heinous, atrocious or cruel when

it authorized the death penalty for first

— 8 murder. Id. at 910 (footnote

omitted).

See also Lewis v. State, 398 80. 2d 432, 434-48 (Fla. 1981) (victim

seated in his bedroom watching television when defendant and an

accomplice “simultaneously fired ‘upon him from outside the

bedroom window, using a .30-.30 rifle, and a 12-gauge shotgun",

inflicting multiple fatal wounds; court held subsection (5) (h)

inapplicable) .®

7 As reviously noted, the evidence adduced at trial does not

establish that the victim was “asleep in his bed" at the time of

the incident. The medical examiner who performed the autopsy on

the victim testified that he had died as the result of a single

stab wound, and that no conclusion could be drawn as to whether

he had been in bed or moving toward petitioner at the time that

the wound was inflicted (A. 72-79). Moreover, the t-arrest

statement of petitioner establishes that he had “panicked” when

the victim awoke and seized him, and that he had “swung back e

the knife“ at the victim (A. 63-64).

8 Moreover, to the extent that the holding of the court is based

upon the fact that the homicide occurred in a residence, it is

but another characterization of the fact that it occurred during

a burglary, a fact considered by the trial court as giving rise

to another ravating circumstance, $921.141(5) (4),

2 „ (1977 (A. 49). Indicative the overly-broad

cation of subsection (5) ch by the Supreme Court of Florida

is that the court, in making this finding, violated its own rule

8 the “doubling up" of aggravating circumstances based

ae — -17-

3 | }

8 5 N

P e

—— ser = YS

Thus, at every stage of the proceedings in this case --

before the jury, the trial court, and the state supreme court --

subsection (5)(h) was applied in a manner totally inconsistent

with the rules established in Dixon and approved in Proffit. The

instructions to the jury provided insufficient guidance for

determining the applicability of this circumstance, particularly

in light of the prejudicial evidence submitted by the

prosecution, the trial court based its findings upon that

evidence and other impermissible and unfounded considerations,

and the Supreme Court of Florida approved that finding based upon

equally impermissible considerations.

In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759 (1980),

this Court considered a similar breakdown in the construction and

application of a virtually-identical aggravating circumstance.

The pertinent Georgia aggravating circumstance, Georgia Code Ann.

§27-2534.1(b)(7), provides as an aggravating circumstance that

the homicide “was outrageously or wantonly vile, horrible or

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

aggravated battery to the victim." In Gregg v. Georgia, 428 U.S.

153, 200 (1976), this Court held that circumstance constitutional

based upon its construction by the state courts:

The petitioner attacks the seventh

statutory aggravating circumstance, which

authorizes imposition of the death

penalty if the murder was “outrageously

or wantonly vile, horrible or inhuman in

that it involved torture, depravity of

mind, or an aggravated battery to the

victim", 9 it is so broad

that capital punishment could be imposed

in any murder case. It is, of course,

arguable that any murder involves

depravity of mind or an aggravated

battery. But this language need not be

construed in this way, and there is no

reason to assume that the Supreme Court

of Georgia will adopt such an open-ended

construction. In only one case has it

upheld a jury's decision to sentence a

defendant to death when the onl

statutory aggravating circumstance fou

was that of the seventh, and that

homicide was a horrifying torture-murder.

(citation and footnote omitted).

In Godfrey, the defendant was convicted of murdering his

wife and mother-in-law with a shotgun. 100 S.Ct. at 1763. In

upon a single aspect of a capital offense. -

State, 337 80.24 783, 786 (Pia. 1976), cert dented, 7

-18-

(

instructing the jury on subsection (b) (7), the crial court merely

recited the statutory language, and the jury, in returning its

verdict, found it to have been proven, based upon the statutory

language. Id. at 1764. On appeal, the Supreme Court of Georgia

held that the instructions of the trial court were sufficient to

define the aggravating circumstance. Ibid.

This Court first held that the jury had been improperly

instructed:

In the case before us the Georgia

Supreme Court has affirmed a sentence of

death based upon no more than a finding

that the offense was “outrageously or

wantonly vile, horrible and inhuman."

There is 2 in these few words,

standing alone, that implies any inherent

restraint on the arbitrary and capricious

infliction of the death sentence. A

person of ordinary sensibility could

fairly characterize almost every murder

as “outrageously or wantonly vile,

horrible and inhuman." Such a view may,

in fact, have been one to which the

members of the jury in this case

subscribed. If so, their preconceptions

were not dispelled by the trial judge's

sentencing instructions. They gave the

jury no guidance concerning the meaning

of any of §(b)(7)'s terms. In fact, the

jury's interpretation of §(b)(7) can only

be the subject of sheer speculation. 100

S. Ct. at 1765 (footnotes omitted).

This Court further held that the "“standardless and

unchanneled imposition of death sentences in the uncontrolled

discretion of a basically uninstructed jury in this case was in

no way cured by the affirmance of those sentences by the Georgia

Supreme Court." Ibid. The decision notes that the state court,

in prior decisions, had “apparently understood lit

obligation tc xeep §(b)(7) within constitutional bounds", and had

limited its applicability to those cases in which the facts of

the offense “demonstrate[d] ‘torture, depravity of mind, or an

aggravated battery to the victim'", demonstrated “the kind of

mental state that led the murderer to torture or to commit an

aggravated battery before killing his victim", and where there

was evidence of “serious physical abuse of the victim before

death.“ 100 S.Ct. at 1766 (footnote omitted). The Court held

that the Georgia court had departed from those limitations in

Godfrey:

eee

„*

;

The Georgia courts did not, Men

so limit §(b)(7) in the present case

Thus, the validity of the petitioner's

death sentences turns 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 . . depravity of

mind. ." We conclude that the answer

must be no. The petitioner's crimes

cannot be said to have reflected a

consciousness materially more “depraved”

than that of any person guilty of murder,

+ « « There is no byes og way to

distinguish this case in which the death

Paget J was imposed, from the many cases

n which it was not. Accordingly, the

udgment of the Georgia Supreme Court

nsofar as it leaves standing the

petitioner's death sentence is reversed.

- « « 100 s. ct. at 1767 (footnotes

omitted).

The application of Godfrey to the Florida death penalty

statute presents questions of fundamental constitutional

importance which should be addressed by this Court. Florida,

like Georgia, has construed subsection (5)(h) as limited to cases

in which there was proof of “additional acts". State v. Dixon,

supra at 9. This case, however, involves a homicide committed by

the infliction of a single stab wound, a jury exposed to

prejudicial testimony and insufficiently guided as to the meaning

of subsection (5)(h), a sentencing order based upon irrelevant

and inappropriate findings, and an unprincipled approva of those

findings by the Supreme Court of Florida. As construed in this

case, subsection (5)(h) is impermissibly vague and overbroad --

indeed, standardless -- and review by this Court is essential to

limit the application of this aggravating circumstance in Florida

in accordance with the principles established in Proffitt and

Godfrey.

555 0 155

CONCLUS ION

Based upon the foregoing, petitioner respectfully requests

this Court to issue its Writ of Certiorari to review the decision

; of the Supreme Court of Florida in this cause.

Respectfully submitted,

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of

Florida

1351 N.W. 12th Street

Miami, Florida 33125

(305) 545-3005

Assistant Public Defender

7 a 0

0 \

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 19861

NO.

MCARTHUR BREEDLOVE,

Petitioner,

vs.

THE STATE OF FLORIDA, RECEIVED }

Respondent,

AUG 7 1982

CLERK

Soren CUR, 6

APPENDIX

BENNETT M. BRUMMER

Public Defender

Eleventh Judicial Circuit of

Florida

1351 N.W. 12th Street

Miami, Florida 33125

(305) 545-3005

ELLIOT MH. SCHERKER

Assistant Public Defender

KAREN M. GOTTLIEB

Assistant Public Defender

Counsel for Petitioner

( ‘

INDEX

x PAGE

- Opinion of Supreme Court of Florida 1-14

Motion for Rehearing 15-45

: Order Denying Motion for Rehearing 46

Judgment and Sentence 47-54

Indictment 55-58

Record Excerpts 59-71

Transcript (xcerpts (trial) 72-121

: Transcript Excerpts (sentencing) 122-310

: Excerpts of Initial Brief of Appellant 311-350

ap MeN Ku Hop. on ¥ i le 9

Crerk's Of CHC.

Mo. 36,81)

MCARTHUR SREEDLSVE,

a/k/a MCARTHUR JENKINS, Appellant,

STATE cf FLORIDA, Appellee.

(March 4, 1992]

PER CURIAM.

McArthur Breedlove appeals his conviction of first-degree

murder and sentence of death. We have juriediction* and affira

the results of his trial.

A five-count indictment charged Sreedlove with first-

Gegree murder, attempted first-degree murder, burglary, grand

theft, and petit theft. The charges stemmed from the stabbing

Geath of one victim and the wounding of another which occurred

during the burglary of their @welling. The jury acquitted Sreed-

love of attempted murder, but convicted him of the tber charges.

Concurring in the jury's recommendation, the trial court imposed

the death sentence for the murder conviction. The court also

imposed conseeutive sentences of life imprisonment for burglary,

five years for grand theft, and sixty days for petit theft.

Breedlove presents six points on appeal: 1) Brady 8

violation; 2) denial of motion to suppress; 3) iaproper admission

of hearsay; 4) improper remarks by prosecutor during Clesiag

Art. V. Ihe, Fla. Cone.

Brady v. Maryland, 373 0.8. 83 (1963).

foe en G f * i

. 1 J

argument; 5) conviction and sentence for burglary violate double

jeopardy clause; and 6) impropriety of death sentence.

7 In four motions defense counsel requested the production

of police reports made by six police officers and detectives and

of field investigation cards filed cn “suspicious” persons. The

trial court denied all ‘our motions without recerded comment.

The requested material, along with other unrequested reports, was

deposited with the judge who examined it in camera and ordered

portions of the material released to defense csunsel. ALL formal

statements of persons connected vich the case vere also furnished

to the defense.

In appeal Sreedlove clains that the tate viclated «he

admonition of Brady v. Maryland, 373 9.S. 83, 87 (1963), that

favorable to an scones spon request violates

due process where the evidence ‘is material

tha good faith or bed faith of the proses

cution.

In making this claim, Breedlove relies on unfurnished portions of

@ Detective McElveen's report.? This report reflects the

substance of a conversation that McElveen had with Breedlove's

mother, Mary Gibson, and his brother, Elisha Gibson, to the

effect that the mother had not seen several items stolen from the

victims’ residence in Sreedlove's possession and that Sreedlove

had returned home around 2:30 a.m. (the approximate time of the

murder) and had left again between 4:00 and 4:30 a.m. This

report also states that both the mother and brother referred to

bleod on Breedlove's clothes and that the brother described

items, later established to have been taken from the victias’

residence, which he saw in Srvedlove's possession on his return

home at approximately 2:30 . u.

° 3 After his in camera inspection, the trial judge sealed the

4% police reports. Sreedlove's sappellate coun had access to

the seal reports after trial to assist in preparing this

appeal. Only McElveen's report is specifically referred co

on appeal, and inspection of the reports — McElveen's

report to be the only cone containing possibly faverable iafor-

— which the defense might not have received in some

ashion.

— —

G “a iat

Sreedlove's argument on this point, however, ignores,

except for one accord reference, United Stetes v. Agurs, 427 U.S.

97 (2976), In Agurs, the Supreme Court identified three éiscov-

ery situations: 1) undisclosed evidence ¢enonstrates she

prosecutions's use of perjured testimony; 2) a pretrial request

for specific evidence (Brady); and 3) a general request tor

“Brady material” (Acurs). MeElveen's ceport falls within she

third category, and Acurs is controlling on this point.

The state provided two lists of witnesses in which 280

names cf sixteen Law enforcement sersons appear. These include

officers, Setectives, csechnicians, and a stencgrafcer.) Alsheugh

Meflveen's same is on the first list, he was not included in the

setions for production which speci‘: the reports cf six offi-

cers and detectives by name. The record reflects na fornal

request for all “Brady material," but we believe that NcElveen's

report, as well as those of the other unspecified law enforcement

personnel, e within Agurs’ third situation.

Brady's broad holding has been limited somewhat by Aqurs:

(T]lo reiterate a critical point, the prosecu-

duty ef isslocure unless his oniesies 1 8

sufficient significance to result in the

denial of the defendant's righ to a fair

trial.

427 U.S. at 108. Purthermore, "(t]he sere possibility that an

item of undisclosed information might have helped the defense, or

might have affected the outcome of the trial, does net establish

‘materiality’ in the constitutional sense.“ Id. at 109-10. In

response to clains very similar to Sreedlove's, this Court

recently stated that “(¢)isclosure requirements for the prose-

cution principally concern those matters not accessible to the:

defense in the course of reasonably diligent preparation. * Perry

¥. State, 395 3. 24 170, 174 (Fla. 1980). ‘The record shows that

the trial court carefully observed Sreedicve's Siscovery rights.

