Appendix — McArthur Breedlove v. Florida

a < z

IN THE SUPREME COURT OF FLORIDA

CASE NO. 56,811

McARTHUR BREEDLOVE,

Appellant,

vs.

THE STATE OF FLORIDA,

MOTION FOR REHEARING .

— |= SF - Ss

Appellee.

ye

The appellant, McArthur Breedlove, by “and through under-

signed counsel, moves this Court to grant rehearing in the above-

styled cause, pursuant to Rule 9.330 of the Florida Rules of

Appellate Procedure. The issues raised on appeal and decided

by this Court in its opinion dated March 4, 1982 will be

addressed sequentially in this motion.

I

In the first point on appeal, appellant asserted a

denial of due process stemming from the suppression by the pro-

secution of materially favorable evidence, specifically, a state-

ment of his brother, Elijah Gibson, included in a police report.

It was further asserted that this report and those of four other

officers, all of which were signed or adopted by these officers

(all of whom were listed in the discovery response filed by the

prosecution), were discoverable under Rule 3.220(a)(1)(ii) of the

Florida Rules of Criminal Procedure.

This Court rejected the due process claim, relying upon

United States v. Agurs, 427 U.S. 97 (1976), as follows:

. » Breedlove has failed to demonstrate

that the material contained in McElveen's

report could not have been found chrough

reasonably seme sors preparation or chat

nonproduction o san report prejudiced him.

Slip opinion at 3-4

United States v. Agurs, supra, holds that the suppression

- of the material in the possession of the prosecution which is not

specifically requested by an accused violates the Fourteentch

Amendment if the “evidence is obviously of such substantial value

\¢

’

~

to the defense that elementary fairness requires it to be

disclosed even without a specific request." 427 U.S. at 111.

The standard established in that decision is whether the

suppressed evidence "creates a reasonable doubt that did not

otherwise exist." Id. at 112. As is noted in the decision of

this Court, one other factor to be considered in such a

situation is whether the suppressed evidence was available to

an accused by other means of Aiscovery. See, e.g. State v.

Gillespie, 227 So.2d 550, 355 (Fla. 2d DCA 1969). The holding

of this Court in this case-is based both upon the materiality

standards established in Agurs and this latter proposition of

law.

With regard to the availability of the suppressed

statement of Elijah Gibson, appellant submits that this Court

overlooked or failed to consider the fact that trial counsel

did depose Elijah Gibson prior to trial (Tr. 36-42), and that

counsel, in che affidavits attached to the motion to relinquish

jurisdiction filed during the pendency of this appeal, averred

that they were not made aware of his pretrial statement as a

result of the depositior or any other discovery in this case.

‘ Thus, the decision of this Court, holding that the pretrial

statement of Gibson was nonetheless otherwise "available" to

counsel, can only be interpreted as meaning that since this

evidence apparently resided in the mind of Gibson -- but was not

obtained from him by counsel -- the fact that counsel failed to

elicit testimony from Gibson concerning a pretrial statement of

which counsel was wholly unaware due to the suppression of that

statement by the prosecution, somehow excuses that suppression

and renders Brady v. Maryland, 373 U.S. 83 (1963) inapplicable.

The same analysis would seemingly apply to the failure of counsel

to elicit from the officer in whose report the statement is

detailed, Detective McEleveen, evidence concerning the pretrial

statement of Gibson.

The applicability of Brady cannot depend upon such

2-16

—

vagaries. The import of the decision of this Court is that

Brady is satisfied if the prosecution merely discloses names

of witnesses -- but not their favorable statements -- to an

accused. This is clearly not the law. See Jacobs v. State, 357

So.2d 169 (Fla. 1978); Goldberg v. State, 351 So.2d 332 (Fla. *

1977); Hernandez v. State, 348 So.2d 1224 (Fla. 3d DCA 1977).

While the availability of witnesses to an accused is "a relevant

consdieration" in a Brady violation situation, it is not

“ordinarily determinative.” United States ex rel. Meere v. Wilkins,

326 F.2d 135, 140 (2¢ Cir. 1964). The unrefuted facts in this

case establish that counsel for appellant were not aware of the

pretrial statement of Elijah Gibson, and the decision of this

Court is silent as to how the statement was in fact otherwise

available, save through disclosure by the State.

The second prong of the holding of this Court on this

issue is that appellant failed to establish any prejudice from

the nondisclosure. The opinion of the Court notes that Gibscn

told Detective McElveern that defendant had been at home at the

approximate time cf the homicide in this case, and that he had

observed bluod on the clothing of appellant, slip opinion at 2,

but ignores perhaps the most critical aspect of the statement;

that Gibson did not observe blood on the clothing of appellant

until approximately 4:30 A.M., after appellant had left their

home and returned again. Appellant, in his initial post-arrest

statement, introduced by the State at trial, had explained that

the blood which had been observed on his trousers had been the

result of an unrelated physical altercation and not the incident

in this case (Tr. 929). Thus, it is the combination of the

time frame stated by Gibson and his observation of the bloodstains,

in conjunction with the post-arrest statement of appellant,

that establishes the favorable nature of his statement.

A recent decision of the Court of Appeals for the

Fifth Circuit is instructive in this regard. In Sellers v.

Estelle, 651 F.2d 1074, 1075 (Sth Cir. 1981), the defendant was

charged with and convicted of the murder of a police officer

-3- 47

= A »’ ¥ a a

) ‘ |

~"

during a burglary of a school building, and asserted a Brady

violation due to the suppression of police reports which

included statements of witnesses indicating that another

individual had committed the offense, but that the defendant

had voluntarily been at the scene at the time of the offense.

The Court overturned a lower court finding that this evidence

was not material under Agurs:

The Magistréte concluded that the

offense reports allegedly suppressed

were not favorable to Sellers because

they were inculpatory. As the Magistrate

correctly noted, the offense reports

were inculpatory to the extent that

they placed the petitioner Sellers

voluntarily at [the school] on the

night that Officer Moody was killed.

However, these reports were clearly

exculpatory in that they indicated

that cast ier individual, Santos Cantera,

not only was at the school that night,

but admitted to others that he was the

one who shot Officer Moody. ...

We find, then, that the suppressed

reports were favorable to the petitioner

with respect to the determination of

his guile. 651 F.2d at 1076-77 (ciration

omitted; original emphasis).

One interesting aspect of Sellers is that the Court

reached this conclusion despite recognizing that the suppressed

_ Statements were probably not admissible, holding that "the

evidence here suppressed was material to the preparation of

petitioner's defense, regardless of whether it was intended to

be admitted into evidence or not.” 651 F.2d at 1077 n.6. In

this case, this Court overlooked the fact that the suppressed

statement of Elijah Gibson would have been admissible; the

prosecution introduced numerous statements of Gibson into evidence,

and this Court, in disposing of the issue raised in Point III

of the brief of appellant, held that these statements were

properly introduced. Slip opinion at 7-9. It is fundamental

that appellant was therefore encitled to introduce the totality

of his statements. See, e.g. Nedson v. State, \‘62 So.2d 1017, 1020

(Fla. 3d DCA 1978); Ellison v. State 349 So.2d 731 (Fla. 3d DCA

1977); Elmore v. State, 291 So.2d 617 (Fla. 4th DCA 1974); 22A

C.J.S. Criminal Law § 660(c). Thus, the suppressed* statement

oho 18 f j

oat

‘s

e e

in this case is not only evidence which pointed to the innocence

of appellant, it was admissible evidence. This Court accord-

ingly erred in concluding that no violation of the Fourteenth

Amendment is engendered by the suppression of that statement. q

The second aspect of this issue is the claim of

appellant that he was entitled to discovery of the police report

of Detective McElveen, as well as those of four other police

officers who were all listed 4s witnesses by the prosecution

in its discovery response. This Court rejected this claim,

holding that “police reports are not ‘statements,’ except of

the officers making them", and that ‘generally they are not

discoverable per se as statements of those officers." Slip

opinion at 4 (citations omitted). One of the decisions cited

by this Court for that proposition, State v. Dumas, 363 So.2d

568, 849 (Fla. 3d DCA 1978), cert. denied 372 So.2d 471 (Fla.

1979) holds precisely to the contrary:

The primary issue presented for review

centers around what types of police reports,

if any, must be produced by the state on

pre-trial discovery for the defendant in a

criminal case. We hold that upon filing of

a proper written demand for discovery by

the defendant under Fla.R.Crim.p. 3.220(a)

(1)(4) and (ii), the state is only required

to produce the following particular types

of police reports: (1) those police reports

which are written and signed or otherwise

adopted or approved by a person whose name

has been furnished by the prosecutor to

the defendant upon demand under Fla.R.Crim.P.

3.220(a)(1)(i), and (2) those police reports

which contain a substantially verbatim

recital of an oral statement which is (a) made

by a person whose name has been furnished

by the prosecutor to the defendant upon

demand under Fla.R.Crim.P. 3.220(a)(1) (i),

and (b) made to an officer or agent of the

state who recorded such statement contem-

poraneously with the making thereof.

(footnote omitted).

Accordingly, the holding of this Court that "(t)he

material in the instant reports does not comprise ‘statements'

because the reports have not been signed, adopted, or approved

by the persons (other than the officers) to whom have been

attributed", flies directly in the face of the Dumas holding.

The decision mixes the two categories of discoverable "statements"

i: 19

J : > oY ier A PE yn PY a P

ws anew hie 6 . ee Se ae oO SOs ag hh Ns ‘

established in Dumas, and imposes part of the predicate for

obtaining statements in the second category upon efforts to

obtain statements in the first category. Both categories

of "statements" are within the express language of Rule 3.220

(a)(1) (ii) cf the Florida Rules of Criminal Procedure.

The other decisions cited by this Court in its

decision do not undercut Dumas. In State v. Johnson, 284 So.2d 198,

200-01 (Fla. 1973), this Court’considered only the proper use

of police reports as impeachment evidence, and the disclosure

requirements for such purposes. In State v. Latimore, supra,

the Third District addressed only the discoverability of police

reports which condense or summarize statements of other witnesses,

not the police officers themselves. 284 So.2d at 424-25. In

Miller v. State, 360 So.2d 46, 47 (Fla. 2d DCA 1978), the Court

held only that reports of police officers who are witnesses to

an offense or the victims thereof are discoverable, and did not

address the remaining issues presented in Dumas. The only

decision cited by this Court which is in even arguable conflict

with Dumas is Lockhart v. State, 384 So.2d 289, 291 (Fla. 4th

DCA 1980), which suggests some limitation on the right to obtain

_ police reports but which nonetheless relies upon Dumas for its

holdings.

This Court has not previously addressed the issue of

the scope of proper discovery of police reports under Rule

3.220(a)(1) (ii) when the reports involved are signed or adopted

by officers who, as the officers in this case, are listed by

the prosecution in its discovery response pursuant to Rule

3.220 (a)(1)(1) of the Florida Rules of Criminal Procedure.

While the language of the decision in this case certainly

speaks to a limitation on the rule insofar as police reports

are concerned, the reliance by this Court upon the Dumas decision

in this case will undoubtedly create great uncertainty as to

the meaning of the holding in this case among the bench and

bar. Accordingly, rehearing is necessary to clarify the holding

of this Court on this issue. 1

, ee ee a , ora’ =? RELA i>

II

In his second point on appeal, appellant challenged

the ruling of the trial court on his motion to suppress post-

arrest statements on the ground that Miranda v. Arizona, 384

U.S. 436, 473-74 (1966) and Michigan v. Mosley, 423 U.S. 96

(1975) required the suppression of the statement. After

reciting the facts adduced at the suppression hearing, slip

opinion at 5-6, this Court hefd as follows:

Breedlove now claims that the state-

ment, “eventually you will ‘talk to us,"

was an implied threat constituting

coercion and tainting the ensuing state-

ment so that no proper waiver occurred.

From the totality of the circumstances,

it does not appear that the statement

was coerced. Rather, Breedlove chose

not to exercise his right to remain

silent or to have counsel present,

making the damaging statement after

po with his mother. The Judge

properly concluded that he freely and

voluntarily made the statement. Slip

opinion at 6.

Appellant submits that this Court overlooked the

essence of his claim regarding the post-arrest statement, which

was not that his statement was coerced and inadmissible under

the Fourteenth Amendment, but that the police officers had

failed to “scrupulously honor” his invocation of his privilege

against self-incrimination, chus rendering the subsequent state-

ment inadmissible under the Fifth Amendment. It is fundamental

that if the dictates of Mosley are not adhered to, and police

officers seek to have an individual who has invoked the Fifth

Amendment reconsider that invocation, any subsequent “waiver"

of the privilege is invalid. Cribbs v. State, 378 So.2d 316, 319

(Fla. lst DCA 1980); Jones v. State, 346 So.2d 639 (Fla. 2d DCA

1977).

The conflicts in the testimony presented at the

suppzession hearing which are addressed at some length by this

Court in its decision are irrelevant to this claim. The testi-

mony regarding the peuvichhnion: teen which this issue is based

is unrefuted. A violation of the Fifth Amendment privilege,

as defined in Miranda and Mosley, is not dependent upon the use

zi

ish : , F ae aac ; 4

‘ wo wt ay ’ * 1.”

’ ae Re ae eae ee

_—

or threatened use of force, but upon whether or not the right

"reg cut off questioning’ was fully respected in this case."

Michigan v. Mosley, supra at 105. This Court made no factual

or legal findings on this issue, and rehearing is necessary tc

address the claim raised by appellant.

Ill

In his third point on appeal, appellant contended

that the trial court erred in admitting into evidence out-of-

court statements of his mother and brother, who did not testify

at trial, in the guise of non-hearsay ostensibly presented to

demonstrate the state of mind of appellant at the time of his

initial interrogation by police officers, and in denying a

motion for mistrial based upon the assertion of the prosecutor

in closing argument that these statements were in fact true.

Error is asserted both under the common-law hearsay rule and

under the Confrontation Clause of the Sixth Amendment.

This Court first found that the statements of the

mother and brother were admissible as non-hearsay :

At trial Detectives Ojeda and

Zatrepalek testified i.

Breedlove's statement of the 2lst.

In relating what he said to them,

both recited or alluded to the sub-

stance of a conversation they had

with Breedlove's mother and brother.

Neither the mother nor brother testi-

fied at trial, and Breedlove now

claims improper introduction of

hearsay and violation of the confron-

tation clause.

* * *

The court properly admitted the

detective's 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. . . . Slip opinion at 8-9.

The decision cites no authority for the proposition

that out-of-court statements of a nontestifying witness are

admissible merely "tc show the effect" on an accused, and no

such authority exists. Rather, Florida law provides that out-

oe 7 *» 4 *

A SRA MNS food ion dite rein | os Sway ny

DEGRA Ot Say OF PORE PMI Rene fa Ege

CO aa

epinted, oe eseeb Ch Oe dre 4 eT, - PAT rr te ie a te OP ie!

—

~~

of-court statements which cause an accused to make statements

in response thereto are admissible as non-hearsay. Brown v. State,

367 So.2d 616, 624 (Fla. 1979); McCumber v. State, 182 So.2d

627, 628 (Fla. 3d DCA 1966). For example, in Brown, a co-defendant

was asked, in the presence of the defendant, if the defendant

had been involved in a homicide; the co-defendant replied in the

affirmative, and the defendant immediately confessed. 367 So.2d

at 618. This Court held that’ the statement of the co-defendant

was admissible as non-hearsay:

‘ . The principal issue at trial was

the reliability of Brown's confession.

The jolting effect produced by Simmon's

accusation was the single circumstance

explaining Brown's decision to confess,

both v4 gota, inferences that Brown's

confession resulted from police pressure

and affirmatively suggesting that Brown

confessed because his previous story

would no longer be credited. The

testimony as to the Brown-Simmons

confrontation described a critical and

lainly relevant operative fact, not

earsay. The testimony was, therefore,

admissible. 367 So.2d at 624 (footnote

omitted).

Despite the suggestion -- by the court an not by the

prosecutor -- that the statements of the Gibsons were similarly

admissible in this case (Tr. 933), the record clearly refiects,

one of the interrogating officers himself testified, and the

court itself admitted that the appellant had denied the truth

of the most incriminating of these statements, and that the

statements, for the most part, did not produce admissions from

the appellant (Tr. 923-32, , 937, 1073). The following sidebar

conference clearly illustrates the misapprehension under which

the trial court was laboring:

The Court: What was the basis of

your side bar, please, Mr. Zenobi?

Mr. Zenobi: First of all, the basis

is that not only is everything he has

been testifying to hearsay, but also,

all of these witnesses are available.

They are on the State's witness list.

Secondly, the fact that even if the

Court considers them not to be hearsay,

when he was confronted with these

statements, he denied them and nothing

further was done with some of them.

The Court: I know. (Tr, 932). .

The Court then ruled that the jury would nonetheless be allowed

to hear "what the defendant heard during the course of these

conversations” (Tr. 933).

Thus, the trial court admitted these statements as

non-hearsay, despite recognizing that appellant, when confronted

with those statements, not only did not confess to the homicide,

but denied the truth of the statements. This Court overlooked

or failed to consider the total lack of record support for the

ruling of the trial court, and additionally failed to address

the constitutional aspect of this issue. Although recognizing

the purpose of the Confrontation Clause in a hearsay context,

slip opinion at 7, the decision in this case wholly disregards

the constitutional predicate for the introduction of even

properly-admitted hearsay: a demonstration by the prosecution

that the out-of-court declarant is unavailable to testify.

