# Petition — McArthur Breedlove v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1288%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1060 ## 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. 11 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). —— — Ce TABLE OF CONTENTS OPINION BELOW JURISDICTION CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED STATEMENT OF THE CASE REASONS FOR GRANTING THE WRIT 11 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) 14 21 PAGE 8,9 9,11,13, 16 8,9,10 12,15 14,17,21 22 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- 11 19 10 14,16 11 8 9,10 8,9,14 19 20 15,17,19, 20 17,18,20 23 12,15 19,20 12,15 12,15 12,15 13,15,16 11 nee 2,4,5,-7,8 14,15,17, 18,20 Snel ss D — 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). 2. 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- dk 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 I 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 1 0 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). 0 + 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. 11 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 ’ Vn 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). * 16 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 4 ae — -17- 3 | } Je 24 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 a 2 ( ‘ 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, 7. 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). Wa 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 5 4 — . * : * 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 i 84 — 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 \ (+ : 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 vs . 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. (c) Whether, in committing the murder of which the 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. 5 (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 in efendant was engaged, or attempt to commit tting or 3 to commit, any robbery, 1 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. “ * A 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, (c) Whether the victim was a participant in the de- 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 4 : N f 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 2 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 —_— 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 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. *. ' ye 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 | in | 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> Q 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? 1 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 —— — ~ - * 5 * " * N 1 5 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. Q 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 t * 75 2 — - 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 0 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 n 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 1 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 | 75 5 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? ; A Q A =~. - --— I dropped it, I assume I dropped it. 2 the next thing that you did? a 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? U | A In-the hallway, I think. 2 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? | i | 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 D 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 — — 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 „ 7 2 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 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.)