Breedlove has failed to demonstrate that the saterial contained

in McElveen's report could act have been found through reasonably

— — - ä—]QdQQUUQd])2J— — — — ° —— —— —

7 a

* i

. 5 2

“of

/ "4

- a q

) a; |

* 7

. * et

—

. *

: * aie

{ ag i ke 4

f t i ; 5 5

1 yy du vee A

2 ** * . V. + uid or Oh

: * * Wee nein sk) WP ny 14 ey

ie * W. 0 i * 1 2

N * N Ae gh he 3 N 15 ’

bas any of ne 4 N We We 4 *

N ee 7 y 0 Als .

Giligent preparation or that nonproduction of this report preju-

diced hia.

Breedlove also claims that the police reports are 18

coverable per se as “statements.” Florida Rule of Criminal

Procedure 3.220 covers statements which are discoverable and

def ines a “statement” as

@ written statement made by said perten and

Signed or otherwise adopted or soverrre by

him, or @ stenographic, sechanical, elec-

trical, or other recording, or a transcript

thereof, or which is a substantially verbacia

recital of an oral statemen= sade sy sa:¢

person 8 an officer zr ent cf the Stace

and recoried zen Were with the

making of such cra stasement. ...

Pla. R. crim. 7. 3.220(a) (i) (44). The courts of <his state ave

generally 1d that police reports are not “statements, * except

of the officers making them, and that generally they are not

Giscoverable per se as statements of those officers. See State

¥:; Johnson, 284 So.24 198 (Fla. 1973); Lockhart v. State, 384

So.24 299 (Fla. ith OCA 1980); Slack v. State, 383 So.24 295

(Pla. lst DCA 1980); Dumas v. State, 363 So.24 568 (Fle. 34 DCA

1978), cert. denied, 372 80. 2d 471 (Fla. 1979); Pitts v. State,

362 80. 2d 147 (Pla. 34 DCA 1978), cert. Genied, 368 So.24 1372

(Pla. 1979); Miller v. State, 360 80. 24 46 (Pla. 24 DCA 1978);

State v. Lattimore, 284 $0.24 423 (Pla. 34 OCA 1973), cert.

denied, 291 So.24 7 (Fla. 1974); State v. Gillespie,‘ 227 8. 26

550 (Fla. 24 DCA 1969). The material in the instant reports does

not comprise “statements” because the reports have not been

signed, adopted, or approved by the persons (cther than the offi-

cers) to whom they have been attributed, they do not appear to be

substantially verbatia, and they were not recorded contemporane-

ously with their making. We do not find that these reports are

Ciscoverable as “statements” as set out in rule 3.220.

The motions to suppress filed by Sreedlove's attorneys

sought exclusion of any statements by Breedlove, of evidence

1 Girlespie contains an analysis of what is and is not Braéy

material.

found at his wochen z some, and of evidence found on his person.

Om appeal Breedlove cnly alleges error regarding admission of his

statement of November 21, 1978. In that statement Sreedlove

admitted breaking into a dwelling, taking numerous items, stab-

bing a man, who had been asleep in 4 bedrocm, with a butcher

knife that Breedlove had taken o7f a table in che ia en.

and stealing a bicycle to make his getaway. Sreeclove alleces

that the police violated his fifth amendment rights in ebtainiag

that statement.

pon learning chat reed was in zustedy, & erer

Le of she Hallandale ?clice epa ent fequested sermissiscn 29

interview hia concerning a surder shat had occurred in Yallacdsie

several years earlier. Detective lacrapalek of she North Man

Beach Police Department, lead officer on Sreedlove's case, had

Breedlove brought over from the county jail. Robert Shultz, a

counselor at the jail, escorted Breedlove downstairs and turned

him over to two officers.

At the suppression hearing, Shultz testified that Sreed-

love had said something like “They had better be the people I

want to talk to” or “I don’t want to talk to certain detectives.”

Ne also stated that, on seeing the officers, Sreedlove said, *I

am not calking to them,” and the officers “said something to the

effect that ‘Eventually you will talk to us. On appeal Sreed-

love claims that these statements show that he tried to exercise

his right to remain silent and that his subsequent statement is

invalid because the police 41d not “scrupulously honor (Michigan

Y. Moseley, 423 U.S. 96, 104 (1975)) his refusal to talk to

then. ®

Shultz also testified that it was his @uty to report any

improper police behavior but that he had not observed any imprep-

et behavior cegarding Breedlove. Shultz had known Sreedlove

since his incarceration and testified that he had never noticed

Appellant's brie! states shat reed ive public defenders

dad visited him in jail prior tq the 21st and thet he had

agreed not to speak to police without counsel presenc.

— — ˙—ð1O23

fal . 7

“i ray O

signs of Breedlove's being physically abused and that Breedlove

71 ; had never complained to him about being abused. Shultz also said

* that prisoners could refuse to leave their cells in order to

avoid being interrogated, but that Breedlove had never gone so.

After arriving at the station, Setective zatzepalek read

Sreedlove his Miranda rights and Sreedlove signed the rights

form. Sreedlove then asked to speak with his mother and was not

questioned Guriag the hour or so before she arrived. e spoke

with her in private and then asked her 2 tell tatrepalek chat he

would sake 4 statement. ser speaking wich she tetectives.

Sreedlcove was again read his rights, signed ancther tard, and

mace a formal statement. ‘atrepalek cestified shat se sad sever

beaten Sreedlove and that, when interviewed by Detective Nagle on

the following day, Sreedlove asked ltatrapalek to stay with hia.

Breedlove, on the other hand, testified that Detectives

Zatrepalek and Ojeda had beaten him on November 9, that he

refused to go with the officers on the 2lst, and after being

threatened on the 21st he confessed in order to avoid another

beating.® The judge found that Breedlove understood bis rights

on both the 9th and 21st of November and that he freely and

voluntarily waived those rights.

Breedlove now claims that the statement, “eventually you

will talk to us,” was an implied threat constituting coercion and”

tainting the ensuing statement so that no proper waiver occurred.

Prom the totality of the circumstances, it does not appear that

the statement was coerced. Rather, Breedlove chose not to exer-

cise his right to remain silent or to have counsel present,

making the damaging statement after talking with his mother. The

judge properly concluded that he freely and voluntarily made the

statement.

s Sreedlove's origina) public defender, David Finger, testi-

fied that, although Sreedlove tel him prior to the let that

he had been beaten, Finger saw no evidence of physical abuse,

never reported Breedlove's statements regarding the beating

and later coercion on the 2ist, and never investigated

Breedlove's clains.

—— — — — | — — Oya rr

ead

—

3 *

eb ~-

5 . *. 3 *

ee = ips acne

ame >i

—

n bad

Ky | O

At trial Detectives Oteda and zatrepalek cestified regard-

ing Sreadlove's statement of the 2lst. In relating what he said

to them, both recited or alluded to the substance of a conversa-

tion they had with Sreedlove's other and brother. Neither the

mother nor the brother testified at <rial, and Breedlove a

claims improper introducticn 3: hearsay and viclaticn of the

confrontation clause.

Hearsay is an out-of-court stacement, sther tran one nade

by a Geclarant who testifies at the trial sr hearing, offered in

SOURS SO prove she zurn of the matter ccnta:ned is the state-

ment. -; 2 A. 327 30. 24 59 Pla. 26

sca 2576). 7 Lear ar is ‘nadmissibie for res reasons: 2

the ceclarant es not testify under cath; 2) the trier of fact

cannot observe the declarant's demeanor; and 3) the declarant is

not subject to cross-examination. State v. Freber, 366 30. 24 426

(Pla. 1978). “The hearsay rule does not prevent a witness from

testifying as to what he has heard; it is rather a restriction en

the proof of fact through extrajudicial stetements.* Dutton v.

Evans, 400 U.S. 74, 88 (1970). In Dutton the Court went on to

say that “the mission of the Confrontation Clause is to advance a

practical concern for the accuracy of the truth-determining proe-

ess in criminal trials by assuring that ‘the trier of fact [has]

a satisfactory basis for evaluating the truth of the prior state-

ment.’ California v. Green, 399 U.S. at 161." 400 b. 8. at 89.

On the other hand, “{oJut-of-court statements constitute hearsay

only when offered in evidence to prove the rut of the matter

asserted." Anderson v. United States, 417 U.S. .11, 219 (1974).

Merely because a statement is not admissible for one purpose does

not mean it is inadmissible for another purpose. eh

Seaboard Coast tine Railroad Co., 327 80. 24 193 (Fla. 1976);

Williams v. State, 338 So.24 251 (Pla. 34 DCA 1976). The hearsay

objection is unavailing whan the inquiry is net directed to the

7 we note that ch. 81-93, Laws of Fla., slicke?: modified the

aaa of hearsay as set out in § 90.591(1)(c), Fla. Stat.

( .

——U O—U H— 2 ̃ ̃ 6ã— m”m en * a

Bib ers ogg

5 a

Ang * roch of the words spoken, but, rather, to whether they were ia

5 fact spoken. gg.

: N Ta the examination of Detective Ojeda the court sustained

Gefense counsel's objection to his relating what Sreedlove's

7 mother said at her residence. Ojeda went on co testify chat in

talaing with Breedlove on the 2ist he told Breediove what his

c brother had said about the bicycle. The court sverruled che

a . defense objection 2 this, stating shat “it is not being offered

for the truth cf what was 1824. other sommencs sade by 280

mother and brother came in 28 sane “OY; SOlectisns vers ver-

ure zr sustained as seeded. A Side bar conference cn hearsay

was Seid, folicwing which 20 sudge gave che zur a cauticnary

instruction on Ojeda's testimony. Prior to cross-examinacica

another side bar conference was held, wherein the defense said it

would go into the Gibsons’ Statements because they had been

received for an inpernissible purpose. The court cautioned that

Gefense would have to live with what this approach elicited. a

similar course of events occurred curing Detective Zatrepalek's

testinony.

In closing argument, defense counsel brought up the

Gibscns' Comments and wondered why they had not been called to

testify. The state also brought up these comments, referred to

their sworn statements (not introduced at trial), said that they

told the truth in those statements, and then tied their formal

statements to the detectives’ testizony.

Defense counsel used these statements by the prosecutor 20

move for a mistrial because of “putting the truth of Elijah and

Mary Gibson's statements in issue,* and also asked that the jury

be told to disregard the detectives’ Seetimony regarding what the

Gibsons had said or else be given another cautionary i +struction.

Defense counsel also asked that the jury be told to éisregaré the

. state's closing argument. The court found the state's argument

i proper and refused to reiastruct, referring to his earlier

cautionary instruction. efense again referred ze the mother and

brother in ‘ts final argent.

4 4% 42

N *

4 179 E ea

NES eds VEN et

e 7

N N

’

i wh ie

The court properly admitted the detectives’ testimony

about what the Gibsons said because it came in to show the effect

on Breedlove rather than for the truth of those comments. The

informal statements, therefore, were not hearsay and could be

admitted into evidence. The judge cautioned =he jury on how 20

se this testizony.

zu their last motion for a new 7221 Jefense counsel red

the prosecutor's argument, alleging pre: dl error. The court

fenied e motion. A mistrial should be feclared {sr pre: 4d 1

error which will viciate che crial's result. ?ersy 7. Stace, 146

Pla. 287, 200 So. £28 1941). 22 che aileged erssr ices 20

substantial harm ané causes cc saterial preiudice, a mistrial

shou.d not be ¢ceclare¢d. I¢. ‘improper remarks can be cured by

ordering the jury to ignore them unless they are so objectionable

that such instruction would be unavailing. |

The judge refused to renew his cautionary instruction

regarding the use of testimony referring to the Gibsons’ state-

ments and included no such instruction in those given before the

jury retired to deliberate. The questions, therefore, are wheth-

er the prosecutor's comments transformed =he nonhearsay material

into hearsay and whether those comments were so prejudicial that

this Court cannot say beyond a zeasonable doubt that they had no

effect on the verdict. Chapman v. California, 336 U.S. 18

(1967).

It appears that the prosecutor's remarks were proper.

These remarks, however, were no worse than, and possibly not as

harmful as, defense counsel's remarks concerning the Gibsons’

statements. On rebuttal defense counsel mentioned the stolen

bicycle being found at the Gibson home. He went on to say that

the bicycle

could have been zidéen by the other four

adults in that house, and what about those

people? What did they 407

finger at ay client.

Sure it is his mother and brother. I do

not like mothers ard brothers vestityiag like

that against ay client. They ssi¢. “se <i

a: Ne i9 the cne.”

— — * RN

Nene =. ¥ k 7 r 7

* . have you believe we can call

(Eaphasis added.) It appears =hat defense cc sel acmitted that

those statements were true. Considering the totality of the

circumstances, we find the prosecutor's statements rot 80 preju-

4181 as to require a new triai.?