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2539 (1980);

Barber v. Fage, 390 U.S. 719, 724-25 (1968).

The final aspect of this issue is the argument of the

prosecutor, in his closing argument to the jury, that the out-

of-court statements of the Gibsons were in fact the truth (Tr. 1186-

88). The decision in this case states that “[i]t appears that the

prosecutor's remarks were improper”, but holds that no reversible

error occurred because counsel for appellant mentioned che

Gibsons during his closing argument and "[i]t appears that

defense counsel admitted that those statements were true." Slip

opinion at 9-10. This holding is based upon an incorrect

recitation of the actions of counsel for appellant at trial.

When the statements were first introduced, counsel

for appellant advised the court that their duty to appellant

required them to explore these statements on cross-examination,

but that appellant was not waiving any objections to the

introduction of the statements (Tr. 946-48). The opinion of the

Court states that counsel advised the court that they "would

go into the Gibson's statements because they had been received

for an impermissible purpose", slip opinion at 8; that charac-

-10- 24

i ® e@

t rization is misleading:

Mr. Zenobi: I would like to bring to

the attention of this Court numerous

hearsay objections to the testimony of

Elijah Gibson. We had no intention of

raising any of that testimony in cross

examination. »

Since it has been brought up and since

the Court has overruled out objection,

we would like to go into that area with-

out waiving any of our prior objections

made on the direct examination.

The Court: Well, ‘the area to go into

is the area ofthe factual basis that he

related to them. Your going into it may

take it out of the area that I have

instructed the jury on relative to what

he did for the purposes of arriving at

what the defendant was confronted with,

and I think the information he related

to this defendant, you can inquire as

to its truthfulness or where he got it,

but you have to understand that it may

be received on a different basis by the

jury than that which was related by this

officer.

Mr. Levine: It is our objection that

it has already been received by the jury

for an impermissible purpose. We feel

it is impossible for them to do it,

although the Court instructed the jury.

We feel we have to address and

defend --

The Court: If you go into it with him,

what he relates from those witnesses you

are going to have to live with.

Mr. Levine: We want to make it a point

that we would not go into these areas but

for the Court's ruling, and we feel we

are compelled to do so. (Tr. 946-47).

During the course of his cross-examination of the

police officer, counsel touched upon the manner in which the

interrogation had taken place, including the use of the Gibson

statements, but made no inquiry into the truth of those

statements (Tr. 970-97). Thereafter, during the direct examina-

tion of the other interrogating officer, Detective Zatrepalek,

the following transpired:

Q. Did you, in the course of your

official duties, receive sworn state-

ments from Elijah Gibson and Mary Gibson?

A. Yes.

Q. Do you have those statements in

your possession?

A. Yes.

Q. May I see them, please.

A. Yes. (Tr. 1014).

The prosecutor had the statements marked for identification

purposes in the presence of the jury (Tr. 1014-15), after which

! oat a @ 25 ;

he fa) a lai Ase ie By» “th ey

peat, ~E are te AM ee oa” Se a a a ee >

— —

the court sustained the objection of counsel to the admission

of the statements (Tr. 1015-16).

In his initial closing argument to the jury, counsel

for defendant remarked upon the fact that the prosecutor had

not produced the Gibsons at trial, in the context of the

interrogation of appellant:

They had to hook up somebody in the

house. There are six adults living in

that house. You heard the statements

about Mary and Elijah Gibson. Where

were those people? Did the State bring

them in? Of course not, because what

they would have had to bring in were two

more suspects, and the only people you

saw in here were the detectives.

Who would have been better than to

bring in Mary and Elijah Gibson and

say, "We heard this, we saw that on that

night."

Would you net have wanted to see them?

Again, a lack of evidence.

Would = not have wanted to hear from

them? Would you not have wanted to hear

how they supposedly saw McArthur Breedlov=

with this evidence?

Who would be the best person to tell

you that? They were available, but they

were not here. Again, you had to get

it from the detectives.

* * *

. . . That is the best place to hear it

-- from the horse's mouth, and neither

of those people came in here.

It is the mother and brother of my

client. Why not bring them in here?

They are the State s witnesses, or

they are supposed to be. (Tr. 1152-54).

The prosecutor, in his closing argument, remarked as follows:

There were some questions raised about

Mary Gibson and Elijah Gibson. Questions

have been raised by Mr. Zenobi about the

statements that Mary Gibson made to the

police on November the 9th, and that

Elijah Gibson made to the police on

November the 9th.

He asked questions about those state-

ments, and that is proper. That isa.

fair issue for him to raise, and then he

said, "Why didn't the State produce them

as witnesses?"

I am going to answer both of those

quesions for you right now. The State

Attorney's office is not in the business,

ladies and gentlemen, of compelling a

mother to come in and testify against her

son, and in a first degree murder case,

when we are paper Moy electric chair.

We are not in the iness of doing that,

if we can avoid it. We are not in

the business of rinse pase a brother

to testify against his own brother in

a first dezree murder case, where we

are seeking the death penalty.

What would you expect those people

to say if they came in here: "I don't

know. I forgot. It's been a long time.” .

* * *

I will tell you this, and you heard

the testimony, both the mother and the

brother gave sworn statements to the

police on November the 9th, 1978

Detective Ojeda had the sworn statements

in his report. We took them out, and

they are marked-as evidence.

They gave-their statements back on

November the 9th. At that time, Mr.

Breedlove was being interviewed by

Ojeda and Zatrepalek. They gave 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 if the statements of

Elijah Gibson did not say exactly

what Detective Ojeda and Detective

Zatrepalek told you they said, Mr.

Zenobi 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.”

* * *

Now, with respect to Mary Gibson

and Elijah Gibson, who would be in a

better position to testify for the

defendant than his own mother and his

own brother, if they had pir egy

aide pe to say, and that is why

would ask you to use common sense and

your ordinarily good judgment. Do

not --

* * *

. . . Do not have any doubt whatsoever

about what Mary Gibson and what Elijah

Gibson told the police, because if chere

was a conflict, they would be in here

telling you about it. (Tr. 1185-88).

Motions for mistrial based upon these comments were

denied after the argument of the prosecutor, at which point the

trial court made its finding that "the context in which the

argument was made was not prejudicial in nature” (Tn. 1206), not,

ARS» i ie Pp

ena aes - - js

eae . j tf *

: ee ae Pay ¢ 1K, ¢ mae rn ae

Min eae. eee cits A . fg ae ‘esintaedio x 2 Nig Ar: BO ok Tie Nae eee Dal ty ete a ee

Fd ‘ . 1) eee ne) nee y ’ i 0 oO

« y .* sai AF sie)

as indicated in the opinion of this case, in denying a post-

trial motion. Slip opinion at 10, n.8. Thereafter, counsel for

appellant presented his final argument, a portion of which is

quoted in the decision of this Court for the proposition that

"defense counsel admitted that those statements were true."

Slip opinion at 10. A reading of the entirety of that portion

of that argument reveals that counsel made no such admission;

rather, his argument was in rebuttal of that of the prosecutor

to the effect that appellant should have called the Gibsons

as witnesses:

Were these things suggested to him

through prior interrogations, and you

could bet your boots these detectives

kept working on him, because I go back

to what I asked you before, "On

Wednesday morning, could you have

convicted my client before you heard

from Ojeda and Zatrepalek," and every

one of you know the answer, not could

have been, but was “no way". No way

There was nothing but a bicycle to tie

client to this case, and a bicycle

that could have been ridden by Mary

Gibson, Elijah Gibson, or a bicycle

that could have been ridden by the other

four adults in that house, and what

about those people? What did they do?

They pointed the finger at my client.

Sure it is his mother and brother.

I do not like mothers and brothers

testifying like that against my client.

They said, "He did it. He is the one.”

Mr. Godwin would have you believe

we can call people like that.

. ° The State has the largess not to

call people like that. ey are kind.

They do not call people like that.

They did not have any compurictions

about page - the detectives what they

said, did they? They did not have one

problem asking them.

* * *

‘

If you could do that, why not call

the person who said it into Court, and

would you have liked to have seen

Elijah Gibson? Wouldn't you have liked

to have seen Mary Gibson? .. . (Tr.

1218-19).

Appellant submits that this Court overlooked or failed

to consider the tenor and affect of this argument by counsel,

as well as the context of this trial. At the time that counsel

made these comments, the prosecutor had put the truth of the

Gibson statements into issue, and the trial court had overruled

— he ~~? _ »

a le 28 ust TS aa eae,

Scammell: SOI aml ee

see 7 ii te ie ey . ba Sn) i . in seas |

| ne a

objections to those comments in the presence of the jury. This,

Court did not hold that the cross-examination of the police

officer regarding the Gibson statements in any manner barred

appellate review of this issue, and no such holding would be

possible. Counsel for appellant were duty-bound to represent +

him zealously at trial, and any suggestion that their conduct

waived review of this issue would impose a requirement that

counsel for an accused remain silent with regard to any illegally-

obtained or. improperly-introduced evidence at the risk of barring

review of otherwise-preserved issues. The law does not impose

such impossible burdens. Louette v. State, 152 Fla. 495, 12 So.2d 168,

174 (1943).

The same analysis applies to the final closing argument

of counsel, upon which this Court relied to find. the comments

of the prosecutor not prejudicial. Had counsel not touched upon

the Gibsons, the jury would have been left with the closing argument

of the prosecutor and his assertion that the statements were

true. The issue having been properly preserved for appellate

review, counsel for appellant was entitled -- if not absolutely

required -- to attempt to mitigate the highly prejudicial effect

of what this Court has determined were improper prosecutorial

remarks.

Moreover, this Court also failed to consider its prior

decision in McCall v. State, 120 Fla. 707, 163 So. 38 (1935), upon

which appellant has relied. In that case, a first-degree murder

prosecution in which che basis of the charge was that the defen-

dant had hired another individual, Coy Strickland, to commit

the homicide, a post-arrest statement given by Strickland was

admitted into evidence, and the jury was instructed that it was

not to be considered for its truth in evaluating the guilt or

innocence of defendant, but only for determining whether or not

Strickland was the principal in the homicide. 163 So. at 40-42.

: Strickland also testified at trial, and the decision notes that

counsel therefore "had the opportunity of cross-examining him

toy about those statements in the presence of the jury.," Id. at 42.

2 a al ‘ .

BRAY ti Skt oj gee i

i bd ‘ ' <4 eta Mien tae ‘

20 aye fa ei oe mS uy y sn Sede M ur Sy 4” gee un NO . iy : Pea

‘ D. e ys ae \ fae 5 Ret a }

In his closing argument, however, the prosecutor

argued that Strickland had told the truth in his statements.

163 So. at 44-45. Counsel for the defendant objected to this

argument, and the trial court emphatically instructed the jury

to disregard it. Id. at 45. Nonetheless, this Court found .

reversible error:

Now, it is true that the trial judge

did what he could to correct the improper

arguments presented, but it occurs to us

that he “locked the stable after the horse

was cao The harm had been done. This

testimony that was only admissible for the

eeceest of tending to bhg'n that Coy

trickland had fired the fatal shot had

been used by the state, not only for the

' purpose of going to show that Coy

Strickland fired the fatal shot, but also

to show that the accused McCall procured

and hired Coy Strickland to fire the fatal

shot, and it was necessarily impressed upon

the jury, the judge's instruction and charge

notwithstanding, that here was concrete

evidence of the participation of McCall

in the murder of the deceased Spear.

* * *

The rule appears to be that when a

prosecuting attorney has indulged in

improper argument, the question is whether

or not the court can see from the record

that the conduct of the prosecuting

attorney did not prejudice the accused,

and unless this conclusion can be reached

the judgment must be reversed.

It appears to us that the argument of

the prosecuting attorney in this case was

necessarily ag te pr to the accused.

It assumed the existence of evidence

againsc the accused which did not exist

in the record as against him. .. . [T]he

state's attorneys were not authorized to

argue the extrajudicial statement of Coy

Strickland the same as if it had been

evidence aiken at the trial by Coy

Strickland.

And so the 194 nt must be reversed.

163 So. at 45-47 Yeitations omitted).

Several critical factors regarding the application of

McCall to this case are readily apparent. First, as in this case,

evidence was introduced as ostensible non-hearsay (and held

properly so by the Court in McCall), and the jury was instructed

to so consider it. In both cases, the prosecutor argued that

the extrajudicial statements were true; in McCall, unlike this

case, objections were sustained and the jury instructed to dis-

5 is

regard the comments, in very forceful language. Nonetheless,

the McCall decision found the remarks not subject to being

cured by instruction, and reversed. In this case, where the

court overruled objections to the comments in the presence of

the jury, the same result should obtain; and this is particularly

so since in this case, unlike McCall, the out-of-court declarants

did not testify at trial. Appellant accordingly submits that

this Court overlooked or failed to consider critical aspects

of the record and the controlling effect of its McCall decision

in resolving this issue, and that rehearing is therefore

mandated.

IV

The fourth issue raised on appeal involves additional

prejudicial remarks by the prosecutor in his closing argument.

This Court concluded that “[s]ome of the remarks may have been

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

trial is required.” Slip opinion at 11. Appellant submits that

this Court overlooked or failed to consider several important

factors in reaching this conclusion.

The first argument raised by appellant was the

reference by the prosecutor to an alleged intent on the part of

appellant to commit a sexual assault during the course of the

charged burglary (Tr. 1197-98). The decision recognized the

impropriety of this comment:

Breedlove charges that the state

implied that Breedlove wanted to

rape the woman in the house he was

Leet oom y 3 In going-through what

happened, the prosecutor said that

because of the purse Breedlove knew

that a woman lived there. This is a

permissible inference. His next

comment, however, is not supported

4 the evidence: “He went prowling

through the house to find that woman."

. . » Slip opinion at 10 n.9. |

However, the opinion is silent as to the basis for

the ultimate conclusion by this Court that these remarks were

not prejudicial error. This Court long ago recognised the total

bade “2

Pi Bea sel . : % La @ 4) <* . ok go A Ve. Year Ys 4

bee ns ee ees Sb “ates Mee wh landes 8 COS Cte en Lee ee oe Pe Gel et eee

tex

ay

impropriety of such remarks, in language striklingly apposite

to this case:

There was no evidence in the

record from which the gt! could

infer the commission of any other

crime by defendant. Ic is well

settled that statements or intima-

tions by the proeoeeee attorney

that accused has committed other

crimes besides that for which he is

now on trial constitutes error.”

It is fair to say that the

average juror will regard the crime

of rape as no’less heinous than the

most cold-blooded murder, and,

beings so, it is doubtful if the

sinister influence of the remarks

complained of, and other remarks

made to the jury in this case,

which we do not take the time and

space to relate, could be erased

7 withdrawal or any admonition

the court could give. In these

circumstances prejudice to the

cause of the accused is so pos ge

probable that we are not just fied

in assuming its nonexistence.

Simmons v. State, 139 Fla. 645,

°. A (1939) (citations

omitted).

Accord Ruiz v. State, 395 So.2d 566, 567 (Fla. 3d DCA 1981);

Glassman v. State, 377 So.2d 208, 211 (Fla. 3d DCA 1979);

Ailer v. State, 114 So.2d 348, 351 (Fla. 2d DCA 1959); Gonzalez

vy. State, 97 So.2d 127 (Fla. 2d DCA 1957).

In a situation remarkably similar to that presented

in this case, the First District held that intimations by the

prosecutor that an accused charged with murder had raped the

victim prior to her death, which were not supported by the

evidence, were improper and prejudicial in that a defendant,

in such a situation is “in effect being charged with a crime

without notice and opportunity cto prepare his defense prior

to trial." Beagles v. State, 273 So.2d 796, 799 (Fla. lst DCA 1973).

The decision of this Court in this case is bereft of any

rationale for departing from this principle.

ie The second aspect of the closing argument challenged

in this issue was the vituperative characterization of appellant

by the prosecutor (Tr. 1198), The sole holding of the Court

on this claim was that "(t}he prosecutor characterized the killing

‘ ‘

/

-16- 32

er ” per’ Sa ty

, Y vin ® } a Ai 7 t

ao ‘s de <P eC 4 ~~

‘ gh ¢ “ Y

cnt

— & 2 3 o% \

. Seon ag ‘ '

“ee . Ba ee | " Septet’

wr

le

r on e

PS hae WORT

be ic a

%

o>

q

as a ‘savage and brutal and vicious and animalistic attack;'

he did not refer to Breedlove as an ‘animal.'" Slip opinion

at 10 n.10. This holding takes the remarks of the prosecutor

out of their proper context:

The exact pet acts performed .

by Frank Budnick we will not know. We

do not know whether he died a hero or

not. We will not know, but something

happened which caused him to wake up,

and McArthur Breedlove now knows that

there is someo in this house who

can identify him, have him convicted

of a crime, and he took that knife,

ladies and gentlemen, and he engaged

in a Pe and brutal and vicious and

animalistic-attack upon the two people

in that bed. (Tr. 1198).

It is beyond question that the prosecutor was referring

specifically to appellant in this regard, and that his remarks

were not mere characterizations of the offense but of the person

-- appellant -- alleged to have perpetrated it.

The third aspect of this issue is the appeal by the

prosecutor to the jury to convict appellant for the sake of

the community. The holding of this Court on this contention

is as follows:

The prosecutor said: "When we walk the

streets we take our chances." In

response to an objection the court said:

"One place in the world where we ought

to be free from this kind of violence,

this kind of crime, is in our own home.”

The court overruled an objection to this

remark. These comments appear to reflect

common knowledge and they are probably

the sentiments of a large number of

people. They do not appear to be out

of place. Slip opinion at 10 n.11.

