Opposition — FEDERAL BUREAU OF INVESTIGATION v. RAYMOND J. GILMORE (No. 82-5305)

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— N RECEIVED |

| SEP 28 1982

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

October Term, 1981

CASE NO. 82-5305

JAMES ERNEST HITCHCOCK,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

JIM SMITH

Attorney General

Tallahassee, FL 32304

ROBERT I.. BOGEN |

Assistant Attorney General 1

111 Georgia Avenue, Room 204

West Palm Beach, FL 33401 .

(305) 837-5062 N

Counsel for Respondent :

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

“ THE DEATH SENTENCE WAS NOT IMPROPERLY

IMPOSED UPON PETITIONER AFTER A PLEA

AGREEMENT OF LIFE IMPRISONMENT.

11 THE "RAPE" PORTION OF AGGRAVATING

CIRCUMSTANCE 5(d) OF SECTION 921.141,

Gl 17071 (1977) I8 NEITHER VAGUE NOR

IONALLY INVALID.

111 PETITIONER WAS NOT DENIED HIS RIGHT TO

A FAIR CROSS-SECTION OF THE COMMUNITY

BY FLORIDA'S EXEMPTION, ON REQUEST, OF

MOTHERS WITH CHILDREN, ou SERVICE ON

JURIES .

REASONS FOR DENYING THE WRIT

I THE DEATH SENTENCE WAS NOT IMPROPERLY

IMPOSED UPON PETITIONER AFTER A PLEA

AGREEMENT OF LIFE IMPRISONMENT.

11 THE "RAPE" PORTION OF AGGRAVATING

CIRCUMSTANCE 5(d) OF SECTION 921. 141,

ns f Tr (1977) Is NEITHER VAGUE NOR

TIONALLY INVALID.

111 PETITIONER WAS NOT DENIED HIS RIGHT TO

A FAIR CROSS-SECTION OF THE COMMUNITY

BY FLORIDA'S EXEMPTION, ON REQUEST, OF

poem WITH CHILDREN, FROM SERVICE ON

JURIES.

CONCLUSION

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases Page

Alachua County Court Executive, et al. v.

Kirk Anthony Alachua County Juror No. 006,

80. 2d „ Case No. 61,209, opinion

filed July 25, 1982, 1982 Fla.L.W. 347

(Fla. 1982) 5,6,12

Duren v. Missouri, 439 U.S. 357,

99 S. ct. 664, 58 L. Fd. 2d 579 (1979) 6,12

Gardner v. Florida, 430 U.S. 349,

97 S. ct. 1197, 51 T. Kd. 2d 393 (1977) 7

Gregg v. Georgia, 428 U.S. 153,

96 S.Ct. 2909, 49 L.Ed.2d 349 (1976) 9

Hoy v. State, 353 So.2d 826

(Pla. 1977) 10

North Carolina v. Pearce, 395 U.S. 711,

89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) 8

Raulerson v. State, 358 So.2d 826

(Pla. 1978) 10

Rose v. Locke, 423 U.S. 48,

96 S.Ct. 243, 46 L.Ed.2d 185 (1975) 5,11

Spinkellink v. Wainwright, 578 F.2d 582

(Sth Cir. 1978) 9

State v. Dixon, 283 80. 2d 1

(Fla. 1973) 4,10

United States v. Araujo, 539 F.2d 287

(2nd Cir. 1976) 8

United States v. Jackson, 390 U.S. 570,

88 S. ct. 1208, 20 L.Ed.2d 138 (1968) 9

Other Page

Section 921.141(5)(d), Fla. Stat. (1977) 4,9,10,11

Chapter 74-121, Laws of Florida 5,10

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

CASE NO. 82-5305

JAMES ERNEST HITCHCOCK,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Respondent, the State of Florida, respectfully

requests that this Court deny the instant Petition for

Writ of Certiorari.