On appeal Sreedlove alleges shat the prosecutor made

saproper arguments to the jury, thereby violating Sreedlove's

right 20 a fair srial. Besices, % cf the Gibsons’ scatemencs.

he points to three ccher 76 Il or iaflammatsry + rks:

=) @llegacions of ocner criminal acts (rape) :? 3) aper -

ative" character: zation referring to Breedlove es an

aninal);*? 3) appeal to community prejudice ‘violence in Dade

County) 2

Wide latitude is permitted in arguing to a jury. Thomas

¥._State, 326 80. 2d 413 (Fla. 1975); Spencer z. State, 133 80.26

729 (Pla. 1961), cert. denied, 169 U.S. 880 (1962), cert. denied,

372 U.S. 904 (1963). Logical inferences may de drawn, and coun-

sel is allowed to advance all legitimate arguments. Spencer.

In denying the motion for new trial the judge responded to

defense’s objection to the state's entire argument by saying:

“i think the context in which the argument was made was not

prejudicial in nature.*

Breedlove charges that the state Laplied that Breedlove

wanted to ra the woman in the house he vas burglarizing. wa

Ker what had ha + the prosecutor said that

ause of the purse anew t a woman lived there.

ro isa — ane 3 His next * 8

s not support evi + “He went prow t

the house to find that woman.* Although Breedlove was a

convicted mentally disordered sex offender (California),

evidence concerning his past record and tendencies was not

presented to the jury until the sentencing phase.

The prosecutor characterized the killing as « “savage and

brutal and vicious and animalistic attack;" he did sot refer

to Sreeclove as an “animal.*

The prosecutor said: “When we walk the streets we take our

chances.” za response to an objection the court said: “Stay

om the evidence in this case.“ The prosecutor shen said:

“One place in the world where we t to be free from this

king of violence, this kind of crime, is in dur own home. *

The court overruled an objection to this remark. These

Comments appear to reflect common knowledge and are probably

the sentinents of « large number of people. They do not

appear =o be out of place.

-10-

4 1

4 ’ ~ 2 Nr 1

* N anise

i * ke! bb: sna) 5

9 Ne 55 een

1. N 3 Ro

)

The control of comments is within the trial court's discretion,

and an appellate court will not interfere unless an abuse of such

‘ discretion is shown. Thomas: Parramore v. State, 229 8.24 855

(Pla. 1969), modified, 408 U.S. 935 (1972). A new trial should

* be granted when it is “reasonably evident that the remarks might

have influenced che jury to reach a ere severe verdict of guilt

than it would have otherwise fone." Sarien 7. State, 329 80. 28

287, 289 (Fla. 1976), sert. Genied, 430 5.8. "84 (1977). Each

and Aran

compare Parrarcre eee . d 327 2.

974).

. The judge refused to grant a mistrial, finding the stace’s

case must be considered cn zs own erz, euerer,

she circumstances surrounding ze ccapla:ined-c/ remarks.

argument not prejudicial due to the context in which the 0

cbjected-to remarks were made. Some of the remarks may nave been

improper, but we do not find them so prejudicial that a new trial

is required.

Breedlove was convicted cf both first-degree u. der and

burglary and received the ¢eath penalty for the former and a

On appeal he clains

that Pinder v. State, 375 80. 24 836 (Fla. 1979), mandates that

consecutive life sentence for the latter.

the burglary conviction and sentence be vacated because the state

proved only felony aurder, not premeditated aurder.

on the other hand, claims that it presented sufficient evidence

The state,

of premeditation to warrant both convictions and sentences and ;

also that Pinder should be rejected because of Whalen v. United

States, 445 U.S. 684 (1980). Sreedlove's Pinder claim and the

state's Whalen argument have been disposed of in State v.

Begstrom, 401 $0.24 1343 (Fla. 1981). We find, however, that

Breedicve's contention is not really an issue in this case

because the state introduced sufficient evidence of prenedi-

tation. 22g BZegstrom. Because we find that the jury need

22 This evidence includes, among other things, Sreedlove's

arming himself with a butcher «nile before entering she

f bedrooms and the defensive wounds suffered by both victins.

Se A z ̃ ———

not have convicted Sreedlove of burglary in order to suppor: the

murder conviction, we affirm the convictions and sentences for

both first-degree murder and burglary.

As his final point, Breedicve makes several atzacks on the

Geath sentence: simple felony surder as a basis for she death

penalty violates the eighth and fourteenth amendments; improper

aggrawating circumstances; limited consideration of mitigating

circumstances; and ¢eath penalty disprcsortionate in this case.

Breedlove claims <=hat death is an excessive sunishment fcr

& simple felony surcer, sased on Custice Yhice's sencirring pra-

OM n Sockets 7. Shia. 438 0.8. 116 1278). Sach che az

4 have found zar she

States Supreme — and this ‘ours

feath penalty is not per se viclative of either the Je¢eral or

state constitution. Sreedlove has presented nothing which would

compel a different conclusion.

Breedlove states that “this Court has uniformly reversed

death sentences in pure felony-murder cases, absent such a find-

ing of an intent to kill® and cites numerous cases in support of

this contention. While most of these cases deal with felony

murder, all but one? concern jury overric¢es. They are not

applicable to the instant case and do got support the point that

Breedlove tries to make.

The court found three circumstances in aggravation: **

previous conviction of violent felt homicide comaitted duriag

a burglary: and heinous, atrocious, and cruel. Sreedlove argues

that an underlying felony cannot be used in aggravation, but

presents nothing which compels declaring the feleny-murder agsra-

vat ing circumstance unconstitutional. The trial court properly

found the murder to be heinous, atrocious, and cruel. Although

13 rege v. Georgia, 428 U.S. 153 (1976).

State v, Dixon, 283 3024 1 (Fla. 1973), cert. denied, 416

U.S. 943 (1974).

15 wenendes v. State, 368 80. 24 1278 (Fla. 1979), was remanded

for resentencing because of improper consideration of gera-

vating circumstances.

No mitigating circumstances ‘ound.

— 12

— — — 2 —ů— — —

4 NI 8

„

2 NN

— *

N 292 ary

* + 1

1 N

5 aE EE? 4

1 *

rie

—

4 : *

— 0 —

5 * d

wy a)

~ 1 4

—

. tm 8 mh,

1 J 5 2

« 5 eat 1 N

x each resulted from a single stab wound, there was dest tony that

the victia suffered considerable pain and did not die immedi-

ately. While pain and suffering alone might not make this surder

heinous, atrocious, and cruel, the attack occurred while the

; victim lay asleep da his bed. This is far different ‘rom the

dora of capital felonies and sets this crime apart from surder

* *

_ r aia

= a

Committed in, for example, a street, a store, or sther public

place.

Breedlove also clains shat the prosecussr Dorer

argued res sonstatutcry aggravating facters 22 20 sary: nat

the jury would sake a recommendaticn only ("sessing =he zuck

that Breedicve would Se eligible for parsle; and chat reed:

. eS ee a ee ee

showed no remorse. While these remarks may Save stretched the

bounds of proper argument, Breedlove does not appear zo have been

prejudiced because the court did not find them in aggravation.

Cf. Menendes v. State, 368 So.24 1281 (Fla. 1979) (improper

aggravating circumstances found); Riley v. State, 166 80. 24 19 |

(Pla. 1978) (same).

Breedlove also complains that the court limited the range

of mitigating circumstances allowed to be considered and that the

instructions gave inadequate guidance for consideration and

weighing of these circumstances. The instructions, : „ were |

proper and adequate, and she court did not Init presentation of

mitigating evidence.*? Breedlove now claims that the court

erred in failing to find the lack of intent to cause Geath and

impaired sental capacity. Pinding felony aurder in aggravation

was proper, and, after acknowledging the conflicting test sony |

regarding Breedlove's ent al capacity, the court chose to find

his capacity not impaired or diminished. In the sentencing créer

the court stated:

Eine Court, after veig and considering 3

the Te mitigat circumstances,

is of the opin that no mitigating circun-

stances, either statutory, or by any

a7 Defense's presentation consisted of witnesses who sestified

about Sreedlove's sental and exctional problens.

an — 2 2ñ—2̃

— — —

—ä—3 A RR RE

EXPIRES TO PILE REWEAAING MOTION AND, IF

2 9 | a Qa

Supreme Court of Florida

WEDNESDAY, MAY 19, 1982

MCARTHUR BREEDLOVE, etc.,

Appellant,

v. CASE NO. 56,811

Circuit Court No. 78-17415

4 (Dade)

STATE OF FLORIDA,

Appellee. 4

ene eeeeeeee

S O O „ ®*

Upon consideration of the Motion for Rehearing filed in the

above styled cause by the attorney for Appellant, and response

thereto,

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

denied.

A True Copy Tc

ec: Hon. Richard P. Brinker, Clerk

TEST: Hon. Richard 8. Fuller, Judge

Karen M. Gottlieb, Esquire

Elliot H. Scherker, Esquire

sid J. White Diane Zimmer Leeds, Esquire

Clerk, Supreme Court Alan T. Lipson, Esquire

(~~ 46

e > \ (+ : 0

‘ *

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA

IN AND FOR DADE COUNTY

CASE Mo. 78-17415

HONORABLE RICHARD FULLER

THE STATE OF FLORIDA | 4

Plaintiff

. R ECORDED

NCARTHUR BREEDLOVE, 1 S$ ENT B-N-6-B— :

also known as Fy —

MCARTHUR JENKINS APR Y ere Le *

Defendant RICHARD P.-SRINKER APR2 1979

CLERK

| RICHARD h nr yr

delta

THIS CAUSE came before the Court for trial by jury, “and

after deliberations a verdict was rendered finding the defendant

guilty of murder in the first degree, burglary, grand theft and

petit theft.

. Thereafter, a separate sentencing proceeding was con-

ducted before the trial jury to determine whether the defendant

should be sentenced to death or life imprisonment as authorized

by Florida Statute 775.082. The jury duly deliberated and re-

turned its advisory sentence. A majority recommended that this

Court impose the sentence of death upon the defendant, McArthur

Breedlove, also known as McArthur Jenkins.

Pursuant to Florida Statute 921.141 this Court is re-

quired to, and does, consider each of the mitigating and aggra-

vating circumstances involved herein, and makes the following

findings: . 5

AGGRAVATING FACTORS:

(a) Whether the defendant was under sentence of in-

prisonment when the defendant committed the murder of which the

defendant has been convicted.

FINDING:

The defendant was not under sentence of imprisonment

hen he committed the murder of which he has been convicted.

TEP y |

18 1035061788

orb, 1

(b) Whether the defendant has previously been con-

victed of another capital felony or of a felony involving the

use or threat of violence to the person.

FINDING: ©

In 1969 the defendant was convicted and sentenced for

two counts of assault with intent to commit rape and one

count of burglary with the intent to commit rape. The facts

giving rise to those e e were that on’ May 18,1968

the defendant entered the residence of a ee. Angie Meza in

Los Angeles, California. urs. Meza heard a noise in her

child's room and went to investigate. As she walked into the

hall, the defendant grabbed her, knocked her to the floor,

got on top of her, and stuffed a handkerchief into her mouth.

As she struggled, the defendant apparently heard a noise and

fled.

Several minutes later Miss Hedda Shuhbaum was awakened

by noises outside her bedroom window. She called the police.

A few minutes later she heard a knock at her door and she

opened it. The defendant ran into the room, grabbed her with

both hands about her throat and threw her on her bed. He

knelt over her and choked her, and then placed a pillow over

her face. He pulled her nightgown up to her neck and exposed

his penis. At that moment the police arrived. The defendant

charged at a police officer and was shot in the stomach.

defendant has been convicted, the defendant knowingly created

a great risk of death to many persons.

FINDING: | —

Although one other person was injured in the course of

the murder, there is no evidence that in committing the murder

of which the defendant has been convicted that he knowingly

created a great risk of death to many persons.

(d) Whether the murder vas committed while the de-

fendant was engaged in the commission of, or an attempt to com-

mit, or flight after committing or attempting to c

burglary. 1

FINDING:

ommit, any

The murder was committed while the defendant vas en-

gaged in the commission of or an attempt to commit a burglary.

(e) Whether the

5 of which the defendant was

convicted was committed forthe purpose of avovding or prevent-

ing a lawful arrest or effecting an escape from custody.

FINDING:

—

There is no evidence that the murder vas committed

for the purpose of avoiding or preventing a lawful

effecting an escape from custody.

—

arrest or

(f) Whether the murder of which the defendant has

been convicted was committed for pecuniary gain.

FINDING:

The murder was committed during the commission of a

burglary which the defendant committed for pecuniary gain. How

ever, this Court specifically declines to consider this as an

aggravating factor. 2

(g) Whether the murder of which the defendant has

been convicted was committed to disrupt or hinder the lawful ex-

ercise of any governmental function or the enforcement of laws.