This holding ignores the context of the remarks,

which were preceded by the urging of the prosecutor that a

first-degree murder verdict was necessary because “nothing

else will satisfy the conscience of this community." (Tr. 1199).

The prosecutor was obviously seeking a guilty verdict on the

basis of the fears of the community, rather than on the evidence

in the case. Florida law has always condemned such remarks.

See, e.g. Sims v. State, 371 So.2d 211 (Fla. 3d DCA 1979);

Reed v. State, 333 So.2d 524, 525 (Fla. lst DCA 1976): Russell

-19-

ue « e

ae)

v. State, 233 So.2d 154 (Fla. 4th DCA 1970); Chavez v. State,

215 So.2d 750 (Fla. 2d DCA 1968). And the obvious rationale

for this rule of law is that such fears do in fact exist among

the citizenry, but have no place in a criminal trial.

Yet this is precisely the rationale upon which this

Court has relied to find the remarks in this case not "out of

place" in this trial. While lay persons might well believe that

such considerations are important in determining the fate of an

individual accused, "the criminal law departs from the standard

of the ordinary in that it -requires proof of a particular crime",

Paul v. State, 340 So.2d 1249, 1250 (Fla. 3d DCA 1976), cert.

denied 348 So.2d 953 (Fla. 1977), and this Court has always held

that "(t]he trial of one charged with crime is the last place

to parade prejudicial emotions. . . ." Stewart v. State, 51 So.2d 594,

595 (Fla. 1951). Im short, the very fact that the comments of

the prosecutor in this case “appear to reflect common knowledge

and are probably the sentiments of a large number of people”

establishes, under unbroken Florida precedent, that they were

"out of place” and prejudicial in a criminal trial.

‘ V

In the fifth issue raised on appeal, appellant sought

reversal of the judgment and sentence entered for the offense

of burglary in this case, relying upon State v. Pinder, 375

So.2d 836 (Fla. 1979). As the decision of the Court notes,

the recent decision of State v. Hegstrom, 401 So.24 1343 (Fla.

1981) establishes that the only relief to which he could be

entitled is vacature of the sentence. However, this Court

found that "the state introduced sufficient evidence of pre-

meditation”, and accordingly upheld the sentence. Slip opinion

at 11-12. Appellant submits chac this Court overlooked certain

important aspects of the record in reaching this conclusion.

First, the only evidence introduced at trial which

established the manner in which the homicide had occurred was

_the post-arrest statement of appellant, in which he stated that

Gass ta 34

RS el ol age Tae ry Os de (he aS 7 ph aie.

he had entered the bedroom of the residence with a knife,

which he had intended to use to open a jewelry box, and that

the following then occurred: *

A. Well, I started going through

a bex -- a jewelry box, the dresser

drawers, and I made some noise, and

the guy woke up and grabbed me by the

shirt, and I we back with the knife,

and I ran. (R133).

* bid *

A. I jumped, panicked. He just

grabbed my shirt. I swung back with

the knife, like that, and then he

turned loose of my shirt and I ran.

(R. 134).

This evidence clearly does not establish the element

of premeditation. See Sireci v. State, 399 So.2d 963, 967 (Fla.

1981); Davis v. State, 138 Fla. 798, 190 So. 259, 260-61 (1939);

Forehand v. State, 126 Fla. 464, 171 So. 241, 242-43 (1936);

Miller v. State, 75 Fla. 136, 77 So. 669, 671 (1918); Thompson

v. State, 397 So.2d 354, 356 (Fla. 3d DCA 1981); Hines v. State,

227 So.2d 334, 335 (Fla. lst DCA 1969); Weaver v. State, 220

So.2d 53, 59 (Fla. 2d DCA 1969), cert. denied 225 So.2d 913 (1969).

. Perhaps the best proof of this lack of evidence is the fact that

the prosecution proceeded solely on a felony-murder theory at

trial (Tr. 466, 1158-59, 1199), which is totally overlooked in

the decision in this case.

Indeed the reliance by this Court upon a different

theory to uphold the burglary sentence is in and of itself a

due process violation; appellant was entitled to have the

validity of the sentence determined upon the same basis as which

he was tried. Cole v. Arkansas, 333 U.S. 196, 201 (1948); accord

Presnell v. Georgia, 439 U.S. 14 (1978); Eaton v. City of Tulsa,

415 U.S. 697 (1974). The absence of any legal basis for

upholding the burglary sentence under State v. Hegstrom, supra,

requires a grant of rehearing on this claim.

bf

ry

—~—~-

VI

In his sixth point on appeal, appellant asserted

several claims regarding the imposition of a death sentence in

this case. These claims and the grounds for rehearing on each

will be addressed sequentially for the sake of clarity.

A.

The first issue raised regarding the death sentence

was that the Eighth and fous tosis Amendments forbid the

imposition of death as punishment for a pure felony-murder

absent a finding of a premeditated intent co kill. This Court

rejected this claim for two reasons: 1) that this Court and the

Supreme Court of the United States "have found that the death

penalty is not per se violative of either the federal or state

constitution"; and 2) the fact that this Court has uniformly

reversed death sentences in pure felony-murder cases is

irrelevant because "all but one concern jury overrides." Slip

opinion at 12 (footnotes omitted).

The decision cites to Gregg v. Georgia, 428 U.S. 153 (1976)

for the proposition that the death penalty does not violate the

Eighth Amendment, however, the Supreme Court in Gregg was careful

to note that it was addressing only "the imposition of capital

punishment for the crime of murder, and when a life has been

taken deliberately by the offender”. 428 U.S. at 153; see also

Jurek v. Texas, 428 U.S. 262, 268 (1976). Neither the Supreme

Court nor this Court have expressly passed upon the validity of

the death penalty in a pure felony-murder situation. Moreover,

the rejection by this Court of the applicability of its prior

precedent in felony-murder cases involving death sentences on

the sole ground that those cases involved “jury overrides” is

totally inappropriate in light of the declared responsibility

of this Court to ensure fair and equal imposition of Jeath:

, . Review by this Court guarantees

that the reasons present in one case

will reach a similar result to that

reached under similar circumstances in

another case. No longer will one man

ae

die and another live on the basis of

race, or a woman live and a man die

on the basis of sex. If a defendant

is sentenced to die, this Court can

review that case in light of the other

decisions and determine whether or not

the punishment is too great. . . .

State v. Dixon, 283 So.2d 1, 10 (Fla.

1973).

s

Dixon does not hold that differing jury recommendations

can justify unequal application of capital punishment. And the

most recent explanation by this Court of its review function

dictates to the contrary:

The second aspect of our review

process is to ensure relative pro-

portionality among death sentences

which have been approved statewide.

After we have concluded that the

judge and jury have acted with pro-

cedural regularity, we compare the

case under review will all past

capital ca es to determine whether

or not the punishment is too great.

In those cases where we found death

to be comparatively inappropriate,

we have reduced the sentence to life

imprisonment. Brown vate

392 So.2d 1327, a.

(citations omitted).

Thus, neither of the bases for rejection of the claim

asserted by appellant justify the refusal of this Court to

consider the constitutionality of the death penalty in a

felony-murder situation. Further, to the extent that the holding

of this Court on this issue is based upon its finding that

there was sufficient evidence of premediations, see Point IV,

the same due process violation is involved.

B.

The second issue raised under Point VI concerns the

application of aggravating and mitigating circumstances by the

trial court. Appellant first challenged the application of

two aggravating circumstances found by the trial court, felony-

murder and especially heinous, atrocious and cruel. See

§§921.141(5)(d), (h), Fla.Stat.(1979). The basis for the

challenge to the application of subsection (5)(d) was that it

creates a mandatory presumption that the infliction of death

-23- 37

.

Pj iia ie a TAR wal sy i aha oP Nd i I. Bat

PPS yr rr?

“— —e ~ PS 4.e7 th ye

is warranted in every felony-murder case, and that this

\presumption fails to satisfy the constitutionally-mandated

test for the validity of evidentiary presumptions in criminal

~ eases. This Court summarily rejected this assertion, holding

only that appellant presented "nothing which compels declaring .

the felony-murder aggravating circumstance unconstitutional."

Slip opinion at 12. Again, to the extent that this holding was

influenced by the finding of sufficient proof of premeditation,

the same arguments raised in’Posne IV of this motion apply.

Further, this Court apparently misconstrued the claim

of appellant. Appellant did not seek to have this Court declare

"the felony-murder aggravating circumstance unconstitutional",

but rather to limit tes application by holding it improper in a

pure felony-murder case, as the Supreme Court of.North Carolina

did in State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979). The

constitutional basis for this claim was two-fold. First, well-

established Supreme Court precedent provides that mandatory

presumptions are unconstitutional unless the evidentiary fact,

in this case felony-murder, supports the ultimate fact, in this

case the propriety of a death sentence, beyond a reasonable

doubt. See, e.g. County Court of Ulster County v. Allen, 442 U.S.

" 160 (1979). Second, ‘the Eighth Amendment forbids presumptions

that death is appropriate, based solely upon conviction for a

"capital" crime. See Woodson v. North Carolina, 428 U.S. 280 (1976) ;

Shue v. State, 366 So.2d 387 (Fla. 1978); Purdy v. State, 343

So.2d 4 (Fla. 1977). ‘This Court overlooked or failed to consider

these issues in passing upon the claim of appellant in this case.

Appellant challenged the application of subsection

(5)(h) in the trial court on several grounds: the introduction

of irrelevant and prejudicial testimony regarding the pain

suffered by the victim prior to his death, the insufficient

instructions on this factor which failed to properly define it

for the jury, and the findings of the trialcourt in support of

its determination that subsection (5)(h) applied in this case.

This Court found only that the trial court had properly applied

-24- . 38 : — ~

—_—— . > Reena aenaens wees

¥ iy . n 5 OLS

X ile 1, , if a haa

applied the circumstance:,

fl . 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 this murder

heinous, atrocious, and cruel, the

attack occurred while the victim lay

asleep in this Sed. 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. Slip‘opinion at 12-13.

This holding overlooks or fails to consider the

admission by the trial court of extensive testimony by a

medical examiner -- who did not perform the autopsy in this

case and whose testimony was based solely upon his review of

the file -- regarding the “considerable” pain suffered by the

victim (Tr. 1219-22), the obvious impact of this testimony

upon the jury, and it: documented effect upon the trial court

in its finding of this aggravating circumstance (R. 186).

Despite acknowledging that “pain and suffering alone might not

make this murder heinous, atrocious, and cruel", the decision

- in this case overlooks the patently prejudicial impact of the

testimony introduced in this regard. Furthermore, this Court

overlooked or failed to consider the inadequate instructions of

the Court, which refused to instruct the jury in accordance

with State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), and the con-

sequent unconstitutional application of subsection (5)(h) in the

trial court. See Godfrey v. Georgia, __ U.S. ___, 100 S.Ct.

1759 (1980).

Additionally, the only basis upon which this Court

approved the application of subsection (5)(h) in this case, that

“the attack occurred while the victim lay asleep in his bed"

as opposed to in a “public place", is neither constitutionally

sound nor factually supportable. This Court has never before

relied upon the fact that a homicide occurred in the home of a

victim as establishing this aggravating circumstance; indeed

it has specitically found to the contrary. For example, in

Tedder v. State, 322 So.2d 908, 909 (Fla. 1975), in which the

defendant fired at his wife and mother-in-law. pursued them

into their home, shot his mother-in-law and forced his wife

to leave with him, refusing to allow her to attend to her

mother, this Court held that the homicide was not within sub-

section (5) (h): ff.

It is apparent that all killings

are atrocious, and that appellant

exhibited esuelty, by my | 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 especially”

heinous, atrocious or cruel when it

authorized the death penalty for

first degree murder. Id. at 910

(footnote omitted).

In Lewis v. State, 398 So.2d 432, 434 (Fla. 1981), the

victim was seated in his bedroom, watching television, when the

defendant and an accomplice “simultaneously fired upon him from

outside the bedroom window, using 4 .30-.30 rifle, and a 12-gauge

shotgun", inflicting multiple gunshot wounds which killed the

victim. This Court held that subsection (5) (h). did not apply.

Id. at 438. Indeed, Godfrey v. Georgia, supra, also involved

a homicide committed in the home of the victim, and the Supreme

Court held that, as a matter of Eighth Amendment law, the virtually-

identical aggravating factor found by the Georgia courts in that

case could not be applied. 100 S.Ct. at 1763, 1767.

Furthermore, to the extent that the holding of this

Court is based upon the fact that the homicide in this case

occurred in a residence, it is but another characterization of

the fact that it occurred during a burglary. Of course, the

trial court found that this fact gave rise to the application

of subsection (5)(d), and this Court approved that finding. To

hold that this "same aspect" of the offense gives rise to

another aggravating circumstance is directly in violation of the

rule against such "doubling up” of aggravating factors established

-26-

MVP

by this Court in Provence v. State. 337 So.2d 783, 786 (Fla.

SP

1976).

Finally, the factual basis upon which this Court

rested its finding is nonexistent. The medical examiner who

performed the autopsy testified that his internal examination ~-

of the body of the victim provided no basis upon which to

determine whether the victim had been moving at the time of

the homicide (Tr. 770). He —— testified that the pattern

of bloodstains indicated the victim had been standing erect

when injured (Tr. 767), and that the "defense wounds" on the

hands of the victim were consistent with the victim having

reached for the knife (Tr. 773), as defendant stated that he

had (R. 133-34).

The medical examiner did testify, on direct examination,

that his f{odings were consistent "with the knife coming from

above and striking from above, a person laying down. a

(Tr. 771). However, he subsequently clarified this statement

as follows:

Q. I presume you also assumed in

your answer to Mr. Stelzer's question

that the victim was staying still or

was somewhat relatively still when this

knife was brought towards him. Is

that correct?

A. I can't state that for sure, sir.

Q. So you do not know whether the

victim was in fact moving towards his

assailant at that time.

A. No. I don't know if he was

moving at the time. (Tr. 780).

And the prosecutor conceded in his closing argument

that the State could not establish by independent evidence the

location of the victim at the time of the stabbing, and further

conceded that he had not been asleep at that time:

The exact physical acts performed

by Frank Budnick we will not know. We

do not know whether he died # hero or

not. We will not know, but something

happened which caused him to wake up.

stevie, Cewbe Rave).

Accordingly, appellant submits chat the factual basis upon which

this Court rested ics conclusion that subsection (5)(h) was

properly found by the trial court is refuted by the, record.

The second aspect of this issue is the urging by the

prosecutor of non-statutory aggravating circumstances in his

argument to the jury to recommend a death sentence. The decision

of this Court recognizes the impropriety of this argument,

noting that they “may have stretched the bounds of proper *

argument", but held that appellant "does not appear to have

been prejudiced because the court did not find them in aggravation."

Slip opinion at 13 (citations omitted). This holding fails to

consider the great importance placed upon the jury recommendation

under Section 921.141; this Court has repeatedly emphasized that

the advisory verdict of the jury is a key component of the death-

sentencing process. See, e.g. Ross v. State, 386 So.2d 1191, 1197

(Fla. 1980). LeDuc v. State, 365 So.2d 149, 151 (Fla. 1978);

Tedder v. State, 322 So.2d 908, 910 (Fla. 1975); Lamadline v.

State, 303 So.2d 17, 20 (Fla. 1974).

Thus, in Elledge v. State, 346 So.2d 998, 1002-03

(Fla. 1977), where non-statutory aggravating factors were

presented to the jury and found by the court, this Court reversed

the sentence and remanded for a new sentencing hearing. For the

Court to hold, as it does in this case, that a prosecutor may

violate one of the most basic principles governing the applica-

tion of Section 921.141 and that a defendant has no valid

complaint if the non-statutory aggravating circumstances argued

by the prosecutor are not expressly found by the trial court,

is logically inexplicable in light of Elledge. Indeed, in that

case, the testimony and argument regarding the nonstatutory

aggravating evidence has received without objection by counsel

for the defendant, yet this Court nonetheless held that a new

jury sentencing hearing was required, stressing that the weighing

process by both judge and jury must be constitutionally sound:

. . . But was the error harmless

because of the lack of objection and

the existence of substantial additional

aggravating circumstances? We believe

not.

TT a” ee eee) a ee) ote

Would the result of the weighing

process by both the jury and the

judge have been different had the

impermissible ree factor not

been present? We cannot know. Since

we cannot know and since a man's Life

is at stake, we are compelled to return

this case to the trial court for a new *

sentencing trial. . . . 346 So.2d at 1003.

In this case, it cannot. be concluded -- as it could

not in Elledge -- that the weighing process of the jury was

mot infected by the repeated ahd prejudicial remarks of the

prosecutor regarding non-statutory aggravating circumstances.

It is thus fundamentally wrong for this Court to find no error

on this point simply because the court did not mention the

non-statutory factors in its order, ignoring the impact of

these factors on the jury. And this holding is particularly

ironic in this case. This Court rejected the claim of appellant

that the death penalty is unconstitutional as applied in a pure

felony-murder case, in part because the other felony-murder cases

cited by appellant involved "jury overrides" and this casé a

jury recommendation of death. Yet, appellant has established

a valid reason to believe that recommendation is tainted, and

this Court, ignoring the importance of the jury recommendation,

. has rejected the claim on the basis that the court was apparently

not affected by that taint.