STATEMENT OF CASE

Petitioner's Statement of the Case is accurate,

if somewhat brief. It consists of the "skeleton" of the

trial, but neglects the "flesh and meat." Nonetheless,

the statement is sufficient insofar as none of the issues

raised by the petition directly relate to the evidence

presented against Petitivner. However, Respondent would

add the following:

1. Archie Sooter was indeed able to testify that |

Petitioner's character in regard to violence was “calm and 9

jovial." (T 732). He was not precluded from testifying N

on behalf of Petitioner, as implied in the petition.

2. Martha Hitchcock did indeed testify with

reference to the early background of Petitioner. Petitioner

had left home at the age of 13; he did not have a natural

father at that time (T 735-736). The defendant's natural

father died when he was six years old (T 737). Martha

Hitchcock further testified that she had never known

Petitioner to be a violent person (T 737). Finally, Martha

Hitchcock testified that Richard Hitchcock had made sexual

advances toward her (T 737). Petitioner's inferences in

his Petition for Writ of Certiorari to the contrary are not

correct.

3. James Harold Hitchcock testified that he had

never known Petitioner to exhibit any violence towards people,

and that Petitioner acted in a playful manner with the

witness' children, even having babysat for the children

(T 739-740, 742, 743). Petitioner's inferences in his

Petition for Writ of Certiorari to the contrary are incorrect.

4. Fay Hitchcock, the wife of James Harold Hitchcock,

testified that she had never known Petitioner to exhibit any

violence (T 744). Petitioner had never done anything violent

towards her children, and has even babysat for her children

(T 745). Petitioner's inferences to the contrary in his

Petition for Writ of Certiorari are incorrect.

5. Petitioner states in his Statement of the Case

that the trial judge imposed the death penalty after the

jury recommended the same, even though the trial judge

acknowledged that the judge and the prosecution had previously

offered to Petitioner a life sentence in return for a guilty

plea (which offer Petitioner declined). This statement is

inaccurate. Nothing that occurred at trial bears out this

statement. The Florida Supreme Court's opinion reflects

the inaccuracy of this statement. In actuality, upon allocution,

defense counsel responded in the negative to the question if

there were any legal cause why sentence should not be pronounced.

When the defense attorney attempted to remind the court about

an alleged prior plea agreement which Petitioner had rejected,

the court explicitly stated that there was never any

understanding obne Petitioner did not want to consider

any plea (TS 5-6).

SUMMARY OF ARGUMENT

1.

THE DEATH SENTENCE WAS NOT IMPROP™RLY

IMPOSED UPON PETITIONER AFTER A PLEA

AGREEMENT OF LIFE IMPRISONMENT.

Petitioner misstates the facts. The trial court

never offered a life sentence in return for a plea. The

trial judge merely said that he would consider the prosecutor's

recommendation if Petitioner pled, but Petitioner did not

plead. The trial judge never agreed with the self-serving

statement of Petitioner's counsel at the time of sentencing

that there was an offer by the trial judge to impose life

in return for a plea. To the contrary, the trial judge

clearly stated that there was never any understanding,

much less an offer or agreement.

In any event, the trial judge filed findings of

fact which, without a doubt, affirmatively reflect that the

imposition of the death penalty was premised upon the existence

of statutory aggravating factors which out-weighed any

mitigating factors. Having presided at both phases of the

trial, the trial judge became privy to a great deal more

information regarding appropriate considerations in deciding

whether to impose the death penalty, than was available to

him prior to this trial at the time of the alleged plea

negotiations. Further, the jury had recommended a sentence

of death. it wasn't the exercise of his right to a jury

trial which weighed in the trial judge's mind. It was the

facts and circumstances which were explicitly detailed in

the jury trial, together with the jury's recommendation of

death, which weighed in the judge's mind.

In light of the above, it is appnrent that

Petitioner is doing nothing more than attempting to

mauufacture a factual scenario to support certiorari review

by this Court. The issue may or may not be of significant

constitutional dimension. But, in any event, the facts of

the instant case do not support Petitioner's contentions

in support of certiorari review.