FINDING:

There is no evidence the murder was committed to dis-

rupt or hinder the lawful exercise of any governmental function

1 The entire Section of F.S. 921.141(5) (4) provides as follows:

“The (murder) was committed while the

was an accomplice, in the commission of, or an

or flight after commi

rape, arson, burglary

lawful throwing, plac

or bomb."

kidnapping, or a

efendant was engaged, or

attempt to commit

tting or 3 to commit, any robbery,

craft piracy or the un-

g, or discharging of a destructive device

2 This Court is aware of the decision of Provence v. State, 337

So.2d 783(Fla.1976) in which it was held that

the Court to combine

subsection (d) (murder

cuniary gain.)

mproper fer

in its consideration of aggravating factors,

occurred in the commission of a robbery or

burglary) and subsection (f)(that the crime was comm

2 55

2 e

1 18 1

— 8 2 1 24 A 7 5 *

itted for pe-

1 8 ae

or enforcement of laws.

(h) Whether the murder of which the defendant was

convicted was especially heinous, atrocious or cruel.

FINDING:

The murder was especially heinous, atrocious or cruel.

The victim, Frank Budnick, was asleep in bed along with Carol

Meoni when the defendant entered the bedroom with a large but

cher knife. The evidence indicated that the defendant ap-

proached the bed and began stabbing and :lashing with the knife

at Frank Budnick. There was large slash pe found in the

pillow slip where the victem had been sleeping. Carol Meoni,

who was sleeping next to the victim, was stabbed in the fice

(Ms. Meoni survived the attack). Both the victim and Ms. Meoni

sustained "defensive" wounds on their hands. The victim's

rignt nand had five (5) distinct wounds. The fatal blow re-

sulted when the defendant plunged the knife into the victim's

upper chest with tremendous force. The knife fractured the

clavicle (collar bone) as it entered the body and proceeded to

sever the subclavin vein. The knife punctured the left lung

and came to rest in the muscles of the shoulder blade. The med-

ical examiner described the injury as a penetrating knife wound

+ approximately five and one half (54) inches deep, which would

result in considerable pain. The victim got out of bed, stated ‘

"I'm bleeding,” and walked outside into the front yard where he

tried to call for help and then collapsed. The medical exami-

ner stated that while he was conscious the victim woula have

experienced the additional sensation of drowning as blood

flowed into his lung, The mechanism of death was that the vic-

tim drowned in his own blood, 7

—

MITIGATING FACTORS ’

(a) Whether the defendant has no significant history

of prior criminal activity. “

een a me, oe

FINDING: .

The defendant does have a significant history of prior

criminal activity over a period of some ten (10) years since

1969, which has been set forth in detail in the aggravating find-

ings (refer to aggravation finding(b)). ~

\ (b) Whether the murder was committed while the defen-

dant was under the influence of extreme mental or emotional dis-

turbance,

FINDING: N A

There is no evidence that the defendant was under the

influence of extreme nontäf or emotional disturbance during he

commission of the murder. In fact, he was so rational that he

concealed his fingerprints, stole a bicycle to flee the scene,

disposed of his bloody clothing, and sold the jewelry taken in

the theft. The defendant was able to answer the charges facing

him and able to adequately assist counsel in his defense at the l

trial,

fendant's conduct or consented to the act(s).

FINDING:

The victim at no time and in no way consented nor par-

ticipated in the conduct of the defendant's acts.

(d) Whether the defendant was an accomplice in the

murder committed by another person, and the defendant's partici-

pation was relatively minor.

FINDING:

The defendant acted entirely alone in committing the

murder, |

(e) Whether the defendant 64004 under extrene duress

or under the substantial domination of another person.

FINDING:

There is no evidence that the defendant's actions were

a result of his being under any form of duress or substantial

* 54 Si

att? | 0 0350 „ 797

— ore Se

— — — ——

. domination of another.

(f) Whether the capacity of the defendant to appre- | 1

ciate the n of the defendant's conduct or to conform

the defendant's conduct to the requirements of the law was sub-

stantially impaired. |

FINDING:

je There was a conflict in the evidence as to the capa-

city of the defendant to app late the criminality of his con-

duct. The Defense presented evidence that the defendant suf-

fered from schizophrenia, chronic paranoid type, exibitea be-

havior similar to a person medically diagnosed as brain damaged,

and would be inclined to zn ieh or behave inappropri-

ately if he were involved in a stress situation. The defendant

also claimed to have used drugs on the night of the murder and

to have no recollection of what happened.

. Two court-appointed experts testified that the defen-

dant knew right from wrong end bad the capacity to appreciate”

the criminality of his acts at the time of the offense. There

was evidence that the defendant could think ouite clearly, rea-

son quite well, and did not suffer from any brain damage. The

defendant's personality was characterized as sociopathic, that

‘ he knew right from wrong vut just did not care.

The Court finds that tne aetendant's capacity to ap-

_yreciate the criminality of the murder he committed was not 1.

paired or diminished. The defendant knew right from wrong and

set upon a conscious, wilful course of actioh. Ife Tucts vr

the crime are consistant with a sociopathic personality and it : |

appears to the Court that the defendant knew exactly what he

was doing at all times (refer to mitigation finding (b)).

(g) The age of the defendant at the time of the

crime, |

FINDING: : |

The defendant was far into his majority, thirty-one

-6- .

’ —

52 8

4 * 2

a . 1 i 7

7 (31) years of age at the time of the crime.. His age is not a

_ mitigating factor.

As a further finding:

This Court has used as a basis for consideration in

imposing sentence no information whatsoever not known to the

defendant and/or his counsel of record. Gardner v. Florida,

430 U.S. 349(1977). f

Upon the preceding specific findings of fact, the

Court bases its sentence. At is the opinion of this Court

that there are sufficient aggravating circumstances which exist

to justify the sentence of death, and this Court, after weigh-

ing and considering the aggravating and mitigating circumstan-

ces, is of the opinion that no mitigating circumstances, either

Statutory, or by any testimony, facts or circumstances present-

ed at the advisory proceeding, exist which outweigh the aggra-

vating circumstances, This Court therefore agrees and concurs

with the advisory sentence and recommendation rendered to this

Court by the trial jury,

It is therefore, the sentence of this Court that as

to Count 1 of the indictment you, McArthur Breedlove, also |

known as McArthur Jenkins, be adjudicated guilty of murder in

the first degree and that you be and hereby are sentenced to

death for the murder of Frank Budnick. You, McArthur Breedlove,

also known as McArthur Jenkins, are hereby notified that the

judgment of conviction and the sentence of death are subject to

automatic review by the Supreme Court of Florida. |

As to Count III of the indictment, burglary, it is the

judgment and sentence of this Court that you be adjudicated

guilty and sentenced to a term of life imprisonment in the State

Prison.

As to Count IV of the indictment, grand theft, it is

the judgment and sentence of this Court that you be adjudicated

DEE Lat Oe ee ae

guilty and sentenced to a term of five (5) years in the State

— =e

Prison. 5

As to Count V of the indictment, petit theft, it is .

the judgment and sentence of this Court that you be adjudicated

guilty and sentenced to a term of sixty (60) days in the State |

Prison. .

Each of these sentences is to be served consecutive to

each other.

The defendant, McArthur Breedlove, 299 known as

McArthur Jenkins is hereby remanded to the custody of the .

ment of Corrections for the purpose of carrying out the sentence

of this Court at a time and by such manner as shall be prescribed

by law.

DONE ee in Miami, Dade County, Florida, this

Y) aay of 46,1070.

; yeh A , :

,. al,

errcuit COURT JUDGE

= 2

— — 4 > > 3 * ¢ |

* } . yi ss

—_— < } 5 74

8 : x wey 2

4 7 4 Babe N 5 .

it: * * 5 yi M NN ; 7 — om Te

8 4 * ry F x ¢ 84 5 ry >be) shy 51 . 75 121

5 Fes 7 7 4 1 4 N. * 7 * * Do 5 hyp Ae 1 i ,

. 2 1 . “Ty neu. Wahn — 1 n rn sa sali

Pe oof

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF

FLORIDA, IN AND FOR DADE COUNTY FALL TERM, 1978

STATE OF FLORIDA 13 15 | 1 1s

INDICTMENT

vs.

— I. FIRST DEGREE MURDER

MCARTHUR BREEDLOVE, 11 ATTEMPTED FIRST DEGREE

also known as, MURDER 5

MCARTHUR JENKINS, III. --BURGLARY ,

IV. ~GRAND THEFT

DEFENDANT. V< PETIT THEFT

—

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:

The Grand Jurors of the State of Florida, duly called,

impaneled and sworn to inquire and true presentment make in

and for the body of the County of Dade, upon their oaths, 8

present that on the 6th day of November, 1978, within the 7

County of Dade, State of Florida, McCARTHUR BREEDLOVE, also 85. 22

known as, MCARTHUR JENKINS, did, unlawfully and feloniously, Pu

from a premeditated design to effect the death of FRANK wupnick,

a human being, or while engaged in the perpetration of, or

in an attempt to perpetrate Burglary, kill FRANK BUDNICK,

‘a human being, by stabbing the said FRANK BUDNICK with a

knife, in violation of Plorida Statute 782.04, to the evil

example of all others in like cases offending and against

the peace and dignity of the State of Florida.

COUNT IT

The Grand Jurors of the State of Florida, duly called,

impaneled and sworn to inquire and true presentment make in

and for the body of the County of Dade, upon their oaths,

present that on the 6th day of November, 1978, within the

County of Dade, State of Florida, MCARTHUR BREEDLOVE, also

known as, MCARTHUR JENKINS, did unlawfully and felonicusly

— 835

2 1 .

hid die Bee ee. YP) ee ee |

c End D-

attempt to commit a felony, to-wit: Murder in the Pirst

Degree, upon CAROL MEONI, and in furtherance thereof, the

defendant, McARTHUR BREEDLOVE, with felonious intent and from

a premeditated design to effect the death of a human being,

or while engaged in the perpetrétion of, or in an attempt

to perpetrate Burglary, did attempt to kill CAROL MEONI, a

human being and in such attempt die stab the said CAROL MEONI

with a knife, in violation of 782.04(1) and 777.04(1), Florida

Statutes, to the evil example of all others in like cases

offending and against the peace and dignity of the State of

Plorida. i

COUNT III

The Grand Jurors of the State of Plorida, duly called,

impaneled and sworn to inquire and true presentment make in

and for the body of the County of Dade, upon their oaths,

present that on the 6th day of November, 1978, within the

County of Dade, State of Florida, McARTHUR BREEDLOVE, also

known as, MCARTHUR JENKINS, did, unlawfully enter or remain

in a structure, to-wit: a dwelling, located at 1315 Northeast

146th Street, Dade County, Florida, the same being occupied

by FRANK BUDNICK and CAROL MEONI, the property of CAROL MEONI,

as owner or custodian, the defendant having an intent to

commit an offense therein, to-wit: Theft, and in the course

of committing said Burglary, the defendant was armed or did

arm himself with a dangerous weapon, to-wit: a knife, and

made an assault upon FRANK BUDNICK and CAROL MEONI, by stabbing

the said FRANK BUDNICK and CAROL MEONI with a knife, in violation

of 610.02, Florida Statutes, to the evil example of all others

in like cases offending and against the peace and dignity

of the Staté of Plorida.

COUNT IV

The Grand Jurors of the State of Florida, duly called,

impaneled and sworn to inquire and true presentment make in

and for the body of the County of Dade, upon their oaths,

present that on the 6th day of November, 1978, within the

County of Dade, State of Florida, McARTHUR BREEDLOVE, also

known as, MCARTHUR JENKINS, did, knowingly, unlawfully and

feloniously obtain or use, or did endeavor to obtain or to

use watches, earrings, and CASH, good and lawful money of

the United States of America, value of ONE HUNDRED DOLLARS

($100.00) or more, the property of CAROL MEONI, as owner or

custodian, with the intent to permanently deprive the said

CAROL MEONI of a right to the said property or a benefit

therefrom or to appropriate the same to his own use or to

the use of a person not entitled thereto, in violation of

812.014, Florida Statutes, to the evil example of all others

in like cases offending and against the peace and dignity

of the State of Florida.

COUNT V

The Grand Jurors of the State of Florida, duly called,

impaneled and sworn to inquire and true presentment make in

and for the body of the County of Dade, upon their oaths,

present that on the 6th day of November, 1978, within the

County of Dade, State of Florida, McARTHUR BREEDLOVE, also

known as, MCARTHUR JENKINS, did, knowingly, unlawfully and

feloniously obtain or use, or did endeavor to obtain or to

use a Bicycle, value of less than ONE HUNDRED DOLLARS ($100.00),

the property of DEBBIE LAYTON, as owner or custodian, with

the intent to permanently deprive the said DEBBIE LAYTON of

a right to the said property ora benefit therefrom or to

* A N * 45

4 j . Lr patent

. — 11 Ie io ned os 4 rr . . ͤnT eee Shean is

appropriate the same to his own use or to the use of a person

not entitled thereto, in violation of 812.014, Florida Statutes,

to the evil example of all others in like cases offending

and against the peace and dignity of the State of Florida.