The final aspect of this issue addresses the burden-

of-proof instructions given by the trial court and its instruc-

tions and findings on mitigating circumstances. In finding the

instructions “proper and adequate", this Court overlooked or

failed to consider the repeated instructions of the trial court

‘e the jury that, if it found an aggravating circumstance to

exist, it would then be required to determine whether sufficient

mitigating circumstances exist to outweigh the aggravating

circumstances (Tr. 1290, 1459, 1461, 1464), and its decision in

Alvord v. State, 322 So.2d 533, 540 (Fla. 1975), holding that

the prosecution must establish that aggravating circumstances

o\tweigh mitigating circumstances to justify a death sentence.

This Court also overlooked or failed to consider the constitutional

authority requiring that the burden of proof be allocated as in

Alvord. See Mullaney v. Wilbur, 421 U.S. 684 (1975).

With regard to mitigating evidence, the decision

states that "the court did not limit presentation of mitigating

evidence." Slip opinion at 13 (footnote omitted). Appellant .

did not assert that ic did, but rather that the instructions,

combined with the allowance by the court of improper prosecu-

torial argument to the effect that mitigating circumstances were

limited to those in the staréee, unconstitutionally limited

consideration by the jury of the mitigating evidence that was

presented. The Supreme Cotrt of the United States, in both

Lockett v. Ohio, 438 U.S. 586 (1978) and Gregg v. Georgia, 428

U.S. 153 (1976), declared that merely providing a jury with

information in a capital sentencing hearing is insufficient;

the jury must be given explicit and complete instructions for

using that information. It has recently re-emphasized that

requirement, and the constitutional command that all relevant

mitigating evidence be considered by the sentencing authority,

in Eddings v. Oklahoma, __*U.S. ___, 102 S.Ct. 869 (1982).

In this regard, the decision of the Court states that

the trial court “after acknowledging the conflicting testimony

regarding Breedlove's mental capacity, chose to find his capacity

not impaired or diminished." Slip opinion at 13. The decision

cites a fragment of the sentencing order, but omits that

portion in which the trial court stated its reasons for rejecting

that testimony; examination of that portion of the order reflects

that the trial court did so based upon its belief that appellant

was sane and competent (R. 187-88).

Florida law establishes that the trial court erred in

applying the standards of competency and sanity to evidence

presented under Sections 921.141(6)(b) and (f), Florida Statutes

(1979). See Mines v. State, 390 So.2d 332, 337 (Fla. 1980);

State v. Dixon, supra at 10. Appellant accordingly submits thac

this Court failed to consider the critical aspect of this claim,

that the refusal of the court below to consider the mitigating

f" of et ee / 4 eee

SER OR Ae a ee SEE ee

¥

evidence based upon an inappropriate standard and was there-

fore constitutionally infirm.

CONCLUSION

Based upon the foregoing, appellant requests this

Court to grant rehearing in the above-styled cause.

Respectfully submitted,

_/BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of Florida

1351 N.W. 12th Street

Miami, Florida 33125

wAs nt Public Defender

Assistant Public Defender

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing motion for rehearing was mailed to Alan T. Lipson,

Assistant Attorney General, 401 N.W. 2nd Avenue, Miami, Florida

33128 this 17th day of March, 1982.

"hy

Avenue. That would be .«imost north of the scene, that

particular U Tote'm, yes.

Q

But insofar “as the. U Tote'ms on West Dixie Highway

-

' are concerned,

MR. ZENOBI: Objection.

THE COURT: Overruled.

No.

[By Mr. Stelzer] What was next?

We asked him what he had been wearing that night.

He stated that he didn't remember what he had been

. wearing and he didn't know.

‘¥

At that point, I, myself, confronted him with the

fact that Elijah had told us--

Q

A

A

Not the fact.

--that Elijah had told us--

MR. ZENOBI: Objection.

These witnesses are available.

THE: COURT: Overruled, counsel,

It is not a question of their availability at all.

[By Mr. Stelzer) Go ahead.

--that he had been wearing long pants and a T-shirt

when he left, and that when he returned in the early morning

hours, these pants had been cut off.

At that time, Mr. Breedlove, stated that that was

not true; that his pants were not cut off,

“3 1a ans we iy

: SAG ‘ , 4 j a % ty ore v, wid J Y \ " ¥ * : “e nn4 te

z » ORT Le et . aa ghee bad iin os Ro — ow ‘e : a Fy

1 DES NE Oe ENE EM Pe eS Oe I ee eae OP FR TOMAN | bat 1 ite eT Nia ee ey RS eee |

ll

24

i ® e@ 901

I further satel at him that I had information that |

he had arrived at his residence with wan type of stain on

a

his pants--- ye

MR. ZENOBI: Objection; hearsay by implication.

THE COURT: Overruled,

The jury has a right to know, counsel, in

evaluating the statement made by this defendant, as

to what he was confronted with at the time he made

the statement.

The objection is overruled.

Q [By Mr. Stelzer] Prior to that, was the

| defendant ever asked what if anything of an unusual nature

had happened?

| A Yes, sir.

Q Tell us about that.

A At that particular point, he stated that no, that

is not true; that his brother was not telling us the truth..

Then he was asked, "Had anything unusual happened

to you on that particular night prior to you arriving at your

residence?"

He stated, "No."

I then confronted him with the information that

we hac received from his brother that he had a red substance--

MR. ZENOBI: Objection as to information from his

brother. ‘

A

) 6 902 -e«

THE COURT: ovérruled. Ps

--on his pants, at which time he stated tous that

he had gotten into a fight at the U Tote'm store with another.

male who he did not know.

> a

Q

the blood

A

Q

A

pants was

asked him,

that he took them off, rolled them up, and placed them in

a Dempsey

as to where the bicycle had come from.

Street.

-

I then confronted him---

THE COURT: I can hear you up hére, counsel, so

can, the jury can also.

{By Mr. Stelzer) Did the defendant say that is how

got on his clothes?

Yes, sir.

All right.

He was then confronted about his pants being cut off

He stated that the reason that he did cut his

because he did have blood on his pants, and I

"What did you do with your pants," and he stated

dumpster that was directly behind his residence.

We then asked him again with regards to the bicycle

Again he told us that he had stolen it from 146th

Let me stop you for one minute.

Now, how many people are in this room?

Myself, Mr. Breedlove, and Detective Zatrepalek.

Were all three of you in the room at all times?

Be ite ite anh.

ay 2

td) | rd] 903

A No, sir. ie j

‘ 4

Q If there was a time when all three of you were not

in the room, let us malls

A Yes, sir. -

He was then confronted again aban’ the bicycle and

asked where he had gotten the bicycle. M

He reiterated that the bicycle had come from

146th Street, and the reason he had taken the bicycle was

because he was tired and needed a ride home.

Then he was confronted again with Elijah's state-

ment about the blood on his pants--

MR. ZENOBI: Objection.

THE COURT: Overruled.

A --and the fact that his pants had been cut off.

At this particular point, I told the defendant

that I did not believe his story that he took the bicycle

because he was tired.

I told him that I felt that he had gone into a

house on 146th Street, and while he was in this house, an

altercation occurred and that something happened in that

house--that he had stabbed someone and that is how the blood

hac gotten on his pants.

At this particular point, he stated, "No, that .

is not true," but just about this time, someone knocked at

the door of the office and asked for Detective Zatrepalek to

‘

i

;

!

!

'

/

& © 904

walk out, at which time Détective Zatrepalek walked out of.

/

the room, 4

I then Gonksaued the interview with Mr. Breedlove.

Q Let me stop you for a moment. At any time, was

any mention made of a watch either vadees or after Detective

Zatrepalek walked out of the room? i

MR. ZENOBI: Objection to the leading nature of

that question and the suggestiveness of that question.

‘THE COURT: Overruled.

Try not to lead,

A Yes, sir.

During the conversation we had just prior to the

area about the blood on the defendant's pants, it was also

breught out that we had received information that he had

brought a---

MR. ZENOBI: Objection.

Again, it is hearsay, it is prejudicial, and

inflammatory.

THE COURT: Overruled, counsel.

The jury is entitled to hear what this man was

told by these officers at that time.

Overruled,

It is not being offered to prove what was told

as being true, but simply what was said to him.

On that basis, I will overrule vour objection.

ies fe

SS eae 7 @ 905

1 Go ahead, yas : :

:

2 A That he showed a watch--- 4

pal 3 | Q [By Mr. Stelzer] Back up a little bit,

4 : A Yes, sir. i

5 | He showed--meaning Mr. Breedlove showed--Elijah

6 | a watch with rhinestones around the face.

7 : MR. ZENOBI: Objection,

: 8 : THE COURT: Same grounds, counsel.

9% MR. ZENOBI: May we have a side bar?

+10 THE COURT: Sure.

11 | (Thereupon, dpitees for the respective parties

12 : and the court reporter approached the bench and conferred

13 with the Court outside the presence of the jury and the

vat following proceedings were had:]

15 THE COURT: What was the basis of your side bar,

16 please, Mr. Zenobi?

“ MR. ZENOBI: First of all, the basis is that

ia not only is everything that he has been testifving

‘9 to hearsay, but also, all of these witnesses are

én | available. They are on the State's witness list.

* Secondly, the fact that even if the Court

Bn considers them not to be hearsay, when he was confronted

is with these statements, he denied them and nothing

i further was done with some of them.

1 di THE COURT: TI know. .

ae ng 437-

FRICOMAN TlLompano.

24

25

That is somethifig that can be ied se neta on cross.

The point is, as relates to: your continued objectior

as to hearsay, which I have continued to rule on, the

matter does not go tothe truth of the matter to be

asserted. It is not hearsay, and it is admissible even

though said by someone else at some other time,

The jury has a right, in evaluating the defendant's

confession, to hear what was told to him by these

officers, and they are not to take--and I will instruct

them on that--what he said to the defendant as being

truthful or not, but the jury is entitled to know what

the defendant heard during the course of these conver-

sations, and my rulings will continue to be the same.

MR. LEVINE: Mav I make a brief response?

THE COURT: If vou feel it is necessary.

MR. LEVINE: In brief response, what the detective

is saying is that Elijah told the detectives that the

defendant had a watch, a gold watch with rhinestones

on it.

So far there has been enon ictal ae physical

evidence to link the defendant with the scene.

No property was ever recovered, This provides

a direct link to the scene.

Now, for the Court to go ahead and instruct them

that it is only to be considered in relation to the

. 94

a 447

farroman Hiomearo | rae eee Ui A a

@ | © 907

defendant's Fup sea not for arte truth, I do not

think it is pretaees for bivaih to a Veen ate the

probative value. aw is analogous to him saying, "Well,

The Pope told us he witnessed you killing Mr. Budnick,”

and the deterbint says, "That is a lie."

Can the jury disregard the fact that The Pope

told the officers that he witnessed a murder?

Can they disregard that?

I think it is exactly analogous, and we move

for a mistrial at this time.

THE COURT: Denied at this time.

MR. LEVINE: We ask the Court to give a cautionary

instruction then that they should disregard any state-

ments that relatesto the watch, for any purpose.

THE COURT: That motion is also denied,

MR. LEVINE: Then..we will ask that they aisregard

the statement as relates to the truth.

THE COURT: I will instruct the jury that the

statements made by the officer are not made by the

officer for the purpose of proving the truth of the

matter, but only to know what the defendant was

confronted with by these officers, which is exactly

the basis on which it is admitted.

MR. LEVINE: We reiterate that it is impossible

for them not to consider it that way.

24

25

5 Di or eG EE

MR. ZENOBI: We“ ask that the prosecutor do it

the correct way, which is to bring in the witnesses.

THE COURT: -You keep saying that.

I feel quite confident, Mr. zenobi, my rulings

are correct, and the only thing I can do is be patient,

you can state your objections, and I-will rule on then.

If I am in error, then the appellate courts will

review it.

I am satisfied I am handling it in the proper

fashion, and I trust.you are making an objection at side

bar rather than in front of the jury---

MR. ZENOBI: I am not doing it as a dilatory

tactic.

THE COURT: I do not think you did.

If you are not satisfied with my rulings and think

I should be further educated, the best way to do it

is to try to further educate me.

MR. LEVINE: The record is bare of any evidence

linking the defendant to the crime absent any hearsay

statements by the defendant's brother ‘that he was in

possession of the property that was described as being

taken from the scene of the crime.

THE COURT: Your:-summary, whether it is accurate

or not, is in the record,

[Thereupon, the following proceedings were had

i I cis * 5 ie

23

24

within the hearing of thejury:]

THE COURT: Members of the jury, counsel sometimes

have a Aéelaceibe-4? epinion as.to matters of evidence,

and that, of course, is my responsibility to resolve.

I have admitted that evidence in this case, and

you should understand that as to the.officers' testimony

about statements made to him by someone else, you are not

to accept the statements that somebody else told the

officer as the truth of that issue at all.

It is simply to give you the opportunity to evaluate,

for the purposes of your decision, what this officer may

have told the defendant at the time their conversation

took place.

It is not to go to the truth of what he told the

defendant, just simply what he said. All right.

MP, STELZER: Just to make that clear, Your Honor

is not instructing the jury that thev are not to accept

the officers’ statement.

THE COURT: No, sir.

MR. ZENOBI: Objection.

THE COURT: I am not saying that. I am simply

saying that they are not to take those statements that

he alludes to from somebody else as being the truth. |

They are simply statements made by the officer

which may or may not have been brought to his attention

eet i ales

24

25

@ is. @ 910

by somebody else. ~

Go ahead.

Saar

Q {By Mr. Stelzer] Back up half a step. My question

was, was anything mentioned by either you or Detective

. Zatrepalek to the defendant about a watch, and if so, what

: did you say and what did the defendant say. back to you?

A Yes, sir. I mentioned that we had received infor-

‘mation from FEliiah--

MR. ZENOBI: Objection, same grounds.

THE COURT: All right, counsel. Same ruling.

A --that the defendant had shown him a watch on the

early morning hours of Monday, and that this watch was

described as having rhinestones around the face of the watch,

at which time Mr. Breedlove said to us, "I did not have that

watch. My brother is lying."

Q [By Mr. Stelzer] ‘What was the next thing that

happened?

A At that particular time, a knock came to the

door, and Detective zatrepalek was summoned out of the room,

For what reason, I believe it was a phone call.

I continued conversing with the defendant.

2) All right.

A I asked him, at that particular point, the

whereabouts of where he took the bicycle from. He again

told me that he had taken it from 146th Street.

@ | ©} 743

Q This, I take ite you were able to observe from your

4

internal examination as well as your external examination,

a

A Yes, sir. S

Q While we are on the internal examination, could

you tell, from your internal examination, whether or not the

body of Frank Budnick was moving at all at the time the knife

wound was inflicted?

A Not really.

Q Could you tell the direction that the knife wound

went in? |

A Yes, sir.

Q Would you go ahead and tell us the direction, please.

A Okay. The wound went from left to right

[indicating]. It went from---

Q Let me just make sure.

A Okay.

Q Your left is different from my left. From your left

to your right?

A Yes, sir.

Q So it was this way [indicating]?

A Yes, From up to down.

Q This way [indicating]?

A Yes.

Q And from front to back. That is from your front

to your back. ‘ .

25

|

@ @ 44

A Yes. ft !

Q So it would be in somewhat of & direction like this

7

“

[indicating]?

-

A That is the direction that the knife penetrated

the skin.

Q All right, sir. Is that information which you have

just given us consistent with the knife coming from above and

striking from above, a person laving down in something such

as a bed?

A Yes, sir, it would be.

Q Were you able to see how deep that knife penetrated’

into the chest cavity of Frank Budnick?

i Yes, sir.

Q How deep did it go in?

A Five and a half incnes.

Q Would that be consisteut with a great deal of

force applied to the knife?

A Going through the clavicle would make it consistent

with a great deal of force. The other structures are not

things that require force to go through. |

Q Did you do any examination to determine whether

there were any drugs in the body of Frank Budnick?

A Yes, sir, I did.

Q Did you detect the presence of any drugs in the

body of Frank Budnick?

4a7l.

FRIEOMAN T] LOmBARO!

it ie PA Se Ree OE

26

25

' We tested for phenothiazines; tranquilizers such as Thorazine;

, amphetamines and barbiturates. We tested for Oxazepam

' and benzoyl Ecgonine, cocaine. We tested for morphinans,

®@ @ 745~—=C«s

A Yes, sir. ae

Q What drug did you detect the presence of in the body

*

of Frank Budnick? ts

A Therapeutic levels of Tylenol.

Tylenol is the stuff you take instead of aspirin?

Yes, sir.

Any other drugs?

We tested for several other drugs.

Such as?

rr, oO FF OD FY DD

We tested for alcohol. We tested for methyl

alcohol, which is sometimes used instead of regular alcohol.

We tested for Acetone. We tested for aspirin.

heroin and opium derivatives. We tested for Methadone,

Darvon, Quaalude, and marijuana, and none of these tests

were positive.

Q The only drug you found was Tylenol. Is that

correct?

A Yes, sir.

Q Did you observe any of these wounds that you have

characterized as defense wounds on the body of Frank Budnick?

A Yes, sir, I did.

Q How many defense wounds did you find on the body of

: @ 746

Frank Budnick? Pi | 7

A On the palmar aspect of the right hand, he had

five wounds over this aspect (indicating). They were

scattered throughout the hand.

Q Would those wounds be consistent with a person

grabbing at a knife as it was coming towards nim?’

A Yes, sir, they would be.

Q Would it also be consistent with an attempt to

ward off other knife blows as the knife came at him?

A It would be consistent.

Q Did you take any shotographe of those defense

wounds on the hands of Frank Budnick?