II.

THE "RAPE" PORTION OF AGGRAVATING

CIRCUMSTANCE 5(d) OF SECTION 921.141,

CONSTITURIONALLY INVALID. u won

The aggravating factor at issue speaks in terms

of “any rape. It is not dependent upon proof of violation

of a particular statute during which the murder was committed,

but is dependent upon proof of the felonious conduct

identified by the crime specified (during which the murder

occurred). In essence, it is the conduct, and not the actual

violation of a particular statute proscribing the conduct,

which supports the existence of the aggravating factor.

Early on, in State v. Dixon, 283 So.2d 1 (Fla. 1973), the

Florida Supreme Court viewed the legislative intent in

promulgating the applicable aggravating factor, to include

capital felonies committed as part of another dangerous

and violent felony. {t would therefore seem apparent that

it in the felonious conduct which brings into play the

existence of the aggravating circumstance in question.

In the case sub judice, although the aggravating

circumstance specifies rape, the trial court instructed

the jury at the penalty phase of the proceedings on involuntary

sexual battery (TAS 54). "Involuntary sexual battery"

constitutes the same felonious conduct as rape. Indeed,

the law of rape in Florida was repealed in the same legislative

act as that which created the law of sexual battery.

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Chapter 74-121, Laws of Florida.

Petitioner cannot reasonably claim vagueness or

lack of notice, not only for the reasons specified above,

but also because the acts which he committed were in fact

a traditional rape. The mere fact that the trial judge

referred to this conduct as an involuntary sexual battery

is of no avail to Petitioner. A rose by any other name

is still a rose. There was no reason for Petitioner to

suspect that his conduct fell outside the scope of the statute.

Rose x. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).

Since the rape specified in the applicable aggravating factor

is in fact an involuntary sexual battery, and Petitioner's

conduct did indeed constitute a rape (or involuntary sexual

battery), he is in no position to claim that the trial court

used the term "involuntary sexual battery" rather than the

term rape, since the former term replaced the latter term.

The two terms specify the same conduct, and said conduct

was proven.

111.

PETITIONER WAS NOT DENIED HIS RIGHT TO

A FAIR CROSS-SECTION OF THE COMMUNITY

BY FLORIDA'S EXEMPTION, ON REQUEST, OF

MOTHERS WITH CHILDREN, FROM SERVICE ON

JURIES.

Petitioner was not denied his Sixth Amendment right

to a cross-section of the community as potential jurors,

indeed, the record reflects that Petitioner did not suffer

from any application of the statute in question, inasmuch as

at least one juror was a mother with children under 15 years

of age (T 157; R 63). As such, Petitioner has clearly failed

to demonstrate that he was harmfully affected by the particular

feature of the statute which he claims would make the statute

overbroad. |

True, the Florida Supreme Court has recently held

this statute to be a denial of equal protection to men with

children under 15 years of age. See, Alachua County Court

Executive, et al. v. Kirk Anthony Alachua County Juror

No. 08. 80. 24 „Case No. 61,209, opinion filed

July 29, 1982, 1982 Fla.L.W. 347 (Fla. 1982). However,

that case related to a male juror's Fourteenth Amendment

rights, not a criminal defendant's Sixth Amendment right.

Duren ». Missouri, 439 U.S. 357, 99 S.Ct. 664,

58 L.Ed.2d 579 (1979), does nothing but favorably affect

the reasoning espoused by the Florida Supreme Court in the

case sub judice. Indeed, the statute in question does not

deny a defendant of a jury constituting a fair cross-section

of a community. Women of all ages must serve, as well as

men of all ages.

In light of the fact that Petitioner's jury did

indeed contain at least one woman with children under 15 years

of age, and such a limited group, in any event, does not

comprise a constitutionally significant class, this issue

does not present a substantial federal question.

REASONS FOR DENYING THE WRIT

1.