5 (. © 4 N. xb. *

on OF THE GRAND JURY

* 12 N .

* *

5 a 0 f

. . Case No. 286103-Y |

Investigation into the Homicide of FRANK BUNDICK, W/M 23 years, a

ie:

occurred at 1315 M. E. 146th Street, on November 6, 1978, at 3

ge 2:30 A.M: The following statement was taken at t

de County Public 17 Department Building, 1320 N.W. 14 Street,

Miami, Dade County, Florida, on Tuesday, 21 November 1978, com-

mencing at 3:02 P.M. and concluding at 3:16 P.M., in the presence

of Detective C. Zatrepalek and Sergeant Egler, Homicide Section.

Recorded and transcribed by Steno-Reporter and Notary Public,

Linda Albury. 5

; (Thereupon, MCARTHUR BREEDLOVE was duly

1 e ee to law.)

1 Q (By Detective Zatrepalék) For the record,

state your full name and age.

McArthur Breedlove, age thirty-one.

What is your home address?

1401 N. E. 154th Terrace,

How long have you lived there?

Ever since parents moved from Hallendale,

How long would that be?

Let's see. A year and something.

Did you go to high school? ö

Yes. !

Do you read and write? 7

Yes.

Are you presently under the influence of any

. hy a perenne or anything else other than drinking coffee here

th us

Sr PFO FOFPOPL>

A No.

Do you realize that you are being charged with

» First Degree Murder and Breaking and Entering? Do you realize '

“4 that? |

1 A Yes. 1

Before we go any further, let me explain your

Constitutional Rights to you first. All 1 want you to do is read

0 this first line for me. i

‘ A "Before you are asked any questions, you must;

| "

. : understand your Rights. .

1 Q "You have the right to remain silent. vou

; 2 nat talk to me or answer any questions if you do not wish to’

do 80.

0 Do you understand that?

A Yes.

Q Are those your initials there?

Yes. 1) PR,

| BREEDLOVE C/N 286103-Y j

179

a :

| ; — 59 0

SEG REP ta hana rte cn ec: comer aa een ‘ ON

* > a * . * oe a 4 4 /

. RRR aner eee

ae ee 4. *.

5 \ Q "Should you talk to me, anything which you

say can and will be introduced into evidence in court eg you,

tek ; 28 do you understand that? x

l A. Yes.

Q Are those your initials after that?

A Yes,

Q "If you want an attorney to represent you at

| this time or at any time during questioning, you are entitled

to such counsel,"

‘

5 Do you understand that? *

A Yes. ,

Q Are those your initials there?

| A Yes.

N “If you cannot afford an attorney and so

| desire, one will be sevided without charge.'

bo you understand that?

A Yes.

Q Are those your initials?

A Yes.

Q 1 have’ read the above statement of my Rights |

| and am fully aware of the said Rights."

| Do you understand that?

A Yes.

Q Are those your initials?

A Yes. ;

Q "IT am willing to answer any questions asked

ij of me."

1 Do you understand that?

| A Yes. |

| Q Are those your initials?

A Yes. i

| Q "I do not desire the presence of an attorney

? at this time,"

l Do you understand that?

A Yes. ;

0 Q Ace those your initials? !

A Yes,

1 "This statement is signed of my own: free will |

without any threats or promises having been made to me."

\ Do you understand that?

Yes.

Are those your initials?

Yes. ;

Is this your signature here?

Yes.

' 9 The date is 11-21-78, The time is 11:55 A.M.

| That is the first time I started talking to you today?

>O>D>

the 6th of November in the early morning hours, let's say from

— calling your attention to Monday, |

: 12:00 A.M. to 3:00 A. M., can you tell me where * were?

A I was-- what were the times

Q Between the hours of 12:00 A.M. and 3:00 A. M.,

Monday, the 6th of November, can you tell me where you were at? "

al) N

, BREEDLOVE -2- 10 C/N 286 103-

0 ö

—— — ~

* " * N

1 ö

° A I was out.

Q What particular rr of town?

A North Miami Beach. e “ate

Q Were you near N. E. 146th Street? 94

0 A Yes.

Q Did you do anything in that area?

A Yes. |

Q What did you do? .

A I broke in a house.

Q Do you know the address of that house? |

A No.

Do you know approximately what avenue it is |

} located’ on? |

i A 14th. Let's see. Between 16th and 14th.

0 Q Between what avenues? \

g A l6th“Avenue and 14th Avenue.

In relations to a church in that neighborhood;

are you familiar with the Holy Family Church? ‘

| A res.

Q Is it anywhere close to there? i

A Yes.

| Q How far away from that Church? '

U A I'd say about six, seven blocks.

4 Q Which direction?

“i A Going south.

1 Q The house that you broke into, can you describ

| it to me?

A 1 can't describe the house. You're talking

about the inside? °

Q How many bedrooms?

5 | A Two bedrooms.

Q How many bathrooms?

A One. mB

' Q What time did 50 go inside that house?

1 A About 1:30, 2:00.AM

i Q How did you get inside?

\ A I walked in the back door.

Q Can you describe the back door to me?

A One back door didn't have no jalousies and the

other one was a wooden door.

| ine one with no jalousies, was it locked?

A No.

Q wnere did that lead to?

— a A To the other door.

1 Q What room were yo in after you got inside th

jalousie door? What room were you in?

. A The utility room.

Q . Now, the next door you came to, what kind of

* door vas that?

A A wooden door.

4 Q Was that door locked?

im BREEDLOVE -3- C/N 286103-¥

* gc}

| 70

2. - 7 f *

3 is 4 des

g 5 K

5 2111

—U[— ——d1ö 2 ee ten. a * *

— 9 aw Ve Bawa 2 4

-. r om — —— Bain

, ore a

4 aps * * 2 “4 . n 1

— — 2 232 „* ——— f 2— AIS I

* . my, — —— 2 2

„„ e

—

Q You went inside the house through that door?

N A Yes.

Q Which room did you go into? oT

A The bedroom,

Q Before you went into the bedroom, which room

were you in?

A The living room.

Q When you entered through that door, what room

did you go through? J

| A The kitchen,

aa Q When you got inside the kitchen, what did you

A Well, I walked through the kitchen.

tt Q Where did you go to?

| A To the living room,

N 0 Q What hfppene once you got into the living

| room '

K A I picked up the purse /

' Q What kind of purse?

| A Lady's purse,

Q Do you remember what color it was?

A No.

Q Do you remember where it was at in the living

' room?

\ A On the couch,

I Q What did you do with it then? i

6 A I took it back out and dumped it out. '

Q Outside in the back or front? '

A In the back. i

Q Where did ＋ dump it at?

A By the back porch.

Q Did you remove anything from the purse?

i A Yes, Some money and a watch,

‘ Q How much money?

. A Give or take twelve, fifteen dollars.

Q What kind of watch was it?

. A Block watch,

i Q You mean a black watch? Are you referring--

5 A Block watch, square watch,

| Q What color was the band?

A Gold.

Q Do you remember the brand name of the watch? '

; A No. f

Q Did you noticed anything unusual about the |

' watch?

A It had some stones like diamonds in it.

Q Where at? |

| A In the face of it. '

Q Where did you leave the purse at? |

| A Outside.

I Q Then what did you do?

I 5 A I went back in to look for more jewelry and

) money. mh .

1 i

E 9 1 3 1

| BREEDLOVE 4 44% C/N 286103-Y |

t house?

leeping

' Q Where did you go?

° A I wnt to the bedroom,

We ayo What bedroom?

A What bedroom? Ph

Q Yes,

A The bedroom that the people were — mg in.

ö Q 8 you go in any other bedrooms int

1 oO.

| Q Where were the people sleeping at?

A In the front of the house. *

3 Q Do you know what kind of bed they were s

A. No.

Q What happened when you entered the bedroom?

. A Well, I started going through a box--a jewelry,

box, the dresser 3

up and grabbed my by th shirt,and 1 awung back with the knife,

and | Fan,

the knife?

out of the

, bedroom?

D> Orr

gain entry into it.

Vas sleeping on?

| was, towards me.

how were you going throug

Backing up for the second, Where did you get |

I._got the knife in the

kitchen on the table,

What kind of knife was

Kitchen knife.

How big was it?

About twelve inches.

How wide was it?

I'd say an inch,

nd I made some noise,

and the gy woke

living room as I come

it? !

What color was the handle?

I think it was brown.

So, you had the knife when you went inside the

Yes.

When

it?

With the knife, trying

Did you get it open?

No, because when I P

Was there 2 se

There was @ lady there.

Do you remember what side

He was sleeping on the

ou were going through the jewelry box,

to break it open to

opped it, the guy woke up.

in the bedroom?

of the bed the man

side where the dresser

Was he on the side closest to the door or

‘ farthest away from the door?

A Closest to the door.

Q When he jumped up, did he say an thing to you?

A “What the hell are you doing in here. Some-

thing like that. WR

| sREEDLOVE -5- C/N 286103-Y

1 U

A te / . —

* — 40

—

0 ; 1 a

0 : sl 5 5 /

— r 2 et / } ‘

We ae * S

— * 4 \

a }

1 i: 0 What did you sayt |

2 A I jumped, panicked, He just grabbed my shirt.

1 I swung back with the knife, like that, and then he turned loose

of my shirt and I ran, ‘ "0

When you swung back with the knife, was there

any struggling or me like that going on?

A e was just holding me pi ong to get closer,

Q wow many times did you swing with cne knife?

nee,

9 Do you recall if you struck or hit the lady

with the knife or not? ks

A No.

Q You don't recall?

A No, I don't recall hitting her with the knife.

1 i Q What did you do with the knife? ;

=~. - --—

I dropped it, I assume I dropped it.

2 the next thing that you did?

As I-Was running out, L picked up the pants,

and then I thought I had gone through the pants, and I dropped i

them and kept on running out the back door,

Where did you drop the pants?

| A In-the hallway, I think.

After you went out the back door, where did

you go? .

Well, I ran to where I saw this bike.

Where was that?

Down the street, '

How far? '

About three houses. |

Did you get the bike? i

Yes. '

What kind of bike was it? |

Ten-speed,

What color?

Blue.

Was there anything unusual about that bike?

It was ques painted, you know, rough painting.

Did it have all the 8 on it?

No. It was a stripped down ten- speed.

Where did you go then?

I went up to U-Totem,

Did you eventually go home?

Yes.

What time did you get ? ;

Around 2:30, something to 3:00.AM

Did you take the bike home? {

Yes.

Where did you park it?

I parked it in the yard, Everybody rode it

until it got a flat tire.

oy up; when you were inside the people's |

|| bedroom, did you hear the lady say anything? '

A No, I was, you know-- It wasn't real dark, but

ONO PO PFO PFO FO FO FPO FPO FPOFPOFPOF L

you just could see.

Q Did you go into any other part of the house?

A I don't remember, no.

Q What were you wearing that night?

A 1 was wearing blue and black checkered pants?

Q Where are the pants that you had on that

night? mv 144

| BREEDLOVE -6- 50 C/N 28610 -r

one *

i 64 5

N —— Sith peers ipa *, 2— 1 id I

— SOUR — ne. ens 4 — — <

—— = antl ene K . err

ain

—

1 4 4

They are in the 1285 pin.

In the garbage pin Where is the shirt?

Inside the house.

What kind of shirt was it?

Blue and white shirt. 29

What shoes were you wearing? |

r Or

Wearing these shoes here. |

| Q The house that you went into-- Are you familiar

with the directions east and west from where you are living or

north and south?

\ A Yes. |

Q From your house, where would it be? ö

A Going south. ‘

Q Do you know what street that is? \

0 A You said 146th. |

. Q Were you familiar with that before I said '

i 146th?

I A Not“the street, but I know the area.

‘| Q Where is the watch at / now!

i A I sold it up in Hallendale to a junkie.

Q Do you know his name?

| K No, not right off.

| Q Do you think we can find out who he is?

A No, because if the police go up there and

4 start asking the dope feens, they are just going to clam up.

— everything you have stated been the truth?

es.

Has anyone threatened or coerced you to make

ö this statement? |

No.

| DETECTIVE ZATREPALEK: That's it.

\' (THEREUPON the statement was concluded at

f 4:16 P. M. j mE

BREEDLOVE -7- C/N 286103-¥

* *,4t:

. dave

7 corse „4

—

— K —— adel tee

— 77

— . —öu'

5324444

— —

* — — — — —

—

—— —

STATE OF — an

COUNTY OF DADE

5 |

\ I, LINDA ALBURY, Notary Public duly commts s ioned

certify that said witness, MCARTHUR BREEDLOVE, was first duly

;, sworn by me to tell the yfuth, the whole truth, and nothing buy

the truth prior to him giving testimony of Tuesday, 21 November

H — H

1978, at 3:02 P.M. — ’

| and qualified in and for the State of Florida at Large, do hereby

i IN WITNESS WHEREOF, I have hereunto set my hand .