A Yes, sir, I did.

MR. STELZER: Would you mark this, please.

THE CLERK: 3-X for tdentd? ication.

[Thereupon, the item referred to was marked for

identification as State's Exhibit No. 3-X.] ;

Q [By Mr. Stelzer) While defense counsel is looking

at 3-X, Doctor, I will ask you if you can identify that

which is marked in evidence in this case as State's Exhibit

A I remember the face, and I matched up the case

number with our case number, 78-2718, and from the

setting, I can recognize this as an identification photo

of Frank Budnick. I do not recognize the gentleman identifyin

|

om YY ts

24

25

@ e e

him. |

Q You do not recognize the living person?

A gam

A No, sir.

*

“

Q Was the dead body identified on that day as

Frank Budnick?

A Yes, sir.

~

Q That is the one you have been talking about today

as having performed an autopsy on?

A Yes, sir.

MR. STELZER: You have no objection, Mr. Zenobi,-

to 3-X?

MR. ZENOBI: No.

THE COURT: Admit it.

THE CLERK: 3-X becomes State's Exhibit No. 43.

{[Thereupon, the item referred to was marked as

State's Exhibit No. 43 and received in evidence.)

Q [By Mr. Stelzer] Would you step down one more

time for a moment, please. Showing you what has been marked

as State's Exhibit No. 43, you can use this pointer for a

second, and I ask you, first of all, ig¢ you can identify this

photograph.

A That has 2718. That is a photograph of the hand

of Frank Budnick that I took.

Q Does that reflect the way the hand of Frank

Budnick looked on that day when you took that picture?

Sot ile

FRICOMAN Lompanor ee nee 4) 2 ne

. rd] | td] 748:

A Yes, sir. |

’ ae .

Q Does this photograph accurately depict the defense

wounds you are talking about on his hand?

A Yes. be

Q Would you show the members of the jury what you

mean by a defense wound,

A One, two, three. There is one here you can barely

see the edge of, and one here. That's five.

Q You may have a seat again.

Did everything that you testified to today and

from your report take place within the County of Dade and

the State of Florida?

A Yes, it did.

Q Thank you, Dr. Kessler.

MR. STELZER: Your witness.

THE COURT: Cross, please.

MR. ZENOBI: Thank you, sir.

CROSS EXAMINATION

BY MR. ZENOBI:

Q Doctor, I heard you talk about your inspection for

drugs in the body. Are there certain things that happen in

the human body which leave residual effects from the use of

prior drugs, that although someone may not be using them

at that time, there is something in the body that indicates

that they may have been used? :

Ps

24

25

|

|

!

!

fact Mr. Budnick had been’ using heroin to a large extent

or to a small extent. Is that earienay”

A I couldn't GALE. he used it at all, sir,

but from my toxicological evaluation at the time I did the

autopsy, heroin was not present. :

Q Could you have eliminated the fact that he used

heroin from those lymph nodes?

A No.

Q You made a statement before about the force of the

knife going into the left pleural cavity, I believe you said,

Is that correct?

A Yes, sir.

Q Correct me if I get any of the medical phrases

wrong, but you stated it went through the clavicle, which is,

I believe, this bone right here [indicating].

A The collar bone, sir.

Q It would be the left collar bone. Am I right so

far?

A I am just showing it [indicating].

Q Now, you stated that there was great force behind

this blow because the collar bone was broken. Is that

correct?

A Yes, sir. I compared it to just going into the

chest cavity and not hitting the collar bone.

Q That is your only basis of comparieon. Is that

_ 8

ecrr Tom

NS. > it BIg awe Ts meee eR oy. | : eee Se He

@ @ 752 é

= | s+ ene —_— az

24

e Pete tena e =

correct?

A Also, in doing work on bones, forensic osteology,

I know the collar bone isa tough bone and it is hard to

cut.

of

Q I presume you also assumed in your answer to Mr.

Stelzer's question that the victim was staying still or was

somewhat relatively still when this bathe Mes brought towards

him. Is that correct?

A I can't state that for sure, sir.

Q So you do not know whether the victim was in fact

moving towards his assailant at the time.

A No. I don't know if he was moving at the time.

Q If that were so, of course you would have comparati-

vely less force being used by the victim at the time. Is that

correct?

MR. STELZER: Being used by the defendant.

THE COURT: Being used by the person using the

knife.

A Yes, sir.

Q So you would have to know the relative speeds of

the knife and also of the victim moving towards the knife.

Is that correct?

A That's correct, sir.

Q So your statement about great force being used--

I believe you said something about force being used--since

it 7 940

eunshaien a a —

~ ee eee ee —

© . 892

fa) After going ore this constitutional rights

advisement with the defendant, did there come a time when

you and Detective tatrepaler conversed with the defendant,

and if so, will you tell the members of the jury, please,

what you said to the defendant and what the defendant said

to you. -

During the course of your testimony, I may stop

anc ask you additional questions.

MR. ZENOBI: Renew all pre-trial objections.

THE COURT: Same ruling.

MR. ZENOBI: Does the Court wish us to restate

them?

THE COURT: They have been previously stated,

Me. Zenobi, thank you.

I do not think it is necessarv.

Go ahead.

LR At that time, prior to the constitutional rights,

we had identified ourselves as homicide detectives of the

Public Safety Department, Dade County. |

I said, "My name is Julio Ojeda and my partner's

name is Charles Zatrepalek.”

I told him that I could probably be referred to

‘as"0J," because my last nane is difficult to pronounce,

anc Charles Zatrepalek is difficult to pronounce and can

be known as Charlie or Zat,.” . ‘

ore as th

24

25

a eek

© ei a3.

MR. STELZER: May we approach the side bar,

4

please?

a a

THE COURT: Yes.

(Thereupon, counsel for the respective parties

and the court reporter approached the sane and conferred with

the Court outside the presence of the jury and the following

proceedings were had:]

MR. STELZER: One of the things the detective asked

Mr. Breedlove is, “What do they have you in jail for,"

and he is going to sav, "I am under arrest" or "They

arrested me for loitering and prowling or me giving

false information."

That is part of their conversation. I wanted to

bring that fact up now.

If the Court decides that should not be brought

up, the jury could be excused and Detective Ojeda

should be instructed not to say that, if there is

anything improper in that.

MR. ZENOBI: Our vosition is that it is

improper and he should be instructed not to bring that

up, as a collateral matter.

THE COURT: I had earlier ruled that the. question

as related to that could be responded to,

If you are asking for early advice on what

position you should take, I wouid overrule his objection

24

; said to the defendant.

. s0ee + ame coca ©

' rights, that his name was McArthur Breedlove.

25

ee a ee ae oe _ —_

m e ee

to that question Pi he makes. it.

s

{Thereupon, the A at ae prodeedings were had

within the hearing of the ‘Satyi)

Q (By Mr. Stelzer). All udght, Detective. At this

point, you may sroeuae and tell us everything that the

defendant said to you and what you and Detective Zatrepalek

A I then instructed him that we would be referred to

as "OJ and Charlie or Zat."

He then advised us prior to the constitutional

Then we read the constitutional rights waiver form,

It was signed to make sure he understood everything, and we

started a conversation.

He was asked, vou know, what is his name.

Again he stated that his name was McArthur Breedlove,

and he also uses the name of Jenkins.

He had been recently arrived from California

approximately two months ago, and we asked him what had

happened.

He stated that he had been arrested on the previous

MR. ZENOBI: Objection.

THE COURT: That is what we noted at side bar.

The objection is noted and overruled,

oe cs Al

‘o

24

Ae ees —_————— — e

oe-<-e seem «ae <« @&-oe@

ee ee a ee. =

© s : 6 89s

Go ahead. oe yf |

A He had been arrested by the North Miami Beach

Police Department for~loitering and prowling.

He also advised us that during the course of the two)

months that he had been here from California, he had been

continually harassed by either the North Miami Beach Police

Department or the North Miami Police Department.

We asked him what was the harassment, and he

advised that the reason he thought he was being harassed was

that he was constantly being stopped by the North Miami Beach

and North Miami Police Departments in the middle of the night

as he was walking through residential areas.

He stated that also happened to him here in Miami,

anéd it also happened in California.

We then asked’ Kim how hé got his money or how he

lived, did he work, and he stated that he was---

MR. ZENOBI: Objection, Your Honor.

This was never covered in the pre-trial motions.

THE COURT: I do not know if the area was or was

not. |

MR. ZENOBI: I think it is objectionable at this

point.

THE COURT: Overruled.

Q (By Mr. Stelzer) Go ahead, Detective. You may

answer.

_ 83

es 2 hal’

ee te + ee ee nee aes aoe

2 ee

~ ~- ~— =

A We asked him ho@ he obtained ay money, and he

stated that he was unemployed. .

I asked him where he obtained his money.

He said he did odd jobs.

We asked him what kind of he: sili they were, and

he said "just odd jobs."

We then asked Mr. Breedlove if he owned a ten-

speed blue bicycle.

He stated that he did not.

We then asked him, does he recall the evening hours

of Sundav, late Sunday evening hours, and the early morning

of Monday, which would have been November the 6th, 1978.

He stated that on that particular day, he left his

residence and he went out, and that he had gone to a U Tote'm

sormewheres on West Dixie Highway.

Again he was asked if he owned a blue, ten-speed

bicycle, and he stated, "No."

At that particular point, he was then confronted

with the fact that myself and Detective Zatrepalek had spoken).

with his brother, Elijah Gibson, and that Elijah had informed-

MR. ZENOBTI: Objection,

THE COURT: Overruled, counsel.

Q [By Mr. Stelzer). Go ahead.

;, --informed us that on Monday--

MR. ZCONOBI: Objection. °

err

24

25

@ e 097

THE COURT: ItAs not being offered for the

\ 4

*‘

truth of what was said.

Overruled, sichinin dl i

Q (By Mr. Stelzer]- Go ahead, Detective.

A --on Monday, Elijah had seen rai with a bicycle

that he brought over to his residence.

At that point, Mr. Breedlove stated that he did

not have a bicycle and that Elijah was not telling the truth.

I then confronted him with the fact that his mother,

Mary Gibson,had informed Detective Zatrepalek---

MR, ZENOBI: Objection.

THE COURT: Sustained as to the fact.

You can say what somebody said. It is not offered

to prove the truth of the matter asserted, but you may

not state it as a fact.

A That his mother had advised Detective Zatrepalek

of the same thing that Elijah had.

MR. ZENOBI: That is hearsay.

Objection.

THE COURT: Overruled.

{By Mr. Stelzer) Go ahead, Detective.

He then stated that--

"He" being the defendant?

> OD > oO

"He," Mr. Breedlove, then stated--that in fact he

——

24

: eo | - oar

was at the U Tote'm on West Dixie we itis <i and that while he

was at the U Tote'm, he had bought some MD 20/20 or some

Thunderbird wine. e

Q MD 20/20 or what?

A Thunderbird wine.

Q Did he specify what Thunderbird.wine looked like

or anything?

A No, sir. He just said, "MD 20/20 or Thunderbird

wine,"

He then stated that he was walking home, As he

was walking on 146th Street, he said that he was tired of

walking and he saw a bicycle, and the bicycle was on the

ground in front of a residence,

Q On what street was that?

A 146th Street,

Q What street did the homicide take place on?

A 146th Street.

Q Go ahead,

A And that he picked up the bicycle and rode it home,

We then asked him where did he put the bicycle,

He said he rode it home at that particular time.

We then asked hir what he had been wearing on

Sunday night, the early morning hours of Monday.

Q If I could stop vou for a minute, did you ever ask

the defendant what time it was on Sunday night or early Monday

oe - ON ashi

23

24

-—_——

. e a 098

morning that he had a Ae the bicyelg’ and taken it home?

A Yes, we did...

Q What did thé defendant reply?

A He said, "In the early morning hours."

Q All right, sir. Let me ask you one other question,

during the course of your investigation, did you and your

partner, Detective Zatrepalek, go by this U Tote'm store on

West Dixie Highway that the defendant was taking about?

A We did,

Q How many U Tote'm stores are there on West Dixie

Highway in this general area?

A Approximately four.

9 Did the defendant specify the one he had gone to?

A Just a U Tote'm on West Dixie Highway.

Q In order to get to the defendant's house from any

U Tote'm store on West Dixie Highway, is the scene of the

homicide in that route?

MR. ZENOBI: Objection as to the form of the

question.

THE COURT: Overruled, sir.

Q [By Mr. Stelzer) Do you understand what I am

getting at?

A Yes, sir. No. He would have to--depending on How

the person would walk, normally you would not have to go by

there. There is, however, one U Tote'm which is on Northeast

——s td vi nalp

ts

ir

23

_ made to me, as to what he had said when Detective Zatrepalek

4

' ————

t Ls o

I then reiterated to him that A did not believe

his story with regards ta-the blood on his pants, with

regards to the pants being cut off; that I did not believe

the story about that. he aid not do anything else on that par-

ticular night.

I then asked him again where was the bicycle taken

from, at which time the defendant looked at me and stated,

"I took the bicycle two doors down from the murder,"

Now, I was taking notes at the time--

Q "two doors down," I am sorry?

A “from the murder," --I was taking notes, so I

wrote that down on my spiral notebook, which I use when I

interview people,

I then continued asking him with regards to the bloo

on his pants and with regards again to try to see if he

would tell me about the bicycle, at which time Detective

Zatrepalek re-entered the room and sat down,

Rather than stopping the daterview, I just took my

notes and showed them to Detective Zatrepalek, indicating

it by placing a circle around the aqvotation ax the statement

was not in the room,

Q What was it that you put a circle around?

MR. ZENOBI: Objection; repetitious,

THE COURT: Overruled, counsel.

et 29. nah

24

- os . we _— in

S YJ

A "IT took the bicycle two doors down from the

/

murder." ‘

yt

We then started backtracking, and taking again

' the items that ‘he had told ne before and tried to see if

/ he would continue to speak with us.

We then again asked him about the rhinestone watch,

' and again he told us that his brother was lying and that

was not the truth.

We then asked him about the blood on his pants.

He told us it was because of a fight.

I asked him why he had cut his pants off.

He told us there was blood on them.

I asked him if that was from the fight. :

He stated, "Yes."

We then told him that we felt that the blood on

his pants was not in fact from the fight, but from whea he

entered the residence.

At which time, Mr. Breedlove stated to us,

“I believe you are trying to frame me. I believe you are

trying to pin a murder on me."

I said, “We are not trying to pin anything on you.

We are trying to find out what the truth is."

At this time, he said, "I suppose the blood on

mY pants, you are going to say, comes from the man inside

the house?" °

® rs 913

Q Up until ae had any mention been made

-

of what sex the person was who had ‘peow*aeabnies inside of

a

the house?

*

“

MR. ZENOBI: Objection to the form,

It is leading,

A No, sir. r

Q [By Mr. Steizer] Continue.

A We then, at that time, again started questioning

with regards to the blood on the pants, with regard to the

bicycle, reiterating each individual point.

He then stated to us, "You cannot prove that I was

‘in that house. You can't prove it. Take my fingerprints.

/ You'll find that my fingerprints are not in that house.”

We said, "Why are you saying that, McArthur?”

He said, “Because I was not in that house."

We then continued talking to him ahout the statement

/ “ZI suppose the blood on my pants came from the man inside

the house."

—aa-

We reiterated that quotation to him, and he stated

that he had made a mistake; that one of us had informed him

who had been stabbed, at which time we told him, "McArthur,

: we have not told you who was in that house, whether it was

24

the portion about the statements that had been made to us

23 | aman or a woman or anybodéy.”"

We again reiterated the portion about the watch and

© | $ @ 914°

previously to speaking with McArthur. eo

4

We continued along that conversation, and shortly

thereafter, Detective Zatrepalek left the room.

Q Do you know why it was that Dérective Zatrepalek

ieft the room this time?

A Yes, sir. There was a phone call summoning him

for something.

Q Something unrelated to this case?

BR Yes.

At this time, Charlie Zatrepalek left the room,

We were conversing with McArthur with regards to fingerprints.

° What was the conversation at that point between you

and the defendant about fingerprints?

Ps At that particular point, McArthur was saying that

"vy fincerprints are not in that house. You won't find any

h

ir

ncoexr>rints in that house."

I asked him, "Why?"

He says, “Because you won't find those fingerprints

in the house."

I again backtracked and started welt sne about

the items, the bicycle, the blood on his pants, and so forth.

I then asked him, "Are your fingerprints in that

house, McArthur, because if they are, we are going to find

ches?"

He stated, "You are not getne te find them hecause

102

ee as

SF Se = Oe ee ee ee Se ee ee ee

24

25

: e 915

I was wearing socks," which at that time, I then said, "What

J . J /

4

kind of socks were you wearing?”

He didn't anewel

I said, "Why were you wearing socks on your hands?"

He didn't answer. He said, "You *xe not going

to find my fingerprints. Why don't you take my fingerprints.”

At which time, I stopped and I took him upstairs

to the fourth floor, where the fingerprint department is,

and in fact took his fingerprints.

Q Who was it that you saw on the fourth floor of the

Dade County Public Safety Department?

A I saw George Hertel, who was the fingerprint

identification man who was on duty on that particular night.

0 Do you remember approximately what time that was,

give or take a half an hour?

h Anywheres between 7:00 and 7:30. The exact time,

I @€on't know.

Q Again, was there any further conversation at that

point?

A Not while we were upstairs, no.

Q How long was it that you were upstairs with the

fingerprints being taken?

Pa Approximately 15 minutes.