THE DEATH SENTENCE WAS NOT IMPROPERLY

IMPOSED UPON PETITIONER AFTER A PLEA

AGREEMENT OF LIFE IMPRISONMENT.

Petitioner's factual premise is incorrect, and

his contentions must consequently be rejected. The trial

judge took part in no plea negotiations. The record reflects,

and the Florida Supreme Court recognized in its opinion,

that no understanding was ever reached as to an appropriate

sentence should Petitioner enter a plea other than not guilty.

While it may have been that Petitioner would only have entered

a plea other than not guilty upon the condition that he be

given a life sentence, no one, neither the trial judge nor

the prosecutor, ever made any offer in this regard for, as

the record reflects, Petitioner had steadfastly refrained

from considering any plea.

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At sentencing, when defense counsel attempted to

remind the trial judge of the prior discussions with

reference to the entry of a plea, the trial court explicitly

stated that ". . . there was never any understanding, because

your client didn't want to consider any plea." (TS 5-6).

The trial judge never agreed with Petitioner's counsel's

self-serving statement to the contrary. Further, Petitioner

never objected to his sentence on the grounds of an alleged

prior plea agreement; he merely reminded the court of the

prior discussions, in mitigation. Indeed, Petitioner

obviously did not feel that there was any impropriety in

the sentence imposed in this regard, for there was no mention

of this matter in Petitioner's Motion for New Trial as to

sentencing proceeding (R 175). It is true, the Florida

Supreme Court never reached the legal issues involved in

the question as presented by Petitioner. What Petitioner

ignores, however, is the fact that the reason the Florida

Supreme Court never reached the legal issue was because

there were no facts to support Petitioner's contentions

with reference to the issue.

Regardless of the above, however, the record does

indeed affirmatively reflect that the imposition of the

death penalty was premised upon proper considerations, and

not upon Petitioner's exercise of his right to a jury trial.

Gardner v. Florida, 430 U.S. 349, 97 S. ct. 1197, 51 L.Ed.2d 393

(1977), indicates that a death sentence must be, and must also

appear to be, based on reason rather than caprice or emotion.

Pursuant to Order of the Florida Supreme Court, commonly known

as a "Gardner" Order (R 212-213), the trial judge issued

an Order explicitly advising the Florida Supreme Court that,

in determining the sentence imposed upon Petitioner, only

information which came out in the trial (both phases), and

known to both the State and the defendant, was in fact considered

(R 214). Furthermore, in sentencing Petitioner (R 192-193),

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the trial judge filed his findings of fact (R 194-198)

which, without a doubt, affirmatively reflect that the

imposition of the death penalty was premised upon the

existence of statutory aggravating factors which out-

weighed any mitigating factors. The findings were spelled

out. The findings reflect a keen awareness, by virtue of

the trial court's presiding at both phases of the trial,

of the facts surrounding the crime, and the applicability

of numerous aggravating and mitigating circumstances. Thus,

the record affirmatively reflects the basis for the imposition

of the death penalty, and as such affirmatively reflects

that the death penalty was not imposed upon Petitioner for

exercising hie right to a jury trial.

It must be beyond dispute that, having presided

at both phases of the trial, the trial judge became privy

to a great deal more information regarding appropriate

considerations in deciding whether to impose the death

penalty, than was available to him prior to this trial at

the time of any alleged plea negotiations, North Carolina

V. Pearce, 395 U.S. 711, 89 8.Ct. 2072, 23 L.Ed.2d 656 (1969),

Clearly allows for a greater sentence upon circumstances

such as these, where new light has been shed upon the trial

Judge between an original sentence (or agreement) and a

subsequent sentence after retrial (or after the agreement

is abrogated and the defendant goes to trial). The important

consideration is that the defendant not be penalized for

exercising bis constitutional rights. Herein, the record

affirmatively so reflects, A show of leniency to those who

exhibit contrition by admitting guilt does not carry a

corollary that the trial judge indulges an improper policy

(in general or in a specific case) of penalizing those who

elect to stand trial. United States v. Araujo, 539 F.2d 287

(2nd Cir, 1976). Unlimited discretion as to the grant of

mercy (e.g., in a plea agreement), as opposed to the imposition

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of a death sentence, is certainly consi.tutionally permissible.