\ and affixed my official seal chi I. day of Lwouenly978, at

| Miami, Dade County, Florida.

\ hae hibilty -

0 otary c, state 9 or:

I at Large

\| My Commission expires:

IN THE CrRebi7 COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

x | IN AND FOR DADE COUNTY, FLA.

15 CASE No.: 76-—17413

x STATE OF FLORIDA )

Plainitifs ) ies

vs ) DEFENDANT'S REQUESTED

JURY INSTRUCTION # 2

MACARTHUR BREEDLOVE )

Defendant ) 2

a J.

The mitigating circumstances which you may consider

are unlimited and you may consider any evidence presented at

‘trial or the sentencing proceeding in mitigation of the

——

— —

defendant's sentence. 7 ~

+ Proffitt v. Florida, 428 U.S. 242 (1976).

eee

— *

KH FULLER, Judge

Circuit Court

IN TNE CLACUIT COURT or THE

ELZVENTE JUDICIAL CLACTIT 27

FLORIDA IN AND FOR SADE COUNTY

c vo. 78-1741

N ‘ * 1 25 *

ö 8 5 5 -~

' THE STATS OF FLORIDA, ) 3

Plaiacil?Z, ) OET I ra 82 7

. ERE #5 .

vs. 0 ) *

MacARTEUR 3REZDLCVE, )

. CeZendanc. )

— 4

The acgravating circumstanées that the capital felony

was especially heinous, at Cette, or cruel, applies only

where the actual commission of the capital felony was accomplished

by such additional acts as to set the crime apart from the norm

of capital felonies -- the eee pitless crime which

is unnecessarily tortuous to the victim.

GRANTED:

22129: 5

Dee

Cissutis Couss

als So RENE gid ep Se RN

ait | IN THE CIRCS.T COURT OF TSE

ELEVENTY JUDICIAL CIRCUIT

IM AND FOR DADE COUNTY, Fla.

* „*

7 . CASE No.: 73-17415

TEE STATE CF FLORIDA )

Prainitiss )

)

DEFENDANT'S REQUESTED

GURY INSTRUCTION 1.

MACARTHUR BREEDLOVE Ns |

Defendant ) . N .

. . 7

You may consider any faczor that has been presented to

you as a mitisating circumstance. _You are not limited to the

mitigating cizctastances that I have listed for you.

—-

222:

. vucge

Zeus: Court

N ra CIRCUIT CCURT OF THE

— ELEVENTY CUDICIAL CIRCUIT

. $ IN AND FOR DADE COUNTY, FA.

CASE Mo.: 78-177 s

THE STATE OF FLORISA

712822422

vs DEFENDANT'S P=SQUES

JURY INSTRUCTION #_*¢_

MACARTEUR SREZDLCVE ) :

Ddefercan= ) BP

. 4

—

The mitigating circumstahces which you may consider

are unlimited and vou may consfder my evidence presented at

trial or the sentencing proceeding in mitigation of the

defendant's senzence.

—

a v. Florida, 428 U.S. 242 (1976).

ame

GRANTED: ve

221229: £

, Jucge

Cent:; Court

70 N

| 7 3) The defendant, in committing the crime for which he is to

‘4 9) The crime for which the defendant is to be sentenced was

- c

PENAL

AGGRAVATING

The crime for which the defendant is to be sentenced was

committed while the defendant was under sentence of

imprisonacat.

At the time of the crime for which he is to be sentenced,

the defendant had heen previously convicted of another -

capital offense or of s felony involving the use (threat)

of violence to some person.

be sentenced, knowingly created a risk of death to many

persons. :

The crime for which the defendant is to be sentenced was

committed while the defendant was engaged (was an accomplice)

in the commission of (an attempt to.commit) (flight after

committing or attempting to commit) any robbery, arson,

Nei Steers: aircraft piracy, or the unlawful

throwing, placing or discharging of 4 destructive device

ommitted for the purpose of avoiding or preventing a

lawful arrest or effecting an escape from custody.

The crime for which the defendant is to be sentenced was

committed for pecuniary gain.

The crime for which the defendant is to be sentenced was

committed to — or hinder the lawful exercise of any

governacatal function or the enforcement of laws.

The crime for which the defendant is to be sentenced was

especially heinous, atrocious or cruel.

. 1 t-

MITIGATING Bases.

The defendant has no significant history of prior criminal

activity. 1

The crime for which the defendant is to be sentenced was

committed while the defendant was under the influence of

extreme mental or emotiona) disturbance.

The victim was a participant in the defendant's conduct

consented to the act. yp

The defendant was an accomplice in the of tense for which

he is to be sentenced but the offense was committed by

another person and the defendant's participation was rela-

tively minor. \

The defendant fat extreme duress or under the

substantial domination nother person.

The capacity of the defendant to appreciate the criminality

of his conduct or to conform his conduct to tho requirements

of law was substantially impsired.

Age of the defendant at the time of the crime.

* i

“= *

Supreme Court of the United States

No. A-4

McARTHUR BREEDLOVE,

Petitioner

FLORIDA

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsiperaTion of the application of counsel for petitioner (N].

Ir Is Onpenep that the time for filing a petition for writ of certiorari in the

above-entitled cause be, and the same is hereby, extended to and including

5 . — |

Ps 2 yt er

— 1 —

Dated tus 2 vem

day of July 19 82

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NO.

McARTHUR BREEDLOVE,

Petitioner,

vs,

THE STATE OF FLORIDA,

Respondent. A 4

APPLICATION FOR EXTENSION OF TIME IN WHICH

TO FILE PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE LEWIS F. POWELL, JR., Associate Justice

of the Supreme Court of the United States and Circuit Justice for

the Eleventh Circuit:

Petitioner, McArthur Breedlove, by and through undersigned

counsel, prays that an order be entered, pursuant to Rule 20.1 of

the Rules of the Court, extending the time for filing a petition

for writ of certiorari by 30 days, to and including August 17, 1982.

In accordance with Rule 29.2 of the Rules of the Court, this

application is filed 10 days prior to the date upon which the peti-

tion is now due. In support of this application, petitioner would

state:

1. Petitioner was sentenced to death on May 2, 1979 for

the offense of first-degree murder in the Circuit Court of the

Eleventh Judicial Circuit of Florida in and for Dade County. The

judgment petitioner seeks to have reviewed was entered by the

Supreme Court of Florida on March 4, 1982 and rendered upon the

denial of a timely motion for rehearing on May 19, 1982. A copy

of the decision is appended hereto.

2. Petitioner intends to file in this Court a petition

for writ of certiorari to review the judgment of the Supreme Court

of Florida in this cause. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C.. §1257(3), petitioner having asserted

in the state courts a deprivation of rights secured by the

Constitution of the United States.

3. The federal questions to be presented are: 1) that

the introduction of out-of-court statements of available witnesses

by the prosecution at the trial of petitioner, and the reliance

by the prosecution upon those statements violated the Confrontation

Clause of the Sixth Amendment to the Constitution of the United

States; and 2) that Section 92.141(5)(h), Florida Statutes (1977),

establishing a potential aggravating circumstance in a capital case

that a homicide was “especially heinous, atrocious, or cruel", was

applied in an unrestricted and overbroad manner by the trial court

and the Supreme Court of Florida, in violation of the Eighth and

Fourteenth Amendments to the constitution of the United States.

4. Pursuant to Rule 20.1 of the Rules of the Court, the

petition for writ of certiorari in this cause is due to be filed in

this Court on July 18, 1982. No previous extensions have been

requested,

5. Petitioner requires additional time within which to

file his petition for writ of certiorari for the following reasons:

a. The issues to be presented to this Court are

important and complex.

b. Undersigned counsel is currently responsible for

the representation of approximately 70 clients in state and federal

courts, including another death-sentenced defendant whose case is

presently pending in state post-conviction proceedings, which have

required the attention of undersigned counsel for a significant

period of time during the past several months.

S. Preparation of the petition in this cause was

commenced as soon as was possible, in light of the other

responsibilities of undersigned counsel, in an effort to timely

file the petition; however, it has proved impossible to complete

the petition within the time allotted by Rule 20.1

6. In view of the foregoing factors, petitioner cannot

adequately prepare and file his petition by July 18, 1982. This

application is made in good faith and not for dilatory purposes.

WHEREFORE, petitioner respectfully requests an order

extending for 30 days, until August 17, 1982, the time within

which to file his petition for writ of certiorari to the Supreme

Court of Florida in this cause.

Respectfully submitted,

ST eine

Eleventh Judicial Circuit of Florida

1351 N.W. 12th Street

Miami, Florida 33125

(305) 545-3005

By:

¢ Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the fore-

going Application for Extension of Time in Which to File Petition

for Writ of Certiorari has been served upon JIM SMITH, Attorney

General, 401 N.W. 2nd Avenue, Suite 820, Miami, Florida 33128,

counsel for respondent, by depositing same in the United States

mail, first class mail, postage prepaid, this lst day of July,

1982, and that all perties required to be served have been served

this date.

Supreme Court of Florida

20. 54,822

MCARTHUCR NMI, .

3.4/8 MEARTEUR CENKINS, Appelians,

Te *

Ee STATE if PLSAIDA. Appellee.

(March 4, i392]

FER CURIAM.

McArthur Breeciove appeals his conviction of firat-segree

murder and sentence of death. We have surieéiscien* end 22 2122

the results of his 11.

A iiveecount iadiecument care Breedisve with first-

seqree surfer, atrenpted first-degree murder, surg.as;’. grand

chefs, and petit theft. The charges tee fron ine 182829

Seath of one ert and che wounding of ancther which cecurred

Curing the burglary of el @welling. The jury acquitted Breed-

eve cf atcempted urge, cut senvicted his cf ine ether charges.

Ceoneusring is zr. TOCSMMONCET, ON, the ga, Tours recess

che death sentence for the urge, conviction. The court aise

imposed consecutive sentences of lite Hannes zer burglary,

five years for grand net, and ett dare 2er pectic chefs.

Breedlovy/;resenzs Six pointe cn ai: i; Brag: :

violation; 2! denza: cf motion to LOGO? rer nen

cf hearsay: A) improper remarks sy prosecute Aura ciceing

* Ast. v. § 47, Fis. Cones.

‘ 3 araéy v. Maryland, 173 7.8. 1 25631

— —

* a — 1

asgurens;: 3} somvicticn and sentence fer burglary ee toubie

jeopardy clause; and 6} impropriety sf death sencence.

zu four sotions tefense sounsel requested she proéueticn

Of police reports made by six police officers and derectives asé

of field investigation cards 22 sn “suspicicus” rens. The

trie. court denied al. fur sections tenz recerted comment.

The requested sater:al, slong with other s.teqsested zert., was

Seposited with ne zee whe examined i: in camera ané rere

portions cf tne material released to cefense ccunsel. ALL ferme.

stacvenents sf persons scanecteé vith the case were alse firnisred

to the fetense.

n apps Sreecicve clains chat the state 24824208 220

acmonition of Brady +. Maryland, 372 3.8. 83, 37 12631, that

suppresuion Sy the prosecution of evidence

favorable to an accused spon request violates

cue process where the evidence is tert

either to guilt or punishment ‘irrespective of

the good faich or bad faith of the prose-

cution.

in making this claim, Breedlove relies on un za bee perticns 2:

@ Detective McElveen's report. This report +r fleets the

substance of @ conversation that McElveen had with Breedlove's

mother, Mary Gibscn, anc his brother, Elisha Gibson. to the

effect that the ether had et seen several items stolen fren the

victins’ residence in Breediove's pessessicr. and that treedlove

nad returned home around 2:30 a.m. ithe epproximate cime of the

murder) and nad left again between 4:90 and 4:30 . This

report also states that both the sctner and brother referred ts

bicod cn Breediove's clethes and that she Srother 200 284

stems, Later established to have teen taken 280 D „erte

restgence, which he saw in Breedlove's posSessicn en Ais return

bome at approximately 2:30 a.a. un

2 Ps

After his in camera inspection, the trial zee sealed she

police reports. Sreediove's sppellate ccursel 44 eccess 20

the sealed reports after trial ts assist ia @pariny cris

appeal. Sniy MeElveen’s reser: is speci rea- seferre¢ te

on appeal, and inspection d che reports revea_s McElveen's

to be the caly za containing possibiy ‘svcratie infere

yee Which the ¢efense sight net have received is scene

fashion.

—

Breec-cve's argument on this gert, however, ‘snores,

except for one accorg reference, Snised States v. Agurs. 437 5.5.

97 (2976). za Agurs, she Supreme Court identified =hree Liscov-

ery situations: i} undisclosed evidence seren zz zes +h

for specific evidence Kür and 3} &@ genera. request 227

“Brady sater:a.° W.. MeEiveen'’s report felis within she

Ard category, ané g i8 stntrsiiiag sm 2810 pesns.