Q Did Mr. Hertel have any difficulty getting the

a we pee

. |

A Yes. f

Q After that 15 minute period of time upstairs,

What happened? g :

A We returned back downstairs in the same office.

: I started speaking with him, at which time Detective Zatrepalek

~

walked in.

At that point, again, since he had walked out of

the room for a certain period of time while I was conversing

- with Mr. Breedlove, I showed Detective Zatrepalek my notes

ané circled the items I felt were important at that time, and

I showed him the notes rather than telling him in front

of McArthur.

We then started acain conversing with him to see

if he would say everything again; however, at this particular

point, McArthur was not ressonsive to our line of questioning,

and he went on to does about other things that had occurred

to him at other times. 3

Q Without telling us what those other things and

. other times were, did you have that conversation with the

defendant--

A Yes.

Q --for a period of time on that evening?

A Yes, sir. |

fe) Did the defendant subsequently get placed under

arrest that night? 404

pdt add

“oe ee eae OO I A LE A —

@ : © 917

1 A Yes, sir. BA y

4

@ Q Do you remember what time it was that he was placed

“

oo’

3 | under arrest? /

4 A Approximately nine-thirty, ten o'clock.

se Q And the charges?

6 | A First degree murder and burglary.

7 | Q What sort of paperwork has to be gone through to

e ) place somebody under arrest?

9 : A There is what we call an Arrest form, which gives

“10 the name, address, aliases, some personal history on the

person, place of birth, tattoos, scars, mother's name, and

mee eee ones +S

12. so forth, and then it gives a general, small description of

13' what occurred, so that when it is taken over to the State

14 Attorney's office, they know what occurred.

15 - Q Without going all the way through it, is it a

16 fairly extensive amount of paperwork?

17 A Yes.

18 Q How long does it take, approximately, to fill out

19 | all of the forms and papers?

20 | BR Approximately an hour. It has to be signed by

21 : a supervisor to make sure it is all there.

22 Q How @ifficult is it to find a supervisor: at that

23.«=3hour?

24 A It is difficult to find a supervisor who has a

25 clerk stamp--who is a deputy clerk, who can ‘stamp it and

15 gt

24

ee eee ee

0

@ @ o10

put the affidavit al

Q After all that paperwork was done and all of the

4

3 ,

conversations were completed, was the defendant transported

anywhere? a

A Yes, sir. Myself and Detective Zatrepalek took Mr.

Breediove from our office to the Dade County Jail, located

adjacent to our building.

Q Detective Ojeda, did there come a time shortly

after that date where you were injured?

A Yes, sir.

Q Do you remember what date it was that you became

injured?

ra November the llth.

Q A back injury, I believe?

2 Yes.

Q As a result of that injury, were you off duty for

some period of time?

B Yes, sir. I was on injury leave from November the

18th through December the 4th.

Q As a result of that, any investigation in éhat

perice was done by Detective sntcebaden alone. Is that

correct?

a Yes, sir.

2 Did everything you testified to today take place

¢

in Dace County, Florida?

satan <a he q Mt

ens ®@cRT

24

25

|

|

-- ++ ees oem eres eee ee te. + ee ee ee eee

e © Poe ts,

A Yes, sir, it has. ;

Q The person vet have been talking about all this

time, McArthur Breedlove, do you see‘that person in the

courtroom today? .

A Yes, sir. He is sitting euane there. The

gentleman sitting between Mr. Zenobi and Mr. Levine [indicating

MR. STELZER: tnatcating for the record, the

defendant.

Q [By Mr. Stelzer] Thank you, Detective.

MR. LEVINE: If we could have a brief side bar

before Mr. Zenobi. begins his cross.

THE COURT: All fright.

[Thereupon, counsel for the Ae parties

ana the court reporter approached the bench and conferred

with the Court outside the presence of the jury and -the

following proceedings were had:]}

MR. ZENOBI: I would like to bring to the attention

of this Court numerous oneal objections to the |

testimony of Elijah and Mary Gibson. We had no

intention of raising any of that testimenv in orous

_ examination.

‘

Since it has been brought up and since the Court

; A

has overruled our objection, we would like to go inta

that area without waiving any of our prior objections

made on the direct examination. © .

107

ee a all

“ese ome oe

e in a 920.

THE COURT: werd, the area to go into is the area

of the factual basis that he related to them. Your

going into it may’ take it out of the area that I have

instructed the jury on relative to what he did for the

purposes of arriving at what the defendant was con-

fronted with, and I think the information he related

to this defendant, you can inquire of as to its truth-

fulness or where he got it, but you have to understand

that it may be received on a different basis by the

jury than that which was related by this officer.

MR. LEVINE: It is our objection that it has

already been received by the jury for an impermissible

purpose. We feel it is impossible for them to do it,

although the Court instructed the jury.

We feel we have to address and sasend---

THE COURT: If you go into it with him, what he

relates from those witnesses you are going to have

to live with.

MR. LEVINE: We want to make it a point that we

would not go into these areas but for the Couek ta ruling,

and we feel we are compelled to do so.

TEE COURT: You do what you feel is appropriate.

I am telling you'that what this officer told him

was not offered as a factual basis for anything. It

was for the purpose of this jury's understanding.

'

!

|

'

j

'

|

24

25

You do it as you want. :

/

MR. LEVINE: We did not want ‘to be construed as

as

waiving our objection.

We feel we must go into it.

THE COURT: That is your choice.

{Thereupon, the following proceedings were had

within the presence of the jury:)

THE COURT: All right, counsel.

CROSS EXAMINATION

BY MR. ZENOBI:

Q

Detective, I presume you wrote a report in this case.

Is that correct?

A

Q

Yes, sir.

Do you have that report with you?

No, I do not.

Is there any way you can get that report if you

Yes, sir.

Does that report accurately reflect what you

testified to in this case today?

A

the report of Detective Zatrepalek,

There is my report, which is a brief report, and

the testimony that I have eaid here today.

e

*

“a

Do you remember what date your report was signed on?

No, sir.

109

which reflects most of

Ya

oe

@ rd] 1123

1 are not going to hegx’ about all the things that were

sxe 2 implanted in his mind. You are sok Wasa to hear about

oot 3 all the things that ‘hie was told.and then just recited

4 back, and you are not going to hear about how they dia

5 not tell him dint he could have his public defender there

6 on November the 2lst. rn

7 Why were we not notified? Why were we not there?

8 They knew we were his lawyers. Why were we not there?

9 Does that make it a voluntary statement?

+40 : They had to hook up somebody in the house. There

11 are six adults living in that house. You heard the.

12 statements about Mary and Elijah Gibson. Where were

13 they? Where were those people? Did the State bring |

14 them in? Of course not, because what they would have

15 had to bring in were two more suspects, and the only

16 people you saw in here were the detectives.

17 Who would have been better than to bring in Mary

18 and Elijah Gibson and say, "We heard this, we saw that

19 on that night."

20 Would vou not have wanted to see them? Again, a

31 lack of evidence.

on Would vou not have wanted to hear from them?

eh Would you not have wanted to hear how they supposedly

ia saw McArthur Breedlove with this evidence? .

" Who would be the best person to tell you that?

Pn ret | | or

24

’

‘

© 1124

They were available; but they were not here. Again,

you had to get it from the detectives.

Was Elijah Gibson a suspect? You tell me.

What did Detective Howard say about that address?

What did Detective Howard say about that particular

address? bin

"I knew about that address, because I had seen

Elijah Gibson before for what he was arrested for,

burglary." Burglary. Wouldn't you have liked to

have seen him? Wouldn't you have liked to have known

whether he was riding the bicycle; whether she was

riding the bicycle?

Would you not have liked to have known whether

there were any of his fingerprints on that bicycle?

You never got a chance to see that, and again, where

was your mind before Detective Ojeda and Detective

Zatrepalek took the stand? There was no case. There

was nothing.

When you left this courtroom Wednesday night,

this was an empty case. You were wondering in your

mind how they could connect that man to this crime.

They had to have Ojeda and Zatrepalek come in

here, not only to tell vou about their inconsistencies,

but also to tell you some crap about what some people

said who are not here to testify. That’ is the best plac

You 111. 142

very attentive, It has been quite a long discussion,

@ | © 1125 «

to hear it--from the“horse's mouth, and neither of those

/

people came in here. “

Pt

It is the mother and brother of my client. Why

not bring them in here?

They are the State's witnesses, or they are supposed

to be. “

What is the involvement of the brother? What is

the involvement of the mother? What is the involvement

of the other adults in this house?

The State is going to have a chance to address you

now, md all I want you to do is listen and pay close

attention and have them answer the questions that I have

raised to place that reasonable doubt in your mind and

to suggest to you why the absence of this evidence

amounts to a reasonable doubt,

I want to thank you for vour time. You have been

Thank you.

THE COURT: Mr. Godwin,

MR. GODWIN: One moment, Your Honor,

THE COURT: Go ahead, counsel,

MR. GODWIN: Good morning, ladies and gentlemen.

Thie will be my only opportunity to address you on

behalf of the State of Florida.

Let me, on.behalf of Mr. Stelzer and myself and

| 1 112 if

, ry { ‘ : ’

: { } ear. wane i Oe ve ee | 5 \ id

ereneen

23

24

. time in December, and Zatrepalek told you the procedures

A

e | Ae 1155 |

say that he did, due’ tnae is a simple answer to that.

Now, there were questions caised about one other

thing, if I may. “Detective Ojeda I think said he was

injured two days after the 9th, which is the llth, TI.

do not know when he wrote his report, but you heard

Detective Zatrepalek tell you the procedures. Sometimes

a report is dictated on one day andtyped up a month

later. I believe that is what he was talking about.

I do not know exactly when Detective Ojeda dictated his

report.

The point is, he was not back to work and able

to sign it until some time in January. That is another

little red herring, smoke screen Mr. Zenobi would like

to raise for you.

Ojeda was injured two days after the statement,

and I believe he said he did not come back until some

for having those reports typed up and how long it takes

to get back to the police officers.

There were some questions raised about Mary |

Gibson and Elijah Gibson. Questions have been raised

by Mr. Zenobi about the statements that Mary Gibson

made to the police on'November the 9th, and that Elijah

Gibson made to the police on November the 9th. |

He asked questions about those statements, and that

—=y hana | HQ

24

eee eee

i ee

Ps ; e | 1156

is proper. That is a fair issue for him to raise,

and then he aii ee didn't the State produce them

as witnesses?" =a

Pd

I am going to answer both of those questions for

you right now. The State Attorney's office is not in

the business, ladies and gentlemen, of diempelidne a

mother to come in and testify sentandh her son, and

an a first degree murder case, when we are seeking the

electric chair. We are not in the business of doing

that, if we can avoid it. We are not in the business

of compelling a brother to testify against his own

brother in a first degree murder case, where we are

seeking the death penalty.

What would you expect these people to say if they

came in here: "I don't know. I forgot. It's been

a long time," |

MR. LEVINE: Objection.

THE COURT: Overruled, osunee2 :

MR. GODWIN: .What would you expect the mother of

the defendant to say as a State's witness, or what would |

_

you expect the brother of the defendant to say?.

I will tell you this, and you heard the testimony,

both the mother and the brother gave sworn statements

to the police on Noverber the 9th, 1978. Detective

Ojeda had the sworn statements in his report. We took

P

TC

| 2401

4s+af @

them oe Wa they are marked as _ Se

They gave uheie” ehatenente back on November the

Sth. At that time, Mr. Breedlove Cai being interviewed

by Ojeda and Zatrépalek. They gave 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 if the statements of Elijah Gibson did not

say °xactly what Detective Ojeda and Detective Zatrepalek

told you they said, Mr. Zenobi 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."

MR. LEVINE: Ubyjection.

I reserve the right to make a motion after the

State's ES oa

THE COURT: I will charge the jury on that, ~

counsel.

MR. GODWIN: I believe His Honor, Judge Fuller, is

going to instruct you that the State sensehe defense hava

the right to compel any person to appear in this Court

a hy,

FRIECOMAN

- —_— =. ee =—s gl

3 ‘ 1158 |

7 and testify concerning any case, and I will repeat it.

se. 2. The State and the aéfense have the right to compel any

= 3 person to appear in this Court and testify concerning

4 any case. It is not the duty of either the State or

5 the defense to call every person who might seem likely

6 to have some knowledge about this case and have them

7 testify on the witness stand. '

8 Let me just finish with the instruction, if I may:

9 I believe His Honor will instruct you that it is the

10 right of all parties in the case to call those witnesses

11 whom the respective parties feel will contribute some-

12 | thing material to the issues, and any omission to maeating

13 | other witnesses does not raise any presumption that they

14 would, if produced, testify adversely to either side

15 | in the case. You cannot assume that anyone who has

16 | not testified in this case would have testified one way

17 | or another.

ma Basically that instruction says that either side

10 | has the right to call witnesses.

A Now, with respect to Mary Gibson and Elijah Gibson,

fy who would be in a better position to testify for the

me | Gefendant than his own mother and his own brother. if

Z : they had anything helpful to say, and thet is why I

as : would ask you to use your common sense and your ordinary

good judgment. Do not---

By 25 ! :

| | = , 116

ee | ee | “ 1%)

Soe te

.

MR. LEVINE: Objection to that line of argument

and reserve the right to make motiofs.

THE COURT: All’ right, counsel. Overruled.

-

Go ahead.

MR. GODWIN: Do not have any doubt whatsoever about

what Mary Gibson and what Elijah Gibson told the pofite,

because if there was a conflict, ies wouid be tn.here

telling you ebout it.

Now, Mr. Zenobi raiesd the question of what

happened between November the 9th and November the 2lst.

Detective Zatrepalek contacted Mr. Stelzer and

contacted me, and he sucgests that we conspired in

some way against McArthur Breedlove. We have the

Obligation of presenting this case to the Grand Jury

and discussing it with Detective Zatrepalek, and that

is what happened in this case, and we stand up here

and proudly tell you that we did that. We presented

the case to the Grand Jury, as is our duty, and that

is what was done in this case.

i do not know what Mr. Levine did on November

the 14th. You have not heard any testimony. You

heard suggestions from Mr. Zenobi. You have not

heard any testimony fror the witness stand about

what Mr. Levine did on November the 14th. You have

not heard any testimony from this person, Mr. Finger,

44” |

PM hI FM 5 i | as sIAD

e | | | @ 1174 °

MR. LEVINE: Before the jury is brought in, I feel

I have to make some motions for a mistrial now, because

the law requires us, in the event that the Court denies

our motion, ko ask to instruct the jury, so we would be

too late to do it after the jury Leaves.

I move for a mistrial on the following grounds,

renewing all grounds we have already stated, but also

on the grounds of the inflammatory arguments made during

the prosecutor's closing argument.

The xrirst objectionable part of the closing argument

THE COURT: Your grounds were noted at the time.

MR. LEVINE: The objections were noted.

I understand the Court allowed me to note my ob-

jection and reserve my right to make a motion at this

time rather than to interrupt the argument. I am

stating my grounds for those objections at this time.

The first objectionable part of the argument was

Mr. Godwin putting the truth of Elijah and Mary Gibson's

statements in issue. He says, "This is what my notes

reflect"--and I think the record will bear it out--"That

those sworn statements were true, and if it was anything

otherwise, Mr. Zenobi would have brought them in."

This is in spite of the Court's original instruction

that these statements were not brought in for the truth.

I do not think, althouch I am recuired tp ask the Court

_——7 - 4203

- a

24

25

o | @ 1175 °

again to instruct the jury to Givianta those statements,

that I do not think the error can be cured.

I do ask, for the record, number one, that the

jury be instructed to disregard that statement entirely.

If the Court denies that inetruction: number two, to

instruct them that that statement was not coming in for

the truth.

Furthermore, I would object and move for a mistrial

because of the inference Mr. Godwin made about a

potential rape. I think that is highly inflammatory

and is not supported by the evidence, and the statement

I am referring to is that the defendant, because of the

purse, knew that there was a woman in there, and he

was prowling around looking for that woman with a knife.

Now, number one, he is not charged with that.

There is no evidence to support that. The only evidence

before this Court and before this jury is contrary to

that, and that argument and that inference that is

Clearly before the jury is so inflammatory and so

prejudicial as to warrant a mistrial.

I would ask the Court to order a mistrial because

ef that, and if the Court denies that, to instruct the

jury to disregard those arguments.

A further objectionable argument is characterizing

this attack as animalistic. I believe the cases support

_ecar |] tom | AONA

aoe ee

24

25

ee ee es ae eee ane ©

BEN . Be RR ot TE

that comparing the defendant to an éninal is improper

argument and would warrant a mistrial. |

1 would ask the Court to declare a mistrial, and

in the event chat’ seu do not, to instruct the jury to

Staresxed that argument. | |

Furthermore, there was one other area: Mr. Godwin —

mentioned, in his closing argument, that the community :

should be free from this type of crime, and I believe the

implication and the inference to be drawn from that is :

that in order to protect themselves, the jury must

convict the defendant. I believe that is an iupréper

argument. 3

It is asking sea sues to place themselves in the

position of being a victim of this type of crime.

I think it is improper, prejudicial and warrants a

mistrial.

I would ask the Court to declare a mistrial at

this time.