Spinkellink x. Wainwright, 578 F.2d 582 (Sth Cir, 1978);

Gregg v. Georgia, 426 U.S. 153, 96 8. ct. 2909, 49 L. Kd. 2d 349

(i076).

United States v. Jackson, 390 U.S. 570, 88 8. ct. 1209,

20 L. Ed. 2d 138 (1968) 16 inapposite. That case struck down

a state statute which mandated the death penalty upon

(and only upon) a jury recommendation of such. Thus,

defendants were encouraged to plea, inasmuch as the death

sentence could not be imposed absent a jury. Herein,

there is no encouragement to plea, since the ultimate

sentence pronounced would still have rested with the trial

Judge after a trial. 4 jury recommendation of death herein

would not necessarily have resulted in the death penalty,

as it would have in Jackson.

The bottom line with reference to this issue is

that the facts do not support the issue raised. Petitioner

has done nothing more than manufacture facts and attempt

to bootstrap a contention that the death penalty was imposed

simply because he chose a jury trial. Nothing could be

further from the truth. The death penalty was fully supported

by the findings of fact. It was not imposed in an arbitrary

or capricious manner. The trial judge never agreed to any

lesser sentence at any time. Under the facts of the instant

case, a defendant who receives the death penalty could

always argue that it was imposed solely because he went to

trial. Certainly, there is no substantial federal question

here.

11.

THE "RAPE" PORTION OF AGGRAVATING

CIRCUMSTANCE 5(d) OF SECTION ey thy Tm

CORSET OT (1977) I8 NEITHER VAGUE

TONALLY INVALID.

This issue involves nothing more than the trial

judge's use of the term “involuntary sexual battery" rather

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than the term "rape" when he was defining the statutory

aggravating factors for the jury. The two terms proscribe

the same conduct, and the jury was given the definition of

this proscribed conduct. A rose by any other name is still

arose. Certainly, there was nothing vague about this.

It cannot go unnoticed that Section 921.141(5)(d), Fla. Stat.

(1977), which specifies that it shall be an aggravating

factor if the capital felony was committed while the defendant

was engaged in the commission of, or flight after committing

any rape, is not dependent upon proof of violation of a

particular statute during which the capital felony was committed,

but is dependent upon proof of the felonious conduct identified

by the crime specified. In State v. Dixon, 283 80. 2d 1

(Fla. 1973), the Florida Supreme Court viewed the legislative

intent in promulgating this aggravating circumstance to

include capital felonies committed as part of another

dangerous and violent felony. It would therefore seem

apparent that it is the felonious conduct which brings into

play the existence of the aggravating circumstance in question,

Indeed, the Florida Supreme Court has so interpreted that

aggravating circumstance. Hoy v. State, 353 80. 2d 826

(Fla. 1977); Raulerson v. State, 358 So.2d 826 (Fla. 1978).

True, the law of rape in Florida was repealed in

1974. But it was replaced in the very same legislative act

by sexual battery. Chapter 74-121, Laws of Florida. Further,

Respondent admits that the new sexual battery law was broken

up into more categories than the old rape law. However,

the definition that was given to the jury in the case sub judice

was solely that of “involuntary sexual battery," which

parallels the old rape statute.

The defendant cannot reasonably claim vagueness

or lack of notice, not only for the reasons specified above,

but also because the acts which he committed were in fact

a traditional rape. The mere fact that the trial court

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referred to this conduct as an involuntary sexual battery

ts of no avail to Petitioner. The conduct of Petitioner

constituted the dangerous and violent felony of rape,

which now is proscribed in Florida as “involuntary sexual

battery." There was no reason for Petitioner to suspect

that his conduct fell outside the scope of the statute.

Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185

(1975).

Therefore, the Florida Supreme Court's analysis

was not equivalent to a judicial adoption of an aggravating

circumstance not statutorily authorized, as Petitioner implies.

It was nothing more than a recognition that the aggravating

circumstance of rape was defined when the trial judge defined

involuntary sexual battery. Since the rape specified in

Section 921.141(5)(d), Fla. Stat. (1977), is in fact an

involuntary sexual battery, and Petitioner's conduct did

indeed constitute a rape (or involuntary sexual battery),

he is in no position to claim that the trial court used the

term “involuntary sexual battery" rather than the term "rape,"

since the former term did nothing more than replace the latter

term. The two terms specify the same conduct, and said

conduct was proven. There is no substantial federal question

involved with reference to this issue. It is a matter of

state law.

111.

PETITIONER WAS NOT DENIED HIS RIGHT TO

A FAIR CROSS-SECTION OF THE COMMUNITY

BY FLORIDA'S EXEMPTION, ON REQUEST, OF

MOTHERS WITH CHILDREN, FROM SERVICE ON

JURIES.

It is indeed curious that Petitioner claims a

Sixth Amendment violation of his right to a cross-section

of the community as potential jurors, because the very class

which Petitioner is speaking of was represented on Petitioner's

jury! There was indeed at least one mother with children

younger than 15 years old on Petitioner's jury (T 157; R 63).

ote O e

Consequently, where is Petitioner's standing to even

raise such a point? In essence, Petitioner has failed to

bring himself within that group of defendants who may have

suffered from the application of the statute in question.

As such, he has clearly failed to demonstrate that he was

harmfully affected by the particular feature of the etatute

which he claims makes it unconstitutional. A litigant should

not be heard to urge the unconstitutionality of a statute

wken he is not harmfully affected by the particular features

of the statute alleged to be in conflict with the Constitution.

Petitioner attempts to bootstrap his argument by

a citation to the recent Florida Supreme Court case of

Alachua County Court Executive, et al. v. Kirk Anthony

Alachua County Juror No. 006, S0. 2d „ Case No. 61,209,

opinion filed July 29, 1982, 1982 Fla. L. V. 347 (Fla. 1982).

However, the Florida Supreme Court struck down the statute,

not on Sixth Amendment grounds, but on equal protection grounds.

The plaintiff in that case was a potential male juror with

children under 15 years of age. The Florida Supreme Court

recognized that this statute presented a classic distinction

based upon sei:. The issue did not involve a defendant's

Sixth Amendment rights.

Indeed, the statute in question does not deny a

defendant of a jury constituting a fair cross-section of

the community. Women of all ages must serve, as well as

men of all ages. Thus, Duren v. Missouri, 439 U.S. 357,

99 S.Ct. 664, 58 L.Ed.2d 579 (1979), does nothing but favorably

affect the Florida Supreme Court's analysis. Women with

children under 15 years of age is simply not a constitutionally

significant class. This is especially the case with reference

to the facts of the instant trial, wherein this "class" was

indeed represented on Petitioner's jury.

Respondent agrees with Petitioner, that a defendant

has the right to a fair cross-section of the community as

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potential jurors under the Sixth and Fourteenth Amendments.

However, Florida's statute does not deny a defendant this

right and, even if it did, Petitioner's jury was not affected

by the existence of the statute. There is no substantial

federal question involved in this issue under these facts.

CONCLUS ION

Based upon the foregoing argument, supported by

the circumstances and authorities cited therein, Respondent

would respectfully request that this Honorable Court deny

certiorari jurisdiction over the instant matter.

Respectfully submitted,

JIM SMITH

Attorney General

Tallahassee, FL 32304

2 6 a athe, “hn (

ROBERT L. BOGEN

Assistant Attorney General

111 Georgia Avenue, Room 204

West Palm Beach, FL 33401

(305) 837-5062

Counsel for Respondent

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