The state previded 2 25522 of witnesses Ln whics tne

names s:? sixteen Law enforcement serscas appear. These 2880

sifiscers, t‘etectives, :ecnmic.ans, and @ stencerarrer. erg

Mefiveen's same 2 the fisst 228, he was act zee in 220

motions fcr prodwetion which specified the reports s/f six 2222

cers and cetectives by name. The record reflects no fern

request for ail “Brady aaterial,” but we believe that Mcfliveen's

report, es wel. as those cf the other unspecified Law aenforcenen

personnel, is within Agurs' third situation.

Brady's Sroed holding has Seen limites somewhat by Agurs:

lo reiterate « critical point, the prosecu-

tor will not have violeted his constitutional

duty cf disclosure ese his omisaicn is of

sufiisiens significance te result ia the

genial of she defendast's sight 2 2 2222

el.

427 7.8. at 106. Puarthermere, Ide sere possibicicy that an

item cf undisclosed information aight have heiped tne defense, sr

might have affected the cutceme of the trial, does not sntablish

*maverialisy’ za the censtitutional sense.” if. at 109-19. <a

response so claims very similar ts Beeed-ove's, this Csurs

recently stated that “'d)iselcsure requirements fcr the reste

cution principally concern those matters Assen 7 the

¢efense in the course of reasonably Alten preparation.” RE

. 398 %% 170, 2 rie. 2% de receré shows chat

the trial ccurd sarefuliy sbserved uaa, tiscovery rights.

Breedlove hag failed to demonstrate that the saterial contained

in NeElveen's report cut act have seen fourd wren reasonatiy

Siiigene greparatisn sr shat sonproéucticn sf this report pre: u-

diced hia.

ereediove alsc claims that the police reports are 222

coverazle per se as “stacemenzts.* Florida Rule of crimin's?

Procedure 3.520 scvers statements which are ¢iscecverasle and

Sefines a * sarazent® as

8 written stactemen: sade Sy said erte and

Signed cr stherwise adopted or approved ty

him, sf &@ stencgraphic, sechanica., #.ec-

trical, er other recerséing, sr d sranseris:

shereof. or which :5 8 Subetantialcy 248

recital 32 an STAs statamens sade sy 123

person 286 an sifiser 22 agent sf =ne state

and seccré sencemgeranetus.y visa whe

makiag of such tra. stasenent. . .

Pia. R. crime . 3.33018) 2: .. The source sf this Stace save

generaliy ele shat police reperts are sot “statements,” except

of the officers making them, and that generally ey are act

Giscoverable per se as statements cf these officers. See Scare

een 284 So.24 198 (Pie. 1973); tocknars v. State, 384

$0.26 289 Fra. 4th SCA 1980); Black v. State, 383 So.2¢ 298

(Pla. ist DCA 1960); Dumas 7. Stace, 363 8e. 26 568 (Fla. 34 OCA

1978). cert. denied. 372 8. 260 471 (Fle. 1979); Pitts v. State,

362 Se.24 147 ria. 3¢ DCA 1978), cers. denied. 362 $0.24 2372

za. 1879); Milier 7. Ssase, 266 8. 26 46 (Fla. ze SCA 19°68";

Stace 7. Lattincre, 284 . 24 433 Pla. 36 SCA 1973), Ss.

denied, 291 8 26 7 (Fra. 1974); State v. 328818 227 8 4

550 (Fla. 24 SCA 13969). The materia, is she instant repercs ices

not comprise “stacements* because the reports have sot beer

signee, accpted, of approved by the perscns rer than the 8122

cers) to whom they have been attributed, they fo not appear to se

substantially verbatin, and bey were en contemporane-

ously with their macing. We to not “Zine that these reports sre

eiscoverable as/ statenents® as set out jr vale 3.125.

The notions to suppress 24 Breeclove's atticrneys

sought exclusion of any statements by Sreeciove, of evidence

5 4 e 5 : : : Bracy

8222 yeis of what s and is get

mater:a..

—

7 5 4 ¥ 7 i

. Sell! * p 8 ee» K

R rere Fe eee

Sound at a mother's heme, and sf evidence found on fis deren.

On appeal Breecicve cnly alleges error tegarzing edmissicn 2? his

statement of Neve=xber 21, 1978. za that statement sreedisve

aémizted breaking tate s dwelling, tacking “tmercus items, stas-

bing @ san, whe had teen aslees in @ be¢rocm, with a butcher

e that Breedlove sad caken 22? 1 24226 28 the rat sen.

and stealing a bicycle <5 make his Fla Breecicve a.leces

shat she onze violated nis n amendment 2222 in SENAZA IT

that statement.

f en learning that ire was in ristséy. 2 ee

e: tne Eallandcale Police err ant requesces 20 1222 22

Cerec a surder smat had securrec n Hallandale

severa. years earlier. Detective cacrepaiek cf che rz Han

Beach Police Separcment, esd officer cn Breedlove's case, had.

Breedlove brought over from the county jail. Robert Shultz, «

counselor at the jail, escorted Ereedlove downstairs an¢ surned

him over to two officers.

At the suppression hearing, Shultz testified that kee

sove had said somechiag like “They had better be she pecple ?

want to talk to” cr “I don’t want to talk to certain detectives. *

Be also stated that, om seeing the officers, Breedicve said, 2

aM not talking to them,” and che officers 422 semethiag 20 20

effect that ‘Eventually you will talk to us.'* cen appeal res-

ee claims chat these statements show that he tried 20 exercise

nis right zo remain silent and t his Subsequent statement is

anvalid because =he police 218 net 5 dener“ ‘Mishigas

nn 423 5.5. 26, 134 (1975}} his refusal to 2421 28

then. ! Po

Shultz also cestified that it wis his duty to reper: any

improper police ten but that he had ckservec any ingrsp-

er behavior cegdrfing Breedicve. hug had known Breedieve

since his — ané vestified that he hed sever noticed

tases shat Ereecicve's public defenders

22272 prior 2 che Zlst and ches he ad

do police wichest counsel presen.

‘

signs of Breediove's being physicaii; abused ané that treedicve

hed never complained to im about being abused. Stultz alse seid

shat priscners could refuse to leave their selis in order 28

olg being interrogated, but thet Breedlove had sever dene av.

After arriving at she station, Teteccive tatreperex read

Breedlove his AS rights and Breedlove signet che risks

form. Breedlove chen aekec 7 apeak with tis mother ane was xct

zue szene suring she ur or so before sre actives. xe spoxe

wath her in privace and tues asced her 7 20 latrepealek that 0

would sacé 2 statesent. After speaking wich the 6 68266

ireedicve was again read sis rights, Ne dae tas sard, ans

mace a formal statemens. ‘atrepalek cestified zar ne sac sever

2eataen Breedlove and ‘hat, when interviewed Sy letective Ne on

the foliowing day, Sreeclove asked Tatrepalek to stay with hia.

Breedlove, on che other hand, testified chat Setectives

zavrepeles and Cjeda hed beaten hia on November 9, that he

refused ts go with she officers on the st, and after being

threatened er. the sist he confessed in créer so avoid another

beating. § The judge found thet Breecicve unterstood his rights

on both the 9th and zt of Yovenber and that he freely and

volsntarily waived those rights.

Breedlove now clainzs thas the statenent, "eventually you

1 talk to us," was an Loplied chreat constituting coercion and |

tainting 7 ensuing statement so that no proper waiver occurred.

Prom the totality of the circumstances, :t does sot appear that

She statement vas coerced. Aather, Breedlove chose not to exer-

cise his rignt z remain silent or <5 have counsel present,

making =he Camacing statement rer talacag-with his nother. The

judge property concluded that he tregsy ond voluntazzzy sade che

Staten. S \

$§ sreedlsve's original public deferter, savié Tinger, testi-

Zed that, alchough Breediove = prior ce the 2ist that

he bad teen beaten, Finger sew e evidence cf physical abuse,

not reporteé Breed.ove'’s statazents regarding the .

2 6

; —

„ ,

7 d :

: 5 = 288 a a

. . 7 v

. 4 ‘ 25 ‘

4 ; eae * N. x on as 1

— 9 5 => 4.4 * or.

is vi e ees eS UY PR ARs SPER G7)

At trial Detectives red and catrepalek 26682208 regard-

ing Sreediove's statement of the 2ist. In relating what te said

do them, Seth recited or aliscded to the substance cf a ccnversa-

sion shey had with Sreedlove'’s sother and Srother. ‘ieicner the

mother sor she brother sestified ac 2222, and Breedlicve acw

Saz impreper intirsdsecicn sf hearsay and 724822 22 280

confrontatisn clause.

Lazar 1.4 an cut-ol-couxt Atatement, cther taan tne made

by a ¢eclarans who ret ze at the trial tr ez. sffered in

SOGrS 2 grove che rn sf tne are scntained in the state-

seat. ; y Pevess: M 227 34 20 Fa. 26

c 276. Rearsay is adus e {sr rte 20e

de Ceclarant joes act testify ander cath: 1: the trier of fact

cannct observe =he declarant's demeanor; and 3) the declarant is

BOT Subject to cross~-examination. State +. Preber, 346 3. 26 426

(Pla. .978). “The hearsay rule ces not prevent a witness fron

sestifying as co what he has heard: it is rather d restriction on

she proof of fact chrough extrajudicial statenests.” 28288. 7.

Evans, 406 U.S. 74, 88 (1970). In Dutton the Court went on to

say that “the missicn of she Confrontation Clause is 20 advance «

practical concern for the accuracy of the truth-determining proe-

ess a crizinal trials by assuring thet ‘the trier cf fact ‘has

2 secisfactory basis ‘for evaluating she truth of the pricr scace-

pent. Califernis v. Jrees, 299 2. 8. at 262.400 3.5. at 39.

om the other hand, “‘ojut-ef-court statements constitute hearsay

only when cffered in evidence to prove tse tn sf she matter

asserted. * unten 7. int states, $27 . 8. 22, 219 (1974).

Merely because a statemen: is not isl for one purpose ices

not mean it is inadmissible for anctSer perzose. Bunt 7.

4 * + 327 80. 4 193 ‘Pla. 1976);

Miilians +. State, 338 So.2¢ 251 tr l DCA 1976). The hearsay

cbhiecticn is unaveiiiag when she inquiry is net sireccted ts che

7 we nete that ch. 12-2, Laws of Fia., 1 13412775 modified 486

222 of hearsay as set oct im § 70. 1e (ce), Fla. r

12 „

ruth Of the words spoken, but, rather, 20 whether they were in

fact spoken. 24 ·

ü the examination of setective et the cour: usage

4% ente counsel's sbiection to Bis relating at Breediove's

mother said at her residence. 752666 went zn do testizy that is

SROALAG With Breedlove on 220 flat he 282 Teediove wnat nis

brother had said abcur 280 Sscye.e. The ssurt overruled 20

zetense 8:0 28 TALS, STATIOg that “is is t Sr ert

zor she truth st what was 628 ner comments sade sy the

rn and Srother rane is the sane WAY? Solectisns vers sver-

ure SF sustained as seeded. A site bar conlerence 29 hearsay

was Nee, beta which <b ee gave the sury o sauticnary

-Astruction on Dieda's ester. rer to resten nation

another side bar conference was held, wherein the defense said 2·

woulé go into the Gibsons’ statements because they hed been

Teceived for an inpernissible purpese. The court cautioned tha:

Set ente would have to Live With what this approach elicited. A

Similar course of events occurred during Detective sacrepalean's

testiaony.

N closing argument, defense counsel brought up che

Sibecns’ comments and wondered wey they had net been called 28

Seatify. The state also ruht up shese coments, referred tc

Their Nera statements (not sntreeuced at trial), seid chat they

sold the truth in those statements, and Then tied thear formal

etatements to the detectives’ testinrony.

Defense counsel used «hese stazements Sy the prosecutor ts

% for a mistrial because of “putting the truth of f.isan and

Mary Sibecn’s statements in issue," and also asked shat the fury

be told to disregard the detectives’ Caen Tegarding what the

Gibsons had said . % be given another Sutionary Lastructisn.

Defense counse: ‘alse asked that the july be 2012 20 éLeregard the

state's closing argument. the gurt found the state's aryoment

proper dad refused to reinstruct, teflerring to his earlier

sautionary instruction. Sefense ela referred ts the mcther and

brether in its fina: ary ment.

The sours progeriy admitted che detectives’ testincry

about what the Gibsons said because i: cane in ts show the effec:

on Breedlove rather +> for she truth ef those cements. he

informal statements, therefore, were not hearsay and could be

admitted Lats evitence. The judge cautioned the tury on sew ts

3% This ee en.

of sheis last eren fer 8 new 72227 tefense seunse. 2e

she prosecuser's argument, zee gat re: 4221 erer. The eur:

fenieé she setion. A mistrial should se Sec.ased {se sre: 628882

errer nan wil. vitiaze tne tz“ result. Pers: 88. 246

Toa. 217. 3390 Se. 858 22. SE che acceged erer 2800 20

Susetantia. harm and causes ne saterial frerud.ce. & aiacria:

shou. act be ¢eciares. =4. “mproper reuarks can de cured by

ordering the jury to ignore them unless ey are so objectionable

that such instruction would be unavailing.