In the event that you deny that motion, I would

ask the Court to instruct the jury to disregard that

entire statement, and the entire argument as a whole,

and if the Court rejects each of the specific grounds

I mentioned and the entire argument as a whole warranting

a mistrial, I ask the Court to instruct the jury to

Cisregard the entire argument, every word of it.

a . 1205, a

ecear Tom i SPREE Oa os

FRIEOMAN Tl LOMBARD: ‘EIR seine Ick Ye pet po

24

25

—————

( 1177

| ¢

\

s THE COURT: Your, motions for a mistrial are denied,

. counsel. A ig: /

I think the context in which the argument was made

”

sae not prejudicial in nature.

Sin ebihne that is said by the prosecution the

detends finds to be prejudicial, and I think the same

holds true on the other side. 3

I instructed them on the issue as to the statements

allegedly made by somebody else. I instructed them at

the time that same evidence was introduced, and I think

it was more effective at that time.

MR. GODWIN: May I make one more motion before the

jury has been brought in? It has been brought to my

attention that Mr. Zenobi apparently is intending to

argue, in the final phase of his summation, that the

police officers who testified here yesterday are members

of the same police department that broke into a house

a week ago with the impvroper---

THE COURT: I am sure Mr. Zenobi would not do that.

MR. GODWIN: I am requesting he not do it.

THE COURT: I am sure he would not do it.

We are all going to stay on the evidence in this

case,

There is a lot ai Cisparity between the opening

statement which was made and that which was produced at

121

ecrr Tom 4d 1206

FRICOMAN TI LOMBARD!

24

® | — tia

THE COURT: Sure. Of course.

Then I will read to them the preliminary

instruction, the first paragraph on page 76.

So you have got the first paragraph on 75 and the

first paragraph on 76, which will be read to them in

just a moment, at which time we will proceed with

the presentation of evidence to them.

I hope somebody is running off a copy of the

charges upstairs; otherwise, we will take these and

just run them off.

MR. LEVINE: We would renew all our pre-trial

motions to dismiss the statute, that would provide

for these instructions as being unconstitutional, and

that they unconstitutionally limit the mitigating

circumstances involved; in addition to renewing all our

other arguments. :

I would like to address now, with the Court's

permission, the defense requested instructions, and

I would like to take them one by one, if that is all

right. |

Has the Court read through those yet?

THE COURT: I read through the bulk of them. Go

ahead. |

MR. LEVINE: The first thing we would request

is an alternate verdict form, and I have styled this as

122 ecrr =, ak 1284

FRICOMAN TT LOmMBARO!

CALE GENORON

paenenee

24

r eo 7 1255*

an advisory sentencing.

THE COURT: I have seen that. That was together

with your motion to continue which I denied. You did

not number that advisory verdict. I denied it. I have

been through it, and I do not require the jury, in and

of themselves, to make specific findings relative to

whether they determine this or that to be a mitigating

or aggravating circumstance.

MR. LEVINE: In the next requested instruction,

I do not know what order---

THE COURT: You did not label them, but this one

starts off, “The aggravating circumstances," the one

I have first.

MR. LEVINE: All right.

THE COURT: And the second one I have is, "TE you

find.”

MR. LEVINE: All right. Is it all right if I take

them in the order I have? 3

THE COURT: Please yourself,

MR. LEVINE: Thank you. The first one I have

starts out, "Evidence presented by the defendant.”

THE COURT: Just a minute... "That the capital

felony"?

MR. LEVINE: "That the defendant never intended to

kill the victin.”

123

a ES 1285

DALE GENORON

24

© 6 1256 *

THE COURT: All right.

MR. LEVINE: I have that last one, It should have

been the last one on there. It’ should read, "Stipula-

tion by the State that the defendant never intended to

kill the victim is a mitigating circumstance and you

must consider it as such.”

THE COURT: That is denied.

MR. LEVINE: The next one I have is, "Evidence

presented by the defendant that the capacity of the

defendant to appreciate the criminality of his conduct

or to conform his conduct to the requirements of law

was substantially impaired is a mitigating circumstance

and you must consider it as such."

I apologize for the order. I thought it was the

same order as mine.

THE COURT: You gave me approximately fifteen

instructions, none of which is numbered. I charge that

what, now?

MR. LEVINE: Evidence presented by the defendant

that the capacity--- :

THE COURT: Do not tell me more. I do not see

that one.

MR. STELZER: I do not have that one either.

MR. LEVINE: It starts off, "Evidence presented

by the defendant that the capacity of the defendant to.

a. 424 1288

{

24

) PURE ea SRS

appreciate"--- | |

THE COURT: Wait a minute.

i Sane teas copies of one of ‘them

here. Maybe everyone should wink cede copy of it.

Maybe Mr. Levine has one copy of the one he is talking

about now.

THE COURT: Who is going to handle the evidence

phase, Mr. Levine?

MR. LEVINE: I will handle it, Judge.

THE COURT: Maybe Mr. Zenobi can go through the

instructions you are requesting while we are proceeding

with the jury, and maybe you can get them in order.

MR. LEVINE: I apologize. My secretary had the

order mixed up.

THE COURT: We will give you a few minutes before

we have closing arguments. Sa wees anticipate four

or five hours on the evidence?

MR. STELZER: Definit ly not.

THE COURT: Why do you not give them to Mr. Zenobi

and let him relax.

Give those to Mr. Zenobi so you can just sit

and do it at the counsel table.

MR. LEVINE: Can I show this to the Court?

This has been prepared by Mr. Stelzer. ‘si presume

he intends to use it curing his final argument as to the

ark ee}

24

iin i . © 1258 °

sentencing phase and I note an objection.

THE COURT: Your objection is noted. I will allow

it to be used, It ia the, aggravating and mitigating

circumstances. | |

MR. STELZER: It is a standard instruction.

MR. LEVINE: I am aware of that. I feel this

compounds the error of the statute, as far as limiting

the mitigating circumstances. —

THE COURT: You have a charge in there, Mr. Levine,

that relates to the limiting.

I have one’ that says, "You are not limited to

those that are specified in the statute and you may

use other matters that are not specified for those

purposes.” . |

MR. STELZER: I think, for the purposes of the

preservation of the record, S iowa introduce this

to preserve his objection, a smaller copy of that exact

charge.

I am introducing an eight-and-a-half-by-fourteen

copy of a chart which I intend to use only for the

purposes of illustration.

THE COURT: Mark it as a State's exhibit. I am

sure he wants a complete record. |

MR. LEVINE: That is correct, Judge.

I would like the Court to address itself as to

4+ 125 1288

iit.

os

State's Exhibit No. 1 and received in evidence. ]

which the following proceedings were had:]}

1259 ©

whether or not certain circumstances are not appropriate)

as a matter of law and whether or not the Court would

direct the State that they cannot argue those.

THE COURT: We are not to argument yet. I do not

know what the evidence is going to show.

MR. LEVINE: If the Court would allow me to renew

that argument as to what has or has not been established

immediately before we proceed with the argument.

THE COURT: We will take a couple of minutes to

get your heads together on argument. At this time,

we will discuss the charges Mr. Zenobi got together

for us by order.

(Thereupon, the item referred to was marked as

THE COURT: Here is one of them.

I do want to read the first part of it to them.

MR. LEVINE: Just for argument's sake, we will

invoke the rule as to the witnesses.

THE courr: Those witnesses that may testify

should be asked to wait outside, Mr. Stelzer.

Please do not discuss the case amongst yourselves.

Bring the jury in.

(Thereupon, the jury entered the courtroom, after

THE COURT: Good afternoon, folks. I certainly

ya a 4289

,- -—+;. - .s

4

24

@ | ; 3 ®@ 12608

appreciate the promptness and courtesy you extended

to us in being on time. It took a few. minutes to get

veut ground rules seal on deena out.

So we will be able to proceed, I hope, without

too much delay. “4;

Now, you i igi Panel the defendant guilty of first

degree murder. Now the punishment for this crime is

either death or life imprisonment.

The final decision as to what penalty shall be

imposed rests solely with the Judge of this court;

however, the law requires that you, the jury, render

to the Court an advisory sentence as to what punishment

should be imposed upon the defendant.

The State and the defense may now present evidence

relevant to what sentence you should recommend to the

Court, and you are instructed that this evidence, when

considered with the evidence that you have already

heard, is presented in order that you might determine

first whachax ox not sufficient aggravating circumstances

exist which would justify the imposition of the death

penalty, and second, whether there are any miticating

circumstances sufficient to out weigh the aggravating

circumstances, if any. : |

At the conclusion of the taking of the evidence

and after argument of counsel, you will be charged on

1zs. 41299

seer

Tom

FRIEOMAN TT LOMBARO:

BaALSe GEnoReon

24

: © ‘ @ 1261°

the factors on aggravation and mitigation that you may

consider, and a copy of them, of my instructions, will

be provided to you at that time’ for your continued

reference.

Does the State wish to offer any evidence?

MR. STELZER: Yes, Your Honor. The State does.

The State, at this time, will call Sergeant George

Blishak of the Los Angeles Police Department.

THE COURT: All right. Ask him to come in, please,

Counsel.

Right over there, please, sir. Please remain

standing to be sworn.

Thereupon:

GEORGE W. BLISHAX

was called as a witness on behalf of the Plaintiff and,

having been duly sworn, was ‘inmate and testified as

follows:

DIRECT EXAMINATION

BY MR. STELZER:

Q Sergeant, would you please state your full name

for the record and tell the members of the jury what it is

you do and spell your name for the court reporter.

A George W. Blishak, 3-l-i-s-h-a-k, siibeeiint with tng

Los Angeles Police Department, Los Angeles, California.

Q How long have you been with the Los Angeles Police

= “ggg 4291

\

FRICOMAN [| LOMBARD!

DALE GENORON

r © 1274°

THE COURT: Call your next witness.

MR. LEVINE: I would like an objection and a

side bar.

THN COURT: As relates to what?

MR. LEVINE: As to the next witness.

(Thereupon, counsel for the respective parties

and the court reporter approached the bench and conferred

with the Court outside the presence of the jury and the

following proceedings were had:]

24

THE COURT: Yes, sir.

MR. LEVINE: We would object to the testimony of

Dr. Wright. Dr. Wright's name has never been provided

to us.

This is an additional list of witnesses to the

penalty phase, Your Honor.

MR. STELZER: Number seven on the additional

list of witnesses for the penalty phase is the

"Deputy Dade County Medical Examiner."

The problem is, Dr. Kessler is out of the country.

Dr. Wright extensively reviewed all of his notes, and

the testimony to be elicited from Dr. Wright concerns

the ancunt of suffering that the victim did suffer and

goes to the aggravating factor relating to heinous,

atrocious, and cruel.

We did not know which medical examiner would

A wane Lommanot i 4903

24

© © 1275°

take his place. We listed by title as opposed to

name.

THE COURT: His Seat tmasls is going to be that

based upon the type of injury, that he is aware of

a certain amount of pain or some such thing?

MR. STELZER: He has reviewed all of the notes

testified to by Dr. Kessler and can offer his expertise

as to pain and suffering that the victim encountered.

MR. LEVINE: The only medical examiner who came

up in this case was Dr. Sasslia. wee his deposition was

taken and we are not prepared for any testimony by

Dr. Wright, and I think, of course, Dr. Kessler did

in fact do the autopsy himself and has not just merely

reviewed the file.

I think I have a right to expect that the person

we deposed would be the person’ in court.

I think my defendant would be severely prejudiced.

I think the Court should hold an inquiry as to why

we were not provided with the witness on discovery.

THE COURT: I think he answered. Whether or not

it is an appropriate substitute or not, that he is

going to make opinions based upon the observations

made by the other doctor---

MR. STELZER: No. He has photographs of the ea

He has a complete autopsy report. He has reviewed the

ecrr 3 y 131

FRICOMAN I] LomeaRO! nA 4

Baie Senoron

24

i -_ , ~~

” & 1276°

entire file, and he is going to tell you that he feels

competent, based upon his knowledge of this type

of injury, to tell you what type of pain and suffering

the victim had.

THE COURT: What walun is it if you give a list

of witnesses and have them anticipate one, and have

somebody else give an opinion based upon the findings

of another, assuming that this is in fact valid

evidence?

MR. GODWIN: Maybe Mr. Levine will recall that I

advised him that Dr. Kessler would be out of the

country and we would have to call another doctor for

this purpose.

I did not give him an exact name, but I did not

know who it would be.

THE COURT: You Know, we call for an exchange

of witnesses for the purpose of giving each of you an

opportunity to evaluate the other guy's witnesses in

the penalty phase. That was to have been done this

morning.

I do not know when Dr. Wright was discovered

to be the one you all were going to use, but it

seems to me that he would have to be made available

relative to inquiry as to this.

MR. STELZER: First of all, it is totally proper,

%5>*

24

& * 1277°

according to the case law in Florida, to list somebody

by job title.

We would have given the name of Dr. Wright if

we had been sure it was going to be Dr. Wright to

testify in this case. i

Number two, there is no discovery in this phase.

THE COURT: I am aware of that.

MR..STELZER: Number three, Mr. Levine did not

talk to any of my witnesses. He could have come down

and talked to them.

I said, "Is there anybody you want made available

today?"

He came down and three witnesses were there.

Dr. Wright was not there. He was doing an autopsy.

Mr. Levine said, "If I want anybody, I will let

you know." q

I would have made anybody available.

MR. LEVINE: In response, I asked for a proffer

as to what ve witnesses would testify to, and I was

led to believe that the three sitting there were

the witnesses,

I laid that out, based upon the proffer of what

Mr. Stelzer told me. Cf. those witnesses, two of them

were excluded. I asked for a proffer and that is the

proffer I got.

133

1306

& ES 1278 *

5 ' a I think I am entitled to rely on a written

a 2 pleading.

3 THE COURT: I am bicapuaian When did you all

4 decide that Dr. Wright was going to be the witness to

5 testify? x

5 MR. STELZER: After the verdict on Friday, we

7 contacted Dr. Wright by telephone and asked him if he

8 could possibly be there. We did not know there was

. 9 going to be a guilty verdict.

10 We knew Dr. Kessler was going to be out of town.

1 That is why we put--- |

12 THE COURT: My only concern was, while there may

oh 13 or may not be a discovery provision in the penalty

14 phases of the trial, I thought it had been well under-

1§ stood that we were going to exchange names of people,

16 so if you wanted to talk to them, you could do it. If

17 you do not want to talk to them, that is another thing.

18 I think they have a right to talk to Dr. Wright

19 before he testifies.

20 MR. STELZER: We wanted to talk to their psychia-

21 trists. They were never made available to us today.

22 Dr. Wright is here. I have no objecticn to them

23 talking to hin.

24 MR. LEVINE: In response, Mr. Godwin said if I

td -s would have given him a written report, he would waive

t —

ecrr Tom”

FaICOMAN LOmeaRoci

OALE GENORON

oO8 1807

-

i

24

@ 1279°

speaking to them.

THE COURT: My point is, the Judge should not

be in a position of having to cross examine lawyers

to find out who has done what and who has not done

what. }

Do you have another witness to call?

MR. STELZER: No.

(Thereupon, the following proceedings were had

within the hearing of the jury:]

THE COURT: Folks, would you go into the jury

room for a second while I chat with counsel.

It is getting hard to whisper.

Do not discuss the case.

(Thereupon, the jury retired from the courtroom

after which the following proceedings were had:]

THE COURT: Now, talk to him outside

Counsel, if you want to, please.

(Thereupon, a recess was taken after which the

following further ecechell nes were had:)

MR. LEVINE: Before the jury is brought in, I

would like to state this proffer---

THE COURT: Wait for the State Attorney.

MR, LEVINE: I thought Mr. Stelzer just walked in.

I am sorry. : :

THE COURT: Have you had a chance to correlate

winfictnn 135 1008

24

@ oI Rance: SS

those charges yet?

MR. ZENOBI: Yes.

THE COURT: May I have my copy?

Go ahead, Mr. Levine,

MR. LEVINE: I would ask Mr. Godwin to make a

proffer as to what the testimony of the medical

examiner would be.

THE COURT: Apparently you have talked to Mr.

Godwin. What areas do you feel are inappropriate

that cannot be handled by an objection?

MR. LEVINE: One area that is particularly

inappropriate and not provided for by law is the pain

and suffering involved in death by electrocution.

THE COURT: What aggravating or mitigating

circumstance does that relate to?

I think at this stage in the proceedings, that is

not an issue. The issue is as relates to aggravating

anc mitigating circumstances in this case.

MR. LEVINE: That is my position, Judge.

THE COURT: All right. You just won it. Argue

some more and you will lose it.

I do not allow you people to put on that evidence

for the purposes of mitigation either. It is obviously

for the purposes of inflaming the jury.

If you want to put it on, we will preserve the

srr 1) sem,,, 136 4309.

“Stew <0:

Ress

24

' gtances as relates to the death of the individual

Thereupon:

was called as a witness on behalf of the Plaintiff and,

having been duly sworn, was examined and testified as

follows:

% -_ 1281°

record.

MR. LEVINE: Also, the State wanted to go into

what would be the manner of death if the State were

to legalize death by injection.

THE COURT: We are here on the aggravating circum-

here. Mr. Levine's points are well taken.

MR. LEVINE: Also, I ask the Court to make an

inquiry into the qualifications of the doctor as to

whether or not he is qualified and competent at this

time to give evidence based upon what he has ressived

in this case with no firsthand knowledge,

THE COURT: I decline to make such a judicial---

MR. LEVINE: Can I go ahead and do it?

THE COURT: Do you want to ask him some questions

for that purpose? I think you may be using some time.

I obviously feel as though he---

MR. LEVINE: We would like to make an inquiry

outside the puiehes of the jury.

THE COURT: Go ahead.