The judge refused to renew his cautionary starten

regarding the use of testimony referring to the teens stete-

ments and included no such iastruction in these given before the

jury retired to deliterate. The gvestions, therefore, are wheth-

er the prosecutor's comments transicrued he nonhearsay material

ade hearsay ané whether those comsents were so prejudicial that

@chis Cours cannes say beyond a reascnatie doubt aa they head as

effect en the ver¢éict. fhagman v. Ca-ifornia. 346 U.S. 18

(2967).

tt appears at the prosecutcr’s renarks were reer.

These remarks, hewever, were no worse shan, and pesesisiy net as

harafal as, defense counse:'s sexarks concerning «he zone

statements. On rebuttal defense ccunse: darts the stolen

Sicyele being fourd at the Gibson hope. Se went cn ts say that

the bicycle

could have been . * * four

adults in that house,

eople? ‘hat ¢id they 4% They pointed zhe

Sure it is his sesher ané trether. += de

act Ie there and reger testifying Lise

phat ata ay client. Tey 8436, "te 222

at: __Be 58 she she.”

Mr. Sedwin would Neve you believe we can 822

people Like that.

(neee ecced.) <t appears that defense counse. acute thas

these statements were true. Tonsidering she sotalisy sf she

sarcunstances, we find the prosecuter's statements dot BC res-

zer as tc require a new ria:

n appeal treedleve Alleges that the prosecutor sade

Sproper aryuments te the tury, hereby violating Sreedicve's

ine to a faiz trial. Besides use sf the 12 eons’ statements.

d pOLAtS to three : er ereérudicseal or iaflammatsry retarkas:

=. Silegations 2? er 27284 acts rape * 3. neuer ⸗

acive" sharacter:taticn referring tO reer % as an

aninal);*? 3) Appeal to community Pre@luclse ‘“vielence in Dade

county) .**

Wide Latitude is permitted in arguing 78 W tury. Themes

Li SEARS, 326 8. 20 413 (Phe. 2975): Spencer 2. Stare. 232 Se. 24

7a? (Pla. 2962), gers. denied, 369 2.8. 280 12962), cers. sented,

372 0.8. 994 (1963). Logical inferences may Se drawn, and coun-

Sel is allewed to advance al: iegitinate arpuments. Spencer.

tm genying the enten fer new trial the fudge respended to

Se ente e objection ts the state's Sage argent Sy saying:

“3 thiak the context in which the ac7Ument was made was act

prejudicial in nacure.*

Breedlove charges that the state -mplied that Sreedlove

wanted to rape the woman in the house he was burglarizing. 22

Feine sarough what sad happened, the prosecuter said shat

because of the purse Sreedicve «new D „ woman eee nere.

TRAS zen pertiae:tle inference. Kis nex: scmment, however,

e DOC supporsed by the evidences” “He vent prowling througs

the house to find that wouat.* Although Sreediove was a

convicted sentally disordered sex of! ‘Callfornia),

evidence concerning his past record sendencies was t

presented to the jury until the 92 phase.

10 The prosecutor characterized the killing as a “sa ante

brute: and vi ané animalistic ac s* be 444 not refer

to Breed 48 an “aninal.*

The prosecutor said: “when we wail the Streets we taxe our

chances.“ <a response to an objection the scurt said: “Stay

om the evidence i= this case.* The Tosecuter shen said:

Rind cf viclence, us «ind cf crine, is A Our own home. *

The Court overruled an Sbjection to this remark. These

Comments appear to reflect cscemmon knowledge and are probeb.;

the sentinents of : arge number of people. They 0 get

—

on ˙ ——— ee

~~ *

— —

The control of comments is within the trial ccurt's discretison,

and an appellate court will sot iacerfere unless an abuse cf such

a@iscretion is shown. Thomas: Parrancre 7 Stave, =29 . 24 288

(Pie. 2969), podsfied, 498 .. 935 (1972). A new trial should

be yranced when i: is “reasonably evident that the remarks aight

have i.afivenceé the iury to reach & “ere severe verdict f gulls

shan it would have othervise sene.“ arden “. ftase. t . :

287, 289 ra. 1976), sexs. 484. 439 7.8. “24 Lat"). fase

case sust Se sonsicered zu .23 own erz. Lewever, and within

she tizsunstancas surrounding the sempiaised-cf remarks. is.

nn Parrarere 43:5 322965 7. P3ase. 224 fe.54 357 728.

274.

The judge refused ts grant e ttz, finding she state's

argument not prejudicial due te the sontext in which the

objected-to remarks vere sade. Some of the remarks may have been

improper, Sut we go not find them so prejudicial that a sew trial

ie required.

Breedlove was convicted cf both first-degree ur ter und

burglary and received the death penalty for the Ferber and 8

_Sensecutive ze sentence for the Latter. n appeal he caine

that Pinder 7. Stase, 375 . ze 836 (Fla. .979), sandaces shat

she burglary conviction and sentence be vacaied tecause she state

proved cnly f‘elesy murder, not premeditated aurder. The state,

on the other hand, claims that it presented sufficient evidence

of premeditation to warrant beth convictions and sentences and

also thet Pinger shou.d be rejected because of Whalen +. Sossed

States, 445 0.8. 684 (1980). dreediove's Pinger „ and the

state's Whalen argument dave deen disposed o¢ in Stase

Wes 49. . 20 .343 (Fla. 19837. We find, however, that

Breedcicre's coptenciza is at seally 4m jesve in this case

because she state introduced sufficpehe evidence of prenedi-

tarion. *3e0 EZegsszom- Because we find shat the sory need

2 This evidence includes, anong other tags, Sveedisve's

arming himself with a butcher Ge befere entering she |

bedrooms and she <efansive wounds suffered by both victins.

Hee Gd

not have sonvicted Breedisve sf Surglary za re is supper: the

murder sonvicticn, we affirsm the convictions and sentences ‘tr

both first-degree murter and surzlar.

As his final seat, Preedicve maces several attacks tn the

Seach senzence: simple felony surder as a Sasis fer tne feats

FORA. TY F25.8TO8 She ata and fsurteentn averdments: inpropser

Ferner cars oastances; ted cconsi¢eraticn tf aitigatings

SatCumsetances: anc 2eath renais, €isproperticnate im this case.

Breeciscve zu that death Ls an axteseive suniacment 222

- * — . - * -- e * 2 — * *

8 pe :- Ne. ate za Fates tet erer 25

Sn A en. 438 5.8. 16 2471 den 826 a. 06

Staces Suprene tours"? aad this 28225 ave Souné 841 20

zee penalty .8 et per se vislative 2 f rer the federal tr

State CONST. tution. Breedlove has presented ncthing which would

compel a 2ifferent conclusicn.

. *

Breedlove states that “this Curt has unifcraly reversed

seach senterces in pure felony-murder cases, assent such a find-

ang Of an intent to 11“ and ¢ites numercus cases in supper: of

S48 contention. While most cf these cases deal with felony

. 25

wurcer., a.. Sut one seneern : ar everri¢es. They are set

SPF.icalie to che Lastant case and 4e et suppers the point tha:

Breec.cve tries to make.

The ceurt founé <chree circumstances in aggravation: **

Previous somviction cf violent felc..y: homicide committed during

a curglary: ance selacus, atrocious, and creel. reedleove arsues

Shet an Ster zz felony cannct be ised eren, but

presences scthiag which compe.s declaring she feleny-murder aggra-

VOtAngG Sarcumstance uncenstituticnal. Pre trie. scurt prereriy

founé she murder to be erneut, atrccious, and cruel. AL though

Sregg . Secrgia, 121 J. 8. 131 23701.

State 7. zen, 283 e. 22 1 Ia. i873), geg, 08268. 421

J. . 74 790.

Menendes ¥. Stace. 163 3.40 227 7.8. 28°39). 1

for resentencing because of Laprcper consiierat:

vating circunstances.

NO BMitigating circumstances found.

zent result irom a Single stab wound, ert was testimony that

she victia suffered considerable pain and 414 net tle ec

ately. While sain and sulfering alone aight got ade 282 1 suréer

heinous, atrocious, and cruel, zwe attack cecurred while the

vietia lay asleep in his sed. This is ‘ar Sifferen: {rem che

dera sf capital felonies and sets this crine spars 2 ur zer

somaicced in, zer exacple, s reer, & store, sr 38 8 sussis

Breecicve 1240 claims that the presecucsr Freer

arjveé <hree scnstacstsry eqgraveting factsrs 22 the cory: tnat

the fury woul sake & recommendation zu ‘*passing tse zen

that 2Breecisve vould se el re 227 pars.ie: and 224: reed re

Showed ze remorse. “hile these zar aay nave stretcned 22

ounces of proper argument, Breedicve does no: appeer zo have been

preluciced Secause the court ¢i¢ not find thes in aggravation.

si. Menendez +. State, 368 So.2¢ 1261 (Pla. 1979) ( rrepez

eggravacing circumstances found); Riley v. Stace, 366 18 26 27

za. 1978) (sane).

Breedlove a.so scmplains that che court Limited the Tange

of mitigating circumstances allowed to be consicereé and chat 28

inscructisns gave inadequate guidance 202 sonasideraticn ard

wesgning of these circunstances. The :nstructicns. “owever, were

proper anc acequate, anc ze sours 24d get 21 presenzacticn 2?

mi sigating «ricence.*? Zreedleve now claims shat she court

erred i= failing te find the Lack of intent to cause 2678 and

Dales sental capacity. Pinding 28 Surcer in aggraevaccics

“as proper, and, after acknowledging : she conflicting testimony

Tegarciag Breedlove’s smentai capacity, the-fourt chese to find

his capacity not impaired er S Kazan. in che sentencing créer

the court stated

lm Cours, after vet pissy Ah ner: 229

the aggravating ané Zana e: —

2 of the opinicn that so aie: gating S 22 .

stances, either statstory, or Sy any

7 Defense's presentation consisted sf nee whe testi:

spout Breecicve's senta. and erna grotlens.

1242

7 4

rte, facts sr sircunstances Frese zee 2:

ae advisory Froceedzag, exist whic: outweigns

the eggravating circourstarnces.

sa the Licht of Prcperly found eva Circumstances, 422

aothzag found ia SAt-gation, Laposition 2: 280 20422 Penalcy was

proper.

We snerefore 12222 reer SOMVISTIONS and sentences.

ADKINS, cr. SVERTON, ALSTAMAN ‘and MESCHALS, 23. 22

3 a

cf De Stacements 1222222268 25 Totten and Mar;

POS = ue SY ne rrcsecztisn sucs teStiacny cy

WR2ROSSOS gaszzzases tres 2824 ‘@arsey. Yence

compe_led z reverse 2 sOnVisticn end remand 22

NOT PINAL ur- TIME EXPIRES TO PILZ EAAING ACTION AND, 27

+ DETEAMINED.

424

1 ' |

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

wo. RA-5 133

McCARTHUR BREEDLOVE,

Petitioner,

vs.

RECEIVEp

AUG ¢ 1982

CLERK

SUPR

ann. US.

THE STATE OF FLORIDA,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner, McArthur Breedlove, by and through

undersigned counsel, moves this Court for leave to proceed in

forma pauperis in the above-styled cause, pursuant to Rule 46.1

of this Court. Petitioner has been adjudicated indigent and

permitted to proceed in forma pauperis by the courts of the State

of Florida. The affidavit of the petitioner in support of this

motion is attached hereto.

Respectfully submitted,

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of

Florida

1351 N.W. 12th Street

Miami, Florida 33125

(305) 545-3005

SCHERKER

Public Defender

KG Nn 2

Assistant Public Defender

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NO.

RECEIVED

McARTHUR BREEDLOVE, AUG 7% 1982

Petitioner, can 8s

vs.

THE STATE OF FLORIDA,

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION FOR LEAVE

TO PROCEED IN FORMA PAUPERIS

1, McARTHUR BREEDLOVE, being first duly sworn, depose

and say that I am the petitioner in the above-entitled case; that

in support of my motion to proceed without being required to pre-

pay fees, costs or give security therefor, I state that because

of my poverty I am unable to pay the costs of said proceeding or

to give security therefor; that I believe I am entitled to redress.

I further swear that the responses which I have made

below relating to my ability to pay the costs of prosecuting the

cause are true.

I am not presently employed and have not been employed

for three years preceding the execution of this affidavit.

I have not, within the past twelve months, received any

income from a business, profession or other form of self-employment,

or in the form of rent payments, interest dividends, or other

sources. I do not own any cash or checking or savings account.

I do not own any real estate, stocks, bonds, notes,

automobiles, or other valuable property.

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

perjury.

‘yp e Byard lor

Sworn to and subscribed before me

this 2 7 day of June, 1982.

State of Florida at Large

NOTARY PUBLIC, STATE of FLORIDA AT LARGE

MYL COMMISSION CxPiIRES oct. 4, 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.