RONALD KEITH WRIGHT

et. 1874519

FRIECOMAN TT LOMBAROI

CALE GENORON

24

eo | a : 282°

EXAMINATION

BY MR. LEVINE:

Q State your name, for the record.

A Dr. Ronald Keith Wright.

Q What is your position?

aA I am deputy chief medical examiner of Dade

County.

Q Did you have occasion to review the file prepared

by Dr. Kessler on the autopsy of Frank Budnick?

A Yes, I did.

Q What if anything did you do with it?

A I reviewed the entire file prepared by Dr. Kessler

and others.

Q Could you clarify that, Doctor. What others?

specifically, every single person that you might have

considered in arriving at the shintond you are willing to

testify to today?

A As to that, none others, if I understand the

proffer of the State in this case. Although I reviewed

the records in their entirety contained within this file,

some of which were prepared by individuals other than

Dr. Kessler as to---

Q You are referring to the photographs?

A No, sir.

Q Could you explain what you mean.

ecrr Toms 138 a4

FRIECOMAN TT LOMBARD!

OALE GENORON

24

eo | e | -1283°

A Certainly. As to what I believe the State has

called me here to testify about, which concerns the pain

and suffering anpéciatad with a stab wound of this nature

and associated with a fractured clavicle, that information

is contained within the autopsy report of Dr. Kessler, and

also demonstrated in the photographs prepared by Dr. Kessler.

Q Is there anything else that you considered?

A No, sir.

Q So then your testimony is that you never considered

any of the testimony of any eye witnesses in this case. Is

that correct?

A That's correct.

Q Thank you, Doctor.

MR. LEVINE: If I may have just one second,

Judge. I do not have anything further. ,

I move to exclude this witness.

THE COURT: Motion denied.

Bring in the jury.

MR. LEVINE: One more thing, and I think this is

alsc properly outside the presence of the jury: I

presume this is goine to show this crime is especially

heinous, atrocious, or cruel, and directing the Court's

attention to the jury instructions, "“Heinous means

extremely wicked or shockingly evil," and “atrocious

means especially wicked and vile,” and I do not think

ioe. 39. 1012

FRICOMAN LOMBARDI

24

© | ; @ 1284°

that is directed to pain and suffering.

: "Cruel" means designed to inflict a high degree of

pain, utter indifference or enjoyment of the suffering

of others, pitiless, and I believe that if the doctor

were to testify that because of the stab wounds, that

the victim suffered a high degree of pain, I do not

think that would be within the meaning of “cruel,”

because “cruel” means “designed to inflict pain,” and

the State has stipulated that the defendant never in-

tended to kill the victim. How could they support the

testimony that this was designed to be cruel?

The fact that it was incidentally cruel or painful

is not a consideration.

Furthermore, I would cite 322 So.2d 557, in which

the Court held that a killing is not especially heinous,

atrocious, or cruel simply because it is unnecessary,

and Cooper v. State, which says that the standard of

the aggravating circumstances is whether the horror of

the murder is accompanied by such additional acts to

set the crime apart from the norm; so, even if the

Goctor were to testify as to the amount of pain and

suffering, it is totally irrelevant to any aggravating

circumstance.

THE COURT: Your objection is noted.

Overruled.

440 «1038

24

® : © 1285°

(Thereupon, the jury entered the courtroom after

which the following proceedings were had:]

THE COURT: All right. sa ome absence, this

witness has been sworn, so you may proceed, Mr. Godwin,

please. Ali

Thereupon:

RONALD KEITH WRIGHT

was called as a witness on behalf of the Plaintiff and,

having been previously duly sworn, was examined and

testified as follows:

DIRECT EXAMINATION

BY MR. GODWIN:

Q Would you please state your name and spell your

last name and tell the members of the jury what your

occupation is.

A Certainly. My name is Dr. Ronald Keith Wright,

spelled Wer-i-g-h-t. I am a deputy chief medical examiner

for Dade County, Florida.

MR. GODWIN: May I ask the court reporter to move

over a little bit so I can see the witness.

Q [By Mr. Godwin] Doctor, as the deputy chief

medical examiner for Dace County, are you the second in

command?

A That's correct.

Q How long have vou been with the medical examiner's

FRICOMAN TT LOmMeARO!

Bales 42méhGaQm

1414014

24

25

© | - } 1286 °

office?

A Since August of 1974.

Q Would you tell the members of the jury what

your background is, what training you have had for the

position you now hold. ‘

A Yes. I have a bachelor's degree in biology and

chemistry. I have a doctor of medicine degree. I completed

training in the field of vathology, specifically anatomic

pathology, which is that area of medicine having to do with

the diagnosis of disease, primarily through the examination

of tissues of the human body, both gross, with the eye, and

microscopically; clinical pathology, which is that area of

pathology having to do with the diagnosis of disease,

primarily through the use of laboratory testing of body

fluids; and forensic pathology, which is that specialty of

pathology having to do with the relic a and the

determination of the cause of death of igdivdaueia who die

suddenly and unexpectedly, or who die as a result of injury.

I am cartiéies by the American Board of Pathology,

which is the accrediting and certifying organization in the

United States, in each of those three sitive? ein; that

certification following examination ani testing.

I am licensed as a physician in the States of

Missouri, Vermont, and Florida and I am a nember of the

board of directors of the National Association of Medical

ee eee Cr

24

e ® 1287 °

Examiners, and in addition, I am on the Forensic Council

of the American Society of Clinical Pathology.

Q Do you hold any teaching positions?

A Yes. Iam an associate professor of pathology

at the University of Miami School of Medicine, and I am

also an associate professor of epidemiology and public

health at the University of Miami School of Medicine.

Q Are you the supervisor of Dr. Stanton Kessler?

A Yes, sir, I an.

Q Do you have with you today, Doctor, the official

files from the Dade County Medical Examiner's office

compiled by Dr. Kessler with respect to the death of one

Frank Budnick?

A Yes, sir, I do.

Q Have you had an opportunity to review those files?

A Yes, sir, I have.

Q Have you read over the autopsy report that was

prepared by Dr. Kessler?

A Yes, I have.

Q Have you reviewed his notes?

A Yes, I have.

Q Have you reviewed nis notes?

A Yes, I have.

Q Can you tell the members of the jury approximately

how many autopsies you, yourself, have performed.

re

weit &£ #2 es Peewee

24

25

© | e 1288 °

A About 2,800.

Q Can you tell the members of the jury approximately,

if you know, how many autopsies you have performed that

involved knife wounds to the victim?

A Probably only about 250.

Q Can you tell the members of the jury, if you know,

approximately how many autopsies you have performed that

involved a broken bone or a fractured bone, particularly

the clavicle, that you know?

A As to a fracture of the clavicle, probably only

a hundred to 200. As to broken bones in general, probably

seven or 800.

Q Doctor, based upon your training and your

experience and based upon vour review of the particular

file involving the death of Frank Budnick, would you be able

to tell the members of this jury, within a reasonable degree

of medic.l certainty, as to what degree of pain and suffering,

if any, Frank Budnick suffered prior to his death.

MR. LEVINE: Objection and renew all the grounds

made pre-trial as to competency and relevancy.

THE COURT: Objection is noted.

Overruled.

You may answer, if you can.

THE WITNESS: Thank you, Your Honor.

A Yes, sir.

serT voM . ; 144

4

FRICOMAN [] LOW @ARO! et :s

DALE GENOMON ?

24

25

© e 1289°

Q Doctor, if I may, before you actually give us

your answer, let me ask you to assume the following

facts in this case: Assume that the victim, Frank Budnick,

had gone to sleep at approximately twelve o'clock midnight

and slept until approximately three o'clock: in the morning;

assume that he had taken no drugs or medication other than

some Tylenol; assume that he was in his bed asleep when

he was first awakened and when he was stabbed with this

weapon, which is in evidence as State's Exhibit 37; assume

that after he was stabbed, he began to jump around in the

bed and actually crawled down the far side of the bed from

where he was stabbed.

MR. LEVINE: Objection and move to strike.

THE COURT: Overruled.

Motion to strike is denied.

Q {By Mr. Godwin] Assume he was able to get out

of the bed and to walk out of the bedroom, walk around the

corner out through the living room, and he was able to

open the door and walk ovt into the front yard, and actually

cut towards the street, and he was able to give out a loud

cuttural scream, and then he fell to the dirt and the gravel;

and assume further that when a person reached him and tried

to administer aid to him, that person exiled te speak to

him, and that that person said he was trying to speak, but

only gurgiing and bubbling was coming from his mouth and

eerT TOM 445 1318

FRICOMAN T. LOMBARC! Ck

DALZ GENORON

He

24

blood was coming from his mouth.

7 at 1290°

Assuming those facts, and again based upon your

experience and your expertise and your review of the

particular record in this case, can you tell the members of

the jury exactly what sort of pain and suffering Frank

Budnick would have gone through?

A Yes.

In response to that question, I believe it would

be best to characterize this as considerable. The mechanism

of death is one of the factors with which we are concerned

here; that is, the physiologic or biochemical abnormality

produced by the cause of cGeath, which leads to death.

The stab wounds of the upper left chest entered

in the upper left chest, going through and fracturing the

clavicle, or the collarbone.

It then proceeded essen hi knife proceeded

down--through the lung, and then stopped in the back side

of the back.

In the process of the stab wound, there was a

transection or a cuttinc in two of the subclavian--or below

the clavicle--vein. In addition to that, there was this

penetration jects lung itself.

The mechanism of death is really twofold in this

case.

Number one, the bleeding to death from the wound

—. | AG 1059

23

24

3 6 1291°

to the vein, which is a considerably large vein, which

drains all of the blood from the upper arm and part of the

upper chest; at the same time, there’ being a condition

— oe

essentially of drowning, from the standpoint of the wound

in the Sulie Galeine it to bleed internally; this bleeding

within the luna then being breathed into the rest of the

lung tissue, causing the sensation, and the same kinds of

autopsy findings as one sees in an individual who drowns

in some other kind of environment.

From the fracture of the clavicle with the

penetration of the portions thereof into the pleural

lining space and the perforation of the pleural lining

space itself, this is associated with considerable pain.

The pleural lining spaces, the lining around the lungs,

are particularly heavily endowed with pain fibers, which

are relayed to the brain. f

In addition to that, this man also suffered from

the standpoint of having the sensation of drowning during

the same time Sertce:

Q Doctor, when you say "drowning," are you Saying

that this man drowned:in his own blood?

DP

A That's correct. That's one of the two mechanisms

which were at play from the stab wound.

Q And the other was?

A Bleeding to death internally.

mee —— - 4a7

lnc side Pingel ahi Ohh

24

25

Q Doctor, what sort of pain, if any, is associated

1292°

with fracture of the clavicle, as resulted in this case?

MR. LEVINE: Objection; repetitious.

THE COURT: All right. Overruled.

A Again, bone fractures are the Kind of pain

associated with something called, in medicine, “Deep pain,"

because they are supplied by a kind of nerve fiber that

goes to a special area in the brain. As far as where the

pain fibers end and how they are perceived, that is

different than superficial pain. :

This again would be considered to be considerable

pain from this kind of wound.

Q Did you also note some injury to, I believe, the

right hand of Frank Budnick?

A That's correct. There were five incised wounds ,

characterized as "Defense wounds" by forensic pathologists,

on the palmar side, or the palm side, of his right hand.

Q What opinin. , if any, could you give the jury

with respect to ee pain and suffering relative to those

wounds?

a Relatively superficial wounds and a relatively

minor amount of pain associated with that.

A Assuming the facts I gave you dives blank the

victim actually walked outside and screamed before he fell--

would you say he had to be conscious in order to do that?

ate Dicctinn «488 1021

® 1293°

be

A Yes, sir.

Q Finally, Doctor, based upon your training and

your experience, would it be fair to’ say, within a reasonabl

degree of medical certainty, that in this particular case,

the victim, Frank Budnick, did in fact suffer a high degree

of pain which he was conscious, before he died?

MR. LEVINE: Objection; repetitious.

THE COURT: I think it is repetitious, Counsel.

MR. GODWIN: One moment.

Q [By Mr. Godwin] Based upon the facts that I have

asked you to assume, as well as your review of the autopsy

dckes in this case, can you tell the jury approximately how

long the victim would have been conscious in this case

from the moment he was stabbed.

A In this kind of wound, it would be, as a minimum,

a matter of a minute or so, to a mitten of several minutes.

MR. GODWIN: No further questions.

THE COURT: Cross, please.

| CROSS EXAMINATION

BY MR. LEVINE:

Q Did you ever talk to Dr. Kessler personally?

A Yes.

Q Did you examine the body Sa a yourself? ,

A I cannot recall.

D>

You do not remember?

% * 1294°

' A That's correct.

“ 2 Q Doctor, I think you just testified that there

3 | was a fairly wide latitude in how long a person would be

4 | conscious.

3 A That's correct. y

6 Q Did you talk to any eye witnesses in this case?

7 A Not personally, no, sir.

8 Q You did not consider that in your findings, did

9 you?

10 a No, sir, I did not.

11 Q So you really do not know how long this man

12 remained conscious and how long it took him te die, do you,

13 within a few minutes latitude? It could have been as

14 little as one minute. Is that correct?

15 A That's correct.

16 MR. LEVINE: Excuse me, Soden for one minute.

17 THE COURT: Anything else?

18 _ MR, ZENOBI: No.

19 MR. LEVINE: No further questions.

20 THE COURT: Anything else?

21 MR. GODWIN: No further questions.

22 THE COURT: Call your next witness, please.

23 [Witness excused)

24 MR. STELZER: At this time, the State would rest

iy 25 on the penalty phase.

aoe We

ecrrT Tom i

FRIEOMAN [| LOMBARD!

24

@ @ | 1295 °

THE COURT: The defense, please,

MR. LEVINE: If we may have one moment.

THE COURT: Go ahead.

MR. LEVINE: The defense would call Dr. Benjamin

Center. e

Thereupon:

BENJAMIN CENTER

was called as a witness on behalf of the Defendant and,

having been duly sworn, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. LEVINE:

Q Could you state vour name for the record, Doctor.

A Benjamin Center.

Q What is your occupation?

A I am in the area of psychology, forensic work,

neuropsychology.

Q Could you tell the jury what your training is.

A Yes. I have a number of degrees.

Q What are those degrees?

A As a psychiatric social worker, as a special

pathologist, as an educational psychologist, optometrist--

eye doctor--and I have a Ph.D in learning disabilities and

mental retardation,

Q Have you done much forensic psychology or criminal

a wa. ae. WO

24

* | J 1296°

psychology?

A I have done some, yes.

Q Tell the jury what your experience is in that

area.

A Well, I have examined at least, I would say,

thirty cases in the last year.

Q Within the last year?

A Yes.

MR. LEVINE: We would proffer this doctor as an

expert.

Does the State stipulate?

THE COURT: He will be received, for the purposes

of his opinion, subject to cross examination by the

State and the jury's evaluation under the appropriate

charges.

MR. GODWIN: Could he indicate as to what area

he has been proffered under?

THE COURT: What is the area of expertise?

MR. LEVINE: As a psychologist.

THE COURT: Go ahead, please.

Q (By Mr. Levine) Did you have occasion to examine

a McArthur Breedlove?

A Yes.

Q Do you see him in the courtroom?

A Yes.

152 182

® : ® 1297 “

Q All right, Doctor. Where did you examine the

defendant?

A The Dade County Jail.

Q How long did you spend with him?

A Seven hours, ”

Q Seven hours?

A Yes.

Q During those seven hours, what tests, if any,

did you perform on the defendant?

A I gave him an intelligence test, an educational

achievement test, and the Halsted---

Q Let me interrupt you here, Doctor. Could you tell

the jury what that test is?

A That is a test that measures the adaptive behaviors

of the individual, those particular brain functions related

to behavior, ‘

Q Die you perform any other tests?

A A Bender-Gestalt and a Rorschach.

Q What is the Gestalt test that you mentioned?

Could you explain that to the jury.

A That is a test comprised of nine diagrams, in which

the individual, the subject, copies them, and the information

gathered from that is primarily is dhaleetoad in nature.

Q What is the purpose of that test, Doctor?

A Screening for perceptual difficulties; screening

| nme

aD collins, LOS do

23

24

& het’ | & 1298°

for possible neurological difficulties; screening for

intellectual function.

Q Doctor, would you tell the jury what the result

or results of each test were.

A The tests were interwoven, and the results are

not something that you just take a piece here and take

a piece out there, but together; but, the results of my

tests were--

Q Excuse me. Go ahead.

A --in terms of the intelligence test, I found

McArthur to be in the dull-normal range of intellectual

functioning.

Q What else did you find?

A I found, in examining the particular intelligence

test, that he had difficulty with manipulation of thought

patterns, concepts; difficulty in remote memory and grasping

concepts.

Q What did that indicate to you?

A Well, £c: bebabetee there was something wrong

in understanding what was going on, insight as to the

particular moment, at least in terms of the testing mode.

Q Did you come to any other findings?

A Yes. The other particular ‘uttics, in the

additional test, the Halsted neuropsychological test battery,

which is, as I mentioned, a test of behaviors. Breedlove

13%7

ai Wiel, . 154

24

25

al v 1299°

earned what we call a Halsted impairment of .8, which

means eighty percent of the test scores fell in the brain

dysfunction range.

Q What did that indicate to you?

A It indicates he had brain dysfunction.

Q Doctor, comparing all of the tests and taking

into consideration your interview with the defendant over

those seven hours, did you come to an opinion, to

This text is long and has been trimmed here. Open the source document for the complete record.